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edwardmontagueme-blog · 10 months ago

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Judge Malcolm Simmons

Malcolm Simmons judge

Malcolm Simmons Kosovo

Malcolm Simmons EULEX

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edwardmontagueme-blog · 5 years ago

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Judge Malcolm Simmons Discusses Judicial Skills

Judicial Discretion

“The discretion of a judge is said to be the law of tyrants; it is always unknown; it is different in different men; it is casual and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion, to which human nature is liable.”

Lord Camden in Case of Hindson and Kersey(1680)

For centuries courts and commentators alike have wrestled with the concept of judicial discretion.

The comments of Lord Camden marked a low point in the evolution of the concept of judicial discretion. It was a point when the administration of justice was seen simply as the application of the capricious will of judges.

By the 1800’s things were viewed somewhat differently:

“Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.”

Chief Justice John Marshall in Osborn v. Bank of the United States, 22 U. S. 738 (1824)

The judicious use of discretion increases fairness and can help to promote an equitable legal process by allowing the judge to consider individual circumstances in instances when the law is insufficient or silent.

Conversely, because discretion involves situational considerations, its misuse can adversely impact the court’s authority and good reputation, create a feeling of result-oriented decision making and, when abused, lead to gross injustice.

However, Judicial discretion is necessary for the proper discharge of our Constitutional obligations as a separate – and independent – branch of government. Legislatures cannot anticipate every situation that we, as judges, can expect to encounter in the administration of justice.

What is ‘judicial discretion’ and when might it be applied?

A common definition of judicial discretion is

· The act of making a choice in the absence of a fixed rule, i.e. statute, case, regulation, for decision making or

· The choice between two or more legally valid solutions and

· A choice not made arbitrarily or capriciously and

· A choice made with regard to what is fair and equitable under the circumstances and the law.

Consistent with Justice Marshall’s observations, judicial discretion does not provide a licence for a judge to merely act as he or she chooses.

The exercise by a judge of his discretion is ‘individual’. No two judges will think alike and “reasonable minds can differ.” Discretion is not exercised in a vacuum and a judge’s “choice” may well be impacted by any number of external factors including life experience and personal views on legal, social, and moral issues.

If the exercise of a judges discretion is to survive appellate review he/she should consider the following:

· Establish the record: ensure that the relevant and necessary facts are on the record. Make sure your findings are only on the evidence presented. Clearly show your reasoning and the logic in your decision;

· Apply the correct law. While this may seem obvious, there are times that the law may be unclear or unsettled. When that occurs, consider making alternative rulings to support your decision regardless of which of the alterative views of the law was employed;

· Consider different ways to exercise your discretion. You can choose to act quickly and decisively, or you can act slowly and monitor the situation. Every case is different and a one-size-fits-all model for how to respond simply does not work;

· Consider the equities of the situation. When making a decision consider the equities and ask yourself — is it fair? Is it the right thing to do? Let your fairness show through on the record and give each side an adequate opportunity to present their position to the court;

· Take time to think over any decision. You are the judge and the case cannot proceed without you. Do not allow yourself to be unnecessarily rushed. There is nothing wrong with taking the time to step off the bench to ponder a decision or to discuss it with a law clerk or colleague. You can also sleep on many decisions and address them the following day. Be wary of the discretionary decisions that you are asked to make late in the day on short notice. There are not many items which cannot wait until the next day when you have had a chance to fully consider the matter;

· Clearly and logically explain your decision. This applies whether it will be in written or oral form. It is important that those who hear the decision, especially those who will be guided by it, are able to understand both its rationale and its terms. This maximizes the potential that it will be followed and, if necessary, also makes enforcement more effective;

· Do not make a decision just because you can.

Audi Alteram Partem

No defendantshould be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.

In most legal systems audi alteram partem is considered to be a fundamental tenet of justiceor equityand a principle of natural justice. This principle includes the rights of a party or his lawyers to confront the witnessesagainst him, to have a fair opportunity to challenge the evidencepresented by the other party, to summon one's own witnesses and to present evidence, and to have counsel, if necessary at public expense, in order to make one's case properly.

Duty of a Judge to Give Reasons

The duty of a judge to give reasons for his/her decisions is a function of due process and therefore justice. Its rationale has two principle aspects.

The first is that fairness surely requires that the parties should be left in no doubt of the bases for the judges’ findings. This is especially so because without a reasoned decision the losing party will not know whether the court has misdirected itself and thus whether he may have an available appeal on the substance of the case. In the absence of reasons it will be impossible to determine whether the judge has made a mistake on the facts or law thus depriving a party of an appeal unless the appeal was itself based on the lack of reasons itself.

The second is that the requirement to give reasons concentrates the mind and the resulting decision is much more likely to be soundly based on the evidence.

Occasionally it may be possible for the judge to give oral reasons alone. However, in most cases a reasoned, written decision or ruling should be given. Transparency is the watchword.

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edwardmontagueme-blog · 5 years ago

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Judge Malcolm Simmons Discusses Money Laundering in an International Context

Judge Malcolm Simmons gave an excellent presentation to delegates recently assembled at a symposium in Abuja, Nigeria that examined initiatives to counter money laundering and the financing of terrorism. Judge Simmons described the efforts of international organisations in this area including the Financial Action Task Force, MONEYVAL and The Egmont Group.

Financial Action Task Force

Judge Malcolm Simmons described the role of the Financial Action Task Force (FATF) is an inter-governmental body established in 1989 by the Ministers of its Member jurisdictions. The objectives of the FATF are to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system. The FATF is therefore a “policy-making body” which works to generate the necessary political will to bring about national legislative and regulatory reforms in these areas.

Judge Malcolm Simmons explained that the FATF has developed a series of recommendations that are recognised as the international standard for combating of money laundering and the financing of terrorism and proliferation of weapons of mass destruction. They form the basis for a co-ordinated response to these threats to the integrity of the financial system and help ensure a level playing field. First issued in 1990, the FATF Recommendations were revised in 1996, 2001, 2003 and most recently in 2012 to ensure that they remain up to date and relevant, and they are intended to be of universal application.

Judge Malcolm Simmons explained that the FATF monitors the progress of its members in implementing necessary measures, reviews money laundering and terrorist financing techniques and counter-measures, and promotes the adoption and implementation of appropriate measures globally. In collaboration with other international stakeholders, the FATF works to identify national-level vulnerabilities with the aim of protecting the international financial system from misuse.

MONEYVAL

Judge Malcolm Simmons described the role of MONEYVAL (formerly PC-R-EV) which was established in 1997 and its functioning was regulated by the general provisions of Resolution Res (2005) 47 on committees and subordinate bodies, their terms of reference and working methods. At their meeting on 13 October 2010, the Committee of Ministers adopted the Resolution CM/Res (2010) 12 on the Statute of the Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL). Judge Malcolm Simmons explained that the statute elevates MONEYVAL as from 1 January 2011 to an independent monitoring mechanism within the Council of Europe answerable directly to the Committee of Ministers. MONEYVAL Statute was further amended in 2013 by Resolution CM/Res (2013) 13 and in 2017 by the Resolution CM/Res (2017) 19.

Egmont Group

Judge Malcolm Simmons described the role of the Egmont Groupwhich is a united body of 158 Financial Intelligence Units (FIUs). The Egmont Group provides a platform for the secure exchange of expertise and financial intelligence to combat money laundering and terrorist financing (ML/TF). This is especially relevant as FIUs are uniquely positioned to cooperate and support national and international efforts to counter terrorist financing and are the trusted gateway for sharing financial information domestically and internationally in accordance with global Anti Money Laundering and Counter Financing of Terrorism (AML/CFT) standards.

Judge Malcolm Simmons explained that the Egmont Group continues to support the efforts of its international partners and other stakeholders to give effect to the resolutions and statements by the United Nations Security Council, the G20 Finance Ministers, and the Financial Action Task Force (FATF). The Egmont Group is able to add value to the work of member FIUs by improving the understanding of ML/TF risks amongst its stakeholders. The organisation is able to draw upon operational experience to inform policy considerations; including AML/CFT implementation and AML/CFT reforms. The Egmont Group is the operational arm of the international AML/CFT apparatus.

The Egmont Group recognises sharing of financial intelligence is of paramount importance and has become the cornerstone of the international efforts to counter ML/TF. Financial Intelligence Units (FIUs) around the world are obliged by international AML/CFT standards to exchange information and engage in international cooperation. As an international financial intelligence forum the Egmont Group both facilitates and prompts this amongst its member FIUs.

Judge Malcolm Simmons’ Experience

Judge Malcolm Simmons has over 18 years experience training judges and prosecutors and is a regular contributor to debates on anti-money laundering and terrorism financing initiatives worldwide.

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edwardmontagueme-blog · 5 years ago

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Judge Malcolm Simmons Explains How Judges Assess Disputed Evidence

This is a simple but important question.

Where to Begin?

Judge Malcolm Simmons explained that the starting point is to determine what facts are agreed. Agreed facts form the basis from which to establish the truth between conflicting events. Agreed facts will assist the judge by establishing the margin of dispute and the materiality of the evidence.

Assertions of fact are not evidence unless admitted or supported by evidence.

Inferences of fact may properly be drawn from findings of fact. For example, the absence, without proper explanation, of a document usually available to a party to prove a contested matter would create a legitimate adverse inference.

How to Assess Facts and Evidence

When assessing facts or evidence that are in dispute Judge Malcolm Simmons said that most judges will consider the following:

1. Is there contemporaneous documentary evidence available (the provenance or reliability of which is not in issue) that is of assistance?

2. Is there primary evidence of witnesses of fact?

3. Is the documentary evidence consistent with the documentary evidence?

4. If the two are not consistent which is to be preferred and why?

5. Is there secondary evidence available that is consistent with the primary evidence?

6. Is there secondary evidence to which the court might attach some weight?

7. Is the intended finding consistent with undisputed findings or agreed facts?

8. Is the cumulative result correct?

The judge will adopt the same process when considering other disputed facts.

Judge Malcolm Simmons’ training Experience

Judge Malcolm Simmons has over 18 years experience training judges and prosecutors and has presented seminars on judicial reasoning to judges around the world.

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edwardmontagueme-blog · 5 years ago

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Judge Malcolm Simmons Explains the Duty of a Judge to Give Reasons

Judge Malcolm Simmons explained that the duty of a judge to give reasons for his/her decisions is a function of due process and therefore justice. Its rationale has two principle aspects.

The first is that fairness surely requires that the parties should be left in no doubt of the bases for the judges’ findings. Judge Malcolm Simmons explained that this is especially so because without a reasoned decision the losing party will not know whether the court has misdirected itself and thus whether he may have an available appeal on the substance of the case. In the absence of reasons it will be impossible to determine whether the judge has made a mistake on the facts or law thus depriving a party of an appeal unless the appeal was itself based on the lack of reasons itself.

The second is that the requirement to give reasons concentrates the mind and the resulting decision is much more likely to be soundly based on the evidence.

Judge Malcolm Simmons explained that, occasionally, it might be possible for the judge to give oral reasons alone. However, in most cases a reasoned, written decision or ruling should be given. Transparency is the watchword.

Judge Malcolm Simmons’ training Experience

Judge Malcolm Simmons has over 18 years experience training judges and prosecutors and lectures worldwide on judicial skills.

Future Lectures

Judge Malcolm Simmons will be giving a series of lectures on judicial skills in India and Pakistan in October 2019.

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edwardmontagueme-blog · 5 years ago

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Judicial Independence

In May 2019 judicial independence was dealt a severe blow. Who were the perpetrators? China? North Korea? Poland? Hungary? No, the culprit was none other than the European Union.

The double standards of the EU are already obvious to most people. Are we surprised that those same EU double standards are now seeking to undermine the very foundations of rule of law that have preserved peace, stability and prosperity throughout the world? We should not be.

In January this year the EU criticised Hungary for failing rule of law. Hungary is not the only Member State to come under attack from the EU. Poland was also recently the subject of criticism when its government introduced legislation that the EU said compromised independence of the judiciary. Now the EU itself is the subject of criticism for undermining judicial independence.

In disciplinary proceedings brought by the European External Action Service (“EEAS”) against a judge serving in a European Union Rule of Law Mission[i], an Appellate Panel comprising Maria Eugenia Martins de Nazare Ribeiro, John D. Cooke and Melchior Wathelet, former judges of the General Court of the European Union, decided that it was notnecessary for the first-instance Disciplinary Board to comprise a majority of judges.

In that particular case, a senior judge of a European Union Member State was accused of misconduct relating to the exercise of his judicial function. The Disciplinary Board convened by the EEAS comprised three members of which only one was a former judge. The other two members of the Board were civil servants. One was even employed by the EEAS — the very institution that brought the disciplinary proceedings — and was subordinate to the EEAS staff member who initiated the proceedings.

In so finding, the Appellate Panel ignored decisions of the European Court of Human Rights (“ECtHR”) that had held that, with respect to disciplinary proceedings against judges, there was a requirement of a “substantial participation of judges in the relevant disciplinary body” — in other words at least a majority[Oleksandr Volkov v. Ukraine][ii]

The Appellate Panel also ignored the Council of Europe European Charter on the Statute for Judges that, referring to the composition of disciplinary boards, provides at paragraph 5.1 that “…at least one half of whose members must be elected judges”.[iii]

The Appellate Panel also ignored the Judges’ Charter in Europe (European Association of Judges) 1997 that provides “9. Disciplinary sanctions for judicial misconduct must be entrusted to a body made up of members of the judiciary in accordance with fixed procedural rules”.[iv]

The Appellate Panel also ignored the Consultative Council of European Judges opinion No 1 (2001) which commended the European Charter insofar as it advocated that disciplinary proceedings against judges be conducted by an authority “with substantial judicial representation chosen democratically by other judges”. [v]

The Appellate Panel also ignored the International Association of Judges in the Universal Charter of the Judge that provides at Article 7:“Disciplinary proceedings should be carried out by independent bodies, that include a majority of judges.”[vi]

The Council of Europe has described the Council of Europe European Charter on the Statute for Judges as “non-binding”[vii] It appears that one of the most important charters of judicial independence is merely aspirational — even on the institutions of the European Union.

However, and most extraordinarily, the Appellate Panel did not find a breach of Article 6 of the European Convention on Human Rights even though one member of the panel was employed by the EEAS and subordinate to the EEAS staff member who initiated the disciplinary proceedings.

Article 6 provides that

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal…”[viii]

Article 6 of the ECHR guarantees a “fair hearing….by an independent and impartial tribunal.” In this particular case the Disciplinary Board comprised only one [former] judge. The other two members of the Board were civil servants — members of the Executive. One of the members was employed by the EEAS, the organisation that brought the disciplinary proceedings and subordinate to the person who initiated the proceedings. Any reasonable observer would quickly conclude that was not an “independent and impartial” tribunal as required by Article 6 of the ECHR. The Appellate Panel simply failed to address that obvious breach of Article 6.

The Decision of the Appellate Board was accepted in full by the EEAS.

2. Conclusion

The decision of the Appellate Panel in this case significantly undermines independence of the judiciary and strikes at the very heart of the most basic principles of rule of law.

The EU and its institutions no longer have the moral authority to lecture countries, including Hungary and Poland, on matters of judicial independence and rule of law when its treats those very principles with such obvious contempt.

[i]EULEX Kosovo 2017–6

[ii]21722/11, 9 January 2013,

[iii]https://rm.coe.int/16807473ef

[iv]https://www.icj.org/wp-content/uploads/2014/10/Judges-charter-in-europe.pdf

[v]https://www.legal-tools.org/doc/ca5224/pdf/

[vi]https://www.unodc.org/res/ji/import/international_standards/the_universal_charter_of_the_judge/universal_charter_2017_english.pdf

[vii]Leyla Kayacik, Private Office of the Secretary General and Deputy Secretary General, Strasbourg, 18 December 2018

[viii]https://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf

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edwardmontagueme-blog · 5 years ago

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Judge Malcolm Simmons Explains Mutual Legal Assistance in Criminal Matters

Judge Malcolm Simmons explained that while removing border controls in the EU has made it easier for EU citizens to travel around freely it has also made it easier for criminals to operate across borders.

Judge Malcolm Simmons explained that the rules on gathering evidence in criminal matters in the EU are based on ‘mutual assistance’ agreements. In particular (1) the European Convention on Mutual Assistance in Criminal Matters (20 April 1959) and its additional protocols, plus bilateral agreements concluded under Article 26; (2) the Convention implementing the Schengen Agreement and its additional protocols and (3) the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (2000) and its protocol.

Since 22 May 2017, obtaining evidence in the EU has been governed by the Directive on the European Investigative Order.The new directive is based on mutual recognition and replaces the corresponding measures in the above conventions.

It applies between the EU countries bound by the Directive.

After the adoption of the Directive, the Framework Decision on the European Evidence Warrant (2008) (which had a more limited scope) was repealed by Regulation 2016/95 of 20 January 2016.

Convention on mutual assistance in criminal matters of 2000

Judge Malcolm Simmons explained that the Convention is the most commonly usedinstrument for obtaining evidence.

It covers mutual assistance in areas such as:

• taking statements from suspectsand witnesses

• the use of videoconferencing

• usingsearchand seizureto obtain evidence

• telecommunications.

Its protocol contains rules on obtaining information on bank accounts andbanking transactions.

Judge Malcolm Simmons explained that the requesting authority can contact the issuing authority directly.

Unless the executing authority has grounds to refuse a request, the request should be executed as soon as possible – and by the deadline given by the requesting authority, if feasible.

Judge Malcolm Simmons explained that to ensure that the evidence obtained is admissible, the authorities of the executing country must comply with any procedures specified by the authorities in the requesting country – provided they are not contrary to fundamental principles of law in the executing country.

European Investigation Order

Judge Malcolm Simmons explained that the European investigation order is a judicial decision issued in or validated by the judicial authority in one EU country to have investigative measures carried out in another EU country to gather evidence in criminal matters.

The Directive on the European Investigation Order was adopted on 3 April 2014. Denmark and Ireland opted out.

Judge Malcolm Simmons explained that the aim of the directive was to introduce the mutual recognition principle while maintaining flexibility in mutual legal assistance and protecting fundamental rights. It covers all investigative measures (except setting up a joint investigation team). It can be issued in criminal, administrative or civil proceedings if the decision could give rise to proceedings before a criminal court.

Judge Malcolm Simmons explained that the issuing authorities can only use a European investigation order if the investigative measure is:

• necessary,

• proportionate, and

• allowed in similar domestic cases.

•

Under the new Directive, investigative measures must be carried out by the executing EU country as quicklyand with the same level of priorityas they would in similar domestic cases.

Judge Malcolm Simmons explained that investigative measures must also be executed ‘as soon as possible’. The Directive lays down deadlines (a maximum of 30 daysto decide to recognise and execute the request and 90 days to execute the request effectively).

EU countries can refuse the request on certain grounds. The following general grounds for refusal apply to all measures:

o Immunity or privilege or rules limiting criminal liability relating to freedom of the press;

o Harm to essential national security interests;

o Non-criminal procedures;

o Ne bis in idemprinciple;

o Extraterritoriality coupled with double criminality;

o Incompatibility with fundamental rights obligations.

Judge Malcolm Simmons explained that there are additional grounds for refusal for certain measures:

· Lack of double criminality (except for a list of serious offences) or

· Impossible to execute the measure (investigative measure does not exist or is not available in similar domestic cases, and there is no alternative).

Judge Malcolm Simmons has been a judicial trainer for more than 15 years.

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edwardmontagueme-blog · 5 years ago

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Judge Malcolm Simmons Explains Anonymity Orders Under the Pakistan Criminal Code, Islamabad June 2018

“Judge Malcolm Simmons is an accomplished speaker”

High Court Judge

Every defendant has a right to a fair trial. An important aspect of a fair trial is the right of the defendant to be confronted by, and to challenge, those who accuse him or her.

Judge Malcolm Simmons explained that an Anonymity Order is therefore a draconian step and should only be issued if there are grounds to believe that the court would not otherwise hear evidence that should be available to it in the interests of justice; that other measures falling short of anonymity would not be sufficient; and that the defendant will have a fair trial if the order is made.

Anonymous witness testimony is not necessarily incompatible with the defendants’ right to a fair trial - even when it is the sole or decisive evidence against the defendant.

Whether the measures used to allow a witness to give evidence anonymously in any particular case would make the trial unfair has to be evaluated with care on the facts of each case.

Judge Malcolm Simmons explained that the effect of a Witness Anonymity Order is to prevent the defendant from knowing the identity of a witness. Without this information the defendant’s ability to investigate and challenge the accuracy or credibility of the witness’s evidence may be limited.

Judge Malcolm Simmons explained that when considering whether to make a Witness Anonymity Order the court will consider to what extent the defendant needs to know the identity of the witness in order to challenge the witness’s evidence effectively. This question will often be central to the question of whether, having regard to all the circumstances, the Witness Anonymity Order sought would be consistent with a fair trial.

The interests of justice include the interests of the victim or victims, the interests of the witness or witnesses, the interests of the defendant and any co-defendants and the wider public interest.

Judge Malcolm Simmons has been a judicial trainer for over 15 years. He has lectured around the world.

An extract from a seminar presented by Judge Malcolm Simmons.

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edwardmontagueme-blog · 5 years ago

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Judge Malcolm Simmons Describes Successful Judgment Writing

A successful judgment will be one that is clear, well-reasoned, addresses all of the matters in issue, compelling and unimpeachable.

Judge Malcolm Simmons explained that a judgment tells the story. It should be engaging while focusing only on relevant, admissible evidence. The facts should be clearly established in chronological order. Explain clearly why you prefer one version of events to another. Refer to consistent – or inconsistent – evidence; evidence that might be contemporaneous and inherent likelihood.

Time-permitting, prior to trial, a judge should have read the Indictment and written response (if any) of the defendant, reminded him/herself of any agreed facts or admissions and any common ground. S/he should also take the time to read witness statements and other important documents.

Judge Malcolm Simmons said a chronology is very useful and forms the skeleton on which the flesh of a structured judgment can be based.

Judges who use a formulaic approach to the structure of their judgments may have more than half of what they will eventually say prepared before closing arguments are made.

Throughout the trial experienced judges will often mark-up important passages in the evidence and cross-reference matters to a separate sheet of paper on which they have begun to formulate the structure of the judgment.

Composing a judgment can be difficult. Judge Malcolm Simmons explained that the key to writing a successful judgment is preparation. There are a number of key points to bear in mind. The Judgment:

o Should be chronological;

o Focus on the real issues;

o Address agreed facts early in the judgment;

o Identify briefly the issues of law and/or fact upon which you are required to decide;

o Ensure that you have summarized the principle submissions of the unsuccessful party;

o Deal with direct evidence of the primary facts and state what inferences can be drawn from his findings on the secondary facts.

o Give reasoned decisions for your findings on those issues of law and/or fact;

o Deal with issues of law – normally in chronological order by reference to the facts in the case. Refer to the authorities.

o Summarise your conclusions on each of the issues that you have decided;

o Be as brief as possible.

Judge Malcolm Simmons explained that when exercising discretion make sure that you say so and identify all factors (both for and against) that you have taken into account in carrying out the balancing exercise.

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edwardmontagueme-blog · 5 years ago

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Judge Malcolm Simmons Talks About Fighting Corruption Wherever We Find It

Judge Malcolm Simmons described how corruption has a disproportionate impact on the poor and most vulnerable, increasing costs and reducing access to services, including health, education and justice.

Corruption erodes trust in government and undermines the social contract. This is cause for concern across the globe, but particularly in contexts of fragility and violence, as corruption fuels and perpetuates the inequalities and discontent that lead to fragility, violent extremism, and conflict.

Judge Malcolm Simmons described how corruption impedes investment, with consequent effects on growth and jobs. Countries capable of confronting corruption use their human and financial resources more efficiently, attract more investment, and grow more rapidly.

Judge Malcolm Simmons explained that corruption comes in different forms. It might impact service delivery, such as when police officers ask for bribes to perform routine services. Corruption might unfairly determine the winners of government contracts, with awards favouring friends or relatives of government officials. Corruption might affect more fundamental issues including how institutions work and who controls them.

Judge Malcolm Simmons explained that successful anti-corruption efforts require a holistic approach including politicians and senior government officials, the private sector, citizens, communities, and civil society. The methods employed to fight corruption must be tailored to create the most significant impact.

The World Bank Group has suggested the following:

First, every effort must be made to meet corruption at the gate, putting in place institutional systems and incentives to prevent corruption from occurring in the first place. This includes mitigating and detecting potential risks, as well as addressing weaknesses in the institutions critical to this effort.

Second, prevention must be built on the shoulders of credible deterrence, relying on accountability and enforcement mechanisms sufficiently strong to send a message to potential wrongdoers of the potential cost of their misconduct. Deterrence can take many forms beyond criminal consequences, including administrative and civil penalties and the Bank has created a world class sanctions and debarment mechanism to tackle corruption in its projects.

Finally, Judge Malcolm Simmons said it is critical to understand and influence the evolution of norms and standards that can change incentives, strengthen public institutions, and thus move the needle towards positive perceptions of government needed for longer-term and sustainable efforts to combat corruption.

Afghanistan is making inroads to root out corruption, improve the management of its public finance, and make its procurement system more transparent. The country’s National Procurement Authority (NPA) was instrumental in developing a transparent procurement system. The early data and information on procurement processes is accessible to everyone on the NPA website. Robust oversight and monitoring have helped the government save about $270 million.

In Brazil, a data analytics trial in the north eastern state of Ceará explored how mobile surveys and scientific techniques can be used to uncover suspicious patterns of interactions between public service providers and users. In the first experiment, patient feedback provided through mobile phones was combined with administrative data from hospital services. The second experiment investigated how survey and administrative data could be used to find anomalies in the environmental licensing process. While bribery data collected through mobile phones offered inconclusive results, administrative data were used effectively to identify corruption red flags.

In Guinea, for the first time since the country gained independence in 1958, a register enrolled all of Guinea’s employed civil servants in 2015 by implementing a biometric identification system to conduct a census of civil servants to eliminate fictitious or fraudulent positions and potentially save more than 1.7 million dollars through the discontinuation of salary payments.

The Dominican Republic formed the Participatory Anti-Corruption Initiative, a forum that gives public officials, civil society, private sector leaders, and other committed citizens a unique opportunity to tackle corruption and take on powerful interest groups in many areas, including medicine and procurement. By 2014, reforms in this area had lowered drug prices, improved medication quality and reduced public spending by 64 per cent.

Judge Malcolm Simmons has been a judicial trainer for over 15 years and has lectured around the world.

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edwardmontagueme-blog · 5 years ago

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Judge Malcolm Simmons Describes Judgecraft

What people are saying about Judge Malcolm Simmons:

“He is an exceptional and highly experienced lawyer.”

Circuit Judge, England & Wales

“A tenacious and formidable judge who prides himself on attention to detail, and is hard-working.”

Barrister, England & Wales

What is ‘Judgecraft’?

Judge Malcolm Simmons described ‘Judgecraft’ as the art of judging. It encompasses everything that you will not find in a book on law, evidence or procedure. Judgecraft is about how judges do their job and fair treatment and equality are at the heart of it.

A judge must free himself of prejudice and partiality and so conduct himself, in court and out of it, as to give no ground for doubting his ability and willingness to decide cases coming before him solely on their legal and factual merits, as they appear to him in the exercise of an objective, independent and impartial judgement.

These guidelines incorporate the six core judicial ‘values’ derived from the Bangalore Principles of Judicial Conduct, namely independence, impartiality, integrity, propriety, ensuring equality of treatment, competence and diligence.

Communication and Understanding

Effective communication is key to the entire legal process: ensuring that everyone involved understands and is understood.

Understanding means understanding the evidence, the materials, the meaning of questions and the answers to them.

Judge Malcolm Simmons explained that if someone remains silent it does not necessarily mean that they understand; it may equally well mean that they do not understand, that they are unable to understand, that they feel intimidated or inadequate, that they are too inarticulate to speak up, or that they are otherwise unable to communicate properly.

It is possible to test understanding by asking a supplementary question or reiterating what you understand the position to be and asking if the party or witness agrees.

Unrepresented defendants may not have the courage to test the understanding of others or to admit that they do not fully understand a point.

People perceive the words and behaviour of others in terms of the cultural conventions with which they are most familiar; our outlook is based on our own knowledge and experience and this may lead to misinterpretation or a failure to understand those who are different or have different perspectives from us.

Judge Malcolm Simmons explained that effective communication requires an awareness of ‘where a person is coming from’ in terms of background, culture and special needs, and of the potential impact of those factors on the person’s participation in the proceedings; it applies to witnesses, advocates, members of the court or tribunal staff and even members of the public who intervene when they should not.

Try to put yourself in the position of those appearing before you; an appearance before a court is a daunting and unnerving experience; as a result parties and witnesses may appear belligerent, hostile, rude, confused or emotional; a likely result is that they will not give a good account of themselves and the court or tribunal should put them at their ease to enable them to do so; the more information and advice that is available before the hearing, the easier this will be to achieve.

Courtroom Etiquette

Many participants are concerned about how to address the judge; others worry about where they should sit and whether they should sit or stand; these concerns add to their likely anxiety and can be dispelled by a helpful introduction and a tactful explanation.

Lay people do not understand legal jargon and technical terms (“disclosure”, “submission”, “leading question”), so keep language as simple as possible and give clear explanations where required.

Demonstrating Fairness

Inappropriate language or behaviour is likely to result in the perception of unfairness (even where there is none), loss of authority, loss of confidence in the system and the giving of offence.

A thoughtless comment, throw away remark, unwise joke or even a facial expression may confirm or create an impression of prejudice; it is how others interpret your words or actions that matters, particularly in a situation where they will be acutely sensitive to both.

Judge Malcolm Simmons explained that fair treatment does not mean treating everyone in the same way: it means treating people equally in comparable situations. For example, an unrepresented defendant with little understanding of law and procedure is not in a comparable situation to an experience lawyer. It is substantive equality that counts.

Treating Parties Equally

When parties do not get what they would like or expect, it is particularly important that they feel they were fairly treated, fully heard and fully understood.

People who have difficulty coping with the language or procedures of the court or tribunal, and are perhaps less engaged as a result, are entitled to justice in the same way as those who know how to use the legal system to their advantage; any disadvantage that a person faces in society should not be reinforced by the legal system.

Judicial office‐holders should be able to identify a situation in which a person may be at a disadvantage owing to some personal attribute of no direct relevance to the proceedings, and take steps to remedy the disadvantage without prejudicing another party.

Judge Malcolm Simmons explained that the sooner the disadvantage is identified, the easier it is to remedy it; where possible, ensure that information is obtained in advance of a hearing about any disability or medical or other circumstance affecting a person so that individual needs can be accommodated; for example, access to interpreters, signers, large print, audiotape, oath‐taking in accordance with different belief systems (including non‐religious systems), more frequent breaks and special measures for vulnerable witnesses can and should be considered.

Unrepresented defendants should not be seen as an unwelcome problem for the court; you may not be able to assist them with their case but you can ensure they have every reasonable opportunity to present it.

The disadvantage to defendants from poor representation is a challenging issue; consider how the representative can be managed to assist them to represent their client effectively.

People who are socially and economically disadvantaged may well assume that they will also be at a disadvantage when they appear in a court.

Judge Malcolm Simmons explained that those at a particular disadvantage may include people from minority ethnic communities, those from minority faith communities, those who do not speak or understand the language of the court, individuals with disabilities (physical, mental or sensory), women, children, older people, those whose sexual orientation is not heterosexual, trans‐gender people, those who have been trafficked and those who through poverty or any other reason are socially or economically marginalised.

It is for judicial office‐holders to ensure that all these can participate fully in the proceedings; you can display an understanding of difference and difficulties with a well‐timed and sensitive intervention where appropriate.

Recognising and eliminating prejudices, including your own prejudices, is essential to prevent wrong decisions and to prevent erroneous assumptions being made about the credibility or actions of those with backgrounds different from our own.

Unconscious prejudice – demonstrating prejudice without realising it – is more difficult to tackle and may be the result of ignorance or lack of awareness.

Ignorance of the cultures, beliefs and disadvantages of others encourages prejudice; it is for judicial office‐holders to ensure that they are properly informed and aware of such matters, both in general and where the need arises in a specific case.

Stereotypes are simplistic mental short cuts that are often grossly inaccurate, generate misleading perceptions and can cause you to make a mistake.

Judge Malcolm Simmons has over 15 years experience in judicial training and has trained judges in jurisdictions around the world.

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edwardmontagueme-blog · 5 years ago

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Judge Malcolm Simmons explains The EU Framework Legislation on Anti-Money Laundering and Preventing the Financing of Terrorism

It is essential that banks and other ‘gatekeepers’ apply measures to prevent money laundering and terrorist financing.

Judge Malcolm Simmons explained that traceability of financial information has an important deterrent effect. The European Union adopted the first anti-money laundering Directive in 1990 in order to prevent the misuse of the financial system for the purpose of money laundering. It provides that gatekeepers (‘obliged entities’) shall apply customer due diligence requirements when entering into a business relationship (i.e. identify and verify the identity of clients, monitor transactions and report suspicious transactions). This legislation has been constantly revised in order to mitigate risks relating to money laundering and terrorist financing.

In 2015, the EU adopted a modernised regulatory framework encompassing Directive (EU) 2015/849 on preventing the use of the financial system for money laundering or terrorist financing and Regulation (EU) 2015/847 on information on the payer accompanying transfers of funds – makes fund transfers more transparent, thereby helping law enforcement authorities to track down terrorists and criminals.

Both instruments take into account the 2012 Recommendations of the Financial Action Task Force (FATF) (see MEMO/12/246), and go further on a number of issues to promote the highest standards for anti-money laundering and to counter terrorism financing.

The 5th Anti-Money Laundering Directive, which amends the 4th Anti-Money Laundering Directive was published in the Official Journal of the European Union on 19 June 2018. The Member States must transpose this Directive by 10 January 2020.

These amendments introduce substantial improvement to better equip the Union to prevent the financial system from being used for money laundering and for funding terrorist activities.

These amendments will:

Enhance transparency by setting up publicly available registers for companies, trusts and other legal arrangements;

enhance the powers of EU Financial Intelligence Units, and provide them with access to broad information for the carrying out of their tasks;

limit the anonymity related to virtual currencies and wallet providers, but also for pre-paid cards;

broaden the criteria for the assessment of high-risk third countries and improve the safeguards for financial transactions to and from such countries;

set up central bank account registries or retrieval systems in all Member States;

improve the cooperation and enhance of information between anti-money laundering supervisors between them and between them and prudential supervisors and the European Central Bank.

Judge Malcolm Simmons explained that these amendments introduce substantial improvement to better equip the Union to prevent the financial system from being used for money laundering and for funding terrorist activities.

These amendments will:

Enhance transparency by setting up publicly available registers for companies, trusts and other legal arrangements;

enhance the powers of EU Financial Intelligence Units, and provide them with access to broad information for the carrying out of their tasks;

limit the anonymity related to virtual currencies and wallet providers, but also for pre-paid cards;

broaden the criteria for the assessment of high-risk third countries and improve the safeguards for financial transactions to and from such countries;

set up central bank account registries or retrieval systems in all Member States;

improve the cooperation and enhance of information between anti-money laundering supervisors between them and between them and prudential supervisors and the European Central Bank.

The Proposal for a Directive amending Directive 2015/849 was presented by the Commission on 5 July 2016 in the context of the implementation of the Action Plan for strengthening the fight against terrorist financing adopted in February 2016 and of the Panama Papers revelations of April 2016.

On 26 June 2017 the Commission published its first Supranational Risk Assessment Report as required by the 4th Anti-money Laundering Directive. The Commission assessed the vulnerability of financial products and services to risks of money laundering and terrorist financing. This risk analysis is conceived as a key tool to identify, analyse and address money laundering and terrorist financing risks in the EU. It aims at providing a comprehensive mapping of risks on all relevant areas, as well as recommendations to Member States, European Supervisory Authorities and obliged entities to mitigate these risks. This risk analysis support Member States and obliged entities when carrying out their respective risk assessments.

The Commission adopted Delegated Regulation (UE) 1675/2016 identifying third countries presenting strategic deficiencies in their regime on anti-money laundering and countering terrorist financing (AML/CFT).

Delegated Regulation (UE) 1675/2016: identifies the following countries as presenting strategic deficiencies in their AML/CFT regime: Afghanistan, Bosnia and Herzegovina, Guyana, Iraq, Lao PDR, Syria, Uganda, Vanuatu, Yemen, Iran, Democratic People's Republic of Korea.

Judge Malcolm Simmons described how terrorists and criminals have demonstrated their ability to transfer funds quickly between different banks, often in different countries, but lack of timely access to financial information means that many investigations come to a dead end. There is therefore a clear need to enhance cooperation between authorities responsible for combating terrorism and serious crime when financial information is a key part of an investigation.

Judge Malcolm Simmons explained that the Commission is proposing to enhance the use of financial information by giving law-enforcement authorities direct access to information about the identity of bank-account holders contained in national centralised registries. In addition, the proposal gives law enforcement the possibility to access certain information from national Financial Intelligence Units (FIUs) – including data on financial transactions – and will also improve the information exchange between FIUs as well as their access to law enforcement information necessary for the performance of their tasks. These measures will speed up criminal investigations and enable authorities to combat cross-border crime more effectively.

The Commission’s services work closely with the European Supervisory Authorities in the implementation of the AML/CFT rules. The joint committee of the European Supervisory Authorities on AML/CFT issues guidelines and opinions to help national competent authorities to understand the regulatory expectations.

The European Commission has adopted on 8 November 2018 an opinion, in exercise of its powers under the EBA Regulation, requiring the Maltese anti-money laundering supervisor (Financial Intelligence Analysis Unit) to continue taking additional measures to fully comply with its obligations under the fourth Anti-Money Laundering Directive.

EU- Wide Cooperation

Expert Group on Money Laundering and Terrorist Financing meets regularly to share views and help the Commission define policy and draft new legislation.

Committee on the Prevention of Money Laundering and Terrorist Financing may also be convened to give its opinion on implementing measures put forward by the Commission.

The European Commission takes part in the informal network of Financial Intelligence Units (the EU FIUs Platform).

International Context The Commission is a member of the Financial Action Task Force (FATF), the main international body concerned with combating money laundering, the financing of terrorism and other threats to the integrity of the international financial system.

The Commission is an observer in Moneyval – the Council of Europe body assessing compliance with AML/CFT standards.

Judge Malcolm Simmons explained that the Commission is an observer at the Egmont Group of Financial Intelligence Units, that draws upon operational experience to inform policy considerations, and works to improve the understanding of ML/TF risks amongst its stakeholders. It also provides an international platform for the secure exchange of expertise and financial intelligence between FIUs across the globe (including all EU FIUs).

Judge Malcolm Simmons has been a judicial trainer for more than 15 years and has lectured around the world.

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edwardmontagueme-blog · 5 years ago

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Council of Europe Independence of Judiciary