Attorneys lose fight to be excluded from anti-money laundering reporting regime

The United Kingdom Privy Council today ruled that the section of the Proceeds of Crime Act which places a duty on attorneys to report suspicious activities in relation to their clients to the relevant authority is not unconstitutional.

Lawyers will face sanctions if they fail to report suspicious transactions.

The Jamaican Bar Association had taken the issue to the Constitutional Court which ruled that the Act was lawful.

The Court of Appeal declared certain aspects of the regime invalid and the attorney general and the General Legal Council took the issue to the Privy Council, which today restored the ruling of the Constitutional Court.

In an immediate reaction, attorney Bert Samuels described the ruling as "troubling".

"What is troubling is the reliance on internationally accepted policing over our Charter of Rights and the economic value of the policing of our clients to the state," he said.

In 2013, Jamaica extended its anti-money laundering regime to include attorneys carrying out certain activities, such as purchasing and selling businesses or real estate or creating companies or trusts.

This was in order to address national security concerns and comply with international standards in respect of the prevention of money laundering and terrorist financing.

The Jamaican Bar Association contended that the extended regime was unconstitutional on a number of grounds.

But the Judicial Committee concluded that the regime does not contravene constitutional rights.

It was accepted by the parties and the courts below that the anti-money laundering regime involves some interference with attorney-client confidentiality. 

However, the Board agreed with the Jamaican Supreme Court that the interference is demonstrably justified.

"There can be no doubt that combatting money laundering is of first importance to Jamaica. The extension of the regime to attorneys is rationally connected to that objective and is not arbitrary," it stated in its ruling.

The Privy Council also ruled that the General Legal Council's powers of inspection do not interfere with legal professional privilege and that the regime does not infringe the constitutional right to liberty.

It also said regime does not infringe the constitutional right to protection from search of property.

"The power of the General Legal Council to conduct inspections does not confer a coercive power of search and seizure. In the absence of a warrant or court order the General Legal Council would need an attorney's consent to enter their office or take documents," the Privy Council stated.

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