Defence attorney Bert Samuels has described provisions in the proposed lottery-scam legislation as scary, predicting they will lead to people being afraid to conduct business in the country.
The Law Reform Fraudulent Transactions Special Provisions Act 2013 was passed in the House of Representatives last Tuesday.
It sets out a long list of offences persons could be charged with in relation to the lottery scam and other advance fee fraud and prescribes prison terms of up to 25 years for various infringements.
But Samuels said the language in the act is too loose. He has taken issue with Section (6) subsection (2) which states that a person could be found guilty of an offence if he is aware that the money being used in a transaction is the proceeds of "some form of unlawful activity".
Serious scrutiny to come
He noted that that clause could capture lawyers, cambio and money-transfer operators, car dealers, real-estate agents, and almost anyone who offers a good or service in Jamaica.
"I am now going to have to become a police," asserted the defence attorney. According to him, before conducting business with anyone, he will now have to scrutinise every client who comes to him to find out the source of the money they wish to use to make payment.
"I have to interview you and maybe have you sign a questionnaire that you have declared to me that you work at such and such a place. It puts too much burden on you, and commerce within a country can be stagnated because of these hurdles you put for people to transact business," he said.
He is insisting that it is the person who possesses the money who should be held accountable under the law.
Samuels also said the law smacks of class prejudice, as it will force individuals to judge people by how they look.
"[I'm going to have to say] this man looks too poor to have that type of money, so I'm not going to take it," he argued.
Samuels asserted that similar value judgements would have to be made by members of the police force when they find high-end vehicles or flat-screen televisions in people's homes.
"To just go into the homes of the poor and to say, 'This doesn't belong here, but it normally belongs uptown'. It smacks of a kind of classist approach to the classification of scammers and non-scammers," he stated.
Burden of proof shifted
In addition, Samuels said the latest legislation was similar to the Proceeds of Crime Act, which shifts the burden of proof from the State to the accused.
He said he was concerned about the use of the phrase "knowingly or has reasonable grounds to believe" throughout the legislation.
Samuels argued that those words do not provide a rigid enough test of guilt as it takes away what is classically known as specific intent. He said it was very dangerous as it did not fit within the principle of proof beyond reasonable doubt.
Samuels pointed out, for example, that persons could be found guilty of an offence under the act if their property is used for lottery-scamming activities.
"The fact that a scammer lives at your premises may shift the burden to you to prove that you didn't know," he explained.
Samuels is warning that the act if passed into law could turn the country into a police state.
The Law Reform Fraudulent Transactions Special Provisions Act 2013 is yet to be debated in the Senate.