Anti-terrorism legislation passed in 2004 could cause problems for compliance officers and managers who may face criminal liability for failing to suspect a transaction for terrorist purposes, according to lawyer Brian Calhoun.

Mr. Calhoun was speaking at last week?s seminar on the Anti-Terrorism (Financial and Other Measures) Act 2004 presented at Daylesford Theatre, organised by the Association of Bermuda Compliance Officers (ABCO).

The members of the seminar panel also included consultant to the Department of Public Prosecutions Kulandra Ratneser, and litigation lawyer Paul Harshaw.

?If you are in the business of being a lawyer, accountant, compliance officer or the financial services industry, if you wind up with a customer who is involved in terrorism you will have committed the Actus Reus of the crime in the normal course of your business,? Mr. Calhoun said.

?The Mens Rea (guilty mind) is a grey area, once they work in the words reasonably suspect, the difficulty is that at some point there is going to be analysis of a whether a certain basket of factors should have equalled suspicion.

?There is going to be an objective assessment in a situation which is very dangerous when it happens in retrospect.?

?There has been no authoritative judicial interpretation of the meaning of the English Act of 2000 or our Act of 2004. The obvious purpose of the two acts is to seek to deprive terrorists of the funding necessary to carry out their acts of terrorism,? Mr. Harshaw said.

?According to the 2004 Act, an act of terrorism is committed where an act or an omission consists of the use or threat of serious violence, serious damage, danger to a person?s life, serious risk to the health and safety of the public or disruption of an electronic system.

?It also includes an act designed to influence the government, intimidate the public or a section other and also where a use or a threat is made for the purpose of advancing political, ideological or religious cause.

?The difficulty should be found in determining what constitutes a political or religious cause or identifying an ideological cause may pose some difficulty.?

He said under the legislation, fundraising is an offence and a person in the context of fundraising includes a company, partnership or an unincorporated association.

?All they have to do is to invite another (association) to provide money or other property either intending or suspecting that it may be used for the purposes of terrorism.?

?A person commits an offence if you receive money or other property either intending or suspecting that it may be used for the purposes of terrorism and a person commits an offence if he provides money or other property knowing or suspecting it may be used for the purposes of terrorists.?

He said fundraising for the use or possession or terrorist money laundering are offences and a person doesn?t have to know what the purpose for the money in question is for, it is enough for any person concerned to transfer that money inward or outward and suspect it may be use for terrorism.

?Money laundering means entering into or becoming concerned in arrangement which facilitates the retention or control of terrorist property by concealment or removal from Bermuda and transfer into the name of another as nominee.?

Mr. Harshaw said a defence is afforded to a person who innocently embroils themselves in money laundering if that person can prove on the balance of probabilities he did not know or suspect that the arrangement related to terrorist property.

He said it is important to remember that while the provisions of the 2004 Act should be complied with, the recurring phrase ?knows or suspects? that it will or may relate to the commission of criminal offences and consequently these provisions must be looked at carefully.

?Subject to confidential, legal and professional privilege knowing something will be used for a proscribed purpose should present a problem for compliance officers and others.

?If you know something is to be used for a proscribed purpose falling under sections five to eight of the act you should report it in the absence of an over riding reason not to.

?There is a potential problem in imposing criminal liability on someone for suspecting may be used for a proscribed purpose, the Crown should be required to prove the suspicion beyond a reasonable doubt.

?It ought not to be enough for a jury on an ex post facto analysis to believe with the benefit of hindsight that the accused did or should have suspected that something was intended for a proscribed activity.?

Mr. Harshaw said the Crown should have to show the accused did in fact suspect or ought to have suspected that something was intended for a proscribed activity.

He said the legislation infringes on the traditional rights of privacy and liberty that have been accepted for centuries.

?What were once viewed as inalienable rights are now being abrogated for the simple reason that it is time to change,? he said.