20200927 The FinCEN Files - misleading the public and benefiting from criminal conduct: Page 3 of 8

20200927 The FinCEN Files - misleading the public and benefiting from criminal conduct

Nigel Morris-Cotterill

There is, at present, a state of excitement amongst the media, some financial crime consultants and some politicians in response to what they are being told is public opinion.

The so-called FinCEN Files were heavily telegraphed in a media blitz more akin to the launch of a Hollywood film that has cost a fortune but the result isn't as good as was hoped.

In the USA and the UK, mainstream media outlets have published a series of articles that, they say, arise because of what it has found in documents obtained illegally from the USA's Financial Intelligence Unit, FinCEN.

No one seems to notice that all those who are profiting from the articles are gaining a benefit from criminal conduct.

That's just one reason why I would not have worked on the FinCEN papers, had I been asked (I wasn't and I'm glad).

The material would be rejected by a Court, so the journalists have opted for a trial in the court of public opinion

For evidence to be admissible in Court the general principle is that it must have been obtained not only legally but lawfully and in accordance with whatever the Rules of that particular court say.

Yes, there are exceptions - in some US courts, if evidence falls into the lap of the prosecution (note prosecution in a criminal trial) and the police or other investigator did not have any part in how it was obtained it may (note may) be admissible even if protest is made. But I am not aware of any similar saving in civil cases. In the UK, in 1955, a court did say that it was the probity of the evidence that mattered and the method of obtaining it was irrelevant. However, that case is largely regarded as either a rogue decision or outmoded.

But there is no such constraint in the court of public opinion, as certain sections of the media likes to portray itself. So long as there is no active libel, there is very little restriction on what a newspaper or website may publish. In the UK, where government documents are concerned, the government can issue a D Notice. But a D Notice cannot apply to anything other than UK originated government documents the publication of which would be against the national interest. It would be possible to argue that by supporting the illegal extraction of data from FinCEN some people might be tempted to extract similar data from UK agencies and that would be against the national interest. That, I feel, would be a stretch.

It would be difficult to see any way that those in the UK who have published details of US SARS have committed a crime in the UK. But... as disclosing the contents of an SAR is an offence in both countries, there is an argument that they could be extradited to the US to face trial for that.

But the simple thing is this: if a prosecutor or a party in civil litigation is unlikely to be able to use it in a court, then it is, in my view, improper to use it in the media or, even, in any other context.

What is worse is that, unlike in a Court, those to whom the material relates have no right of rebuttal; if they are asked for a comment, what they say is edited selectively. In short, what they say in response is not what is published. The "evidence" is not tested in cross-examination and there is no Judge to ensure fair play.

It gets worse: the style of presentation is, in several cases, simply sensationalist. Even rebuttals by e.g. the banks would, in that situation, sound hollow and defensive.

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