20041007 In Hot Pursuit of Terrorist Funds

Now, for the next two or three minutes I want to speak of the offence of terrorism itself. My comments are in some respect a little off topic – but I want to throw out a thinking point for later consideration.

Do we need a discrete offence of terrorism? Indeed, is a discrete offence of terrorism desirable?

We already have, in most countries, a maximum sentence per offence, and as robbery, rape, murder and some other offences are already playing up to that maximum, then there is no headroom for terrorism to be subject to a higher sentencing pattern.

So if the offence cannot result in a more serious penalty that, say, murder or blackmail, then there is really little point in maintaining the offence of terrorism as a separate offence.

And if we were to charge terrorists with conspiracy, with murder and other established offences, we would simplify the job of prosecutors. It would make trials quicker and cheaper.

This is because the offence of terrorism requires the proving of two separate states of mind: first the intention to commit the act complained of and second the motive for the act.

It is my submission that the creation of a separate act of terrorism has complicated the job of prosecutors because of the need to prove a motive and it complicates the job of those in financial services because, if they can possibly identify money on its way to commit crime, then it is often necessary for them to decide what crime it is on the way to commit.

In some countries, e.g. Singapore, the funding of any future crime is an offence. If that model is followed, then there is, again, no need to prove a motive, or more properly a motivation, for the activity of providing financial or logistical support.

In all crimes except terrorism, the question of motive is for the judge on sentencing. But by creating a discrete offence of terrorism the effect is that the question of motive becomes one for the arbiters of fact. In most common law countries – and Malaysia is an exception to this general principle – the arbiter of fact is a jury.

So what we have is a jury being asked

a) did this person do it and

b) did he have the necessary motivation arising from ideological, political, religious or any other reason that legislators choose.

There has been much discussion in countries which have a terrorism problem of whether to remove the right to jury trial in terrorism cases. It was considered for perhaps two decades in relation to Northern Ireland but the idea was eventually shelved, in part because it was seen as making too great a change to the UK’s admittedly informal constitution.

But if treating acts of terrorism as simple murder, causing damage by explosives, extortion or blackmail and allowing the Judge to decide whether there was a terrorist connection, perhaps in a post-verdict sentencing hearing which would be properly heard by a Judge alone, then the need for the identification of terrorism by everyone throughout the process would be eliminated.

Moreover, by shifting the question of motive to sentencing and away from the offence, it becomes subject to a decision based on the balance of probabilities, not beyond all reasonable doubt because the judge does not make a formal finding of membership of a terrorist group, for example.

This would speed up investigations before trial, would reduce the length of trials and ultimately reduce the costs of both investigations and trials.

And there is another issue: by not having a discrete offence of terrorism, it overcomes the problem that different countries have different definitions or in some cases none. Again, the question of motive can be left to sentencing and it is far easier for countries to set sentencing guidelines than to try to obtain cross-party political support for a definition of terrorism.

For clarity, by the above, I do not suggest we should avoid the term terrorism nor to see it only as an aggravating factor – indeed, I will use the term throughout this paper.

And, bringing this apparently eccentric diversion back into the loop of my paper, if laws relating to the financing of crime relate not only to terrorism but to the funding of all crime, then it reduces the burden of the obligations placed on financial services business because they do not need to worry about which offence might be intended.