Advocacy in Transnational Criminal Law

As a specialist Chambers focusing on transnational crime, LawAid International has firsthand experience in managing complex cross-jurisdictional criminal cases that often first present as a “mission impossible” legal project in a foreign jurisdiction.

Recently, the University of Cambridge’s Judge Business School published a short piece by Dr Kishore Sengupta giving six pieces of advice on legal project management.

In brief, Dr Sengupta highlights the following:

1. Effective project management relies on a wealth of tools, but many law firms struggle to know where to start.

2. Information overload can stifle effective project management, but there are solutions.

3. Selecting former lawyers as project managers can help establish credibility.

4. Project managers often rely on subjective information due to limited time available, and they tend to favour good news over bad.

5. Good legal project management encourages challenge and constructive debate.

6. If a project faces problems, be wary of optimistic sentiments from the project team and client.

This is great broad brushstroke advice. In this short piece, we use Dr Sengupta’s thoughts as a starting point from which to set out a few key ideas for effectively managing transnational criminal cases or legal projects. These are often projects that engage multiple enforcement agencies and criminal justice systems and have their own set of unique issues such as the client being impecunious; the government of no assistance; and a foreign criminal justice system with a weak, two tiered or non-existent rule of law.

1. Know how and where to start.

From the initial phone call from the client (or their family) who may be locked up in a foreign jail (or about to be detained). They won’t speak the local language, and will be feeling out of their depth and scared.

To set out on the right foot, you need to start with the end in mind. It is critical to separate out issues of process from issues of substance. Keep the factual and legal matrix clear in your mind. Make sure you identify the key players and contacts in the jurisdiction, and understand the legal processes and culture of the jurisdiction. You will need to obtain proper instructions. This will likely involve a trip to the prison to speak in person with the client. You will likely also need to engage a trustworthy local practitioner.

Taking time to develop a clear strategy in consultation with the client, their family, and other professionals will pay off in the long run. Knowledge is power. Starting the process on the back foot will be a painful, stressful and dangerous process for the client.

2. Know what information is relevant to your case.

Don’t get bogged down in extraneous detail. Stick to your message, and focus on clear points of strategy and advocacy.

Understand where the risks are. You need to ensure a fair and reasonable balance between competing interests: legal, financial, media, personal. In most transnational cases there will be competing interests that need to be harnessed in a symbiotic relationship for the client.

3. Get the right people on board — and keep the wrong people out!

When operating in a foreign jurisdiction, you need to bring on board well-connected, competent people who will be an asset to your team. That sounds obvious — but finding these people can be a different matter entirely. Pre-emptive networking and preparation is helpful — but if these people are not available immediately, then careful screening is critical.

Equally though, it is imperative to keep your team tight. In a high-profile case, there are vultures — often other lawyers and media — who will be circling overhead, waiting to pick over the bones of your client and the story.

4. Be unbiased.

In jurisdictions with a weak rule of law, criminal cases can proceed at an unpredictable pace. It’s important to bear in mind that there are a range of contexts to consider — the advocate must contend with navigating not just an unfamiliar legal environment, but also unfamiliar cultural and political environments.

In this type of situation, you may be relying on subjective, potentially incorrect, information. Extreme caution is required to understand the implications of action taken.

5. Be open to different strategies, viewpoints, and constructive criticism.

In every case, there are a range of possible outcomes which would be viewed as a success. Some of these are legal outcomes, and others are non-legal. Consider the point that raising awareness of an issue in order to prevent others from making the same mistakes as your client is a form of success.

Don’t be afraid to use all the tools at your disposal — these will include the media, NGOs, MFAT and other government officials. Strategic alliances are necessary to keep moving forward on behalf of your client when there are resource constraints.

6. Be realistic.

Supporting a client who is detained abroad is difficult. Not every case is going to end up with the client coming home. It is important to manage the expectations of the client and their family.

As said once already: information is power — and control. Often just by advising people of the process and timeframes, a degree of relief is achieved.

Finally, keep in mind that some criminal justice systems are never going to deliver a fair outcome for your client. Get over it. Own what you can control — the advocacy process.

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Craig Tuck and Thomas Harré

LawAid International