Friday News Flip 09 July 2016


SPANISH prosecutors dropped a corruption investigation into Brazilian football star Neymar and his father. The charges revolved around Neymar’s transfer from a Brazilian football club to Barcelona.


DID Kenyan armed forces kill civilians during air raids following the El Adde attack (which left over 100 Kenyan soldiers dead). According to the UN: Yes. According to Kenya: No.

PRESSURE mounts on Kenyan senior security officials to resign in the wake of the brutal murder of a lawyer, his client and a taxi driver. Several Administration Police officers are in custody suspected of taking part in the killings. The Independent Police Oversight Authority has also witnessed a spike over the last three years in reported crimes and misconduct by police officers. This coincides with the coming to power of the Jubilee government that has been lukewarm, to say the least about a rights-based, civilian-overseen approach to policing; preferring the rigid, aggressive, top-down methods of the past. When you marry these methods with the rampant corruption within the police service, you have a lethal cocktail of lawless cops and impunity.

HERE is an insightful discussion of how criminal laws around the world deal with crimes committed while allegedly under the influence of prescription drugs. It looks at the analogy that is typically drawn in most criminal systems with alcohol-induced involuntary intoxication and assess the strengths and limitations of that analogy.

REMEMBER the Hong Kong booksellers who disappeared, only to reappear in police detention on the Chinese mainland? Here is a dissenting view from the common perception that the disappearances were part of a programme of political repression. The author argues that the mainland’s actions are probably lawful and do not violate the one country-two system form of government between HK and mainland China. Many would disagree- especially over the mainland practice gaining custody over the accused booksellers via abduction- but it’s still worthwhile to explore differing views.

ENGLAND and Wales are still debating whether to have a single criminal code– with a senior British judge with an unpronounceable title (Lord Thomas of Cwmgiedd) weighing in.

This is not a new issue- the UK Law Commission came up with a draft criminal code nearly 30 years ago after extensive consultations. It was generally well received though certain parts were controversial (e.g. on sexual offences criminalising homosexuality) and it was by no means a thorough codification of all major criminal offences. But there was no political will to push through the project and pass the bill. So instead it got split up into smaller piecemeal efforts to address specific parts of the law (e.g. Intoxication, Fraud and Bribery). But if the English and Welsh do decide to do what many commonwealth jurisdictions have already achieved (i.e. enact a criminal code) they won’t be starting from scratch.

ACCORDING to the UK National Crimes Agency, criminals are far ahead of businesses in the cyber-crimes ‘arms-race’.

 GERMANY has enacted laudable amendments to its sex crimes law, but one particular reform is worrying German criminal lawyers- specifically the new offence criminalising participating in a group that commits a sexual assault and tacitly allowing the assault.

As one commentator notes, it could be tantamount to collective punishment. I don’t know if the actual German text of the provision is better phrased, but clearly this goes further than accessory liability (encouraging or assisting). It in effect creates a duty to rescue others. And it does so in a context (being in a group) where peer pressure and social pressure makes it more rather than less difficult to stand up for someone who isn’t part of ‘the group’ or mob.

‘The Mob’ by Francisco Jose de Goya y Lucientes

Furthermore, it seems to dispense with the fault element- that D must intend (or know of) the actions that the group is engaged in before he can be held liable as an accessory or part of a joint enterprise. It may make anyone participating in a lawful assembly potentially liable to criminal sanctions if some members engage in criminality- thus undermining the right to publicly assemble and even to publicly protest.

The law also seems to create liability for an omission (failing to act and thereby allowing the assault) is a more onerous burden on the ordinary citizen than creating liability for positive act (engaging in the assault or actively assisting). In other words saying you must do X (and are a criminal if you fail to do so) prevents you from doing everything else that you could have done whilst you are now forced to do X. in a case where the law requires you to act to stop a crime or risk being charged yourself, it may be tantamount to demanding a person put themselves at risk for another. Omissions liability reduces your capacity to choose your actions and in this group assault situation may actually endanger your life. By contrasting, saying you must not do X (and are a criminal only if you do X) is less intrusive on individual liberty since you have a wide menu of lawful activities that you can choose to engage in instead.

 Indeed the provision would be more justifiable if the group in question were clearly criminal. Then one could make the argument that choosing to associate with a bunch of criminals is a form of prior fault that justifies your liability for future crimes that they commit in your presence unless you act to prevent those crimes. But to simply say that being part of an ‘amorphous’ group can turn you into a criminal if other members do something criminal and you fail to intervene is dubious from the point of view of doctrine.

As the commentator also notes it may encourage racial profiling. For example the young men who committed the infamous New Year’s Eve sexual assaults that led to the legal reforms were predominantly Muslims, but were from different nationalities. So imagine another young Muslim were innocently walking in the vicinity of the assault and failed to act to stop an assault. There is a risk he could be mistakenly treated as ‘participating’ in the ‘group’ committing the assault.

Thus the law needs to be clear about what ‘participating’ means and what level of fault is required. If it contains a ‘duty to rescue’ that duty should be limited to reasonable actions that do not require a person to endanger their lives trying to stop a mob from committing a crime (however heinous the crime).


Copyright Mark Anderson

I WROTE previously about how the failure to place Kenyan lawyers under similar AML duties with other professionals is a serious loophole in Kenyan money laundering law. It seems this is also a question that the Jamaican legal system is grappling with as lawyers there challenge the constitutionality of the Proceeds of Crimes Act on the basis that it turns lawyers into ‘covert actors for the state’.






CANADA has updated its AML and terrorist financing regulations. Here is a summary of some of the changes.