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GOVERNMENT ROLLS BACK ON PROFESSIONAL ENABLERS

GOVERNMENT-ROLLS-BACK-ON-PROFESSIONAL-ENABLERSJonathan Fisher QC considers whether recent amendments to the Serious Crime Bill 2014/15 will exempt solicitors and other professionals who unwittingly become involved with the activities of an organised crime group.

SPEED READ

Lobbying by the Law Society’s Money Laundering Task Force has resulted in an amendment to the Serious Crime Bill 2014/15. The offence of participating in an organised crime group has been rolled back in an effort to ensure that its scope does not extend to those who unknowingly become involved with organised crime. While the amendment goes some way towards meeting the criticisms that have been made of the Bill, without further safeguards being put in place there are circumstances in which those inadvertently involved in criminal activity could still be exposed to liability.

DISCUSSION

In a previous commentary, I discussed how clause 44 of the Serious Crime Bill 2014/15 had the potential to significantly expand criminal liability for “professional enablers” such as solicitors, accountants and other professionals. Clause 44 proposed the offence of participation in an organised crime group which is punishable on indictment with up to 5 years imprisonment. As introduced, the offence applied to participation in activities that a person “...knows or has reasonable cause to suspect...” are connected to organised criminal activities. Due to successful lobbying by the Law Society’s Money Laundering Task Force, the scope of the offence has been narrowed. The mens rea element has been amended from “...reasonable cause to suspect...” to “...reasonably suspects...”.This means that the test will now be subjective rather than objective. This, it is hoped, will stop those who unknowingly become involved in the activities of organised crime groups from falling foul of the law.

While this reform is to be welcomed, there is residual concern that the amendment does not go far enough. The line between “reasonable cause to suspect” and “reasonably suspects” is a fine one, since it is always open to the prosecuting authorities to invite a jury to infer the existence of the latter from evidence of the former. In other words, if objectively speaking, there is “reasonable cause to suspect”, there will be a strong inference from this evidence that a solicitor must “reasonably suspect”, notwithstanding his protestations to the contrary. If a jury rejects a solicitor’s testimony that he did not have any suspicion in the face of evidence giving rise to reasonable grounds to suspect, he will be convicted and exposed to a maximum sentence of five 5 years imprisonment.

Interestingly, the Human Rights Joint Committee in a report dated 15th October 2014 recommends that the Government should consider a higher level of mental awareness before the offence can be said to have been committed. The Committee suggests that Clause 44(2) should be amended so that a person must “...reasonably believe...” rather than “...reasonably suspect...” the involvement of an organised crime group. The Committee also proposes that a general defence is introduced into the Bill which provides that a person will not be found guilty of an offence if “the person acted reasonably in all the circumstances.” These proposals, taken together, would address the concerns which have arisen in relation to Clause 44(2) and, even at this advanced stage in the Parliamentary process, it is not too late for these changes to be made. The interests of law enforcement will be better served by working in partnership with solicitors and other professionals. Attempted coercion into co-operation by draconian legislation is not the answer.

 

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The views expressed in this article represent those of the author and not Bright Line Law.

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