organised crime and recent legislation in the UK

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. In addition, new varieties of organised crime making use of global computer networks and malicious software programs (cybercrime) can frustrate the criminal justice agencies by virtue of the complexity and secrecy of the criminal activity in which they engage.

Firstly we shall deal with organised crime in general and the exercise of physical and economic power. Then we shall focus on some of the issues arising from cybercrime

Organised crime

We won't go into detailed discussion of nature of 'organised crime' as here we are interested in its effect on criminal justice (the is a whole course on organised crime on this website - you can find it on the front page)

2. make a lot of money as a result of their criminal activities

Broadly speaking we can consider two types of organised criminals who make money

- predatory criminals: bank robbers, fraudsters and other skilled violent professionals who basically engage in sophisticated high value theft

- traffickers: in such activities as illegal drugs and people smuggling and the smuggling of many other illegal or stolen substances

The profitability of such crime raises issues such as money laundering (global electronic transmission of funds through numerous bank accounts to disguise their criminal origins. From the standpoint of the criminal justice system crucial evidence of criminal activity can be erased by such means.

Additionally, some of the profits of organised crime can be channelled into the bribery and corruption of police and criminal justice agencies noted above

So lets look at how some of this impacts on criminal justice.

The two themes above - violence and profitability - we can regard them as resources at the disposal of organised crime

I. Obstructing the participants

Lets look first at how these resources can be used to obstruct the criminal justice system firstly, by influencing the behaviour of key participants in the criminal justice process

take three categories of people (at three key stages of the criminal justice process)

1. police officers, usually detectives, and prosecutors, trying to track down organised criminals and bring them to trial

police corruption

In some countries organised crime will think little of assasinating police or judges (often including their families and relatives) who get in its way. In the UK we think of this type of threat as applying mainly to civilians - witnesses and jurors - rather than police or judges.

As regards police officers the issue in the UK is generally, to the extent that it exists, a matter of enticement, or positive encouragement through bribery rather than intimidation, to 'look the other way' or provide information about how far the police are on the tail of criminals or even to share in the proceeds of criminal activities

Police corruption of this type in the UK is generally confined to the lower levels of the organisation. It concerns individual detectives rather than Chief Constables. It is not a new phenomenon. In the late 1970s Sir Robert Mark, Commissioner of the Metropolitan Police removed almost 400 officers from his force. In the late 1990s, Sir Paul Condon, the Commissioner at the time, initiated a similar operation against corrupt detectives colluding with organised crime

Just recently the specialist police organisation the Serious Organised Crime Agency (SOCA) has turned its attention to issues of police corruption. A recent report on this from the Guadian newspaper contains the alarming conjecture that:

"Anti-corruption investigators are becoming increasingly alive to evidence that organised criminals have planted associates with no criminal background into police forces to provide influence and information."

This brings into mind similar suggestions that organised crime groups are now so sophisticated and wealthy that they are sending young people to university to study computer science so as to be better able to build computer software for such purposes as identity theft.

- increasingly stringent vetting of applicants at the recruitment stage, both into the police force itself and at entry to the detective branch

- the use of elite specialist squads of 'uncorruptibles' within the detective branch for certain areas of work

- an effective internal anti-corruption squad within the police tasked to investigate and gather evidence on suspected officers

supergrasses and informants

Police and prosecutors can of course attempt to counter organised crime by trying to recruit members of these groups to become agents and informants.

Basically there are two varieties: either members of the criminal organisation volunteer information to the law enforcement agencies or the latter send in their own members as 'undercover' agents into the criminal organisation. These methods are quite traditional and do not of themselves compromise civil liberties

The 'supergrass' is someone who originates from the ranks of the criminal organisation itself. Hence the origin of the term lies in 'grassing' or betraying your associates. The Italian term pentiti literally refers to the 'penitent' or someone who has decided to repent for his criminal activities by offering a service to the law enforcement agencies. The supergrass is one of a number of types of informants from the criminal (or terrorist) underworld who gives information to the law enforcement agencies.

motives vary - might have 'had enough' or post-arrest decision to collaborate in return for expectation of a reduced sentence

informants do this secretly and remain active inside criminal organisations undercover agents in a more or less identical way to a member of the law enforcement agencies entering the criminal organisation in disguise. Here the problem is always that in order not to 'blow their cover' such individuals may have to commit crime

The use of supergrasses and informants do not directly change the working of the trial system. Their evidence can still be cross-examined by defence in open court in front of a jury - though there may well be issues of protecting identity against later reprisals.

One issue is however the reluctance of juries to believe the evidence of individuals from the same criminal subculture or organisation as the accused. Such individuals might be assumed as having scores to settle, or simply distorting the truth in return for a lighter sentence. The defence will try to stress these issues to discredit the testimony of such witnesses

2. witnesses and victims crucial in giving information to the police or evidence in court

To understand the impact of some of the issues here we must be clear about the nature of the criminal trial process, especially in the English criminal justice system. Firstly there are several elements (some of them shared by all jurisdictions) which are held to be crucial guarantees of a fair trial

The jury plays the role of key audience for the adversarial process: convincing 12 ordinary people like yourself of your guild has been historically held to be one of the fundamental bases of a fair trial and fundamental to civil liberties because it:

(a) forces the prosecution to state its case in simple terms so ordinary people can understand it
(b) prevents collusion by the various branches of the state - the judges, police and government - to fit people up

From time to time there is criticism that juries are ineffective and come to 'wrong' decisions. Recent research sponsored by the Ministry of Justice refutes this and emphasises that juries are fair

Two main threats to this from powerful offenders are:

Witness intimidation

There was a well known case 2005 of a drive-by shooting of Birmingham teenagers Charlene Ellis and Letisha Shakespeare, Four men were convicted on basis of testimony by 'Mark Brown'. But it was only possible to get him into the witness box under the following conditions:

- his name was changed to protect him

- he gave evidence from behind a screen, his identity not revealed to the defendants or their barristers.

-his voice was electronically distorted and had a 15-second time delay set up so that his testimony could be broken off if he said anything which might have identified him.

The police and CPS were encouraged and hoped that the case 'set a precedent' and would encourage more people to come forwared who were otherwise terrified of reprisals

But defence lawyers protested at the measures, claiming they meant they could not cross-examine Brown properly (and by implication, how could the jury come to a correct decision if had not heard proper cross-examination

In June 2008 the convicted started an appeal after the House of Lords had ruled that a killer convicted through anonymous evidence did not receive a fair trial

3. jurors, whose job it is to listen to the presentation of evidence by prosecution and defence in court and arrive at a decision, guilty or not guilty

Attempts to intimidate jurors that led to the introduction of majority verdicts in the Criminal Justice Act 1967, so that there could be a conviction even if one or two jurors disagreed.

During the 1980s, several trials had to be stopped, one after seven months. In 1983 eight people were convicted of trying to bribe jurors and were jailed for between 18 months and seven years. One of them, a certain George Francis is alleged to have offered £100,000 to nobble the jurors while another defendent, John Goodwin, was found guilty of approaching at least four and up to eight jurors in his trial on £1.25 million burglary charges

The Criminal Justice and Public Order Act 1994 created an offence of intimidating or causing, or threatening to cause, harm to a juror or witness, punishable by up to five years in prison.

There was concern, however, particularly in cases of organised crime that sophisticated criminals were able to intimidate or bribe jurors

The Criminal Justice Act 2003, which made judge-only trials possible. Section 44 allows a trial without jury to be applied for if there is evidence of a 'real and present danger' that interference with the jury would occur and other security measures, such as jury protection, would not prevent criminals exercising pressure.

But at the Old Bailey in June 2009 we saw the beginning of the first judge-only trial for about 400 years

The context is that four alleged serious criminal are accused of conspiracy to rob a cargo warehouse at Heathrow airport in 2004. There have already been three trials - the last collapsed in 2008 after a serious attempt at jury tampering. So the Lord Chief Justice allowed a judge-only trial to proceed. It was considered that jury protection was just too expensive

The defendents lawyers claimed this was a 'fit up' and the so-called evidence of jury tampering was given by police to judges behind close doors so it couldn't be challenged

This shows the problem - how do you challenge the evidence of a 'clear and present danger' of jury tampering properly without a jury?

To add some colour to this case a few days back (on 18th February 2010), one of the key defendents, Peter Blake, absconded from the Old Bailey. He left the court after getting permission to consult his lawyers!

It has to be said finally, that governments in recent years have had a generally negative attitude to the jury system, regarding it as costly. There have been numerous attempts to restrict the role of the jury (e.g. by reducing the range of offences for which the defendand can elect for jury trial from the Magistrates Court)

II. Destroying the evidence

In the present period governments and criminal justice agencies in most jurisdictions consider that measures to impede the 'laundering' of the proceeds of crime - to be of the utmost importance. Once criminal profits have been effectively laundered - their precise origins have been disguised through transmission through various bank accounts around the world - then it is impossible to use their existence as evidence of criminal activity. Criminals aim to make their wealth appear as legitimate income and their are some very sophisticated ways of achieving this. In court trials it may be very difficult for prosecution to prove beyond reasonable doubt that such assets are the proceeds of crime.

A response of governments which has been regarded as in many ways a dangerous precedent is to change the nature of criminal proof in trials in which the financial proceeds of crime are at issues

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

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 2002 strengthens and generalises these developments.

Proceeds of Crime Act 2002

1. criminal lifestyle

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 our discusssion of rape trials, was conceded in the case of rape in the specific form of similar fact evidence.

2. civil recovery

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) argued successfully that on the balance of probabilities his assets were the proceeds of crime.

3. a duty to report and observe

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.

Serious Crime Act 2007

The idea of criminal lifestyle we find embodied in a more recent piece of legislation, the Serious Crime Act of 2007. This Act enables the imposition of serious crime prevention orders in which the High Court if it is satisfied that the person has been involved in serious crime and has reasonable grounds to believe that such an order would protect the public, These grounds are formulated in terms of the lower, civil standard of proof 'on the balance of probabilities' rather than the criminal standard of 'beyond reasonable doubt' and the criteria for having been involved (on the balance of probabilities) in serious crime includes that the person has "conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence, whether or not such an offence was committed."

The order imposed by the court may include restrictions on your property and financial activities, premesis to which you have access and other restricitions.

These orders should be seen in the context of Anti-social behaviour orders (ASBOs) under the 1998 Crime and Disorder Act and subsequent legislation and also Anti-Terrorist Control Orders under the 2005 Terrorism Act. We shall deal with these in the next session. What these forms of restriction do is not only introduce the lower standard of civil proof into criminal jurisdiction, and, as we have seen in the case of the proceeds of crime, the reverse burden of proof, they also arguably introduce as principle of 'pre-emptive criminalisation' that restrictions may be imposed on you not as the result of having been convicted of a crime in the courts (beyond reasonable doubt) but in order to prevent you committing an offence, the grounds being that in terms of your previous behaviour you are likely to do so.

It is not difficult to see why civil libertarians are concerned about these developments

conclusions

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

notes on organised crime

Introduction