notes on organised crime

Last week we looked at rape trials and how the power of the offender, derived mainly from sexist cultural assumptions about women, was able to transform the proceedings into a trial of the victim. We discussed various measures which might, it could be argued, redress the balance, such as putting the burden of proof on the defendant such that he had to prove that he sought consent for sex rather than the prosecution proving (beyond reasonable doubt) that he did not. We noted that such a shift would be a quite fundamental reorientation of the nature of criminal justice. This week we look at organised crime: a type of crime which is often able to use physical violence and economic power to obstruct the criminal justice agencies in various ways. Also in this area various measures which shift the burden of proof onto the offender have been brought into play in recent legislation. 

We should begin by being clear what we mean by due process. The term originates in the United States (which has written constitutional guarantees concerning the right to a fair trial etc.) but has become a useful shorthand term for things held to be rather fundamental to our criminal justice system. Some of these are:

• only the guilty can be punished: no punishment or similar constraint can be imposed upon people who have not been convicted of a crime in the courts of law

• the accused is to be regarded as innocent until proved guilty beyond reasonable doubt. This latter phrase distinguishes the high standard of proof in a criminal trial from the lower standard in a civil dispute which awards damages (e.g. for libel or slander) on the balance of probabilities.

• the burden of proof is on the prosecution. The accused does not have to prove their innocence: the prosecution has to prove guilt beyond reasonable doubt. If this cannot be done then the accused must be acquitted

• all evidence presented by both prosecution and defence must be presented in court and be open to challenge by the other side. This is a key principle of the adversarial trial system in Britain and similar jurisdictions around the world.

On the one hand, then, are the principles of due process while on the other is the power of certain types of offenders to subvert the criminal justice agencies. Organised crime has two strategies.

First, it can attempt to weaken criminal justice agencies. Examples are:

Second, it can attempt to escape detection by criminal justice agencies:

• by rapid 'laundering' of the proceeds of crime (money laundering is disguising the origins of criminal assets so that they are indistinguishable from legitimate assets and funds

• by, and this applies to the managers and directors of criminal enterprise, keeping a distance from committing actual criminal acts while secretly directing, funding, and benefitting from them.

In recent years various measures have been adopted in an attempt to neutralise the power of organised crime. Some of these measures seem to impinge directly on the principles of due process noted above. Others less so.

Witnesses (and jury members) can be protected from intimidation by organised crime. There are two types of witness protection.

• after the trial the witness may be spirited away and given a new identity to avoid later reprisals by the criminal organisations. This does not interfere with due process because at the time of the trial the witnesses identity is known and they can be cross-examined by the defence.

• at the trial the witness may be hidden in various ways. For example a screen may be erected and the witness's voice is 'scrambled' to avoid recognition in court. Only the judge and the prosecutors will know the real identity of the person. People in the public gallery and, most important, the defence, will not. There have been examples of this in England. Defence lawyers argue that this undermines their ability to successfully cross-examine the witness

finally, members of organised crime groups may themselves 'turn state evidence' and appear as witnesses for the prosecution, usually in return for a reduced sentence for their own crimes. Juries are often suspicious of these 'supergrasses' because they may in fact be 'settling scores' within the criminal underworld

It is important to understand that the political context within which such developments occur. Tony Blair and other members of the British government are on record calling for a shift in the orientation of the criminal justice system away from ensuring that the innocent do not get convicted and towards ensuring that the guilty certainly do.

In 2005 Blair said that he wanted to bring about a "historic shift from a criminal justice system which asks: 'how do we protect the accused from the transgressions of the state and police?' to one whose first question is 'How do we protect the majority from the dangerous and irresponsible minority?" (Guardian, 5th September 2005) Of course, the idea that there is a conflict between the two, that a concern for 'due process' and the rights of the accused necessarily undermines the efficiency of the system in dealing with those who have committed crimes is itself a political statement that many would dispute.

More recently, in an email exchange in the Observer newspaper he repeated this position in strong terms"

Note that he says he would harass and seize the cash of suspected drug dealers. This is rather different to saying he would confiscate the cash of those actually convicted in the courts for drug dealing. Recent legislation has already gone a considerable distance down this route.

The consequence of this type of thinking can be a frontal assault on due process. This may involve a number of things such as:

• changing the direction of proof (the defendant has to prove innocence rather than the prosecution prove guilt)

• the standard of proof may be reduced to the civil law standard (balance of probabilities) even though the issues are criminal matters.

• a degree of criminality may be assumed from certain characteristics of the offender, such as the existence of previous convictims.

Some of developments have been in existence for some time (in the specific area of anti-drugs trafficking legislation). These are matters of concern to civil libertarians and lawyers who see classic principles of due process being undermined.  The most recent important legislation, the Proceeds of Crime Act mentioned above strengthens and generalises these developments. 

This legislation introduced a number of new legal procedures

Normally, after a criminal conviction for, say, drug dealing, the prosecution can apply for a court order to seize the assets of the convicted criminal. Since the 1980s it has been possible for prosecutors to regard the entire assets of the convicted person as having been derived from crime. The 2002 Act extends this for all offences for which a convicted person might be seen to benefit economically (e.g. bank robbery) if it can be established that they have a 'criminal lifestyle'. A criminal lifestyle can be acquired in various ways including by having had certain previous convictions of a similar nature. Critics argue that this introduces the principle of allowing previous criminality, for which the individual has already been punished, impinge on the current offence (by making it possible to confiscate all assets). This principle, you may recall from last weeks discusssion, was conceded in the case of rape in the specific form of similar fact evidence.

The second principle introduced by the Act is called civil recovery. This refers to the fact that the prosecution can now apply for a confiscation order from the criminal courts while only having to argue that on the civil law standard of balance of probabilities the assets in the possession of an individual are the proceeds of crime. It is up to the individual concerned to demonstrate that they are not the proceeds of crime. This both lowers and reverses the standard of proof. But, here is the sting in the tail, this procedure is quite independent of any actual criminal conviction in the courts. Thus in one case in Scotland, soon after the passing of the Act, an individual who had been acquitted of drugs trafficking because the prosecution could not provide evidence to convict him beyond reasonable doubt in the criminal court, nevertheless had his assets confiscated because the Procurator Fiscal (the Scottish prosecutor - like the Crown Prosecution Service in England) argued successfully that on the balance of probabilities his assets were the proceeds of crime.

The third process that the Act introduces, and again it is extending and consolidating practices that date from the 1980s, in the duty of people who work in the Financial Services sector (which includes not only banks but exchange bureau, estate agents, solicitors etc.) to report 'suspicious' financial transactions. What is new is that they are liable to criminal prosecution if they do not.

Finally, we can look at something being talked about but not (yet) embodied in legislation. We mentioned the fact that some organisers of criminal enterprise can escape prosecution by making sure they always get other people to commit the crimes. The famous Chicago gangster Al Capone was never successfully prosecuted for the murder and extortion on which his empire was based but for failing to properly complete his tax returns!

Traditional conspiracy law requires it to be shown that all the participants charged have actively 'conspired together' to commit the crime concerned. This let crime bosses off the hook. In the United States in 1970 an expanded form of conspiracy law was enacted. Known popularly as RICO, the 'Racketeer Influenced and Corrupt Organisation' statutes enabled the prosecution to convict people if it could be shown that they belonged to an organisation which was in the business of criminality even if they themselves did not commit any crimes. RICO was used against the old Godfathers of the Italian-American Mafia to some effect, though critics argued that a lot of innocent people could easily get caught in the trap.

Recently, the UK authorities have been thinking about whether to try and introduce similar legislation here. The problem is that the old Mafia families were fairly close-knit and it was not too difficult to show that for example John Gotti was the boss of an important family despite his protestations of innocence. These days organised crime groups are much more fluid networks and the individuals involved may know each other vaguely and only work together for a short time and communicate only by email and mobile phone calls. Some people involved, e.g. the banker or finance dealer laundering the proceeds, may not even be clear what sort of criminal activity is taking place under his or her nose but may just 'look the other way' as the money passes through the accounts.

The recent UK government White Paper One Step Ahead suggested consideration (no more than that) of a concept of conspiracy even wider than RICO. Such an offence, called 'belonging to an organised crime group' would, if it were to be enacted, not even require mens rea (literally, 'guilty mind', in other words, criminal intent). Even in RICO the Mafia Godfathers. despite their avoidance of direct criminality, could certainly be shown to have criminal intent. Critics and civil libertarians would oppose such a law were it to be considered, on the grounds that the concept of conspiracy becomes just too vague and that all sorts of innocent (even if gullible) people could find themselves in the courts

What we are looking at are some of the ways in which the criminal justice system seems dragged away from due process when the priority becomes that of making the system an 'effective weapon' in the fight against powerful criminals. This, critics argue, can easily compromise the other fundamental task of the criminal justice system: to deliver justice.

Critics do not usually deny the gravity of the activities of organised crime but rather urge us to consider other ways of dealing with the problems

In the case of drugs trafficking we should rather concentrate on being 'tough on the causes of crime' and tackle the poverty in poor countries which makes it so profitable to grow heroin and cocaine. Also many urge the legalisation of drugs. This debate is well known and we need not consider it further here.

Another argument is that trying to separate out the proceeds of crime from other funds is so fraught with difficulty that, despite all the legislation mentioned above, little will be achieved. But it is much easier to identify untaxed income. This is the Al Capone issue. People like the Canadian economist Tom Naylor argue that energy would be better spent tracking down income undeclared for tax and then issuing stiff tax-arreas order. This would net in a lot of criminal money but would not have the bad effects on the criminal justice system noted above.

You can read more about these issues in my specialised organised crime lecture here