Criminal Convictions by Mistake / Unattractive Occupations [an article by Ben Shenton]

There are many people a lot more knowledgeable than me in respect of the law, as I have no legal background apart from spending six years in the legislature.

My understanding has always been that to be classified as a crime, the “act of doing something criminal” (actus reus) must be accompanied by the “intention to do something criminal” (mens rea). Furthermore, while every crime violates the law , not every violation of the law counts as a crime.

Nine years ago, in 2015, I became concerned that an innocent person could be convicted of a crime despite having the intention of doing everything by the book. In other words, you could receive a criminal conviction without intention, simply by innocently doing something wrong, or perceived to be wrong, by mistake.

The case in question is the JFSC against Michelle Jardine, who was the designated compliance MLRO (Money Laundering Reporting Officer) at a local Trust Company. Mrs Jardine argued in her defence that she had followed the rules by using a process she believed was in accordance with the law, and thankfully was acquitted.

The reason I took interest was that a conviction would set a very low criminal threshold for the finance industry, and only an idiot would agree to be an MLRO as a simple mistake, or incorrect internal procedure, could lead to a criminal conviction and destroy their life.

Similarly in 2019, in Guernsey, criminal proceedings against a highly respected MLRO were dropped in the Royal Court to a round of applause from a full public gallery – the case was the Guernsey Financial Investigations Unit against Michael Still, who was head of compliance at Investec.

My understanding that whilst the appropriate report regarding a suspicious transaction was made to the correct authority, an internal mistake led to the funds being paid away in error.

The amount in question was small. Mr Still commented afterwards:

• “This has been a tremendously difficult period for me and my family.”
• “The 16 month investigation and build-up to the trial has naturally led to a huge amount of psychological and emotional strain for me, for my family, and for my colleagues.”

As in the previous case a conviction would have made appointments of MLROs very difficult.

No action was taken against the authorities that put him through 16 months of hell and almost destroyed him.

As a previous Minister for Health and Social Services I find the convictions of the two paramedics, doing their job in very difficult conditions, very dangerous and one that could have very negative far-reaching implications for the island.

I cannot see any sign of criminal intent from these two competent and worthy paramedics.

We appear to be moving towards a culture where making an honest mistake, a mistake determined with the benefit of hindsight, can lead to a criminal conviction. This also highlights how other services, fire, ambulance, police etc, are vulnerable to prosecution. There also needs to be an investigation into why they had to personally make a significant contribution to their legal costs.

As a direct result of this conviction, I could not, hand on heart, recommend that anyone seeks to work as a paramedic in Jersey – or in the medical or emergency sector for that matter. One perceived innocent mistake could destroy your life.

Hopefully the paramedics, both of whom have exemplary records, will appeal, and their employer will cover all their legal bills, as would often be the case in the private sector. With an aging demographic this is not a time to make frontline care sector employment completely unattractive.

This article first appeared in the Jersey Evening Post on 3rd July 2024
Criminal Convictions By Mistake / Unattractive Occupations
Ben Shenton | 3 Jul 2024
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