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Reuters
The acquittal of three former Barclays executives is the only time a jury has ruled on criminal allegations against senior bankers for events in the 2008 crisis.
The senior executives in this trial, which began in October – Roger Jenkins, 64, Tom Kalaris, 64 and Richard Boath, 61 – were not the top bosses of Barclays.
Instead, they were between one and four ranks down from the board of directors in the bank’s hierarchical structure.
The allegations centred on a giant fundraising exercise in 2008 which enabled Barclays to escape the nationalisation forced on its competitors, RBS, Lloyds and HBOS.
The defendants were accused by prosecutors of conspiring to commit fraud in connection with that fundraising effort.
They argued that it was not a fraud – and that if, alternatively, it was judged to be a fraud, they were not the ones who should be held accountable for it.
Their actions, their barristers said, were approved and negotiated at the top of the bank and signed off by the banks’ top lawyers.
In the end, the jury took less than six hours to find in their favour. The decision comes as a setback for the Serious Fraud Office, which took years to launch its prosecution and has now had its case thrown out.
Pressure to raise funds
In 2008, Barclays, like other banks, was running low on cash. The bank deregulation of the late 1990s and the credit and property boom of the early to mid-Noughties had led all banks to lend far more than they ever had before.
The key difference was that the money for that lending was coming, not just from the banks’ savers and depositors, but also from investors all around the world.
As the volume of lending grew, property prices rose and bonuses soared.
The banks took their eyes off their balance sheets – a fact which by 2008 was painfully apparent.
The credit crunch that had been triggered by huge losses on sub-prime mortgages in the US began in August 2007: banks didn’t want to lend to each other, because they didn’t know how much either they or their competitors had lost.
For RBS, HBOS and Barclays, what are known as “capital ratios” – the financial safety cushions they kept against the risk of not getting their money back – were looking threadbare.
At its worst, for every £100 the banks had lent, if as little as £3 or £4 failed to be repaid, it might be enough to bankrupt them.
After the rescue of Northern Rock in September 2007, the Treasury dug into the figures and put the banks on notice. They had to plump up those safety cushions by raising billions of pounds.
At first, wishing to avoid further Northern Rock-style nationalisations, regulators and government insisted they do so privately.
RBS raised some money on the markets and HBOS tried to do the same, with poor results. The smart money at the big City institutions didn’t want more bank shares. Who would want to invest in beefing up the banks when they looked in such bad shape?
Qataris demand higher fees
So in May 2008, Barclays’ top bosses set in motion Project Birdcage, a plan to raise billions of pounds from sovereign wealth funds in China, Japan, Singapore and the Middle East, who were still willing to take a risk in exchange for a good return.
Its “cornerstone investor” – the one whose commitment would encourage the others to invest – was the gas-rich Gulf state of Qatar.
Roger Jenkins, who headed Barclays Capital’s operation in the Middle East, had got to know Sheikh Hamad bin Jassim bin Jabr Al-Thani (also known as ‘HBJ’), the Prime Minister of Qatar, and convinced him to invest.
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AFP
Sheikh Hamad was key to the Barclays fundraising drive
Barclays had approved fees of 1.5% to be paid to each investor who put money up in exchange for shares.
However, at a meeting on 3 June at Claridge’s, a representative of the Sheikh told Mr Jenkins he wanted more than double the normal fees.
In capital raisings such as the one Barclays was doing, investors expect to be treated on an equal footing with each other and paid the same fees.
However, the court heard that top Barclays executives did not want to pay all investors the same higher fee they had agreed to pay the Qataris.
So a mechanism was found to pay the Qataris extra: they would receive £42m in an agreement for advisory services.
On 25 June 2008, Barclays announced it had raised £4.5bn. The investors were the Qatar Investment Authority, another Qatari investment fund called Challenger (run by HBJ), Sumitomo Mitsui Banking Corporation of Japan, China Development Bank and Temasek, a sovereign wealth fund owned by the government of Singapore. The advisory services agreement was mentioned, but not the fee.
Peak of the crisis
By early October, however, it was clear to the Treasury, the Bank of England and the regulators that the private fundraisings by the banks were not enough.
Following the collapse of Lehman Brothers in September, the whole financial system was in jeopardy.
Then Prime Minister Gordon Brown and Chancellor Alistair Darling feared that if they didn’t force the banks to beef up their threadbare finances as a matter of urgency, more Northern Rock-style bank runs would follow and cash machines would dry up.
The banking crisis threatened to mutate into a full-blown depression.
Gordon Brown and Alistair Darling were concerned banks did not have sufficient capital
Part-nationalising the banks by forcing them to take taxpayers’ capital in exchange for shares was the government’s reluctant but decisive solution, imposed on RBS, Lloyds and HBOS on the weekend of 11-12 October and announced on 13 October 2008.
But Barclays was determined to avoid nationalisation. On the morning of 13 October, it announced that it was raising more funds privately.
Roger Jenkins went back to Sheikh Hamad, whose representatives now demanded compensation for what he had already lost on Barclays’ falling share price, on top of an additional reward for investing.
Later that month, the Advisory Services Agreement agreement was extended: Barclays would now pay the Qataris a further £280m.
On 31 October, Barclays announced it had raised a total of £7.3bn from the Qatari investors and from the nearby emirate of Abu Dhabi. This time, neither the fee nor the Advisory Services Agreement were referred to.
Allegations and defence
In both June and October 2008 (as is normal), public documents had to be sent to investors setting out the terms of the capital raising (for example, the fees Barclays would pay) so they could see what they were buying into: the prospectuses and subscription agreements.
It was in those documents, the Serious Fraud Office alleged, that fraudulent representations were made.
Specifically, prosecutors told the court, the documents said there were no other fees or commissions payable by Barclays in connection with the investments being made, beyond those disclosed in the public documents.
That, the SFO said, was “plainly a lie”: the bank had paid £322m in undisclosed extra fees demanded by the Qataris, via the side agreements for advisory services.
Those agreements, prosecutor Ed Brown QC told the court, were “mechanisms to pretend that the fees related to genuine services agreements, when in truth they were just a means of paying the Qataris the additional fees”.
Barclays’ board of directors knew about the agreements and that they received advice from lawyers for the bank who had told them the agreements were legal – as long as the bank got valuable services from the Qataris.
The SFO’s counter-claim was that the defendants never intended that valuable advice services would be provided – and concealed that from the board and the lawyers.
Charging decision
After investigating the case for five years, Serious Fraud Office director David Green finally took a decision to charge four executives with fraud and conspiracy to defraud on 20 June 2017.
Another executive, former finance director Chris Lucas, was alleged to be key to the conspiracy but was not prosecuted because of ill-health.
The case against Roger Jenkins, Tom Kalaris and Richard Boath had another particularly unusual feature. The prosecutor’s accusation was that they were part of a criminal conspiracy to commit fraud by false representation.
But, as defence lawyers pointed out, they didn’t make the representations themselves.
The alleged lies in the public documents – saying they had paid no extra fees – were made by the bank as a corporate entity. And the banks’ top directors had testified to their truth in directors’ letters.
Yet neither the bank nor its directors were on trial. So the SFO argued the conspirators effectively got the bank to tell the lies, saying there were “no extra fees” without the bank knowing it was doing so.
In the SFO prosecutor’s narrative, the bank was an “innocent agent”, innocently carrying out the fraudulent intentions of the accused conspirators. The defendants, needless to say, rejected that story, and their case has now prevailed.