Misfortune takes many forms and, as surely as some travellers will need medical care, with distressing regularity some will need help because they have been arrested for a crime they did not intend to commit, are themselves crime victims, or suffer injury at the hands of another.
Decades of experience in the field of international criminal law, operation of a global legal hotline serving the travel insurance industry, and years of involvement with industry boards and committees, in conjunction with government releases and other reporting, suggest that as many as 40,000 travellers are arrested worldwide annually; in 2022 that included more than 6,000 British nationals and 12,000 Americans. Most of the criminal cases in which we have been involved arose out of an inadvertent violation of law. Twenty-five years of experience with travel insurance injury claims shows that, depending on the book of business, roughly 12 to 25 per cent of medical claims will be attributable to accidents.
While insurers respond immediately to address medical needs with state-of-the-art operations, the same focus is lacking in these other important areas. There is a simple remedy: a benefit that provides insureds with a free legal consultation along with a recommendation for local counsel. If that recommendation is made, it becomes the insured’s choice whether to retain and pay local counsel; travel insurance need not. Shared among many insureds, the cost to provide this service is minimal. In the case of accidental injury, prompt involvement of local counsel can both assist the insured and increase the opportunity for successful subrogation.
Part one of this article will show how a legal consultation or referral has helped travellers who found themselves unwittingly entangled in other countries’ criminal justice systems. In the November issue, we will address the importance of legal assistance for student and cultural programmes and injured insureds.
The case of Mr C
In February 2021, Mr C, a 51-year-old American, flew to Dubai on a business trip where he suffered a sudden attack of pancreatitis. Lacking travel insurance, he made his own arrangements for hospitalisation. While still in his hospital bed, he was arrested and charged with ‘internal possession’ of marijuana, based on a trace amount of tetrahydrocannabinol (THC) found in a urine sample taken upon admission. Despite his explanation that he had last smoked marijuana weeks earlier at home in Nevada, where its use is legal, he was jailed in a filthy cell without food, water or any way to bathe. His IV, still in his arm, caused an infection, and he was unable to obtain his prescribed medicine. He faced three years imprisonment under harsh conditions.
A brief industry survey revealed a largely haphazard approach to requests for legal assistance
After several days, Mr C retained counsel recommended by a fellow prisoner – an often flawed process, since inmates typically recommend whichever lawyer pays them the best referral fee. He was released from jail, but his passport was confiscated and he was confined to his hotel for two months – at his expense – until the final disposition of his case. After spending US$50,000, he was deported.
Had Mr C been able to access an immediate legal consultation and referral, local counsel could have prevented his incarceration, arranged for continuation of medical care and bail supervision, instead of a lockdown, and expedited resolution of his case at a lower cost. A brief industry survey we conducted, however, revealed a largely haphazard approach to requests for legal assistance that suggests that Mr C would have faced significant hurdles in quickly obtaining the help he needed.
Flawed lawyer lists
Some companies inform callers seeking legal help that there is no benefit for those accused of a crime. A few will recommend a local practitioner, but that information is usually unavailable since calls for help come from all over the world. Others provide contact information for the local bar association or law society. The most common response is to refer the caller to a list of lawyers on the website of the insured’s home country’s embassy or forward a copy of the list to the insured, a friend or relative.
Critically, since most arrests occur on weekends, during a holiday or at night, many lawyers will not be accessible
Reliance on these lists, when time itself is of the essence, is at best problematic. Critically, since most arrests occur on weekends, during a holiday or at night, many lawyers will not be accessible. Lawyers frequently appear on the lists simply because they have requested inclusion, not because of expertise, and can remain on them after multiple complaints. We have been involved in several situations in which lawyers who took a retainer did nothing and, although reported to the authorities, remained on the lists.
An attorney may not speak the language of an insured; in one recent situation, the extent of the lawyer’s English was ‘hello’, ‘goodbye’, ‘yes’ and ‘no’. A list may not be current; it may include lawyers who have retired or moved, are disbarred or deceased. Telephone numbers may have changed; calls may go to infrequently checked voicemail. Lawyers and law firms may not be competent to handle criminal referrals.
The case of an American couple
An elderly American couple who had purchased a carved giraffe bone at a game preserve in South Africa were arrested at the airport in Tanzania for poaching the national animal – a giraffe – when the police refused to accept their receipt. The wife was jailed in a small cell along with seven local women imprisoned for murder. Her husband alerted the police to his severe immune deficiency and was placed in the jail’s hospital ward alongside 11 prisoners who were being treated for tuberculosis, five of whom had AIDS. Prompt release was literally a matter of life and death, but the director of the anti-poaching task force demanded a 20-year sentence and recommended that the couple be held without bail.
Prompt release was literally a matter of life and death
Contacted by their assistance company, we immediately obtained the services of a local lawyer, who secured the couple’s release on bail within hours. With the case stalled by the intractable position of the anti-poaching director, despite the diligent work of local counsel, the assistance company considered extracting the couple by helicopter to Kenya but determined that this was too dangerous. The situation resolved only when we enlisted the help of a US congresswoman, who threatened to cut off US tourism to Tanzania unless the couple were promptly allowed to return home.
It’s not difficult to imagine how this situation would have played out in the absence of the immediate involvement of experienced local counsel.
The Thai money case
A visitor to Thailand returning home became infuriated at the exchange rate he was offered when he went to convert Thai money at the Bangkok airport, and ripped up €3 worth of bahts. He was immediately wrestled to the ground by security, arrested and jailed. Thai law makes it a felony with a maximum prison sentence of 15 years for anyone convicted of disrespecting the King or any member of the Royal family – including the Royal dogs. This is so serious a crime that, while murderers and drug lords may be eligible to transfer to their home country’s prison system, those convicted of it must complete their sentence in Thailand. The man’s assistance company contacted us and, helped by the advice of a forensic psychologist we knew, the Bangkok attorney we involved had the case dismissed on mental health (‘anger management’) grounds.
Relying on procedures commonly employed in the industry to obtain an attorney qualified to assist in this situation would have made it much more difficult.
The case of an American physician
A US physician was arrested at the airport in Kochi, India, for possession of a satellite phone he had been advised to have on his trip because of outages and spotty cell phone coverage in some of the cities he and his wife intended to visit. As it turned out, possession of a satellite phone by any non-citizen was illegal under a law that had been vigorously enforced since 2008, when terrorists evaded India’s heavy border security by making untraceable satellite phone calls, then bombed the Taj Mahal Palace hotel in Mumbai, killing 174 people in multiple locations.
The doctor faced a three-year prison sentence. His wife called their assistance company at 1 a.m.; the assistance coordinator immediately contacted us (3:30 p.m. the prior day, Philadelphia time); and within minutes we were on the phone with a local attorney who we knew well. During this call, he reached a police official friend in Kochi and brokered an unprecedented agreement: instead of confinement in an abysmal cell, as commonly occurred in arrests in Kochi, the doctor, without handcuffs, was allowed to accompany his wife back to their hotel where a police officer stood guard outside their room. In the morning, the doctor was released on bail. With further assistance from the attorney, the doctor reclaimed his passport and the next day the couple returned to the US. With a seven-year court backlog, the doctor’s case is still pending; the trial will be held in absentia with only his lawyer present on his behalf. Anything other than immediate legal intervention by competent, connected local counsel might well have resulted in incarceration under deplorable and dangerous conditions.
With a seven-year court backlog, the doctor’s case is still pending
In each of these situations the insureds paid for their attorney.
The case of the expats
Three expats returning to work in Saudi Arabia from a weekend in Bahrain were stopped at the Saudi border at 5 a.m. on a Sunday. Several partially filled liquor bottles were found in the trunk of their car. The possession of alcohol is a criminal offence in Saudi Arabia. The driver’s assistance company called us, where it was 10 p.m. on Saturday. A hearing was scheduled at the remote border court in four hours.
Securing help through the embassy list would have involved a wait of several hours
We determined that no local lawyer was available to assist at the hearing: the attorneys in the area where the insured was being held practised only sharia law, which is generally inapplicable to non-Muslims. Securing help through the embassy list would have involved a wait of several hours until law firms in Riyadh opened and likely multiple calls (if allowed) to try to obtain representation that, assuming the lawyer could drop everything else to help, would have necessitated a nine-hour round trip from Riyadh to the court (at an hourly rate of up to $1,000 per hour). Considering the circumstances, the best available option was for us to conduct a legal consultation with the insured and his colleagues in which we advised what to say and how to act at the hearing. Following our instructions, the insured avoided severe punishment (he was fined 200 SAR, approximately €48), and their arrest for conspiracy, a significantly more serious offence. They were at work in Riyadh later that day.
The case of the Belgian arrest
In another instance, an expat executive who flew from London to Brussels for a business appointment was arrested upon arrival at the airport on a Red Notice from Interpol which demanded detention for an extradition hearing. His employer had become embroiled in a contract dispute with a company in Dubai. That company, without notifying the expat or his employer, had instituted a criminal case in Dubai to obtain €800,000 it claimed it was owed and obtained a judgement against both the company and the expat that included a six-month prison sentence for the expat. A hearing was scheduled in a Belgian court for 1 p.m. that afternoon. The executive faced extradition to and then imprisonment in Dubai – not just for the six-month sentence but, under Emirates’ law, until the full amount of the judgement plus 12 per cent annual interest was paid.
The executive faced extradition to and then imprisonment in Dubai
His employer’s assistance company contacted us at 3:15 a.m. in Philadelphia (9:15 a.m. in Brussels). We reached an extradition lawyer who agreed to cancel his lunch plans and represent the expat, whose employer paid the attorney’s fee. The lawyer knew that Belgian law made release discretionary with the judge if the underlying prison sentence was six months or less and gained the expat’s discharge.
The expat was instructed to avoid taking the Eurostar train back to London since border control officials on the route in France could re-arrest him and French law would require incarceration on the warrant. We arranged for an immigration/criminal solicitor, whose office was near Heathrow, to be on standby in the event he was detained upon his return to London. He was also warned to avoid international travel until the Dubai case was settled. The employer resolved the dispute without the pressure and disadvantage of having its executive in custody.
The need for competent local counsel can also be critical in less serious situations. Even routine traffic citations can result in legal complications. The wife of a couple who regularly visited France was cited for illegal use of a radar detector. They called their assistance provider to see if they could safely ignore the ticket. We conducted a conference call with the couple and a French avocat who informed them that, if they did, when they returned to France the wife would likely be detained at the airport, perhaps for days, until the matter was ‘sorted out’. The couple paid the fine.
Visitors to the US are frequently arrested for driving with an invalid foreign licence, no licence, or speeding
Visitors to the US are frequently arrested for driving with an invalid foreign licence, no licence, or speeding. ‘Driving while intoxicated’ arrests have become increasingly common in the US and elsewhere as the use of breathalysers during traffic stops has increased. Some visitors to the US from countries in which a passenger drinking alcoholic beverages in a moving car is not a crime have been surprised to find that, in the US, it is. Each of these arrests can result in a criminal conviction. A criminal conviction, even one for a driving offence, can bar entry to the US and Canada. If convicted of an offence for which the maximum penalty is 12 months or greater, a would-be visitor to the UK may be refused entry.
In some countries, certain vehicle accidents are treated as crimes regardless of fault. In Mexico, an insured was rear-ended by a car driven by a local who was injured in the accident. The insured, though not culpable, was arrested on the spot. His assistance company contacted us. Since no legal help was immediately available in that area, we arranged for the manager of his company, an insurance representative, and a local politician to meet him at the police station where he was about to be placed in a hellhole cell. They obtained the insured’s release with a show of concern and determination. This all happened on a Saturday afternoon. The same outcome would probably not have occurred if the insured had been provided with list of lawyers who likely could not have been reached until the following Monday.
As illustrated by the Saudi, French and Mexican examples, in many of the calls received we have been able to assist to the extent that further legal help is no longer needed. When local counsel was recommended, the insureds paid for the lawyer’s services – and were grateful to do so. Automatically arranging for a consultation or referral for an insured in need of legal aid, the safest and most helpful practice, eliminates responsibility for determining if such calls should be referred, trying to find a lawyer for the insured, or simply referring the insured to a lawyer list. Aside from the complications these responses can cause an insured, assistance companies, underwriters and travel plans might be subjected to legal action for damages on the predicate that refusal to help, agreeing to help but not doing so effectively, or referral to an incompetent attorney is actionable. Judgement calls can lead to complications if, in someone else’s judgement, bad judgement was used.