In May 2016 I sat in Miami at the Offshore Alert Conference as the debate over the Panama Papers was live-streamed all over the globe.
The presentation was by the International Consortium of Investigative Journalists (ICIJ), a self-styled community of two hundred journalists in sixty-five countries, loosely affiliated with the Centre for Public Integrity which is US based and has been operational since 1999. To quote themselves “Our Mission. To serve democracy by revealing abuses of power, corruption and betrayal of public trust by powerful public and private institutions, using the tools from investigative journalism”.
To quote the ICIJ:
“Why we Exist?
The need for such an organization has never been greater. Globalization and development have placed extraordinary pressures on human societies, posing unprecedented threats from polluting industries, transnational crime networks, rogue states, and the actions of powerful figures in business and government.
The news media, hobbled by short attention spans and lack of resources, are even less of a match for those who would harm the public interest. Broadcast networks and major newspapers have closed foreign bureaus, cut travel budgets, and disbanded investigative teams. We are losing our eyes and ears around the world precisely when we need them most.
So far, so laudable. One has to question the absence of checks and balances and oversight or should one?
Given the incapacity of law enforcement and the absence of working checks and balances within those societies who provide clients, for many, of the less salubrious offshore operators, ie the idea that journalists should be, in some fashion, better regulated seems hard to credit. In a word who else is going to do it?
Journalists themselves are, in the age of massive data downloads from a variety of sources, overwhelmed by the amount of information that they have at their fingertips and some have expressed themselves as being ill-equipped to deal with the power of the information now available.
The May 2016 debate was attended by lawyers, bankers, investigators, government bodies and law enforcement. Many different words were used by many different people: “transparency, yes”; “secrecy, no”; “privacy, yes” to name but some. Parts of the world and many of its leaders seem immune from notions of conformity and morality.
Will it ever be possible to lay down guidelines at this stage for what should or should not happen to leaked data?
Recently announced in a variety of media outlets is the fact that there has been a big breach of security at Appleby, Bermuda and that Appleby, as an organisation, is now under investigation by the ICIJ.
As it was put in The Times “Clients of Appleby are bracing for their financial secrets to be exposed after the company, based in Bermuda, admitted that its computer records had been hacked last year. The company said that the leaked data had been analysed by the ICIJ, the Analysis of Land Registry data by The Times shows that hundreds of properties were purchased in the UK through shell companies associated with Appleby offices in Bermuda and other offshore jurisdictions. They include a hotel in central London connected to a Malaysian tycoon and a language school with a string of multi-million pound location”.
Juxtaposed in that same article are the following quotes:
“A ruling by the Royal Court in Jersey last month found that Appleby Mauritius had manufactured correspondence, transferred a promissory note worth millions “in a brazen attempt” to evade the court’s jurisdiction and acted in a “shameful and hostile” manner towards Cristiana after apparently siding with her mother. The court found that the evidence showed the company “in a poor light””.
“It ordered Appleby Mauritius, Mrs Crociani and another former trustee, BNP Paribas Jersey, to repay an estimated $200 million (£149 million) taken from a trust fund that had been set up to benefit both daughters.”
What do we know about Appleby?
“Appleby is an offshore law firm with around 470 people, including 60 partners, operating from 10 offices around the globe. We advise global public and private companies, financial institutions, and high net worth individuals, working with them and their advisers to achieve practical solutions, whether in a single location or across multiple jurisdictions.”
One query in my mind is how much law, as the man in the street understands, does Appleby do? Is it not the case that the majority of their revenue comes from forming and managing offshore entities?
Bearing in mind that we are post-Panama Papers, it is worth looking for one moment at the effects of the Panama Papers. Much of the relevant information is now searchable online and more is available elsewhere.
What did the Panama Papers reveal?
That misuse had been made of offshore structures is beyond peradventure. The revelations have led to understandable civil unrest, changes of government, that is to say that governments would never have been elected or stayed there if people had known the truth; arrests, that is to say that had the truth been available the persons in question would not have been in circulation and a multitude of investigations, the results of which will take many years to come to fruition.
Not unnaturally many people look at this and say that there is nothing good offshore. How does the person in the street equate the aftermath of the Panama Papers with legitimate utility of offshore centres by lawful, well-intentioned folk, intent on shouldering their fair share of their fiscal and related responsibilities.
Let us contrast the position, for one moment, with minimum wage employees. I have always wondered whether restaurant and hotel staff actually get their tips. There have been a number of expose´s in relation to the workings of some of the less salubrious larger employers indicating that they do not. There are various administration fees if not worse, deducted before they ever see the money. Personally, I always put cash on the table.
HMRC insists on having tips monitored by a troncmaster (a formal scheme to capture tips) so that HMRC gets all of its PAYE from the poorest in society. Contrast that position with the rock and roll that goes on offshore, where the rich, the famous and large corporations pay small if any percentage of their earnings to the taxman and it is not difficult to see why the public resentment is so high.
It will be interesting to see what comes out of what doubtless will not be the last big leak of carefully preserved data between what should and should not see the light of day.
Is there a dividing line? An inherent tension exists between legitimate enquiry, misuse of stolen or misappropriated data, and the legitimate claims that all of us have to privacy in our own affairs including privacy between ourselves and our legal advisors and the need for accountability at all levels of society.
This is going to be an unfolding story.