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Suspicion in English civil trial

Nigel Morris-Cotterill

In "Understanding Suspicion in Financial Crime" there is much made of the lack of judicial determination of what constitutes "suspicion" and whether there are degrees of suspicion. I examine authorities from around the world and come to a conclusion. That conclusion has just been supported by a comment by a Judge in a libel case in an English court.

In the case of Amersi v BBC (https://www.judiciary.uk/wp-co...) the case turned on whether or not the BBC made defamatory comments about Mohamed Amersi arising out of information in The Panama Papers, a quantity of documentation stolen from the computers of a law firm and its associated asset protection and corporate services companies, collectively known as Mossack Fonseca.

In the High Court before Lewis, J the case refers to documents that the BBC demonstrated a link between Amersi and Swedish telecoms company Telia and alleged that Amersi was instrumental in the payment of a bribe to members of the family of the daughter of the then President of Uzbekistan. The BBC says that it did not allege his direct involvement in the payment but only that he was instrumental and was paid half a million US dollars for his help - but also that he provided other services to Telia and was paid some USD65 million in total. The BBC went on to allege that he used moneys obtained by corrupt means to make a donation to the personal political fund of Boris Johnson who would later become Britain's Prime Minister.

Nigel Morris-Cotterill is a financial crime risk and compliance strategist.

The decision is interesting on several levels: the journalist, Richard Biltong, is the same as I felt took an improper view when he reported for the same programme, BBC Panorama, on The FinCEN files, also making public illegally obtained material and placing a particular slant on his reporting.

It is a civil trial but much of the language used by the judge is taken from counter-money laundering law. It is for this reason that, although his comments carry no weight in precedent in criminal trials, they are persuasive.

He talks of "guilt" but that is in the civil law sense. Even the Judiciary's own website has misclassified it as "sentencing remarks."

He said" "It is unnecessary to ascribe an adjective of “strong” or “reasonable” to a suspicion. The only relevant point of distinction is to identify that this is an allegation merely of suspicion, not guilt. If an adjective is relevant or helpful, then it should be “reasonable” grounds to suspect."

To adopt the term used by the judiciary: I concur.


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