The President of the Law Commission should not be in a position where he might be paid by the proceeds of crime

Published: October 25, 2014 at 12:41pm

anna mallia

Anna Mallia (the lawyer?) is right about this. Her letter is published in Times of Malta this morning. It’s a matter that has struck me and which I have long meant to write about.

The newspapers report, in a matter of fact manner and as though there is nothing untoward about it, that such and such a criminal who has been indicted for a terrible murder or for drug-related crimes has come up with a bail deposit of, say, Eur30,00 in cash, and that the court has accepted it.

Of course you may argue that criminals of this nature are unlikely to have a bank account on which they may draw a cheque or issue a bank draft, but that’s their problem.

The Courts of Justice, of all places and in all situations, should be the last to accept cash as a bail deposit from people who are indicted on, of all things, drug-related or drug-murder-related charges or any form of human trafficking, prostitution or white slavery.

That cash comes from crime. So effectively, the Courts of Justice are here sanctioning, nay encouraging, indicted criminals to benefit from their crimes. The cash from their crimes allows them to secure their freedom on bail while others go to prison to await trial.

It’s the same with defence lawyers. While real-estate agents and financial investment brokers are not permitted, under the Money-Laundering Act, to accept cash without quizzing their clients as to the source and filling in a voluminous number of forms, criminal defence lawyers are notorious for insisting on payment in cash or kind from the worst of their criminal clients, who are the ones most likely to have it. This is because cash can be kept at home in a safe, rather than being deposited and subject to scrutiny from the tax authorities.

It should be made illegal for defence lawyers to accept payment in cash, as the amounts involved are quite substantial when clients have a great deal at risk and when certain sorts of lawyers know they can be tapped for cash.

There is also a bit of a racket going on with the fact that cash for bail is generally deposited by the defence lawyer on the indicted individual’s behalf. It is the person whose name is on the deposit slip who is permitted to withdraw the cash when the whole thing is over, which means that this is how some criminal defence lawyers guarantee their final fee: they withdraw the bail cash and keep what they believe they are entitled to.

If the case for the defence has been successful, the individual may be grateful enough to allow his lawyer to keep the lot. If he has gone to prison, the situation may be a little more difficult.

Criminal defence lawyers are not breaking the law by doing this (except for the law on tax), precisely because there is no law for them to break.

As for the title of this post, I am not in any way suggesting that the President of the Law Commission insists on payment in cash so that he does not have to declare his fees for tax, or that he takes payment from drug money, or anything related to that.

What I am saying is something entirely different: that the President of the Law Commission should not be a in position where he may do so, and where there is nothing to stop him doing so.

This erodes public trust. It was deeply wrong to appoint, as Law Commissioner and now President of the Law Commission, an active criminal defence lawyer.

For the sake of public trust, you can be either one or the other, but you can’t be both.




19 Comments Comment

  1. Not Sandy:P says:

    Who was that criminal defence lawyer who had 500,000 Euros in cash at home?

    Ah, yes. Manuel Mallia, now Minister of the Interior.

    • Angus Black says:

      Exactly what I thought.

      Yet his declaration of sssets and income has been accepted by Joey, therefore also by the parliamentary majority.

      Yet, that other declaration by that other Gozo Minister who has an Eur800,000 bank loan and services it with an annual income of Eur45,000.

      It will be interesting to find out whether Konrad Mizzi will declare any part of Sai’s 156,000 a year salary as joint income since the two are married and presumably subject to income tax as joint earners?

  2. ghalglhajt.com says:

    How do lawyers defending clients in criminal cases get paid? Very often in cash, no questions asked.

  3. David says:

    The courts have the duty to accept cash money. It is for the police and other authorities to investigate money laundering.

    Besides money paid by a cheque or deposited in a bank account mean that this money does not derive from criminal activity?

    I fail to understand why we must distinguish between civil and criminal lawyers. All lawyers have the right to be paid in cash or otherwise. After all a person can buy say property by paying all the price in cash to the owner. To my knowledge this is not illegal.

    [Daphne – Your knowledge is wrong, David.]

  4. gaetano pace says:

    Minn snin ta’ investigazzjoni u frekwentazzjoni tal-Qrati bhala ufficjal tal-pulizija ghandi ragunijiet bizzejjed biex nifhem li hafna minn dawk il-flus li jitpoggew bhal bail ikunu gejjin minn self bl-uzura.

    Nies uzuraj li jkunu ihufu fil-vicinanzi tal-Qorti lesti li jisilfu l-flus lin-nies li ma jkunux jifilhu ihallsu imqas l-ehfef somma ghall-liberta provizorja. Dan qed jinghad bl-akbar serjeta ghalkemm forsi mhux prudenti hawn jissemmew l-ismijiet.

  5. Lomax says:

    It IS illegal for all lawyers to accept cash payments in terms of money laundering legislation – indeed, the law makes no distinction and all lawyers are subject to the FIAU. But as Not Sandy commented above, I am still baffled how the FIAU did not bat an eyelid at Mallia’s declaration.

    Ms (or Dr) Mallia’s point is very valid. But the FIAU of course is powerful with the weak and weak with the strong. After Mallia’s declaration and the FIAU doing nothing I came to this conclusion.

  6. David says:

    Nevertheless an important difference between civil and criminal cases is that the amount of payment for civil cases is regulated whilst there are no such regulations for criminal cases.

    Therefore I think the government and the Chamber of Advocates should tackle this anomaly.

  7. Lomax says:

    Of course, a lawyer may accept relatively small payments in cash but not even regularly from the same individuals.

  8. Manuel says:

    That’s one law the President of the Law Commission will not dare change.

  9. Tabatha White says:

    Should anybody?

    __________________________

    Do lawyers accept to be paid by such clients by cheque or transfer?

    I understand the difference in focus in this case, but why does the view need to be split at any point, if the source of funds remains the same?

    Just because money used to pay lawyers by such clients may be effected through a sanitised medium, or not, for their service, doesn’t make it cleaner, even if tax is paid on it.

    Is it only the bail money that’s the problem?

  10. Rover says:

    So Eur30,000 in cash is deposited by the defence lawyer on behalf of his client and this is accepted by the court and a receipt given.

    The case is over, the defence lawyer holds back, let’s say Eur10,000 for expenses, and issues a cheque for the difference of Eur20,000.

    Client pops round the corner to the bank and deposits a nicely laundered Eur20,000 in his account.

    Right under the court’s nose. Great stuff.

  11. Dumbo says:

    €30,000 is peanuts compared to half a million

  12. lino says:

    That is why just a ‘profit and loss account’ in the income tax return is a joke. A balance sheet would not tighten the possible current year evasion of tax but it would definitely put brakes on subsequent returns attempted manipulation.

  13. Lupin says:

    Moreover, if the defence is successful, laundered money will then become clean money with the help of the courts when it is given back to the defendent.

  14. chico says:

    As far as I know not only the banks, but even professionals such as accountants notaries and possibly even lawyers(?) are regulated by the Money Laundering Act.

  15. malti says:

    As far as I know at the law courts they don’t accept cash, when bail exceeded a certain amount of money (don’t know the exact amount), instead they request a bank draft.

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