Fri | Oct 20, 2017

Lawyers will have to bow - DPP believes POCA compliance inevitable

Published:Friday | October 13, 2017 | 12:00 AMAvia Collinder
Director of Public Prosecutions Paula Llewellyn.

Director of Public Prosecutions Paula Llewellyn is of the view that the pushback from the legal fraternity notwithstanding, its members would have to comply eventually with the requirement to disclose the suspicious activities of their clients under the Proceeds of Crime Act, POCA.

"It's only a matter of time," said Llewellyn as a presenter at the sixth annual Anti-Money Laundering/Counter-Financing of Terrorism Conference that wrapped up in Kingston on Tuesday.

The lawyers are fighting the issue in court - a case Llewellyn predicts they will lose - but still she knocked lawmakers for not being aggressive enough in resolving the issue.

"Parliament does not seem to have the stomach to deal with our lawyers," she said. "It's not a question of if, but when they will comply."

Lawyers and other groups were brought under the umbrella of POCA with the passage of the Proceeds of Crime (Amendment) Act in 2013. The law, which was initially passed in 2007, seeks to develop the means to detect money laundering, which is defined as the international processing of dirty money - criminal proceeds - to disguise its illegitimacy.

The amendment to POCA, alongside several other pieces of legislation, paved the way for persons to actively involve themselves in the detection and reporting of prohibited conduct.

Reporting entities include licensed banks, building societies, co-operative societies and insurance agents and brokers. Designated non-financial societies include attorneys-at-law, accountants, real estate dealers, and casino and gaming operators.

The Jamaican Bar Association in 2014 took legal action in the Supreme Court, contending that the amendment to POCA would breach the sacrosanct attorney-client privilege.

The lawyers claimed that the amended legislation would damage the rights of citizens to an independent legal profession seeking declarations, including that the duty imposed on attorneys-at-law to report suspicious transactions, which are not defined in the regime, would be in breach of their duty to their clients and the principle of confidentiality, and amount to a conflict of interest. The JBA has asked the court to find that the amendment was unconstitutional.

International protocols

Llewellyn on Tuesday laid out a pragmatic argument for why the lawyers would not prevail, saying Jamaica has to adhere to international protocols.

"Governance is now tied to aid," she said, indicating that several bodies which are dependent on donor support are likely to be impacted if the lawyers are allowed to have their way.

The DPP said that under POCA, persons in the regulated sector are required to establish programmes, policies and controls for the purpose of preventing and detecting money-laundering activities. Such programmes include know-your-customer and record-keeping procedures, and disclosure regimes.

"POCA places a duty on financial institutions and persons who handle money as a part of their business. Reporting has also been discussed under the Protected Disclosures Act 2011, also locally termed the Whistleblower Act," said Llewellyn who addressed the conference under the theme 'Whistleblowing vs Breach of Confidentiality'.

"This act can be viewed as a wider part of our acquiescence as a democratic society to promulgate the rule of law and order ... the fact is, whistle-blowing and confidentiality are not mutually exclusive concepts; they are a necessary part of nation building," the DPP said. "A nation thrives when law, order and respect for all facet of life is an integral part of its way of life; corporations and businesses in general thrive under similar conditions."

The Protected Disclosures Act offers immunity to whistle-blowers, where the act of disclosing the wrongdoing itself exposes the whistle-blower to disciplinary action, or civil or criminal action in court.

The question that institutions must ask themselves, the DPP said, is: "Does whistle-blowing undermine the principles of confidentiality that employers expect, that your customers expect?", adding that it speaks to the issue of corporate social responsibility.

"Silence in the face of corruption, thievery, murder and general mayhem is what allows a country to descend into decay," she said

avia.collinder@gleanerjm.com