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Crimes Committed In Light Of The Spread Of The Coronavirus

Author And In Collaboration with ADR Arbitration Chambers

Rashed Jazzazi
Graded Judge Amman First Instance Court

Mr S.K.Joy Ramphul
Senior Partner

Crimes committed in light of the spread of the Corona virus, and its criminal liability in the Jordanian legislation

It is clear that the Corona virus is very dangerous as it threats the human lives and health. It spreads fast whether directly or indirectly between humans. The media and social media have contributed to enhancing the culture and knowledge of the symptoms of the virus infection. There is no doubt that isolating the infected person at home or quarantine, is almost the only way for protection and to prevent this dangerous virus of being spread between people.

Thus, an important question arises in the field of criminal law, specifically in the context of crimes of transmitting infection with an epidemic disease to others, which is: Is it possible to punish the infected person when he\she transmits this virus to others intentionally or by mistake if it leads to death or harm?

The criminal liability of an infected person who transmits it to others varies according to his\her intent, the result of the act, and also differs according to his\her awareness of being infected.

Therefore, it was necessary to discuss the cases in which the infected persons can use this virus in committing harm crimes and murder.

Introduction

On March 11th 2020, the World Health Organization announced that the Corona virus considers as a pandemic not a flu([1]), which prompted the whole world to take the necessary precautionary measures, and from those countries the Hashemite Kingdom of Jordan, where announced the suspension of education in schools, universities, institutes and all other organizations. Also the Prime minister declared the state of emergency and the Defense law has been activated, which states a curfew preventing people from being off the streets; to protect them from the virus infection.

There is no doubt that the human right of life and the right to live a normal life devoid of pain and suffering are the oldest and holiest rights that are protected by the monotheistic religions and all statutory legislation.

The Jordanian legislator stipulated severe penalties on harm and murder crimes, which is obviously in Articles 326 and beyond of the Jordanian Penal code. However, the problem arises when unconventional methods are used to assault the body and the human soul, such as microbes (bacteria and viruses), especially if the method of transmission is easy, which leads to a quick spread that may reach the level of the global epidemic, as what happened with the new Corona virus (COVID-19) at the beginning of the year 2020.

Perhaps the legal question that arises in this circumstance is:

  • What is the criminal liability of the virus’ carriers in case they transmitted it to others, whether intentionally or accidentally as a result of negligence and failure to observe laws and regulations, if it leads to harm or kill others?

This question will be answered in detail in this research paper, depending on the analytical method, by reviewing the pillars of each crime in the Jordanian legislation, supported by the judicial interpretations of the Supreme Court whenever it is possible.

Bodily Harming

Harming: An assault, whether in a positive or negative way, that affects the physical safety of the victim, as hitting, injuring or giving harmful substances, or by any other influential act. Physical safety means the normal functioning of the body’s organs and its freedom of pain. This means that any action that would disturb the normal functioning of the body’s organs, affect its safety, or cause pain, no matter how slight, is considered harming([2]).

The Jordanian Penal Law does not provide punishment for the intentional or unintentional transmission of the Corona virus. Therefore, it is a controversial issue to determine the proper legal adaptation of the committed acts. In this regard there are several descriptions of the transmission of the Corona virus which can be combined into two descriptions:

First description: Unintentional harm
By reviewing the Article (344\1 and 2) of the Jordanian Penal Code, which states:

“1. If the perpetrator’s fault only caused injury as the one stipulated in articles 333 and 334 the punishment shall be imprisonment from three months to two years or a fine from fifty to two hundreds dinars (JDs 50-200).

2. Any other involuntary harm shall be punished by imprisonment for a period not to exceed six months or a fine not to exceed fifty dinars (JDs 50).”

It is clear from the previous article that the physical pillar of the crime of unintentional harm consists of three elements:

  • Body assault: like knowing about being infected with Coronavirus and not complying with or neglecting isolation procedures.
  • Criminal result: infecting others with the virus and harming them without leading to death, or endangering their lives.
  • Causal relationship: when the result has been achieved by the perpetrator’s mistake or negligence.

In addition to the physical pillar, the unintentional harm must have its moral pillar, which takes the image of mistake or negligence, such as neglecting isolation procedures and socializing with people despite of the awareness of the infection.

According to the mentioned above, if all these pillars are met, an unintentional harm will be constituted which occurred through the transmission of the Coronavirus infection.

Second description: Intentional harm
By reviewing the Articles (333 and 334) of the Jordanian Penal Code, which state:

“Article (333)
Whoever intentionally assaults a person through beating or injuring or harming him/her by any effective act of violence, and the assault resulted in an illness or that the victim is prevented from carrying out the duties of his/her work for a period more than twenty days, he/she shall be punished by imprisonment from three months to three years.

Article (334)
1. If the acts stipulated in the previous articles did not result in any illness or work prevention or resulted in an illness or a work prevention for a period not more than twenty days, the perpetrator shall be punished by imprisonment for a period not to exceed one year or a fine not to exceed one hundred dinars or by both penalties.

2. If the acts stipulated in the previous articles did not result in any illness or work prevention exceeding ten days, a legal action can only be taken based on a written or oral complaint by the victim, in such a case the complainant has the right to drop his/her complaint as long as there is no final judgment issued in the case.”

It is clear from the previous articles that the difference between both of them lies in the duration of the suspension, whereas if the duration is less than ten days, the person who has the right to pursue the perpetrator is the victim by filing a complaint, but if the duration exceeds that period of time, the perpetrator will be pursued without filing a complaint by the victim, and the punishment will be more severe.

The pillars of the intentional harm crime are:

  • The legal pillar: It is the presence of a text that bans the act of harm in its various forms, as stipulated in Article (333) of the Jordanian Penal Code and beyond.
  • The physical pillar: It has three elements: Criminal behavior, criminal result, and the causal relationship between that behavior and result.
  • The criminal behavior: the act of assault by hitting, injuring, giving harmful substances, or by any other effective act.
  • The criminal result: The harm of the victim’s body. This result must be actually achieved, as the legal description of the crime of harming depends on the result’s severity. If the result is not achieved, the harming act is not punishable. Taking in consideration the fact that the result should not be death or endangering the victim’s life; because in this case another crime will be committed, which is killing or attempted murder, as will be explained later.
  • The causal relationship: The act of hitting, injuring or giving harmful substances, or other effective acts related to the criminal result.
  • The moral pillar: The criminal intent, which is the will to commit a crime as defined by law (Article 63 of the Jordanian Penal Code)([3]) and consists of two elements: knowledge and will. This means that the perpetrator must know what he\she is doing, and his\her will must be directed to that act and to achieve that result. As this will must be free and aware.

According to the above, if all these pillars are met, As if a person infected with the Corona virus sneezes in the face of others for the purpose of transmitting the infection and harming them, and the result is achieved. Then, an intentional harm will be constituted which occurred through the transmission of the Coronavirus infection.

In this regard, Articles (22\b and 66) of the Jordanian Public Health Law must be highlighted, as these articles state:

Article (22\b) of the Jordanian Public Health Law states:
“Anyone who intentionally conceals an infected person or exposes a person to an epidemic disease or intentionally caused the transmission of infection to others or refrained from carrying out any requested action in order to prevent the spread of infection, it is considered that he\she committed a crime that is punishable under the provisions of this law.”

Article (66) of the Jordanian Public Health Law states:
“Taking into consideration any more severe punishment stipulated in any other legislation, he\she shall be punished by imprisonment from two months to a year or by a fine of no less than five hundred dinars and not more than one thousand dinars, or both of these punishments, whoever violates any of the provisions of this law or the regulations issued pursuant thereto to it and no punishment is stipulated in this law.”

According to the two Articles mentioned above, if the crime of intentionally transmitting of the Coronavirus causes a suspension for more than twenty days, there is no scope for applying the imprisonment punishment prescribed in Article (66) of the Jordanian Public Health Law, because the prescribed punishment for intentional harm crime stipulated in Article (333) of the Jordanian Penal Code is more severe than that prescribed in the aforementioned Article (66), and the article (66) confirmed that if there is any more severe punishment in another law for the same act, the most severe punishment must be applied, as this Legislative approach is in line with the legal multiplicity of crimes provision which stipulated in Article (57) of the Jordanian Penal Code([4]).

But if the suspension period is less than ten days, then the prescribed punishment in Article (66) must be applied, as an implementation of the rule of the private article restrains the public article, and because the punishment which is stipulated in Article (334) of the Jordanian Penal Code is lighter than the prescribed punishment in Article (66) of the Jordanian Public Health Law.

For instance, a video recently spread on social media for a person infected with the Corona virus who was asking the nurses to give him treatment, but the nurses answered that there is no treatment for the Coronavirus at the present time and he must adhere to the instructions, which caused his anger and led him to sneeze and spit on their faces to infect them. In this case, if they have been infected, – without dying or endangering their lives – then the perpetrator will be pursued with an intentional harm crime and the punishment will be according to the article (333) of the Jordanian Penal Code or (66) of the Jordanian Public Health Law depending on the result.

Finally, it is worth noting that there is no attempt in harm crimes, nor any punishment for attempting to commit intentional harm crimes, as the Jordanian legislator did not determine a punishment for attempting these kind of crimes, and there is no punishment for attempting to commit misdemeanors except by the law([5]) (Article 71 Of the Jordanian Penal Code([6])). Also, these crimes require the achievement of the result, which means it is not conceivable to attempt in general.

Consequently, if the person infected with the Coronavirus wanted to infect others with the intention of harming, and due to the circumstances beyond his control, this result was not achieved. Then, the perpetrator’s act forms a complete attempt ([7]) of intentional harm crime which is not punishable according to the Jordanian Penal Code.

Murder

Murder: It is eliminating life, or as Jurisprudence defines it: an assault on others’ life resulting in his\her\their death. Or it is taking away the soul of the living person ([8]).

The Jordanian legislator did not define the term murder, but only mentioned its types. The Jordanian Supreme Court considered the physical acts committed by the accused, which are strangling the victim by his both hands, sitting on his chest and pushing on his neck leading to his death, intentional taking away the soul of a living person([9]).

As mentioned previously there is no specific article in the Jordanian Penal Code that punishes the intentional or unintentional transmission of the Corona virus. Therefore, in this regard there are several descriptions of the transmission of the Corona virus leading to death which can be combined into three descriptions:

First description: Involuntary Murder
By reviewing the Article (343) of the Jordanian Penal Code, which states:
“Whoever causes the death of a person due to negligence or lack of due care or regard for laws or regulations, he / she shall be punished by imprisonment from six months to three years.”

It is clear from the previous article that the physical pillar of the crime of involuntary murder consists of three elements:

  • Life assault: knowing about being infected with Coronavirus and not complying with or neglecting isolation procedures.
  • Criminal result: infecting others with the virus which leads to death.
  • Causal relationship: where the result (death) has been achieved due to the perpetrator’s mistake or negligence.

Thus, a question arises, if a person transmitted a serious disease such as the Corona virus to another person, will it be an act of life assault constituting a murder crime if the result is achieved?

The answer to this question depends on whether or not considering the transmission of the corona infection as a method of killing. By reviewing the provisions of the Jordanian Penal Code, it is noticed that the Jordanian legislator did not indicate to a specific method for committing a murder, which means that there is no reason not to consider the transmission of the Coronavirus as a method to commit a murder as long as it led to death.

In addition to the physical pillar, the involuntary murder must have its moral pillar, which takes the image of mistake or negligence, such as neglecting isolation procedures and socializing with people despite of the awareness of the infection.

According to the above, if all these pillars are met, an involuntary murder will be constituted which occurred through the transmission of the Coronavirus infection.

Second description: Willful Murder
By reviewing the Articles (326 and 327) of the Jordanian Penal Code, which state:

“Article (326)
Any person who willfully kills a person shall be punished by imprisonment for twenty years with hard labor.

Article (327)
Willful murder shall be punished by life imprisonment with hard labor if committed:

  1. As a prelude to the commission of a misdemeanor or in order to facilitate the escape of the inciters or perpetrator or abettors of such a misdemeanor or in order to prevent their punishment.
  2. Against a public official while in the course of executing the duties of his/her office or if he/she is killed as a consequence of such duty.
  3. Against more than one person.
  4. with torturing the victim viciously before killing him/him.”

It is clear from the previous two articles that the difference between both of them lies in the punishment limit, whereas the legislator states in Article (327) circumstances that would increase the punishment limit, as according to Article (326) the punishment is imprisonment for twenty years with hard labor, but if the willful murder is accompanied by one of the aggravating circumstances stipulated in Article (327), the punishment will be life imprisonment with hard labor.

The pillars of the willful murder crime are:

  • The legal pillar: It is the presence of a text that bans the act of killing, as stipulated in Article (326) of the Jordanian Penal Code and beyond.
  • The physical pillar: It has three elements: Criminal behavior, criminal result, and the causal relationship between that behavior and result.
  • The criminal behavior: the act of life assault.
  • The criminal result: Death. This result must be actually achieved, as if the result is not achieved, it will be a complete\incomplete attempting of murder.
  • The causal relationship: The act of life assault should be related to the criminal result (death).
  • The moral pillar: The criminal intent, which is the will to commit a crime as defined by law (Article 63 of the Jordanian Penal Code)([10]) which consists of two elements: knowledge and will. This means that the perpetrator must know what he is doing, and his will must be directed to that act and to achieve the result. As this will must be free and aware.

According to the above, if all these pillars are met, As if a person infected with the Corona virus sneezes in the face of other person for the purpose of transmitting the infection and killing him\her, and the result is achieved. Then, a willful murder will be constituted which occurred through the transmission of the Coronavirus infection. The article that will be applied if such a similar case filed before the court is Article (326) of the Jordanian Penal Code, and the punishment will be imprisonment for twenty years with hard labor, this on the one hand.

On the other hand, if any of the aggravating circumstances which are stipulated in Article (327) of the Jordanian Penal Code accompanied with the perpetrator’s act mentioned in the previous paragraph, for example if the perpetrator sneezes or spits in the face of others (more than one person) for the purpose of transmitting the infection and killing them, and the result is achieved. Then Article (327\3) of the Jordanian Penal Code will be applied and the punishment will be life imprisonment with hard labor.

Third description: Premeditated Murder
The act is more dangerous and the punishment is more severe in case that act related to willful murder and prior planning, if it is proven that the person concerned, despite of his awareness of the infection, worked to direct his will to do actions that would expand the spread of the epidemic (Coronavirus).

For example: a person infected with the Corona virus planned to use some tools and give them to others for reusing, taking advantage of their naivety or their young age, for the purpose of transmitting the infection and killing them, and the result is achieved.

In this case, the Jordanian Penal Code includes a severe punishment if the court opines to adapt the act as premeditated murder, as Article (328) of the law states that:

“Willful murder shall be punished by the death penalty if committed:

  1. With premeditation, then it is called premeditated murder.
  2. As a prelude to the commission of a felony or in order to facilitate the escape of the inciters or perpetrators or abettors of such felony or in order to prevent their punishment.
  3. Against one of the perpetrator’s ancestors.”

It must be noted that Article (328) of the Jordanian Penal code did not come up with a new description of the crime of murder; it is as same as Article (327) of the law stipulating aggravating circumstances that make the penalty more severe if it is accompanied by one of them. But because of the severity of the punishment, its explanation was singled out in a separate description.

Based on the mentioned above, to apply Article (328) of the Jordanian Penal Code, it is required that the perpetrator’s act contains all the willful murder pillars stated in Article (326) of the same law, and accompanied by one of the aggravating circumstances stipulated in Article (328).

For example: if a person infected with the Corona virus sneezes in the face of his father for the purpose of transmitting the infection and killing him, and the result is achieved. Then, a willful murder accompanied by an aggravating circumstance will be constituted which occurred through the transmission of the Coronavirus infection. The Article (328\3) of the Jordanian Penal Code will be applied if such a similar case filed before the court and the punishment will be death penalty.

In this regard, it is noticed that unlike it in harm crimes, there is attempt in murder crimes, and there are punishments for attempting a murder whether it is accompanied by an aggravating circumstance or not, as the Jordanian legislator stated in Article (71\1) of the Jordanian penal code that “An attempt to commit a misdemeanor([11]) is not punishable unless in the instances explicitly stipulated by the law” which means by the opposite explanation that the scope of criminalization in felonies([12]) extends to the attempting of these crimes([13]).

There are two different types of attempt:

  • Incomplete attempt ([14]): Which involves an actor who has taken some action toward the completion of the crime (a substantial step), but is stopped before his or her intended actions are completed.

For example: Having Coronavirus and trying to sneeze or spit to others’ faces intentionally to transmit the infection and killing them, and then being tackled by a police officer before the victims are infected.

  • Complete attempts ([15]): Which involves an actor who does everything that he or she thinks is necessary in order to complete the targeted crime, but through sheer luck or some other reason beyond the actor’s control, the targeted crime was not achieved successfully.

For example: Having a Coronavirus and sneezing or spitting to others’ faces intentionally, or hugging and kissing others intentionally to transmit the infection and killing them, but the infection has not been transmitted to the intended victims.

Consequently, if the person infected with the Coronavirus wanted to infect others with the intention of killing, and due to the circumstances beyond his control, this result was not achieved. Then, the perpetrator’s act forms a complete or an incomplete attempt of murder crime which is punishable according to Articles (68 and 70) of the Jordanian Penal Code.([16])

Finally, differentiation must be made between two issues, whether the perpetrator knew that he\she is infected or not?

The answer of this question is an affirmation of the necessity of the moral pillar of the intentional crimes previously explained in this research paper, which means that he\she must be aware that he\she is infected so we can adapt the previous descriptions on his\her acts, and the perpetrator must know what he\she is doing, and his\her will must be directed to that act and to achieve the result.

The intention of law enforcement is not to spread fear among innocent individuals and that they will be imprisoned if they spread the disease (Coronavirus) among those around them, but the purpose is to deter the violators of the Law and regulations. Thus, if he\she does not know that he\she is infected, he\she will not be punished.

Conclusion

The law exists to organize societies and protect individuals and public order within its three meanings: public security, public health and public tranquility. Therefore, the law must be used in a way to limit the spread of the virus among individuals in case of the abstaining from abiding by the instructions of the competent authorities intending to harm others. Those people should be deterred by imposing the maximum penalties on them for committing a criminal offense that is punishable by the law, to help reduce cases early without allowing the virus to penetrate among people.

Thus, the legislator must intervene explicitly to create a legislative text that punishes the transmission of infection between individuals intentionally or unintentionally by negligence, and explain in detail the pillars of each crime that is acted by this method and its punishment.

As much as we wish this epidemic will pass safely. However, the legislation must be amended and activated in order to face similar cases in the future, God forbid.

References

  • Abu Shamma, Ibrahim, Jordanian Penal Code – Crimes against people – lectures at the Judicial Institute of Jordan, (2018).
  • Coronavirus confirmed as pandemic by World Health Organization, BBC News, published on 11 March 2020, viewed on 20 March 2020, URL: https://www.bbc.com/news/world-51839944
  • Husni, Mahmoud Najib, Explaining the Jordanian penal code, private section, (6th ed, 2018).
  • Indiana v. Haines, 545 N.E.2d 834 (Ind.App.2nd Dist. 1989).
  • Najem, Mohammad Subhi, Crimes against people, (1th ed, 2002).
  • The Jordanian Penal Code (NO. 16 of 1960 with its amendments).
  • The Jordanian Public Health Law (NO. 47 of 2008 with its amendment

([1]) Coronavirus confirmed as pandemic by World Health Organization – BBC News

([2]) Abu Shamma, Ibrahim, (2018), Jordanian Penal Code – Crimes against people – lectures at the Judicial Institute of Jordan.

([3]) The article 63 of the Jordanian penal law states “Intent is the will to commit the crime as defined by law.”

([4]) The Article (57) of the Jordanian Penal Code states: “1. If the act has many definitions all of which were mentioned in the judgment, the court has to impose the most severe penalty. 2. If the act has a general and a specific definition, then the court has to take into consideration the specific one.”

([5]) Please read the Jordanian Supreme Court decision No. 3916\2019 date 22\1\2020, and the decision No. 2425\2018 date 18\9\2018, and the decision No. 1612\2018 date 19\7\2018.

([6]) The article 71 of the Jordanian penal law states “1. An attempt to commit a misdemeanor is not punishable unless in the instances explicitly stipulated by the law. 2. If the law provides for a penalty for the attempt to commit a misdemeanor, the penalty shall not exceed half of the maximum penalty prescribed for the crime, unless the law provides otherwise.”

([7]) There are two different types of attempt: complete attempts and incomplete attempts. A complete attempt involves an actor who does everything that he or she thinks is necessary in order to complete the target offense, but through sheer luck or some other reason beyond the actor’s control, the target offense is unsuccessful. (For example, having a Coronavirus and sneezing or spitting to others’ faces intentionally, or hugging and kissing others intentionally, but the infection doesn’t being transmitted to the intended victims.) An incomplete attempt involves an actor who has taken some action toward the completion of the crime (a substantial step), but is stopped before his or her intended actions are completed (For example, having Coronavirus and trying to sneeze or spit to others’ faces intentionally and then being tackled by a police officer before the victim is harmed.)

([8]) Husni, Mahmoud Najib, Explaining the Jordanian penal code, private section, page 320. And Najem, Mohammad, Crimes against people, page 12.

([9]) Please read the Jordanian Supreme Court decision No. 38\2007 date 11\3\2007, and the decision No. 744\2002 date 17\9\2002.

([10]) The article 63 of the Jordanian penal law states “Intent is the will to commit the crime as defined by law.”

([11]) A crime punishable by a fine and/or imprisonment for up to three years. As the Article (15) of the Jordanian Penal code states “Penalties for Misdemeanors: 1. Imprisonment 2. Fine 3. Bail bond”, and the Article (21) of the same law states “Imprisonment is the placement of the convicted person in one of the state prisons for the period of the verdict which ranges between one week and three years unless the law provides otherwise.”

([12]) A felony is a category of crimes that are often classified as the most serious type of offenses. As  the Article (14) of the Jordanian Penal code states “Criminal penalties are: 1. Death penalty 2. Life imprisonment with hard labor 3. Life detention 4. Temporary imprisonment with hard labor 5. Temporary detention.”

([13]) Please read the Jordanian Supreme Court decision No. 2550\2018 date 9\10\2018.

([14]) The Article (68) of the Jordanian Penal code states “An attempt is to begin executing one of the acts which appear to lead to the commission of a felony or a misdemeanor. If the perpetrator could not complete the acts needed to commit such felony or misdemeanor for reasons beyond his / her will, and unless the law provides otherwise, he / she shall be punished according to the following: 1. Life or temporary imprisonment with hard labor ranging between seven to twenty years if the attempted crime penalty is death, and at least five years of ——— said penalty if the original penalty is life imprisonment with hard labor or life detention. 2. Any other original temporary penalty has to be reduced from one half to two thirds.”

([15]) The Article (70) of the Jordanian Penal code states “If all the acts needed to complete the crime were taken but for reasons, independent from the perpetrator intent, the deliberate crime did not materialize, he/she shall be punished as follows: 1. Life or temporary imprisonment with hard labor from ten to twenty years if the attempted felony is punishable by death penalty. Seven to twenty years of the same penalty if the original penalty is life imprisonment with hard labor or life detention. 2. Any other penalty has to be reduced by one third to one half.”

([16]) In practice, there is a similar case of attempting murder by transmission HIV infection. Please See. Indiana v. Haines, 545 N.E.2d 834 (Ind.App.2nd Dist. 1989). The Facts “On August 6, 1987, Lafayette, Indiana, police officers John R. Dennis (Dennis) and Brad Hayworth drove to Haines’ apartment in response to a radio call of a possible suicide. Haines was unconscious when they arrived and was lying face down in a pool of blood. Dennis attempted to revive Haines and noticed that Haines’ wrists were slashed and bleeding. When Haines heard the paramedics arriving, he stood up, ran toward Dennis, and screamed that he should be left to die because he had AIDS. Dennis told Haines they were there to help him, but he continued yelling and stated he wanted to f____ Dennis and “give it to him.” Haines told Dennis that he would “use his wounds” and began jerking his arms at Dennis, causing blood to spray into Dennis’ mouth and eyes. Throughout the incident, as the officers attempted to subdue him, Haines repeatedly yelled that he had AIDS, that he could not deal with it and that he was going to make Dennis deal with it. Haines also struggled with emergency medical technicians Dan Garvey (Garvey) and Diane Robinson threatening to infect them with AIDS and began spitting at them. When Dennis grabbed Haines, Haines scratched, bit, and spit at him. At one point, Haines grabbed a blood-soaked wig and struck Dennis in the face with it. This caused blood again to splatter onto Dennis’ eyes, mouth, and skin. When Dennis finally handcuffed Haines, Dennis was covered with blood. He also had scrapes and scratches on his arms and a cut on his finger that was bleeding. When Haines arrived at the hospital, he was still kicking, screaming, throwing blood, and spitting at Dennis, Garvey, and another paramedic, Rodney Jewell. Haines again announced that he had AIDS and that he was going to show everyone else what it was like to have the disease and die. At one point, Haines bit Garvey on the upper arm, breaking the skin.”— The Sentence “The court of appeals held that the state need not show Haines’s conduct could have actually killed. It was sufficient to show that Haines did everything he believed necessary to attempt the murder, regardless of whether it was actually possible. Thus, the case was reversed and returned to the trial court with instructions to reinstate the jury’s verdict and resentence Haines for three counts of attempted murder.”

Recent Posts

CategoriesCrime

Money Laundering To Combat Financial Crime

Author And In Collaboration with ADR Arbitration Chambers

Kinita Shibchurn

Mr S.K.Joy Ramphul

Money laundering and an effective AML/CFT framework to combat financial crime

INTRODUCTION

Money laundering is generally defined as “transferring illegally obtained money or investments through an outside party to conceal the true source.” This activity may prevent law enforcement from uncovering or confiscating the proceeds of crime, or using the proceeds as evidence in a criminal prosecution. Such processing may involve concealing the beneficial owner of either the actual criminal proceeds or of other property that might be subject to confiscation.

Money Laundering is the process used to disguise the origin of ill-gotten money to make it seem as though such funds were obtained from legitimate sources or businesses. Simply put, Money Laundering is the process of washing ‘Dirty Money’ in order to make it look ‘Clean’.

The activities of launderers do not only impact on the criminal justice systems, but they also have the capacity to destabilize financial institutions and financial systems. In addition, Money laundering also undermines the integrity of the Private sector, democracy and the rule of law and leads to reputational damages.

Let us take into consideration an important fact on ‘how money is laundered’ in simple terms; how are profits generated in the financial system?

In the initial – or placement stage of money laundering, the launderer introduces his illegal profits into the financial system. This might be done by breaking up large amounts of cash into less conspicuous smaller sums that are then deposited directly into a bank account, or by purchasing a series of monetary instruments (cheques, money orders, etc.) that are then collected and deposited into accounts at another location. After the funds have entered the financial system, the second – or layering stage takes place. In this phase, the launderer engages in a series of conversions or movements of the funds to distance them from their source. The funds might be channeled through the purchase and sales of investment instruments, or the launderer might simply wire the funds through a series of accounts at various banks across the globe. This use of widely scattered accounts for laundering is especially established in those jurisdictions that do not co-operate in anti-money laundering investigations. In some instances, the launderer might disguise the transfers as payments for goods or services, thus giving them a legitimate appearance. Having successfully processed his criminal profits through the first two phases the launderer then moves them to the third stage – integration – in which the funds re-enter the legitimate economy. The launderer might choose to invest the funds into real estate, luxury assets, or business ventures.

Money laundering is a truly global phenomenon; helped by the International financial community which is a 24hrs a day business. As a 1993 UN Report noted: The basic characteristics of the laundering of the proceeds of crime, which to a large extent also mark the operations of organised and transnational crime, are its global nature, the flexibility and adaptability of its operations, the use of the latest technological means and professional assistance, the cleverness of its operators and the vast resources at their disposal. In addition, a characteristic that should not be overlooked is the constant pursuit of profits and the expansion into new areas of criminal activity. Despite the considerable body of work in this area, there remains a need for further research into the operation, regulation and supervision of TCSPs; the challenges caused by the illegal use of TCSPs; and the ineffective implementation of the international AML/CFT requirements relating to TCSPs. It is also stated that, money which is laundered by criminals worldwide is estimated to be the equivalent to 2-5% of the world’s Growth Domestic Product (GDP) . Whilst smaller criminal organisations deal in diminutive amounts of cash, the more serious criminals have a propensity to locate a safer place for the proceeds of their crime in another country, quite possibly a self-governing state, where there is less suspicion and more security for themselves. This safeguard arrangement is a renowned precaution for criminals to distance the proceeds of their crime from the crime itself.

As J D Mclean has outlined:

“From the point of view of the criminal, it is no use making a large profit out of criminal activity if that profit cannot be put to use…putting the proceeds to use is not as simple as it may sound. Although a proportion of the proceeds of crime will be kept as capital for further criminal ventures, the sophisticated offender will wish to use the rest for other purposes…If this is done without running an unacceptable risk of detection, the money which represents the proceeds of the original crime must be “laundered”; put in an estate in which it appears to have an entirely respectable provenance”.

UK’s APPROACH IN RESPONSE TO MONEY LAUNDERING PROBLEM

The Hard Law
The 4MLD improves corporate transparency by attempting to set up central registers detailing data on beneficial ownership and control of corporate and legal entities in order to improve the current system. In the UK, Proceeds of Crime Act 2002 is the major financial crime statute.

The Soft Law
The FCA encourages its consumer protection goal through the FCA Systems and Control Sourcebook (SYSC) and the guidelines of the Joint Money Laundering Steering Group (JMLSG) to be used by the financial industry to detect and combat money laundering. Furthermore, the guidance identifies certain persons within the financial by placing them under reporting duties to help the FCA and law agencies in combatting money laundering.

CHALLENGES

The FCA recognises the importance of having an effective mechanism for registering suspects of money laundering as being part of an efficient money laundering prevention technique. Furthermore, financial services firms must guarantee they are certain of the source of the client’s riches with which they are dealing.

It is clear from available reports that the volume of money laundering suspicions presented to authorities in the UK is not proportionate to the size of firms under the FCA regulatory regime. There is evidence that the quality of suspects of money laundering in the UK is not as comprehensive and efficient as it might be. This could be because financial services companies do not fully comprehend their reporting responsibilities and appreciate them. The collaboration of financial companies is needed in order for the FCA to fulfil its statutory responsibilities of protecting clients and securing the resilience of the financial services industry in the UK. This collaboration can be achieved through prompt disclosure of money laundering suspicions to the FCA.

According to National Crime Agency, it was evident that the suspicious activity report submitted by some firms was imprecise and lacked the necessary details. The evidence points to the fact that firms are struggling with developing detailed reports. Companies would not want to lose their clients by placing them under investigations by the FCA. As such, this will influence FCA’s attempts to reduce the incidence of money laundering.

Politically Exposed Persons (PEPS)
With regard to PEPs, the range of people caught within the definition is hard to identify. The study conducted by UK regulators highlights the challenge with the UK anti-money laundering efforts and PEPs. The regulators noted the challenges faced by financial institutions compliance with money laundering in relation to PEPs’ operations by suggesting that around 75% of financial companies did not efficiently manage their risk of money laundering. The regulator also stated that more than 50% of financial services companies concealed severe complaints and suspicions about customer’s operations. In addition, 65% of banks have not implemented EDD measures to identify their clients.

It is not all a gloomy report, though. The FCA used regulatory hammer on companies in some instances. For example, for failing to comply with the Money Laundering Regulations, the FCA fined Standard Chartered £7.6m. Standard Chartered has neglected to carry out money laundering controls for some of its corporate customers linked to PEPs.

This provides evidence that money laundering provisions are being enforced by the FCA in certain cases.

Effective classification of a PEP is necessary for the FCA to be able to meet its regulatory objectives of protecting customers and making the UK financial architecture resilient.

Courts pronouncements on suspicious reports
POCA specifies the offence of arrangements. Arrangements relate to participation in an arrangement where the launderer is aware or helps in the process of acquiring or disposing of criminal property. In Meer Care and Desai case, the defendant was found guilty for failing to report money laundering suspicions relating to dishonest assistance for breach of trust (A.G of Zambia v Meer Care and Desai, 2006). The court held that the defendant ought to report the suspicion as it was highly likely and clear that money laundering could result from the breach of trust. In a decided case, the court held that a solicitor who failed to follow the guidelines of the Solicitor Regulation Authority (SRA) with respect to reporting suspicions of money laundering was careless but not dishonest (AG of Zambia v Meer Care and Desai, 2008). It has been held that a vague feeling is not sufficient, the suspicion by the defendant ought to be based on reasonable grounds. These cases point to the fact that the courts do not follow a strict approach or clear parameters when reaching decisions on reporting of suspicious transactions relating to money laundering offence. Therefore, this can create confusion as individuals may not be clear on what to do impacting on the ability and efforts of the FCA in promoting its regulatory objectives. If it is not possible to predict the result of a suspicious situation with any degree of certainty, it will influence the FCA’s capacity to initiate action against certain individuals. Moreover, while interpreting certain elements of money laundering regulations, the judiciary use unnecessary technicalities. In the case of R v Amir, it was held that property would be classified as criminal where the property was criminal property at the time of commission of the offence. The court found the defendant not guilty because at the time the property came into possession of the defendant it was not criminal property.

THE UK SUSPICIOUS ACTIVITY REPORTING REGIME

According to the recent National Crime Agency SARs study, the amount of suspicious activity reports (SARs) obtained by the UK Financial Intelligence Unit moved up to nearly half a million a year, putting increased demand on the unit in terms of quantity and complexity.

The rise in the amount of SARs submitted by the private sector should not mask the inadequacy of the UK’s financial crime prevention system. Transparency International stated: “The NCA report states that less the one per cent of the more than £100 billion in illicit funds estimated to pass through the UK each year is stopped as a result of SARs, this echoes the recent FATF UK review that found the system of reviewing SARs being unfit for purpose.”

Banks have a general sentiment of being trapped in an ocean of heavy and frequent regulations coupled with an increasing cost of compliance and impressively high cost of ownership caused by complex system implementations. However, as per The Financial Times, banks have agreed to pay £6.5m over the next year to improve the regime for reporting suspicious activity, which can be a red flag for money-laundering. The so-called SARs regime was one area that global standard-setters have highlighted as needing improvement.

Defensive reporting
Enforcement organisations acknowledge that they are struggling with a substantial amount of low-quality SARs generated by banks and other financial institutions (on average 2000 SARs per working day are obtained). Majority of the SARs are irrelevant, with little practical impact, or merely bad quality , meaning that vital resources are being diverted.

However, blaming banks and financial institutions alone would be incorrect. The way in which the failure to report money laundering offences in sections 330-332 of POCA are currently drafted triggers high volume of defensive reporting.

DEVISING AN EFFECTIVE AML/CFT FRAMEWORK; THE KEY AREAS

Clearly, an effective AML/CFT regime requires significant collaboration and cooperation from the country’s stakeholders in the public sector. Also crucial to the success of the regime, however, are relevant stakeholders from the private sector, namely the financial institutions and designated nonfinancial businesses and professions (DNFBPs) subject to compliance obligations. These should also be included in the collaborative process.

The primary responsibilities of any AML/CFT supervisor are:

  • Monitor AML/CFT compliance in the banking industry
  • Enforce AML/CFT regulations set out by policy makers
  • Ensure a level playing field to promote fair competition in the financial sector
  • Work with the industry to build an effective AML/CFT regime

 Safe-guarding the Banks in Financial Systems
A country’s AML/CFT regime needs to start with its banks. Because of their crucial role in the financial system, any banks not having effective AML/CFT programs are the ones most likely to be exposed to ML/TF risks, and hence can most easily be exploited by domestic and international criminals. In order to protect the integrity of its financial system, therefore, the UK must have an effective AML/CFT regime that satisfies international standards. The FATF recommendations do provide sufficient flexibility to accommodate different sets of national domestic conditions and can also allow access-expanding innovations like branchless banking. It is also noteworthy that, if these citizens do find themselves discouraged from using the formal banking system, they will find alternative systems that, by definition, are subject to no controls.

A Political Will: Importance of cooperation and collaboration
In order to have a successful AML/CFT regime, UK government must have the political will to undertake all the necessary steps to establish and implement it, and having done so, the government must then demonstrate a clear commitment to the process it has put in place. This means that the government must pass and enforce appropriate laws and regulations, must dedicate the necessary resources to the task, must grant suitable powers to relevant agencies, and must prosecute cases and obtain convictions. Without such political commitment from the highest governmental levels, there is little chance for success for any AML/CFT regime. Indeed, without it, there is little incentive for officials to develop an effective AML/CFT supervisory system. That is because other stakeholders are unlikely to commit themselves either to contribute or participate effectively in the process. Money laundering and terrorist financing are complex crimes and, for this reason, multiple national agencies must be involved in the various aspects of preventing, detecting, and prosecuting them. The specific agencies involved may vary from country to country, but the collaboration of the following areas is needed for an effective, overall AML/CFT regime:

  • Legislature
  • Executive Branch or Ministries
  • Judiciary
  • Law Enforcement, including police, customs, and so forth
  • FIU
  • Supervisors of banks, including the central bank, of other financial institutions, and of DNFBPs. Where there are different national agencies involved, there are likely to be different objectives and priorities. It is important, nevertheless, to establish a unified set of objectives and priorities for the overall regime, and to have collaboration and coordination among the various public sector constituencies.

Even so, while collaboration among the relevant public sector constituencies is necessary, it is not sufficient to assure effectiveness for a country’s regime. There must also be collaboration with those private sector stakeholders (such as banks, other financial institutions, and DNFBPs) that are required to comply with the country’s AML/CFT obligations. This group has specialized perspectives on the regime’s objectives, as well as on the practicability of the timeframes for achieving them. In addition, the regime will be more effective overall, and the level of compliance will be higher, if the concerns of the private sector are addressed.

Organisation’s approaches to an effective framework
Supervision by the Bank Supervisor

Supervision of AML/CFT compliance in banks by the bank supervisor is probably the most common organizational model, and it produces a number of benefits.

First, supervisory bodies are usually both highly skilled and knowledgeable about assessing risks in banks, as well as about the policies and procedures to manage those risks. Second, ML/FT risks are monitored like other types of compliance risks for which bank supervisors are responsible. Third, supervisors are knowledgeable about how banks operate and about the products and services they offer. Fourth, supervisors understand the differences between the ways small local banks and large international banks operate. This international dimension to the supervisor’s responsibilities is particularly useful in cross-border supervision. Finally, most bank supervisors have at least some experience in enterprise-wide, consolidated supervision. Many banking institutions are part of large financial organizations, and these include securities firms, insurance companies, and other types of financial entities. Such organizations often adopt an enterprise-wide approach to AML/CFT compliance, just as they do to risks in consolidated credit, market, or general operations. This approach requires a consolidated understanding of the entire organization’s risk exposure for ML/TF across all activities, business lines, and legal entities. Such a centralized function often includes the ability for the organization to comprehend the enterprise-wide, indeed worldwide, exposure of a given customer, particularly one considered to be high risk. It is a complex undertaking, but bank supervisors are well equipped to understand the capabilities and limitations of such a system.

This model does have some disadvantages. Bank supervisors, because of prudential concerns, may not give AML/CFT the same priority as governments do, or may not have sufficient resources to do so. In consequence, compliance issues may get neither the quantity nor quality of attention that is necessary. As well, supervising compliance with the AML/CFT regime is not a traditional prudential supervisory responsibility. It is a new concept to some extent, not only for bank staff, but also for the supervisory body, which must learn new skills. This situation may initially be reflected in staff difficulties.

Supervision by the FIU or Other Entity
As an alternate to the bank supervisory model, AML/CFT compliance supervision may be conducted by the FIU or another governmental agency. Under this model, it is the FIU (or alternative), not the bank supervisory body, which must be authorized, first, to have access to all relevant bank information and, second, to conduct examinations. Such authority is needed to enable the FIU or governmental supervisor to determine a bank’s compliance with its AML/CFT obligations.  This model has a number of benefits. First, because collection of information and analysis are the core of its duties, the FIU has expertise in certain AML/CFT matters. Second, AML and CFT are its only responsibilities. Third, the FIU has direct access to suspicious transactions reports (STRs) and related information. According to FATF Recommendation 26, the FIU should have timely access, directly or indirectly, to the financial, administrative, and law-enforcement information required for it to undertake its functions properly, and these include the analysis of STRs.  This model also presents several drawbacks. If the FIU is the supervisor, it may well be inexperienced both in financial inspections and in bank supervisory matters. As well, the FIU is not likely to be sufficiently well equipped to undertake AML/CFT supervision on an enterprise-wide basis. On the other hand, if a body other than the FIU is the supervisor, that body may well not have access to STR information.

Examinations are likely to become more limited in scope and expertise, and multiple regulators and different approaches to compliance supervision may generate some confusion for banks.

The ML/FT Risk Assessment Process from the Bank Perspective

Bank’s Risk Assessment Process
As part of its risk management, and as the first step of any ML/FT risk assessment, a bank should understand the main criminal threats to which it might be exposed, for example, drug trafficking, arms smuggling, and corruption. Only banks with effective analyses of the risks involved are sufficiently well equipped to take the appropriate actions to mitigate them. A reasonably designed risk-based approach will provide a framework for identifying the degree of potential money laundering risks associated with specific customers and transactions, and allow an institution to focus on those customers and transactions that potentially pose the greatest risk of money laundering. Having analysed the money laundering or terrorist financing risk, bank management should then communicate those risks to all business lines, to other management, to the board of directors, and to all appropriate staff. To communicate the risk effectively, the assessment should, wherever possible, be written in language that can be easily understood by those who will use it, including the bank’s supervisors.

The benefits of an effective AML/ CFT regime (Framework)
An effective AML regime is a deterrent to criminal activities in and of itself. Such a regime makes it more difficult for criminals to benefit from their acts. In this regard, confiscation and forfeiture of money laundering proceeds are crucial to the success of any AML program. Forfeiture of money laundering proceeds eliminates those profits altogether, thereby reducing the incentive to commit criminal acts. Thus, it should go without saying that the broader the scope of predicate offenses for money laundering, the greater the potential benefit.

This will also influence the public confidence in financial institutions, and hence their stability, is enhanced by sound banking practices that reduce financial risks to their operations. These risks include the potential that either individuals or financial institutions will experience loss as a result of fraud from direct criminal activity, lax internal controls, or violations of laws and regulations.  Money laundering has a direct negative effect on economic growth by diverting resources to less productive activities. Laundered illegal funds follow a different path through the economy than legal funds. Rather than being placed in productive channels for further investment, laundered funds are often placed into “sterile” investments to preserve their value or make them more easily transferable. Such investments include real estate, art, jewellery, antiques or high-value consumption assets such as luxury automobiles. Such investments do not generate additional productivity for the broader economy.

CONCLUSION

Current regulations and regulations do not help the SARs process. As seen throughout this thesis, the legal obligation to report suspicious activity leads to a tendency for compliance experts to “over-report”. For a more flexible and proactive anti-money laundering effort, higher public-private involvement and partnership is required. Greater use of technological tools to improve identification of the qualities separating a useful report from a less valuable one, should be made.

The focus on taking a risk-based approach (after implementation of MLR 2017) is driving the need for experts to gain a profound knowledge of potential risk exposure a relationship presents, creating additional demand for solid investigative skills.

Furthermore, because of the proliferation of digital channels now being used to create accounts, onboarding customers also poses growing issues. Remote onboarding being more prevalent has resulted into a rise in volume of new accounts created fraudulently.

With so many challenges facing the AML industry, the use of technology plays a vital role in assisting business tackle financial crime. Technology can assist with data sharing, with many calling for a single utility in the AML regime that gathers and collects the common information businesses need to conduct due diligence. Maybe the UK can learn from the Nordic countries, where banks are exploring the possibility of setting up a KYC utility together with setting up a joint venture to achieve this. The Nordic utility will focus on creating “an effective, common, safe and cost0effective infrastructure platform to share confidential credentials with customers”. This will assist in decreasing the time taken to carry out KYC checks and embed new clients by offering a centralized common resource they can all draw on.

There are significant difficulties facing the compliance sector. Money launderers are becoming more advanced and technology is being adopted as rapidly as it is released- unhindered by laws and regulations, they leave business on the back foot indefinitely. From past reports we noticed that even though many organisations and laws are created, it is not enough to challenge this problem. So by formulating such framework, we are sure to fight money laundering and terrorism financing in a better way and with more ability. These do affect a country’s economy and with the implementation of the proposed framework, money laundering can be minimized to a least number if not stop completely. We cannot afford to lose sight of the ultimate objective. Money laundering has a real-life human impact, and we must do all can to stem it.

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