Powerful offenders and criminal justice

The criminal justice system tends to have a rather uncomplicated view of the offender. The offender is basically the accused person in the dock, of which his or her actual criminality is the issue before the court. From a legal point of view of course, all offenders are more or less the same. They differ only by reference to the particular type of crime of which they have been accused. It is important to emphasise that offenders are individuals. The criminal law is very haphazard and ineffective, as we shall see, when it comes to dealing with organisations. It is difficult to put an organisation in court. You can only put some or all of its individual members in the dock.

A purely legal perspective concerns itself with the prosecution or defence of defendents already before the court. Such people have no power, they are entirely at the mercy of the criminal justice system. The only issue is will they be convicted or acquitted. But a moments consideration reveals that in order to bring them to court and convict them various obstacles may have had to be overcome which differ between various types of offenders.

For the purposes of this discussion we shall define powerful offenders as those whom it is difficult to convict because of the resources at their disposal to prevent information about their activity reaching the criminal justice agencies and which could then be used as a basis for their prosecution. We shall make a rough classification between various types of situations in which such resources come into play,

This classification is rather rough and ready and, I fully admit, rather experimental. But it does enable us to bring together a diversity of different situations and talk about them under one roof. Only is this way can the dimensions of power possessed by a variety of offenders be compared and contrasted.

Obstructing the Witness

Most investigating police officers and prosecutors will have an understanding of the difficulties involved in many situations in getting key witnesses to court. Some witnesses will be intimidated by the very process of appearing in court and giving testimony. But others may be reluctant even to contact the police in the first place, or to answer questions which might reveal the identity of the offender. Police may encounter a ‘wall of silence’ where no-one is willing to talk to them. Sometimes, of course, that wall of silence is the police’s own doing. We are familiar with situations in which the criminal justice system itself acts in such a way to break down these lines of communication. If the police have a reputation for racism or sexism then members of the community may be reluctant to contact the police or be interviewed, yet alone appear as a witness in court even if they do know the identity of the offender or have other important information. Members of ethnic minority communities may feel that the police will be more interested in harassing them than solving the crime. Likewise, women who are victims of sexual attack or domestic violence may feel reluctant to report their victimisation to the police for fear of not being believed or taken seriously. So the agencies of the criminal justice system can do a lot to obstruct the working of the very channels of communication which they depend upon for their effective working.

But the offenders can also be the source of the silence. They may be able to exercise power to block or reduce the flow of information from victims and the community to the criminal justice agencies. Two examples come to mind from different areas of social and economic life.

dependence on the offender

An important deterrent to coming forward as a witness (either as direct victim of the crime or as a member of the public with information) is that of being in some way dependent on the offender for one's livelihood. We are familiar with situations in which the victim of domestic violence will not come forward not simply because of a fear of physical retaliation but also from a fear of emotional loneliness and poverty. If the violent spouse is arrested and convicted with a custodial sentence then this may indeed be the consequence for the victim. The decision to leave even a violent relationship is a very difficult one. Social service agencies, together with victim support groups and other voluntary organisations may be able to provide refuges (same houses) whose location is not revealed to the offender. Such resources may help the victim in her decision to leave a violent relationship and to testify in court against the offender.

A different kind of dependence is where the victim or person with information to report is dependent on the offender for employment or economic resources. For example individuals in certain workplaces might think twice about revealing to the law enforcement agencies various criminal or regulatory offences being committed by their employer if they knew that dismissal or various other forms of victimisation and harassment would be the result or even that they would lose any possibility of promotion within the organisation.

The state can take steps to impede such intimidation. For example, in the UK the 1998 Public Interest Disclosure Act protects whistleblowers from dismissal or victimisation by their employer if they have given information to the authorities about various types of criminal or regulatory offences committed by the employer.

A third example of dependence is where people in a poor community may be reluctant to give information about the activities of organised crime groups not simply out of a fear of physical retaliation but because the criminal organisation is in fact a source of wealth and income in an area where there are few others. Criminal organisations may act as 'loansharks' and lend money to people whom the legal banking system would regard as an unacceptable credit risk. Such funds might be important for the survival of some small buinesses. Of course, interest rates are extremely high and debts will be collected by force if necessary. In some countries large Mafia or drug trafficking organisations may give money to local churches or community projects precisely in order to 'buy silence' about their criminal activities.

It is often beyond the capacities of the criminal justice agencies to break these relations of dependence. People will be less dependent on the activities of organised crime is there is a sufficient amount of investment by legitimate business or government in the area to guarantee most people a secure job and reasonable standard of living.

force and intimidation by the offender

Recent research in the UK suggests that at least 20% of crimes not reported by witnesses are not reported due to fear of reprisals. This is particularly a problem in forms of crime where firearms are used, or where community support networks are weak and fragmented. The people doing the intimidation are by no means what we would think of as powerful or well organised individuals. They may be quite low level criminals but in fragmented communities even gangs of kids can exercise considerable intimidation.

Of course, well organised criminal and other groupings can exercise tremendous power of this sort. One of the problems face by Italian police in trying to curb the activities of Mafia groups was the massive wall of silence, particularly in regions of traditional Mafia power such as Sicily. In these areas ordinary people knew very well that giving information to the authorities was to sign your own death certificate. Additionally, and perhaps more sadistically, the threats and acts of violence may be carried out against others with whom the potential witness has emotional ties. Relatives may be assassinated and children kidnapped.

So how can the criminal justice system respond to such threats of force and other intimidation?

Witness protection programmes

One strategy is for the criminal justice system to take measures to shield victims and witnesses and others who have information from the reach of the offender. Usually this applies only to people who will give direct testimony in court. In countries with powerful organised crime groups witness protection has been taken very seriously for many years. It is the only way, in many cases, to get anyone into court to testify in court.

There are two types of witness protection: one which takes place after the criminal trial and one which take place during the trial. In the first case the witness will appear in court in the normal way. While steps may certainly be taken to protect them from assassination or intimidation during the trial, their appearance in court does not interfere with the normal process of the trial. In adversarial trial systems where the cross-examination of prosecution witnesses by the Defence is a key part of the trial process this is an important consideration. It is when the trial is over that witness protection measures are activated. The witness may then be given a new identity, moved to a new area of the country and are literally given a 'new life'. This type of treatment is usually reserved for those witnesses drawn from the ranks of the criminal underworld and who agree to give evidence in return for certain guarantees. Such individuals are often known as ‘supergrass’ and I will say some more about them in a moment. This type of long term witness protection is of course is very expensive and is usually only given to the most important witnesses in high profile cases. Others may receive less robust treatment. Police, for example may provide heavy protection during the period of the trial but afterwards leave the witness to their own devices. The individual concerned will have to think very carefully about the likelihood of retaliation from the offenders or their associates at a later date.

The second type of witness protection is by attempting to hide the identity of the witness at the time of the trial. Recent proposals in the UK have suggested a number of ways of preventing the accused from knowing the identity of the witness.

These strategies raise a number of problems for the English system of adversarial trials where all evidence has to be presented verbally in court with a right of cross-examination of the witness. Giving evidence in the form of statements to the judge before the trial is quite common in Continental European systems but is regarded in England and in other adversarial systems as potentially undermining the trial system. What is the status of such evidence if it cannot be cross-examined in open court and if the identity of the person who provided the evidence is not revealed to the defence? Such evidence might be regarded as hearsay and inadmissable. But there have been recent measures (under the Criminal Justice Act 2003) to admit hearsay evidence in court if there are good reasons why the witness cannot attend. Fear of intimidation or revenge following the trial is one such motive. Many lawyers are, however, concerned that such measures depart from due process and in effect allow convictions on the basis of evidence which has not been subject to effective scrutiny.

Something of a precedent in England appears to have been set by the recent (2005) trial following the murder of Letisha Shakespeare and Charlene Ellis in the West Midlands in a gang-related shooting. For the first time in an English trial the chief witness for the prosecution, known pseudonymously as 'Mark Brown' was given complete anonymity. He gave evidence from a closed box. While the judge, jury and lawyers heard his real voice, the defendent and the public gallery only heard a distorted version of his voice. Defence lawyers raised a number of objections about the fairness of the trial. But the prosecutors argued that since police had encountered a 'wall of silence' in trying to persuade witnesses to attend trial, this was the only way to secure a conviction. Key witnesses had themselves to be arrested to ensure they attended the trial.

Informants and 'supergrass'

Another strategy is for police and prosecution to reduce their reliance on the flow of information from victims and members of the public. New technological developments such as CCTV, email intercepts (telephone intercepts are still not admitted as evidence in the English courts) assist the police to gather evidence by other means than witness testimony or clues pieced together from information given by the public.

But a more radical strategy is to turn directly to criminal 'insiders. The insider who decides to 'turn state's evidence' or to 'grass' (betray) their criminal associates has been around for a long time. In organised and professional crime the important insider, known as the 'supergrass' has become a major source of information. These people generally co-operate with police and prosecutors and give evidence in court in return either for a reduced sentence for their own crimes or, in some cases, for a prior agreement that they will not be prosecuted. Such individuals often have to be involved in elaborate witness protection programmes.

I have written a whole section on my organised crime course on the role of the supergrass in combatting organised crime. You can read it here

Obstructing the criminal justice system

The power of criminal elements, particularly organised crime groups to subvert and undermine the working of criminal justice agencies is considerable. Police corruption takes a number of forms, by no means all of them associated with organised crime. In 1997 the then Commissioner of the Metropolitan Police, Sir Paul Condon, told Members of Parliament that he believed he had between 100 and 250 corrupt officers in his force.

Police officers and lawyers in the pay of the underworld of professional and organised crime are a problem in most jurisdictions. In some countries with a tradition of violence those members of the criminal justice system who refuse to 'look the other way' may face assassination of themselves or members of their families. Among the most notorious examples in Europe were the assassination of judges Giovanni Falcone and Franco Borsellino by the Sicilian Mafia in 1992.

In the UK police corruption has remained at fairly low levels. But two things are important to consider. Powerful organised crime groups have continued to expand their activities in the UK as in other countries. The amount of wealth at their disposal for the paying of bribes and backhanders to police or other law enforcement officers who are capable of being corrupted has expanded. On the face of it we would expect for this reason alone that the level of corruption would increase. Secondly, precisely in order to get around the problem of victims or the community being intimidated and too frightened to provide information, police (and other law enforcement agencies such as Customs and Excise) have increased their use of informants, members of the criminal underworld who give information to the police while still having to commit crime themselves. Such a situation inevitably creates a blurred boundary betweem criminality and law enforcement.

Solutions

The solution to these sorts of problems is not easy. Two routes which many police forces take is, firstly to ensure that big organised crime investigations are handled by dedicated teams of specialist detectives whose honesty is above suspicion and, secondly, to have an effective internal investigation system such as the (London) Metropolitan Police Complaints Investigation Branch (CIB3) whose full time job it is to track down corrupt officers and bring them to trial.

Concealing the offender

The above two examples concern for the most part the capacity of certain types of criminal offenders to act consciousnly and deliberately to neutralise those individuals, either witnesses or police officers and prosecutors as a result of whose actions they may end up behind bars. Action is conscious, deliberate and on an individual basis. But power inheres also in the structure of organisations. The structure of large organisations may enable responsibility for actions which result in harm and victimisation to be spread out among a number of individuals so that no one in particular stands out as criminally culpable. This is of course a general characteristic of much corporate and white collar crime

The problem of corporate responsibility

For example, when a large organisation, such as a company or public utility, commits a crime as a result of which people die, prosecution for negligence of health and safety regulations is the obvious response. Deaths on building sites due to scaffolding collapsing, and railway crashes are two areas in the public mind in recent years. But the criminal law deals with individuals who must appear in court and be proved guilty beyond reasonable doubt. This is quite difficult in a large corporation where no one particular individual may present themselves as decisively responsible. For example in a railway crash where it is clear that signals were not functioning properly, who is responsible? Is it the train driver who should have anticipated the fact that the signal might be faulty? Is it the Chief Engineer who should have checked the state of the signalling system, or is it the Chief Executive who should have ensured that the powers and resources at the disposal of the Chief Engineer, and the funds for renewal and upkeep of the system were adequate. The Chief Engineer may refer to his field engineers who should have warned him, but did they know. Could they reasonably be expected to know that a signal wasn?t functioning. When was the last inspection, have the number of inspections been cut down as a result of economies by the Board of Directors? What was the Health and Safety Executive doing about it. An associated question is precisely what charges should be brought? Prosecutors have to be careful if they are to stand a chance of success in what could be a very complex trial.

There has been a long running struggle to reform the criminal law in this area. In 1996 the Law Commission recommended that a new offence of 'corporate killing' should be created. The law as it stands requires the identification of an individual in the organisation whose negligence or actions can be held responsibile for what happened and normally charged with manslaughter. Such an individual is known as the 'directing mind'. It is not difficult to see that the further you go up the management line the harder it is to identify clearly anyone as a directing mind in the sense of someone whose action, or inaction, led directly to the manslaughter. If anyone is identified then it is likely to be someone fairly well down the line. Maybe, in the example above, it will be one of the field engineers. The Commission noted that there had only been four prosecutions of a corporation for manslaughter in the history of English law, and only the last of these cases resulted in a conviction and this was a ‘one man company’.

The Law Commission argued for a new offence of corporate killing which would be able to prosecute not just individual employees but the company as a whole for 'management failure' by a company 'if the way in which its activities are managed or organised fails to ensure the health and safety of persons employed in or affected by those activities'. In other words the responsibility could be pushed further up the chain of command to include the Board of Directors as the leaders of the organisation as a whole. While these gentlemen could not be seen as directly responsible for an accident as with individual negligence, if it could be shown that they ran or organised the company in such a way as to, for example, fail to pay enough attention to health and safety issues, then they could be held responsible.

Finally, just a couple of weeks ago (i.e. in March 2005) the government has produced a bill for a new criminal offence of corporate manslaughter in which organisations, rather than particular individuals within them, can be prosecuted. The company can be prosecuted if the Senior Managers can be shown to have run the company in such a way that they failed to take proper account of health and safety and similar issues in planning the organisation. In short, if 'management failure' can be clearly identified.

The problem of criminal organisation

A second problem of police work against organised crime is that you only arrest the little guys: the street drug seller or the Mafia hit-man who actually kills someone on the orders of his boss. The real leaders and bosses take care not to actually commit any crimes of violence. They are of course receiving money which is the proceeds of crime. But if the money is properly laundered then the law enforcement agencies won't be able to find any trace of illegality. Remember that the famous 1920s Chicago gangster Al Capone was eventually convicted not of organised crime related criminal offences but tax fraud.

Widening the concept of conspiracy

A key strategy aimed at making it easier to prosecute the directors of organised crime is to widen the notion of criminal conspiracy to include those who do not actually commit crimes but direct, and benefit from, the activities of those who do. There is considerable discussion at the moment (2005) in the UK about the wisdom of adopting some legal principles developed in the United States.

This feature was heavily characteristic of the classic Italian-American Mafia organisation and led, in the United States, to the Organized Crime Control Act of 1970 which established a set of statutes relating to Racketeer Influenced and Corrupt Organization, popularly known as RICO. This legislation is a modified form of conspiracy law in which a criminal or a civil conviction can be established by showing the individual was a member of an organisation or enterprise which engages in a pattern of racketeering activity irrespective whether that individual has undertaken criminal acts. RICO came into widespread use during the 1980s when it was credited with dealing the death blow to the Godfathers, heads of Italian-American crime families who themselves kept at a distance from actual criminality.

British government thinking is that some form of RICO-type powers would assist in tackling top criminals. The most recent White Paper on the subject, entitled One Step Ahead, and issued in March 2004, suggests a new offence of belonging to an organised crime group. As yet these principles have to be translated into proposals for legislation. One problem that will have to be overcome is the use of telephone taps as legitimate evidence in court. The admissibility of telephone intercept evidence in court was a key feature of the RICO legislation. Such evidence is crucial in showing, through evidence of conversations and communications that the individual was a member of, or directing, criminal activities even though keeping a distance from personal involvement in crime. This type of evidence is not presently admissible in UK Courts, and this was confirmed in the recent Regulation of Investigatory Powers Act 2000 (RIPA) which in other respects extended government powers of surveillance over electronic communications. Conclusion

To conclude, therefore, the rising profile of various types of powerful offenders has and is having a profound effect on the criminal justice system and, together with other developments described elsewhere, is pushing the criminal justice system further from traditional notions of crime control.

read One Step Ahead, the UK government consultation document on organised crime

read the section of my lecture on organised crime with deals with these issues in more detail

Concealing the crime

A final feature of crime both by legal organisations such as business corporations and by dedicated organised crime groups in the resources which are available to enable the offenders to hide their criminality and appear to a considerable extent as if they are engaged in purely legitimate normal activities. We can illustrate this with two examples

I. Financial fraud

Complex financial fraud is often very difficult to establish. Senior executives of large corporations may be in a position to cover up what is in reality straightforward theft. Take two possible scenarios. Investors may put money into a company in good faith. The Board of Directors may announce that profits have not been as good this year and so the divident to shareholders is reduced. What might have happened is that profits are very good but a large proportion of them has been siphoned off into secret bank accounts for high living of senior executives. An opposite scenario, and more common these days, is that the company is not doing very well with the consequence that share prices are about to fall so the Board of Directors has been secretly transferring money from the employees pension fund to shore up profits.

The collapse of the US Energy corporation, Enron, in 2001 was the largest bankruptcy in the history of the US. Thousands of employees lost their life savings in pension plans which were tied to the energy company's stock. Various accounting techniques had been used to create the impression that the company was stable and employees were encouraged to invest life savings in company pension plans. Meanwhile, insiders were allegedly trying to sell their shares while the price was still high, knowing that bankruptcy was imminent. When the bankruptcy was announced thousands of employees lost their savings Arthur Andersen, Enron's auditing firm, in on trial on charges of obstruction of justice for shredding Enron documents while on notice of a federal investigation.

Obviously to deal with such complex criminality very skilled investigators are needed. In the US the Federal Bureau of Investigation and the Securities and Exchange Commission have such resources. In the UK the Serious Fraud Office (SFO) was established in 1985 to handle complex frauds in which large amounts of money (initially, the SFO only took on cases where over £5 million was at stake). The SFO consistes of a multi-disciplinary team of skilled lawyers, accountants and fraud squad detectives (normally from the City of London police)

While the SFO has had a number of successes in major fraud cases it has also had some spectacular failures. Some critics put this down to the fact that the organisation combines the role of investigator and prosecutor for serious frauds. Under Section 2 of the Criminal Justice Act 1987 the SFO lawyers and accountants (but not the police) have powers to question suspects and give them written notice that they must answer questions and produce any documents required. The answers to these questions can then be used as evidence in court. This, as critics observe, effectively abolishes any pretence at a right to silence on the part of the defendant. As a result of the famous Guiness fraud trial in the early 1990s (one of the SFOs early successes) one of the convicted, the Guiness director Ernest Saunders took his case to the European Court of Human Rights, arguing that because of this type of questioning, he had not received a fair trial. The Court pointed out the inconsistencies in English legal procedure: if accused are forced to co-operate with the investigators in this way in serious fraud cases, why not in murder cases? The court upheld his case and ruled that his right to a fair trial had been infringed not because he was forced to answer the SFOs questions when it was investigating the fraud but because the transcripts of these sessions were used as evidence in the trial. The SFO has responded by backtracking slightly and on its website it now says that "A person may refuse to answer questions or provide information or documents if he or she has a reasonable excuse for not doing so. A person’s answers to questions required under section 2 may not be used in evidence against them at their trial unless the trial is in relation to an offence of providing misleading information during the section 2 interview itself".

This relates to a second criticism: that the SFO combines the functions of investigation and prosecution. It is ironic that the SFO was established just after the Crown Prosecution Service for England and Wales was set up precisely to separate out the work of prosecution from that of investigation (see my previous lecture in this series). One of the main issues was that investigators often fail to 'see the wood for the trees' and bring the wrong charges. This has been a criticism in several of the SFO failures.

It has to be said in conclusion that combatting fraud in the UK relies very much on the various mechanisms of crime prevention or 'self regulation' whereby the financial institutions themselves take steps to identify and prevent fraud

website of the UK Serious Fraud Office

website of the US Securities and Exchange Commission

website on Financial Scandals maintained by Roy Davies at Exeter University UK.

BBC website on Enron scandal

Read an example of the work of the SFO

useful article on Fraud and the SFO by lawyer Sally Ramage on the UK Indymedia website

II. Money laundering

Another type of financial complexity concerns in particular the activities of organised crime groups. Organised crime is a multi-million dollar business and derives huge profits from activities such as illegal drugs manufacture smuggling and sales (heroin, cocaine, amphetamines) people trafficking, pornography and all sorts of other illegal activities. A major aim is obviously to move the profits of such crime into the legal banking and business sectors where it can be used as income with all trace of its criminal origins erased. This is what 'laundering' (washing the money clean) refers to. Money laundering techniques are also used by some legal businesses when, for example, they want to move their profits illegally from the country in which they were earned to another country where the taxation rates may be lower.

Criminal organisations have become very adept at disguising the criminal origins of their profits. The development of the internet and on-line banking has made it very easy to spirit-away the proceeds of crime. Income from such activities is rapidly transferred into normal bank accounts where they appear as perfectly legal deposits. . In recent decades law enforcement agencies and governments around the world have identified the interdiction of money laundering as one--if not the main--way to combat international organised crime. As a result there are stringent relations governing the procedures that must be followed by banks to establish the credential of their customers. Gone are the days when the relation between a bank and its customers was a private matter of client confidentiality.

There are two areas of recent legislation that have been issues of concern regarding due process and civil liberties

1. Since most of the services of organised crime (e.g. drugs) are paid for by customers in cash (no-one in their right mind would pay for such merchandise using a credit card!), in a world in which large payments are increasingly made by credit card or inter-bank transfer, it is reasoned that the one point at which criminal groups are vulnerable is when they move their cash into a bank account. Once it is there, of course, it can be moved around the world in seconds by electronic transfer and all evidence of its criminal origins effectively disguised. So there is a premium on identifying 'suspicious transactions' when money is being deposited. But you can't have a cop in every bank branch--even if such people would know what to look for. The work of surveillance, it is argued, must be done by bank employees.

This has quite fundamental consequences for civil liberties. It means nothing less than the recruitment of large numbers of bank employees, joined in recent years by such professions as estate agents and solicitors (who may also receive large payments for legal or property services) as part of the apparatus of surveillance.

This situation has been developing apace in most countries since the beginning of the 1980s. It began by requiring banks to divulge details of customers accounts to the authorities. It then spread to bank employees such as counter-clerks being required to look out for and report 'suspicious transactions' (one thinks immediately of a shady looking character in dark sun glasses, who is not a regular customer of the bank, coming in and asking to deposit a suitcase full of small denomination bank notes in an account in another bank)

The most recent UK legislation, the Proceeds of Crime Act 2002 now applies criminal sanction to such activities. Section 330(2)(b) introduces a negligence test which makes failure to disclose information about money laundering a criminal offence if the person concerned has 'reasonable grounds' for knowing or suspecting that such activity is occurring. Such a duty, and the threat underlying it, may well be seen as an unacceptable compromise of civil liberties particularly where the task in hand, identification of suspicious activity in relation to money laundering, is beyond the normally required skills of the employee even in a bank. identifying counterfeit currency or forged cheques is one thing, but 'suspicious transactions' may hard to detect where the illegal origins of the funds are not evident.

2. Once the money has got into the banking system and has been 'laundered' all trace of its illegal origins are effectively removed. But the law enforcement agencies have some other weapons at their disposal. If a person is under suspicion of being involved in criminal activities, then it might be possible to know if their assets are of criminal origin by seeing if they are 'living above their means'. If someone has a large amount of property and luxury houses abroad but no visible means of support then this might be an indication that they are accessing sources of money which could be criminal.

Now until very recently such an observation might be good grounds for suspicion by the law enforcement agencies but they would have to conduct further investigation to get sufficient evidence to bring a conviction in the courts for criminal activities. But now they don't have to. Again, the Proceeds of Crime Act of 2002 reverses the burden of proof. Rather than the investigators and the prosecutors having to show in court as part of securing a criminal conviction to the standard of proof required (beyond reasonable doubt), once assets for which no 'obvious' legal origin (such as properly documented payment for services) exists, then, especially if that person already has some criminal convictions the responsibility is placed on them to demonstrate that the assets in question are not the proceeds of crime. If they cannot do this, their assets can be seized by the authorities even if an associated case in the criminal courts fails to secure a conviction! Although they only have to do this to the civil standard of 'balance of probabilities' it is a definite reversal of the burden of proof and while it is not entirely new, critics say it departs from one of the fundamental tenets of due process: entirely innocent until proved guilty beyond reasonable doubt.

The justification given for this type of shift in the burden of proof is that it is necessary to do something to make it easier for the authorities to combat the skills of money launderers and also to have the tools to get at the managers and bosses of organised crime who benefit from crime but cannot be effectively prosecuted for other criminal activities. But critics argue that the principle of innocent until proved guilty beyond reasonable doubt is too valuable to be jettisoned just because it is technically difficult to acquire evidence about certain types of crime. The whole point is to ensure that only guilty are convicted. Lowering the standard of proof in this way raises the possibility of assets being seized which are unassociated with crime.

(read my lecture on money laundering in my organised crime course)

my seminar on powerful offenders at the University of Brighton May 2006

website of the Assets Recovery Agency

The threat to civil liberties

The problem, then, is that all the measures discussed above may appear to be necessary and justifiable in order to enable the criminal justice system to deal more effectively with 'powerful offenders' of various types. The danger is that once these principles are established then they come to permeate the criminal justice system as a whole and will inevitably change the way that all types of offenders will be dealt with. For example, once the principle of the reversal of the burden of proof has been established then the real danger is that all sorts of petty offenders will end up having to prove their innocence rather than the prosecution prove them guilty.

It is important to understand that the criminal justice system does indeed have a responsibility to protect the innocent. The conflict between protecting the public by convicting those guilty of crime and guaranteeing the rights of the accused through due process is a false one. If the safeguards for protecting the rights of the accused and the necessity for the prosecution to prove its case 'beyond reasonable doubt' are diluted and reduced then the guarantee that it is those who are actually guilty who are being sent to prison or otherwise punished becomes itself weakened. And, if we are less certain that it's those who are actually guilty who are being punished then the efficiency of the system in protecting the public from crime is reduced. The actual offenders may still be free to commit more crime.

For these reasons the way to deal with serious and organised crime and the types of powerful offenders we have discussed above may be to invest in better police forensic techniques, and training of detectives, allowing the use of telephone transcripts as court evidence etc. rather than compromising on the guarantees of due process.

Yet at the present time there is a tough rhetoric coming from senior politicians in the UK concerning 'rebalancing the criminal justice system in favour of the victim'. And, perhaps unsurprisingly, it concerns very ordinary forms of crime and offenders as well as the more complex and 'difficult to catch' ones that we have concentrated on here.

Introduction