JAMAICA NATIONAL BUILDING SOCIETY
FORUM – LOTTO SCAM, EXAMINING ITS THREATS TO BANKING,
FOREIGN RELATIONS, AND SOCIETY
TO BE HELD AT TERRA NOVA HOTEL
NOVEMBER 07, 2012
This presentation is extracted from a detailed report prepared by a Taskforce within the Office of the Director of
Public Prosecutions dated August 30, 2012.
Lottery Scam in Jamaica
The criminal phenomenon involving fraud and deception has evolved into more sophisticated,
organized, electronically-oriented forms of fraud to include advance fee fraud and in particular
what is locally called lottery scams operated by scammers [colloq].
The lottery scam gained further local and international attention in August 2012, when Western
Union International closed fourteen (14) of its branches in Montego Bay, St James. This
presented a major disruption to the flow of remittances into and out of the country.
However, for quite sometime within the Office of the Director of Public Prosecutions (ODPP)
we had created a task force from members of our Mutual Legal Assistance and Financial Crime
Unit to address issues touching and concerning the lotto scam. This particular taskforce
comprised of four Crown Counsels recently prepared a comprehensive report on behalf of the
ODPP at the request of the Minister of Justice, Senator the Honourable Mr. Mark Golding. The
report outlines the challenges to the prosecution of lotto scam matters, the present state of the
criminal law in the country and recommendations on the way forward.
The social and economic ramifications of the lottery scam in Jamaica has left observers with no
doubt that this criminal enterprise has become deeply entrenched in parts of Jamaica namely
Montego Bay, St. James extending its tentacles into other parishes.
Presented by Ms. Paula V. Llewellyn, Q.C.
Director of Public Prosecutions
November 07, 2012-11-06
Page 1
In an undated report entitled, “Report on Study of Lottery Scam”, presented by Commissioner of
Police Owen Ellington in his capacity as Deputy Commissioner at that time, it purports that
violence connected to lottery scam claimed approximately three hundred and ninety-seven (397)
lives in St. James alone since 2006 and over two hundred and eighty-three (283) non-fatal
shootings have been attributed to scamming since that same year. It was also noted that crime
and violence escalated in communities where the lottery scam activity is most concentrated. It is
against this reality that recommendations are being made that specific legislation be enacted to
facilitate the prosecution of lottery scam and its attendant components.
Lottery Scam Related Offences Before the Court
The Jamaica Constabulary Force (JCF) at the request of the ODPP taskforce provided a list of a
total of sixty three (63) charges preferred in the Resident Magistrates Courts. The charges opted
for could be described as offences ancillary to lottery scams. The charges preferred may be
grouped as follows:

Obtaining Money by False Pretence

Unlawful Possession of Property

Abstracting Electricity

Uttering Forged Documents

Obtaining Passport by False name

Possession of Ganja

Dealing in Ganja

Breaches of POCA

Illegal Possession of Firearm

Bribery

Breaches of Corruption Prevention Act

Breaches of the Road Traffic Act
Presented by Ms. Paula V. Llewellyn, Q.C.
Director of Public Prosecutions
November 07, 2012-11-06
Page 2
The Legal Framework
In Jamaica there is no specific offence known as “lottery scam” nor is there any Act of
Parliament dealing specifically with Advance Fee Frauds” (as it is referred to in other
jurisdictions, such as Nigeria). The following are some legislative instruments which have
been used in the investigating and prosecuting factual and legal scenarios which have been
incidental to lottery scams:

The Larceny Act

The Unlawful Possession of Property Act

Proceeds of Crime Act (POCA)

Cybercrimes Act

The Forgery Act

The Evidence Act
Prosecutions of lottery scams have also been brought under the common law offence of
Conspiracy to Defraud.
The Prosecution’s Role
The burden of proving any case lies on the prosecution, who must present credible and cogent
evidence to the tribunal of fact and law. The standard of proof is very high, which is proof of the
case beyond reasonable doubt, or put another way, the tribunal of fact must be satisfied that it
feels sure of the guilt of the accused before it can convict an offender. For matters of this nature
the best evidence will be direct evidence from the mouths of the witnesses and/or computer
generated evidence. The gathering of this evidence by the investigative authority has to be
deliberate, strategic and accurate. Please see our website at www.dpp.gov.jm for “The Decision
to Prosecute: A Jamaican Protocol” pertaining to guidelines for commencing or discontinuing a
prosecution.
Presented by Ms. Paula V. Llewellyn, Q.C.
Director of Public Prosecutions
November 07, 2012-11-06
Page 3
The Larceny Act
Under the Larceny Act prosecutions of matters involving the lottery scam scheme may be
brought under section 35 and or under section 46.
Section 35 offenders are charged with Obtaining Money by False Pretences. Under section 46
offenders may be prosecuted for receiving stolen property and would prove useful in prosecuting
those individuals who participate in the criminal activity as accomplices, their role being
primarily that of collecting the money on behalf of the main perpetrators.
Number of Prosecutions and Convictions
We requested data from the Clerk of Courts in the Resident Magistrate’s Court who bear the
burden of prosecuting most of these matters. Please note that though the ODPP offers
guidance, make recommendations and assist Clerk of Courts with the prosecution of cases
pursuant to the Judicature (Resident Magistrates) Act. The DPP has no administrative
authority to assign Clerk of Courts to cases or manage the pace or rate of prosecution of
these matter within the Resident Magistrate’s Court. There are three (3) matters in the St.
James and Hanover Resident Magistrate’s Courts which are still awaiting trial.1
The Main Challenges to Viable Prosecution
A. Challenges with Witnesses
1. The need for witnesses, (who reside primarily in the United States) to give viva
voce evidence on the deception committed against them (trial by way of section
31D of the Evidence Act2 is not usually the most feasible route to prosecution).
1
These matters relate to the offence of Obtaining Money by False Pretence under section 35 of the Larceny Act.
This allows for the admission of statements of witnesses into evidence where they are unable to physically attend
trial, once certain conditions are fulfilled.
2
Presented by Ms. Paula V. Llewellyn, Q.C.
Director of Public Prosecutions
November 07, 2012-11-06
Page 4
2. Targeted victims are usually retired pensioners, residents of nursing homes and
geriatrics with varying illnesses.
3. Witnesses have also expressed outright reluctance to attend and participate in
legal proceedings.
B. Other Challenges
4. Incomplete files lead to the dismissal of matters “for want of prosecution” after
a relatively short period before the court.
5. The absence of a virtual complainant makes it difficult to identify the
perpetrator and connect the latter to the offence.
6. The challenges encountered in co-ordinating joint efforts between local law
enforcement authorities with overseas counterparts (for example, JOLT).
7. The costs associated with local investigators travelling overseas to collect
statements from victims have been significant.
8. Sections 35 and 46 are not listed as a scheduled offences under POCA, the latter
being the statute which activates confiscation of criminal property.
The Unlawful Possession of Property Act
This statute is primarily procedural. Section 8 of the Act has direct relevance to the matter at
hand.
Which provides for the issuance of a search warrant in circumstances where “there is reasonable
cause for suspecting that anything stolen or unlawfully obtained is concealed or lodged in any
house, store, yard or other place, or on any lane or in any vessel”.
Presented by Ms. Paula V. Llewellyn, Q.C.
Director of Public Prosecutions
November 07, 2012-11-06
Page 5
Number of Prosecutions and Convictions
Since 2012, there have been twenty-six (26) matters before the Court but this number has been
reduced to twenty-five (25) due to one matter being dismissed in May, 2012. The remaining
matters are still awaiting trial.
Weaknesses
1. The provision is highly procedural and as such it requires complete adherence to the
procedural requirements stipulated under section 8 of the Act.
2. The legislation is popularly utilized by police officers and is deemed most convenient. It
was however never created to address frauds of this nature. While there is short term
success in immediately taking away property found in the possession of alleged lottery
scammers, prosecution under this statute precludes the activation of forfeiture
proceedings under POCA in the event of a conviction.
Proceeds of Crime Act
POCA was enacted in 2007 as a part of the strident efforts to take the profit out of crime by
providing for the investigation, identification and recovery of proceeds of crime and connected
matters.
Under the current regime if there is a conviction for offences under sections 35 and 46 of the
Larceny Act as well as Conspiracy to Defraud, the Court would only be engaged in an
assessment of the convict’s particular criminal conduct in relation to that particular offence but
would not be empowered to assess the general criminal conduct as provided for under POCA
by section 5 (2) (a) and (b). This state of affairs does not give effect to the object and purpose of
POCA in treating with individuals that are deemed to benefit from a “criminal lifestyle”.
Presented by Ms. Paula V. Llewellyn, Q.C.
Director of Public Prosecutions
November 07, 2012-11-06
Page 6
Based on the modus operandi of scammers, namely the nature of the deception and the
consequential criminal activities that follow,3 POCA can be considered the most effective
legislation to seize the illicitly obtained wealth of the scammers.
The key provisions geared at combating transactions involving criminal property are:
1. The offence of Money Laundering;
2. Recovery of illicitly obtained wealth which would include (a) post conviction orders and
(b) civil recovery;
3. Cash seizure;
4. Reporting obligations; and
5. Investigative tools.
Money Laundering
POCA can be effectively utilised in prosecuting lottery scammers as it relates to engaging in
transactions involving movement of criminal property (money as included under POCA).
Evidentiary Burden
POCA does not specifically indicate what the prosecution has to prove in relation to Money
laundering cases.
The prosecution must however prove that the alleged perpetrator engaged in a transaction
involving criminal property. Criminal property is defined under section 91 of POCA as
3
This involves the laundering of cash, purchasing of houses, guns among other things.
Presented by Ms. Paula V. Llewellyn, Q.C.
Director of Public Prosecutions
November 07, 2012-11-06
Page 7
constituting a person’s benefit from criminal conduct in whole or in part whether directly or
indirectly.
Examination of the Case Law
An examination of the UK decision of R v Anwoir and Others4 reveals that there are two (2)
approaches to the prosecution of money laundering which we believe may be utilised in tackling
the scourge of lottery scams.
The Court of Appeal laid out two (2) ways in which the Crown can prove the property derives
from crime:
(a) By showing that it derives from conduct of a specific kind or kinds and that conduct of
that kind or those kinds is unlawful. (This limb is specific to section 242 (2) of the UK
Provision and does not apply to the Jamaican context.)
(b) By evidence of the circumstances in which the property is handled which are such as to
give rise to the irresistible inference that it can only be derived from crime.
Once the prosecution is able to prove that the “money” is criminal property then any engagement
in a transaction concerning this, would give rise to a Money Laundering offence. A conviction
for this offence would result in the activation of forfeiture proceedings under POCA.
With reference to limb (b) of Anwoir, the following5 could give rise ‘to the irresistible
inference”:
4
5
(1)
Unexplained cash lodgements in bank accounts;
(2)
Profile on the suspect’s legitimate income and expenditure;
[2008] EWCA Crim. 1354
It should be noted that the list is not exhaustive and will depend on the circumstances of each case.
Presented by Ms. Paula V. Llewellyn, Q.C.
Director of Public Prosecutions
November 07, 2012-11-06
Page 8
(3)
Evidence that the suspect’s expenditure exceed his apparent income;
(4)
Provable lies;
(5)
False records;
(6)
Evidence of complex audit trails;
(7)
Assessing the commercial sense of transactions;
(8)
Accomplice evidence;
(9)
Extensive surveillance of alleged scammers;
(10)
Suspicious transaction reports;
(11)
Unusual transaction reports;
(12)
Large sums of cash;
(13)
Tax returns (failure to file or under filing).
The position in Anwoir has been affirmed in other jurisdictions such as Scotland6 and Mauritius7.
In instances of consultation with the police we have been informed that suspects have been kept
under surveillance and upon execution of search warrants, lap top computers, thumb drives,
external hard drives, cellular telephones, magic jacks, lead sheets8, and large sums of cash in
local and foreign currency have been recovered. The police have expressed the view that at trial
lead sheets have very little evidentiary weight in proving involvement in lottery scam activity
although, generally, the possession of these are indicative of involvement in lottery scamming.
Mohammed Ahmad v Her Majesty’s Advocate (2009) HCJ AC 60
Ahmud Azam Bholah v. the State of Mauritius [2011] UKPC 44
8
Lead sheet is the terminology used to describe the collation of personal particulars of intended victims such as
name, date of birth, civic address, social security numbers and telephone numbers
6
7
Presented by Ms. Paula V. Llewellyn, Q.C.
Director of Public Prosecutions
November 07, 2012-11-06
Page 9
However, it is noteworthy to mention that whilst individually lead sheets carry very little
evidentiary weight, collectively, the aforementioned recovered items have the potential of
establishing the irresistible inference enunciated in limb (b) of Anwoir.
Number of Prosecutions and Convictions
Sixteen (16) files have been before the Court in 2012, all yet to be determined.
The Cybercrimes Act9
The Cybercrimes Act (heretofore referred to as “the Act”) was enacted in 2010. The object and
purpose of the Act is:
1. To provide criminal sanctions for the misuse of computer systems or data;
2. To provide criminal sanctions for the abuse of electronic means of completing
transactions; and
3. To facilitate the investigation and prosecution of cyber crimes.
When one examines the nature of the lottery scam it involves on some level the commission of a
cyber offence. Despite the electronic nature of this criminal activity, if the Cybercrimes Act is
to be applicable, the particular activity carried out must be covered by the Act.
Brief Outline of the Statute
The offence creating sections are sections 3-11 of the Act. The most applicable provisions may
be sections 4 and 8 of the Cybercrimes Act. Section 4 makes it an offence to access any
program or data held in a computer with intent to commit or facilitate the commission of an
9
The compilation of the information presented in this section emanated from a collaborative effort between the
Office of the Director of Public Prosecutions and the Legal Reform Department.
Presented by Ms. Paula V. Llewellyn, Q.C.
Director of Public Prosecutions
November 07, 2012-11-06
Page 10
offence. So where data, including personal information is accessed (for example, stolen from a
data processing centre) in order to commit or help another person to commit a fraud, they would
commit an offence under this section.
A person may have authorisation to access a program or data as part of his job, however once he
uses that access with the intent of committing an offence; he will have committed an offence. 10
On the face of it, section 8 may be used to prosecute alleged offenders (lottery scammers) in
instances where they take steps preparatory to the commission of a section 3-7 offence or to
facilitate the commission of these offences. For example, in instances where the alleged scammer
is found in possession of a “skimmer”11 or other electronic devices designed or adapted primarily
for committing an offence under any of sections 3 to 7, the suspect may be successfully
prosecuted under section 8 of the Act.
However, in terms of the cyber crimes arena there are distinct offences related to computer
related fraud, forgery and identity related crimes; these are not covered by the Act [emphasis
added].
Having examined the guidelines stipulated under the HIPCAR (Harmonizing of ICT Policies,
Legislation and Regulatory Procedures in the Caribbean Project) from which the Cybercrime/eCrimes Model Policy Guidelines and Legislative Texts was reviewed, discussed and adopted by
broad consensus at two consultation workshops held in St. Lucia on 8-12 March, 2010 section 2
provides that:
This provision will address the so called ‘Lotto scam’ data which includes personal information on persons in the
US and elsewhere which is purportedly obtained from a myriad of sources and passed on to criminals. The
information is used by criminals to carry out fraudulent schemes.
11
This is a small electronic device used in stealing a victim’s credit card information which was used in an
otherwise legitimate transaction. This may be used to swipe and store hundreds of victims’ credit card numbers.
10
Presented by Ms. Paula V. Llewellyn, Q.C.
Director of Public Prosecutions
November 07, 2012-11-06
Page 11
1. “There shall be a provision criminalizing intentional and illegal computer related forgery.
It should be ensured that such legislation especially covers acts of sending out phishing12
emails. And aggravation of penalty in cases where numerous emails are sent out should be
taken into consideration;
2. There shall be a provision criminalizing intentional and illegal computer related fraud;
3. It should be ensured that existing legislation criminalizing fraud is also applicable if
offenders are using means of electronic communication to communicate with the victim;
4. There should be a provision criminalizing intentional and illegal acts of identity related
crime. The different phases of identity theft (obtaining, transferring and using identityrelated information) should be taken into consideration.”
When one looks at the guidelines contemplated by HIPCAR it is evident that our legislation is
deficient in these respects. If the Cybercrimes Act is to effectively address lottery scam activity,
it requires amendments similar to those proposed above. It must also be noted that convictions
for cyber crime related offences are not covered under the Second Schedule of POCA which
would activate the forfeiture proceedings under that legislation.
The Forgery Act
The Forgery Act was passed into law on the 15th June 1942, as Jamaica’s chief legislative
instrument addressing issues of fraudulent documents and currency. This Act has proven to be
useful in the prosecutions of lottery scam related offences as forgeries are often detected during
investigation. Falsified identification documents are key tools of scammers in perpetuating
deception and avoiding detection and apprehension by the police. Forgery can form a part of the
circumstantial evidence against perpetrators linking them to a lottery scam operation.
12
Phishing refers to methods used to steal personal information from unsuspecting people over the Internet. It
typically involves fraudulent bulk e-mail messages that guide recipients to legitimate-looking but fake Web sites and
try to get them to supply personal information like account passwords.
Presented by Ms. Paula V. Llewellyn, Q.C.
Director of Public Prosecutions
November 07, 2012-11-06
Page 12
Unfortunately, this is yet another example of prosecuting a collateral offence as opposed to
dealing with the core of lottery scamming activity.
Therefore, the police have properly laid information in relation to these offences albeit not laying
charges for conspiracies to defraud or obtaining money by false pretences. Furthermore, section
5 of the Second Schedule of POCA envisaged the emergence of frauds in proceeds of crime
matters and therefore had the foresight to include sections 12, 13 and 14 of the Forgery Act as
offences which trigger forfeiture proceedings under that legislation.
Number of Prosecutions and Convictions
There is currently one (1) matter before the courts awaiting trial another matter having been
dismissed because the charge was not made out.
The Evidence Act
As a prosecutorial tool, the Evidence Act facilitates the admitting into evidence of witness
statements and documents in any criminal trial provided that certain conditions are satisfied. This
Act however falls short in that it does not allow for video conferencing which is a major
consideration when dealing with overseas and physically incapacitated witnesses. As advised this
will be addressed legislatively in the near future.
Conspiracy to Defraud (Common Law)
This common law offence entails the agreement between two (2) or more persons with the
intention of defrauding their intended victim(s) of money, property or other benefit by fraudulent
means. The particulars of each situation will differ in terms of the number of conspirators,
nature of the deception and the method of perpetrating the fraud.
Presented by Ms. Paula V. Llewellyn, Q.C.
Director of Public Prosecutions
November 07, 2012-11-06
Page 13
Although this offence has the potential of prosecuting the lottery scam in its purest form, such
prosecutions, are hampered by difficulties encountered from as early as the investigative stages.
Furthermore, it has again been observed that this offence is not tied to the mechanisms under
POCA thereby precluding the activation of forfeiture proceedings under that legislation.
Consultations with the JCF have revealed that proceeding with charges of Conspiracy to Defraud
has been undermined by the insufficiency of data on financial records, audit trails, and the
hardship associated with securing witnesses and witness statements. What is clear is that while
this is an otherwise viable route to effective prosecutions of lottery scam matters, there is
insufficient technical and forensic support to establish the evidentiary path to convictions.
Number of Prosecutions and Convictions
For the year 2012, there have been no matters for which suspects have been charged with
Conspiracy to Defraud as it regards allegations of lottery scam. However, during a period of nine
(9) months spanning 2008 – 2009, members of the JCF Task Force as it was then constituted,
investigated and put before the Court ninety (90) matters, of which three (3) secured convictions.
Recommendations on the Way Forward
1. The passing of specific legislation criminalizing advance fee and other related fraud
offences, thereby defining offences and stating when liability arises. A good example of
such legislative endeavour is the Advance Fee Fraud and Other Related Offences Act
(Federation of Nigeria).
2. Immediate amendment to the Evidence Act to include provisions of admissibility of
video link evidence.
3. Section 35 of the Larceny Act should be included as one of the scheduled offences under
POCA. In instances where convictions are obtained this can be used to recover the
proceeds of crime.
Presented by Ms. Paula V. Llewellyn, Q.C.
Director of Public Prosecutions
November 07, 2012-11-06
Page 14
4. Implementation of the Code of Practice referred to in section 74 of POCA. This would
provide administrative guidelines for both investigative and prosecutorial agencies.
5. Review the list of designated non-financial business persons to include car dealers, real
estate agents and contractors that engage in large financial transactions with the
requirement that they report suspicious and unusual transactions.
6. Implementation of training for all stakeholders to include Judges, Resident Magistrates,
Clerk of Courts, police officers and personnel from the Financial Investigations Division.
We cannot overemphasize the need for training of and investment in human resources.
7. Implementation of a Protocol which governs the investigation and prosecution of lottery
scam related offences.
8. An immediate short term measure is to have specialized judges to deal with technical
matters to include, fraud, cybercrimes and cloud computing with a view to establishing
special courts dealing with these matters in the long term.
9. The implementation of the following guidelines as stipulated under the HIPCAR Project:
1. “There shall be a provision criminalizing intentional and illegal computer related
forgery. It should be ensured that such legislation especially covers acts of sending out
phishing emails. And aggravation of penalty in cases where numerous emails are sent out
should be taken into consideration;
2. There shall be a provision criminalizing intentional and illegal computer related fraud;
3. It should be ensured that existing legislation criminalizing fraud is also applicable if
offenders are using means of electronic communication to communicate with the victim;
4. There should be a provision criminalizing intentional and illegal acts of identity related
crime. The different phases of identity theft (obtaining, transferring and using identityrelated information) should be taken into consideration.”
Presented by Ms. Paula V. Llewellyn, Q.C.
Director of Public Prosecutions
November 07, 2012-11-06
Page 15
10. The establishment of a system within which there can be greater collaboration between
entities who conduct financial investigations, such as the Tax administrators, financial
investigators, law enforcement officers and prosecutors.
11. Criminalise the possession of lead sheets or any other form of collated data in
circumstances where this possession has no direct relation to occupation (possession of
such documents raising a rebuttable presumption that suspects are engaged in unlawful
conduct).
12. Amend the definition of “Court” under section 2 of POCA to make reference to the Gun
Court.
Conclusion
An unfortunate feature of lottery scamming is that it is easily detectable but equally difficult to
prevent. The existing legislation deals with the tip of the proverbial iceberg. Given the current
state of affairs, we must move towards radically overhauling how we approach and tackle the
ever-expanding problem of advance fee frauds whatever form they may take.
There is arguably no singular route to rectifying the weaknesses highlighted above. Hence, our
recommendations attempt to create a legislative dragnet that will tackle the problem from several
angles. While we boldly advance the idea of specific legislation we urge that the existing
relevant legislation be given the same urgent attention in order to tighten the entire legal
infrastructure within which all stakeholders must operate.
May I express great appreciation to the four senior members of staff of the ODPP who did the
necessary research and collating of the report from which my presentation was extracted.
Presented by Ms. Paula V. Llewellyn, Q.C.
Director of Public Prosecutions
November 07, 2012-11-06
Page 16