The final topic which needs discussing is the efforts of the law enforcement agencies to combat organised crime and terrorism. Obviously it goes without saying that such efforts may not succeed unless the root causes of both these phenomena are dealt with at the level of their basic causes, the inequalities and grievances in the world today that produce them. That is not, however, our concern here. Our task is to study the actual strategies and methods of operation of state agencies in relation to organised crime and terrorism and evaluate their outcomes.

crime control and civil liberties

Traditionally both organised crime and terrorist activites have been dealt with more or less as crime. To regard organised crime as 'another branch of business activity' or terrorist bombings as simply unorthodox methods of warfare has not been popular. And not without its hyprocrisies. Terrorist leaders may become respectable politicians just as many bootleggers during the Prohibition era in America became respectable liquor merchants after the repeal of prohibition. Many today regard decriminalisation as the only long term solution to the connection between drugs and organised crime. But this is at present not a popular view. Therefore it is with the criminal justice system that we must start.

Probably the most important characteristics of the criminal justice system in liberal democratic societies is that they are required to fulfill two tasks which are potentially in conflict.

• Effective control and management of crime aimed at keeping crime and other threats to the security of citizens to a manageable minimum

• Delivering justice and safeguarding civil liberties: both in the narrow sense of ensuring that no-one is convicted of a crime by methods other than by correct procedures which impartially examine the case of the prosecution and the defence (known as 'due process') and in the wider sense of gathering the evidence necessary to secure criminal convictions without violations of the civil liberties of citizens such as right to privacy and freedom to go about their activities without let or hindrance from the state.

These tasks are not necessary in conflict. But they do pull in opposite directions. Dealing with terrorism, as we have seen in the recent period (and we will discuss below) has led to pressure from the state and law enforcement agencies for all manner of inroads into what were previously seen as civil liberties.

It is useful to describe what is going on in terms of the 'square of crime' popularised by Left Realist criminology.

The basis of what we might call the 'Liberal Settlement' which emerged at some point during the nineteenth century, and came to characterise, albeit imperfectly and precariously, the legal and criminal justice systems of the liberal democracies was that there was in practice little conflict between the effective management of crime by a reasonably efficient police force and the respect for due process and civil liberties. 

The reason for this absence of conflict was that enough information can be gathered by criminal justice agencies without compromising due process or inaugurating surveillance regimes and restrictions on the liberties of innocent citizens. 

The basis of this lay firstly, in a reasonable level of trust by citizens of the integrity of the criminal justice agencies, and secondly, in the relative weakness of the criminal offender. 

In more detail:

• The general public share the definitions of crime which are enshrined in the criminal law and are the basis for operation of the law enforcement agencies, and they trust the integrity of the these agencies such that they willingly volunteer information about crime, go on identity parades, sit on juries, and appear as witnesses in court.

• The public generally is not frightened of the power of criminal offenders and regards them as dangerous, and anti-social and therefore feels able to give information to police, appear as witnesses or jurors etc without fear of reprisal from criminals.

• The criminal justice system (police, courts, penal system) is far more powerful than the criminal offender, is uncorrupted by the latter, is possessed of forensic techniques which supplement the information provided by the public and therefore is usually able to apprehend criminal offenders.

These preconditions only have to be stated for us to realise how precarious they are, and how much they rely on a notion of crime as basically the actions of powerless petty criminals, and of the state as uncorruptible. If criminals are powerless and have no means of intimidating either the police or the community then it is normal to suppose that reliable information about their actions and identities can be forthcoming to secure their conviction in the courts beyond reasonable doubt and without compromising their rights or the civil liberties of citizens.

But with organised crime and terrorism we are dealing with a different scenario: the powerful criminal. The dynamics of petty crime are to an extent reversed

• The public may be frightened, intimidated or bribed by criminals not to give information. Some members of the public may be customers rather than victims (for example the purchasers of drugs) while many victims of violence are internal to organised crime groups

• Members of the public who are victims (such as restaurant owners subject to protection rackets) may be too frightened of the criminal organisation to give information to the police

• In other words the offender may be more powerful than the criminal justice system, Power may take the form of  evasive skills - disguise and sanctuary for activities such as money laundering. It may take the form of coercion and corruption of both members of state criminal justice agencies and the public.

Thus information sources may dry up, Furthermore even if offenders are brought to trial, witness intimidation and jury 'nobbling' may be a problem. Witness intimidation i.e. reluctance to give information to police due to fear of criminals also of course increasingly happens at the level of petty crime (e.g. gangs of kids terrorising a housing estate) as local communities in poor areas become fragmented and isolated

So an increasing problem facing law enforcement in liberal democracies is how to acquire information about crime and to secure crimal convictions without compromising civil liberties. The two tasks of effective crime control and delivering justice increasingly seem to pull in opposite directions. It seems that the crime control tendency is increasingly predominating at the expense of significant inroads into due process and civil liberties. Recent legislation certainly suggests this as we shall note presently

We shall now turn to the various strategies which have evolved to get around these problems. The traditional strategy, which attempts to increase the flow of information to the law enforcement agencies without compromising (too much) on issues of due process and civil liberties may be called 'penetrating the organisation'. If members of the public are too frightened to give information then either corrupt members of the criminal organisation or send in undercover agents to gain information and are prepared to stand up in court and testify. This is the reverse of corruption of law enforcement agencies by organised crime.

penetrating the organisation

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

1. 'supergrasses' and informants

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.

• an individual who voluntarily comes forward to the law enforcement agencies because for various reasons he has 'had enough' or decided, often in the case of Sicilian Mafia pentiti, that the activity of the organisation has 'degenerated' and is no longer 'honourable' as it once was.

• an individual who is apprehended by the law enforcement agencies and who, in return perhaps for a lighter court sentence, decides either to give evidence in court which leads to the conviction of other criminals or who agrees to tell all he knows about the organisation of which he admits fully to having been a member. The term 'supergrass' is mainly used in this context

• an individual who is contacted in secret by the law enforcement agencies and, in return for promises of a lighter sentence or even non-prosecution, continues to remain active in the organisation and act as an undercover agent in a more or less identical way to a member of the law enforcement agencies entering the criminal organisation in disguise.

In the history of the traditional Mafia the most important example in the contemporay period of the first variety of informant is undoubtedly the Italian Tommaso Buscetta who was active in the 1980s. Of the second variety probably the most well known was the American Mafiosi, Joe Valachi, who had a very large influence on US government understandings of the organisation of the Mob and also on the writings of criminologist Donald Cressey.

Joseph Valachi

Valachi was an admitted lower level member associated with a particular New York Mafia 'family'. He testified before the US Senate Committee and spent months talking to police and FBI investigators. He was the first member of the American Mafia to admit belonging to it or had openly talked to the authorities about organised crime. Valachi's testimony had an influence far beyond the evidence he gave to Cressey and the Senate Investigation: his testimony led to new laws against organised crime which we shall consider presently.

Why did Valachi decide to testify? At the time (the early 1960s) he was serving a prison sentence for drug trafficking. He claimed that he was under a death threat from his 'Boss' and he had responded by killing another prisoner who turned out to be innocent. To avoid the death penalty he agreed to testify. His testimony had a great deal of influence. As Virgil Peterson, a former FBI agent and director of the Chicago Crime Commission observed:  

"During the years following his revelations, the great majority of published books, articles and news items that have attempted to describe the structure of organised crime in America clearly reveal a heavy reliance on Valachi. Likewise his disclosures have been accepted without much questioning by official agencies as well. On some occasions, writers either misinterpreted portions of Valachi's testimony or attributed to him statements he never made at all."

The two things that Valachi revealed were, firstly, that a power struggle had taken place among Italian-American gangs during the early 1930s - known as the 'Castellamarese Wars' and, most important, the existence of a structured organisation. This was the basis of Cressey's 'bureaucratic-corporate' model of organised crime. How did investigators know he was telling the truth? Firstly, the murders he referred to had in fact taken place. But his allegations of a mafia war of country-wide proportions during the 1930s may well have been an exaggeration. In retrospect historical investigations have confirmed only about five or six deaths.

There were also various contradictions in what he told about the structure of the mafia. Thus he described the structure which Cressey elaborated. A Boss, and under him an Underboss and then the Lieutenants and the next level down and under them the 'soldiers'. But when it came to specifying the role of the mafia in the lives of its members the system appears to be less well organised. Thus he admitted that apart from mutual protection of members of the crime 'family' by the organisation, individuals operated very much by themselves and make their own initiatives and involve other members of the family only if they choose. In other words the organisation seems fairly loose. It is interesting that no-one except Valachi testified to the existence of the national 'Commission' which allegedly organised all the Italian-American crime families in the United States.

The problem is of course that evidence from organised crime figures can be motivated by all sorts of considerations. Other arrested criminals have every incentive to hide the existence of the mafia. Separating fact from fiction is tremendously difficult. As Gordon Hawkins, a writer on American organised crime commented:  

"…denials of membership in, or knowledge of, the syndicate can not only be dismissed as self-evidently false, but also adduced as evidence of what they deny. If there is gang warfare, this indicates that 'an internal struggle for dominance over the entire organization… If peace prevails, this may be taken… as evidence of the power of the syndicate leadership and the fear in which it is held. In the end, it is difficult to resist the conclusion that one is not dealing with an empirical phenomenon at all, but with an article of faith."

Tommaso Buscetta

Probably the most famous Mafia informants of recent times is the Italian Tommaso Buscetta. Buscetta is of equal importance in the United States and Italy. Buscetta moved freely between Palermo (the largest city in Sicily) and New York. He revealed an enormous amount about the structure of both the American and modern Sicilian mafias. His testimony was a major factor in major blows struck against organised crime during the mid 1980s by both US and Italian law enforcement. In America he was a major source of evidence in the so-called 'Pizza Connection' trial of 1986 in which virtually the entire 'Commission' of heads of the New York Italian-American crime families were arrested. Something of the decline of the old mob was revealed in that their average age was 70. There seemed a shortage of 'new blood'. Another interesting aspect of Buscetta's testimony was that the heroin trade in the US at that time was not really in the hands of the traditional American mafia but controlled new Sicilian immigrants and people who moved frequently back and forth between the two countries. The American mafia called these new Sicilian criminals 'zips'. They paid a portion of their profits to the American mafia for a 'licence' to operate but otherwise ran their own organisation with their own mafia families, quite separate from their American counterpart.

Buscetta also gave valuable information to the Italian authorities. He formed a strong relationship with the Investigating Judge Giovanni Falcone (assassinated in 1993) on the basis of which, in the same year as the Pizza Connection trial took place in New York a mass-trial (or 'maxi-processo' in Italian) took place in Palermo in which over 360 mafiosi were indicted, largely thanks to the information provided by Buscetta and another pentito, Salvatore Contorno.
 

BBC story on death of Buscetta

disadvantages of the supergrass

It is important to be aware of the disadvantages of too heavy a reliance on supergrasses and informants of the type we have discussed so far as sources of reliable information on the operations of organised crime. The Italian criminologist Letizia Paoli (1998) draws our attention to two features of the role of informants which should make us hesitant in relying on their testimony alone if not backed up by other corroborating information.

Firstly, the decision to become an informant is a pretty dramatic one. In many cases such as that of Valachi, it is made in prison in return for some leniency such as a lighter sentence. But it commits the informant to live the rest of his life in fear. Valachi had to be moved to a US military prison to guarantee his safety from other mafia members in gaol who would certainly have been instructed to terminate his existence if at all possible. Likewise Buscetta has suffered dramatically from his decision to give evidence to the Italian and American authorities. Large numbers of his family and relatives have been murdered and he himself has had plastic surgery to avoid recognition. For the rest of his life he will be looking over his shoulder. He is under sentence of death from criminal underworlds of two countries. The decision to become an informant is a generally traumatic psychological event and can easily be part of a personal crisis of identity. A decision to make bitter enemies of those with whom you have grown up and spent a good part of your life is hardly an everyday event. It is the occasion, as Paoli points out, for moral self justification.

There may be a tendency, on the part of the informant to rationalise an earlier life of crime in terms of changes in the organisation which have not actually taken place. Thus no-one is going to say: "I joined the mafia because they are a gang of vicious thugs who would kill you as soon as look at you and I really enjoyed that and I'm becoming an informant just for a bit of a change." A more plausible rationalisation might be: "When I joined the mafia they were really 'men of honour' with a high ethical standard, and although we engaged in criminal activities we also did some good for poor people, and the reason I decided to become an informant is that the mafia has changed, and now it is full of thugs and riff-raff who have no standards of decency." The point is that in order to rationalise to themselves their own decision to radically change their lives, informants may create a false contrast between organised crime 'then and now.' We have to be wary of this and regard the testimony of informants as a hypothesis for which other, supporting, evidence needs to be found.

In this context it is worth asking why so many informants have come forward from the traditional worlds of the Mafia both in the US an in Italy. In the US prior to 1980 there was only Valachi and Fratianno. But since 1980 there has been a veritable flood. In Italy, likewise up to the mid eighties Buscetta and one or two others constituted the main source, but in recent years there has been a flood of informants. By june 1996 there were no less than 1,177 informants giving information to the authorities. The predominant theme from these informants does indeed tend to confirm the rationalisation mentioned above. This might not however simply the product of a personal rationalisation to say 'once the mafia was honourable but now it has degenerated.' It might also be a result of social change. Thus in the United States the weakening of the ethnic cohesion of the old Italian communities in big cities and the older Sicilian notions of duty, honour etc., are being replaced by stronger American notions of individualism and self interest. Thus an increasing number of mafiosi will break the bond of secrecy and the oath of loyalty if they perceive it in their interest to do so. Memoirs of ex-gangsters tend to support this view. One old mobster writes: "the Mafiosi today, they're not like the old-timers of yesterday, Like in the thirties, forties and fifties… Today its betrayal, deceit, envy, jealousy, viciousness. It's not like it was." In Sicily it the increase in the number of supergrasses is explained by the increase in violence in which the mafia has thought nothing of waging war on the state, assassinating police, judges and even leading politicians who stand in its way has alienated many. The assassination of judges Giovanni Falcone and Paolo Borsellino in 1992 resulted in an increase in the number of pentiti. The Italian legal system includes various provisions such as legislazione premiale (reward regulations) which make possible sentence reductions for pentiti. In  2002 1,162 pentiti were used. Typical sentence reductions included reduction by two thirds and reduction of life sentences to 12-20 years

The second problem with the use of informants which Paoli points to, and which is certainly considered a problem in Italy, is that the motives of informants may not be altogether dissociated from the aims of organised crime. Even small-time criminals know that one way to get rid of people competing with you and trying to take over your 'patch' is to give information about them to the police. Likewise on a larger scale as the mafia moves into new areas of activity and competition between old and new organised crime groups intensifies, particularly in a lucrative area like drugs trafficking, it is obvious that some evidence given to police may be aimed at simply eliminating competitors, or even systematically and deliberately misleading the authorities as to the whole structure and nature of organised crime.

the supergrass in Britain

While there have been 'copper's narks' since time immemorial the term supergrass developed in the UK to refer to a new breed of criminals, usually bank robbers, who were prepared to 'grass' on a large number of their associates in exchange for a lenient sentence and protection. The first modern supergrass in the UK is generally regarded as Bertie Smalls, a London bank robber who helped the police in 1973 when he was arrested for his part in a bank robbery in Wembley, North London. The use of supergrasses in Britain was most likely influenced by the successful handling of Joe Valachi in the US. Although some judges and lawyers were horrified at the idea of prior agreements for non-prosecution or lenient sentence in return for information from active criminals, the idea became established and following Bertie Smalls a large number of other supergrasses emerged. 

The question arose of what sort of sentence reduction a 'supergrass' could legitimately expect as a reward for collaboration with the prosecution. In a landmark case in 1985 (R. v King), Lord Justice Lane summed up as follows:

“One of the most effective weapons in the hands of the detective is the informer . . .It is to the advantage of lawabiding citizens that criminals should be encouraged to inform upon their criminal colleagues. They know that if they do so they are likely to be the subject of unwelcome attention, to say the least, for the rest of their lives. They know that their days of living by crime are probably at an end. Consequently, an expectation of some substantial mitigation of what would otherwise be the proper sentence is required in order to produce the desired result, namely the information. The amount of that mitigation, it seems to us, will vary . . . from about one half to two thirds reduction”

At that time, as Duncan Campbell (1996) notes in his book on the British crime scene, The Underworld, early supergrasses didn't seem to worry much about revenge. But by the 1990s this had changed such that

"By the nineties it had become clear that the old laisser-faire attitude of letting bygones be bygones had passed and that unwary informers whose faces had not already been altered by plastic surgeons could expect to have a slightly cruder job done for them by their former associates." (Campbell 1996: 177)

The drugs trade was an altogether more serious matter than small time bank robberies

The terrorist supergrass is in principle no different from that of organised crime, he or she turns informant because they have for various reasons 'had enough'. The third variety of informant (in our list above) stays hidden and acts as an undercover agent within the organisation on behalf of the law enforcement agencies. Such individuals are sometimes called 'participating informants' by law enforcement agencies. In the case of infiltration by the security services of the IRA in Northern Ireland, a large number of  informants were of this variety. The 1980s were the main period in which supergrasses were deployed significantly in the war against the Provisional IRA. 
 

read extract from chapter 6 of Ellison and Smith (2000) The Crowned Harp: Policing Northern Ireland . Go to subsection: Telling Tales: the Supergrass Years

An important point about supergrass informants is that they are expensive. In return for giving evidence against former associates in criminal or terrorist organisations they have to be protected and given 'a new life' as part of a witness protection programme which is costly. For this reason there maybe pressure on them to produce convictions so as to make them economically worthwhile as an investment. Lord Gifford, a former English Judge, said in a report on the Northern Ireland criminal justice system published in 1984 that the Supergrass system was "not justice, that it led to the telling of lies and the conviction of the innocent". He accepted that the Northern Ireland Police (The Royal Ulster Constabulary ) allegedly programmed Supergrasses to "concoct and rehearse statements". A number of informants later retracted their evidence.

Nevertheless, use of informants is encouraged in recent UK government thinking on dealing with organised crime. In the recent white paper of March 2004 (see below) there are proposals for greater use of informants and for advance agreements between prosecution and defence as to the sentence reduction to be sought by the prosecution in return for testimony which, because it is part of an agreement, will be more likely to be accepted by juries as accurate and free of personal motives such as revenge.

2. undercover police agents

In the film Donnie Brasco, undercover FBI agent Joseph Pistone (played by Johnny Depp) spends eight years, during the 1980s as an undercover agent in the New York Mafia. He is subject to all manner of pressures on his personal life and is forced to witness, many criminal acts. This illustrates one of the key dilemmas in the use of undercover agents (including both undercover police officers and criminal informants who remain active but give information to the police): how much crime should they be allowed to witness before revealing themselves. If, for example, undercover officers or informants are on the trail of an important target such as the whereabouts of a major international drug dealer or terrorist then it is obvious that they should remain undercover until they have such information which will lead to the certain seizure and conviction of the target. But this means they will have to retain their credibility within the criminal organisation by participating as a full member--which means committing crime. In the Netherlands during the early 1990s undercover police became, it is said, heavily involved in drugs shipments as part of undercover work and allowing major shipments to go unhindered so as to lead to further information. In extreme cases undercover officers may actually entice members of the criminal organisation to commit crimes which otherwise would not have taken place. It is understandable that judges are often unhappy about such matters when they are revealed in court. 

In the case of terrorist organisations much the same considerations apply. Here, however, political concerns sometimes intervene. In the context of the Northern Ireland situation where there were rival paramilitary terrorist organisations rooted in the Catholic/Nationalist and Protestant/Loyalist communities it has been alleged that infiltrators took sides and that on a number of occasions military and police intelligence agents leaked names of IRA members to Loyalist paramilitaries

There is considerable debate concerning both the usefulness and both the legitimacy of such methods. It is clear that they may impinge on due process particularly if informants precipitate crimes or gather information on individuals which violates privacy laws. As we have noted, the motives for their evidence in court cannot always be taken for granted as beyond reproach. In recent years in the UK legislation such as the Human Rights Act 1996 and the Regulation of Investigatory Powers Act 2000 has come to govern the the use of informants of all varieties. (see the link on the left on the legal basis of undercover informants and supergrasses). 

The organisation as offender

The difficulty of obtaining information about organised crime and terrorist groups sufficient to secure criminal convictions 'beyond reasonable doubt' in the courts, is compounded by a second problem, the fact that the leaders and organisers of organised criminal groups may be able to distance themselves effectively from the actual commission of criminal offences. So even successful penetration by police undercover agents or recruitment of supergrasses may only lead to convictions of lower level operatives who have actually committed recognisable crimes. Al Capone, it is always useful to remember was eventually imprisoned not for violence or coercion or dealing in illegal goods and services but for tax evasion.

There is growing concern about the increase in the number of wealthy and powerful criminals of this type in the UK. According to an article in the Economist (21^st April 2001) the UK National Criminal Intelligence Service (NCIS) in that year estimated the number of wealthy crime bosses (or 'core nominals' as it calls them) as having risen by a third every year for the previous five years and by 2001 was numbering around 150 with 750 'lieutenants' on the next rung down. The wealth of these individuals comes predominantly from drugs trading, immigrant smuggling and bootlegging. The article quotes the Chief Constable of the Kent police as complaining about the difficulty of convicting leaders of organised crime because they "... don't commit crimes themselves, they manage criminal enterprises''. 

The criminal law of conspiracy is the main vehicle for dealing with people who while not actually committing the crime itself, play a leading role in organising and making the commission of the crime possible. The obvious route to take, from the standpoint of the law enforcement agencies, is to widen the conspiracy laws to include those not actually involved in the commission of any particular crime but nevertheless 'members' of the organisation which commits those crimes

RICO

This was the road taken by legislation in the United States, in particular influenced by the Valachi testimonies mentioned above. The Organized Crime Control Act of 1970 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'. RICO did not come into widespread use until the 1980s when it was credited with dealing the death blow to the old Italian-American Mafia. While death blow is rather an exaggeration it is nevertheless true that by 1990 over 1,000 major and minor organised crime figures had been convicted and given lengthy prison sentences in New York Commission and other cities. The key innovation of RICO was that the Godfather, or head of a Mafia family can be prosecuted and imprisoned even if he has never personally engaged in any criminal behaviour. He can be imprisoned because he operated and managed a criminal enterprise that engaged in such acts. Moreover, under section 1964(c) of RICO, the victims of the Mafia family (e.g., the businessman who has been subject to extortion, debtors of the Mafia loan shark, the family of a Mafia murder victim) can sue the Godfather in a civil action to recover the economic losses they incorred as a result of the Mafia family's pattern of racketeering. Rudolph Giuliani, former Mayor of New York, when he was a federal prosecutor, used RICO to hit the old New York 'Mob'. He wrote that: RICO

"is the only criminal statute that enables the Government to present a jury with the whole picture of how an enterprise, such as an organised crime family, operates. Rather than pursuing the leader of a small group of subordinates for a single crime or schemes, the Government is able to indict the entire hierarchy of an organised crime family for the diverse criminal activities in which that enterprise engages. Instead of merely proving one criminal act in a defendant's life, it permits proof of a defendant's whole life in crime."

The key to use of RICO against organised crime was the admissibility of telephone intercept evidence in court. This type of evidence is not presently admissable in UK Courts, and this was confirmed in the recent Regulation of Investigatory Powers Act 2000  which in other respects extended government powers of surveillance. This fact is seen by some as a disadvantage in British legal systems. As the Economist  (21 April 2001 ) commented:

"The ban on wiretap evidence, confirmed by the Regulation of Investigatory Powers Act, passed last year, has undoubtedly resulted in major criminals escaping prosecution. One of Britain's biggest heroin dealers, Curtis Warren, was subject to years of intensive surveillance by Merseyside police without being prosecuted. It was only when he unwisely moved to the Netherlands, in the mid-1990s, that he got jailed for 12 years, thanks to wiretap evidence.''

The importance of telephone intercept evidence is crucial in showing, through records of conversations and communications that the individual was a member of, or directing, criminal activities even though keeping a distance from personal involvement. A key recommendation of the UK government 2004 White Paper on organised crime (see below) is that the Regulation of Investigatory Powers Act be modified to included the admissability of telephone intercepts

Reservations about RICO

It has to be said that RICO has been used well beyond organised crime as conventionally defined and had some very interesting and progressive uses due to a wide interpretation of the concepts of criminal organisation and pattern of racketeering. RICO has been used for example against organised attacks on abortion clinics, and even against Los Angeles Police Department. In 2000 civil actions under RICO law were initiated against tobacco companies for health damage.

On the other hand critics, in particular those who argue that it is too overarching, claim it has led to the prosecution of persons who, although they may have been involved in criminal behaviour, played a minor role. It is also criticised as embodying very wide definitions of organised crime and racketeering. In the US there has been a trickle down effect with RICO statutes being used against youth gangs for example. It is likely that a similar dynamic would occur if such concepts were important into the legal systems of the UK. 

A second objection concerns workability against serious crime. RICO in the US is, as noted, celebrated as the hammer of traditional organised crime. It was at its best against the old Italian-American Mob which linked people together into a recognisable cohesive organisation based on Mafia families with clearly defined agreements between them as to activities and territories. Whether it is any use against new flexible forms of globally linked organised crime in which membership of recognisable organisation is less evident and linkage is more via sophisticated electronic communications remains to be seen. Again it is most likely, as in the US, that the lower level operatives who can be linked to identifiable organisations or gangs are the easy targets and the criminal financiers and bosses of criminal multinationals remaining relatively untouchable. 

In 2002 Mike Levi and Alaster Smith prepared a preliminary document which, among other things, showed the specificity of RICO and similar laws in continental Europe to the problem of dealing with traditional organised crime of the mafia type. Against the newer looser criminal networks with shifting memberships and temporary alliances such legislation was likely to be less effective

dealing with a Mafia-type or even Hells Angels-type association with known or knowable membership and admission rites is one thing; dealing with flatter and less formal networks is another.

 They continued

 It is easy to see how the RICO or the Dutch legislation might be applied against some past English crime groups, such as the Krays and Richardsons in the 1960s. There are at least a few such instances in current National Crime Squad (NCS) and Customs caseloads. However, there has to be a plausible link demonstrable to the court between the defendant and the group, and the mere possession of unaccounted wealth and mixing in clubland circles is unlikely to be sufficient (though it might be sufficient for civil asset recovery proceedings or taxation demands).

In the UK March 2004 saw the publication of a government White Paper One Step Ahead: a  21st Century Strategy to Defeat Organised Crime. The paper advocates the creation of a 'British FBI', a new Serious Organised Crime Agency (SOCA) formed by the amalgamation of the police National Crime Squad, National Criminal Intelligence Service and the intelligence arms of Customs and Excise and the Home Office immigration department. This is already being organised and details of the new agency were unveiled in the Serious Organised Crime and Police Bill in the 'Queens Speech' on 24 November 2004.

As regards RICO and conspiracy law, the White Paper concludes that a more flexible type of organised crime requires a more flexible concept of conspiracy than even that contained in RICO. The aim is no longer to show that individuals who may escape direct involvement in criminal acts are in fact full members of a criminal group that engages in such acts. This can be covered, as is normal in the UK, by traditional conspiracy and drug trafficking offences. What is now needed is a way of dealing with looser forms of organisation. For this purpose One Step Ahead suggests a new offence of belonging to an organised crime group. A characteristic of this offence, it is suggested, should be a relaxation of mens rea as a requirement for liability as a secondary party.

 "The sophistication and breadth of much organised crime activity means it is often surrounded by a wider circle of people with some knowledge of the group's activities… We are particularly interested in the area of secondary participation, where a defendant may be aware he or she is engaging in organised crime, but can argue they are unaware of the precise nature of the criminality. (page 41)

Traditional Mafia-type organisations certainly had corrupt lawyers, police officers, politicians and money launderers in their pay. However, the links were transparent because a clearly defined criminal organisation with a clear-if clandestine-membership lay behind them. In modern network based crime individuals may join together for particular projects for relatively short periods, while particular services such as money laundering, warehousing and transporting illegal goods or clandestine immigrants are purchased as the need arises from people who spend most of their time in legal activities. With such loose and flexible connections, traditional notions of conspiracy, it can be argued, are stretched to breaking point. Therefore a new, rather vaguer, notion is required to bring criminal law up to date.

However, one recommendation by One Step Ahead  that is taken from RICO and similar other jurisdictions, is that telephone intercepts be made admissible in court. Indeed, it can be argued that network crime is more dependent on telephone and electronic communication than traditional mafia activities where key figures met regularly and interacted in numerous ways.

The reaction of civil liberties groups in the UK has generally been that the new suggested offence of belonging to an organised crime group is much too vague but that, with the acceptance of telephone intercepts as evidence in court, such a vague offence is not needed because law enforcement investigators will have more resources as their disposal for getting hard evidence of conspiracy.

getting at criminal and terrorist wealth

A second strategy, alongside 'penetrating the organisation'  which has become increasingly prominent is that of attempting to choke off the supply of funds available to organised crime and terrorist groups. I have dealt already in a previous lecture with issues concerning money laundering.  But much money is successfully laundered and made to appear as the result of perfectly legal activity. So why not start from the other end and force those suspected of involvement in organised crime to demonstrate that their wealth is not  the product of criminal activity?

Most jurisdictions these days provide for the forfeiture of assets consequent upon criminal conviction. But the new thinking, taking the lead from other jurisdictions, notably the United States, Australia and the Republic of Ireland, is that assets which appear to be the proceeds of crime can be seized irrespective of conviction in the criminal courts. Investigators assess the suspect's legitimate income as declared for tax purposes and all income beyond this would require proof by the suspect that it was not the proceeds of crime or intended for use in criminal activity. 

In the UK the key legislation is the Proceeds of Crime Act 2002. The Proceeds of Crime Act is regarded as equally applicable to terrorist organisations as to organised crime. We have already mentioned this legislation in the context of money laundering. 

Recent UK government thinking on tackling organised crime starts from the study by the Performance and Innovation Unit of the Cabinet Office (PIU) published in 2000. This report made numerous recommendations of which the most important have been (a) the use of a concept of'criminal lifestyle' as a basis for confiscating the assets of convicted offenders involved in organised crime, and (b) and the extension of powers of civil recovery. Both these principles form a key part of the Proceeds of Crime Act 2002 (POCA) which became active in February 2003. 

Criminal lifestyle 

It was already the case in drugs trafficking legislation, notably the Proceeds of Crime Act 1995 that once a criminal conviction is secured for a drugs trafficking offence then the court is entitled to assume, on the civil standard of the balance of probabilities that all assets acquired by the offender during the previous six years are proceeds of drug trafficking. The PIU report recommended extending the drug trafficking confiscation laws so that they apply to all types of offence. This reflects the practice of drugs criminals to diversify into non-drugs crime.POCA (Section 75) achieves this aim by widening out drugs trafficking into a more general concept of criminal lifestyle. If the offender can be shown to have such a lifestyle then all assets, acquired over the previous 6 years are assumed to be proceeds of general criminal conduct and liable to confiscation. The burden of proof is on the defendant to show the converse. If no such lifestyle can be established then only the assets derivable from the particular offence are liable to confiscation. 

Drug trafficking is fairly precise but a general criminal lifestyle is much vaguer. Schedule 2 of POCA lists various offences that automatically indicate such a lifestyle. These include drugs, people trafficking, money laundering, terrorism and some others. But there are more general ways of acquiring a criminal lifestyle. Section 75(2)(c) specifies an offence committed over a period of at least six months from which the defendant has benefited while Section 75(2)(b) specifies an offence which "constitutes conduct forming part of a course of criminal activity." The latter is defined in Section 75(3) as conduct from which the defendant has benefited and (a) because a minimum of three other offences from which the defendant has benefited are covered in the same proceedings or (b) because there have been two previous convictions for offences from which the defendant has benefited on separate occasions during the last six years. Finally, Section 75(4) defines benefit as not less than £5,000. 

These developments represent a considerable widening of the scope for criminal confiscation. It is important to understand the general process at work here. Knowing that someone has previous convictions and a criminal lifestyle, and is therefore likely to be making money out of crime, might be thought a legitimate component of detectives' knowledge of the particular criminal underworld with they are concerned. Such knowledge would function as an important factor in focusing further enquiries, surveillance and targeting of suspects with the aim of linking assets with particular crimes as a component of the evidence which secures a conviction to the criminal standard of proof. Now, it seems, the detectives' hunch is sufficient and it is for the defendant to disprove it. 

Civil recovery 

The PIU report recommended an extension of civil recovery powers (known in some other English speaking jurisdictions as civil forfeiture) to enable assets, allegedly the proceeds of crime, to be seized irrespective of conviction in the criminal courts. Investigators would assess the suspect's legitimate income as declared for tax purposes and would then argue in court that income beyond this was, on the balance of probabilities, proceeds of crime. It would then be for the suspect to rebut these charges and show that such income was not the proceeds of crime nor intended for use in criminal activity. Such powers are used in a number of jurisdictions, particularly in corruption cases. 

Such provisions were included in Part 5 of POCA. The Act also established the Assets Recovery Agency (ARA) to assist law enforcement investigations and to act in the area of civil recovery applications. A general influence here was the Irish model. In Ireland the Criminal Assets Bureau (CAB) with civil recovery powers was established in 1996 following the assassination, allegedly by organised crime, of journalist Veronica Guerin. Other influences were Australia and the United States. 

In the latter jurisdiction civil forfeiture, expanded as part of the 'war on drugs' beginning in the 1970s, has come in for widespread criticism for the ease with which the state can seize assets allegedly the proceeds of, or involved in, criminal activity. Critics have argued that such a regime encourages law enforcement agencies to engage in 'justice as revenue gathering.'  This is particularly a potential problem where prosecuting agencies have a pecuniary interest in the outcome of an investigation. That is, where a portion of the confiscated assets go to the police or law enforcement agency concerned. In the US context this became a major issue under conditions in which during the mid 1990s 80% of people whose assets were seized under civil forfeiture proceedings were never charged with a criminal offence. (Blumenson and Nilsen 1998) Critics alleged that revenue gathering had a tendency to displace crime control as the aim of the system, particularly given the relative ease of seizure resulting from the lowering of the standard and reversal of the direction of proof. A number of high profile in a number of US states introducing modifications to civil forfeiture statutes to ensure a closer connection with identifiable criminal activity. The US Civil Asset Forfeiture Reform Act of 2000 to some extent reverses the trend by placing a greater burden of proof on the state to show that assets are in fact proceeds of crime or used in criminal activity. In the UK the ARA will aim to use assets seized to fund law enforcement and anti-drugs projects. But the the criticism that the law enforcement agencies will go looking for assets to confiscate has not been made in the UK context

One of the main consequences of a reliance on civil recovery, as with that of criminal lifestyle, in what are essentially criminal processes, is the reduction of legal processes of proof to the dynamics of police investigation. If someone cannot give a plausible account of the origin of their assets in interview with police or other law enforcement agencies then this might convince the investigators that they are on to something and spur them on to probe more deeply until they come up with enough evidence to secure a criminal conviction. With civil recovery this is no longer necessary.  It can be argued that on the balance of probabilities the assets are the proceeds of crime because there is no other acceptable explanation, at this point in time, of their legitimate origin. It is then up to the defendant, irrespective of conviction in the criminal court, to do the work and demonstrate the legitimate origin of the assets. 

As Jane Earl, the director of the new Assets Recovery Agency, puts it on her web site:

'If you have a large house and five places in the Caribbean, with no visible means of support, no rich aunties who have recently died leaving the odd five million and no successful lottery tickets, it won't do to say that someone gave you the money.'

So if you're honest you've nothing to fear. If that sounds rather chilling to you, John Wadham, Director of the civil liberties watchdog Liberty agrees. When the legislation was first being proposed in 2001 he said:

"These proposals undermine the presumption of innocence. They will create a system in which accusations by the police will be enough to force people to disclose all their private financial affairs, first to the authorities and then in public at the trial. Even if not found 'guilty' they will have been humiliated and have had their private life dragged through the newspapers. When it comes to the decision whether they are "guilty", there will be no jury, and the judge will decide on the 'balance of probabilities'. A person will be convicted on the basis that they are "probably" guilty." (see the Liberty website)

surveillance of communications

The final area which it is important to mention, refers to new forms of communication and networking, especially in the internet. The major piece of legislation in the UK is the Regulation of Investigatory Powers Act 2000, (RIPA) It is aimed, say its defenders, simply at bringing surveillance powers available to law enforcement agencies up to date to cover the new forms of communication such as email and internet. The Act enables the law enforcement agencies  (which include the Security Services) on the grounds of national security; preventing or detecting crime; preventing disorder; public safety; protecting public health and 'in the interests of the economic well-being of the United Kingdom', to

• demand that an Internet Service Provider (ISP) provides access to a customer's communications in secret. Such interception warrants not to be revealed in court

• Engage in mass surveillance of communications in transit;

• demand ISPs fit equipment to facilitate surveillance: UK Internet Service Providers can be required to install systems which will allow the authorities to track subscribers' communications traffic. That means every email you send, and every reply you receive, plus information on every website you've visited, every book you've bought from Amazon, every air-ticket you've purchased, every piece of software you've ever downloaded.

• demand the hand over by individuals of encryption keys to protected information;

• monitor the pattern of an individuals internet activities; what web sites they are visiting etc.

• This can be enacted not by a judge in the traditional sense of issuing warrants for surveillance but by the Home Secretary.

RIPA did, however maintain the ban on the use of telephone intercepts as evidence. As noted above, the 2004 White Paper One Step Ahead argues this ban should be lifted. Watch this space!

Communication and Civil Liberties

From the standpoint of those who drafted the legislation the issue is a simple one of `modernising' the normal surveillance capacity of the state to catch up with the new technology of communications. But there is a crucial issue. To return to the theme from which I began of the compatibility of crime control and civil liberties, one of the underlying problems can be seen as the progressive decomposition of the forms of natural surveillance in which the public, without any coercion whatsoever, observed facts relevant to crime control and reported them to the authorities. There is increasingly a need perceived by the authorities to proactively establish forms of surveillance and communications under their direction and control. There is emerging a continuum of surveillance. At the lowest levels Neighbourhood Watch Schemes in which the public becomes the `eyes and ears' of the police are entirely voluntary. Closed Circuit Television may be felt intrusive but necessary. The next level up is the attempt to recruit institutions and agencies whose normal working enables to surveillance of citizens, generally as customers, to become information reporters. The most important example here is the role of Banks and financial institutions to abandon their traditional client confidentiality and act as required reporters to the authorities of financial transactions which might be part of money laundering operations. This was discussed in the lecture on money laundering. 

As with banks, so now with ISPs. Civil liberties have to be compromised, so the assumption is, to enable surveillance to be sustained. Furthermore we can see in the RIP Act the shift away from the reluctant and episodic intrusion into private spaces authorised by a judge and ultimately challengeable in court to the secret, and unrevealable in court ,principle of routine surveillance authorised by a politician. It can be a criminal offence even to reveal that you have been asked by the authorities to surrender your data encryption keys. No wonder the civil liberties lobby are up in arms.

But they are not the only ones. RIP was greeted in the computer industry and among network providers with statements of intention to simply move their location beyond British jurisdiction. Commentators have argued that it will set back even further the already backward state of the British economy in terms of network provision and e-business. Who wants to set up here when the confidentiality of your information cannot be guaranteed?

towards the Security State?

The period since September 2001 has seen the enactment of a further round of stringent anti-terrorism legislation both in Europe and the US. In the UK the main legislation is the Terrorism Act 2000 and the Anti-Terrorism, Crime and Security Act 2001 and subsequent legislation. (for a more up to date discussion of the anti-terrorist legislation and its consequences for civil liberties go here)

Under the latter the government is empowered to intern without charge foreign nationals suspected of involvement in terrorist activities. The Home Secretary does not have to provide any substantial proof of his accusations, and certainly not to the criminal standard of beyond a reasonable doubt, even though the indefinite nature of the detention makes it far more severe than imprisonment following conviction. There has undoubtedly been a shift in climate towards the notion of an 'exceptional' or 'security state'

The use of metaphors of 'warfare' as displacing ideas of 'crime control' is important in that war, much more than crime control, justifies a supension of civil liberties. Thus the  'war on organised crime', now accompanied by even more important 'war on terrorism'

It was traditionally accepted that in time of war (e.g. during the Second World War) there should be a significant suspension of normal civil liberties. Measures such as internment without trial, extended surveillance powers for police and security authorities were justified without compromising democracy and civil liberties because it was understood that they were for 'for the duration of hostilities' only. The 'exceptional state' was justified by reference to specific, time-limited, periods of national emergency. But these new metaphorical 'wars' have no obvious end, no enemy to 'surrender' and so no time limit. In reality if crime control merges into war then the 'exceptional state' becomes permanent. 

But the rhetorical use of the concept of 'war' in the period post september 2001 has been the culmination of a progressive 'securitisation' of crime control issues extenting to wider social policy issues such as the regulation of immigration and asylum. Organised crime, along with terrorism, is perceived as a 'threat to national security' rather than simply a problem of criminality. This is then used as a justification for further inroads into civil liberties than would normally be considered legitimate. The state security services become involved, working alongside or displacing normal law enforcement agencies. Thus the traditional role of MI5 was reasserted as recently as the Security Service Act 1989 to include "the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means.". In the Security Service Act of 1996 the role of MI5 is expanded: 

“It shall also be the function of the Service to act in support of the activities of police forces and other law enforcement agencies in the prevention and detection of serious crime.”

references

Paoli, Letizia (1998) 'The Pentiti's Contribution to the Conceptualization of the Mafia Phenomenon' in Ruggiero et al. eds. The New European Criminology: crime and social order in Europe. London: Routledge.
Campbell, Duncan (1996) The Underworld. London: BBC and Penguin Books.
Ellison, Graham and Jim Smith (2000) THE CROWNED HARP : Policing Northern Ireland. London: Pluto Press.
Blumenson, E, and E. Nilsen. 1998. Policing for profit: The drug war's hidden economic agenda. University of Chicago Law Review, 65: 35-114.
Michael Levi and Alaster Smith A Comparative Analysis of Organised Crime Conspiracy Legislation and Practice and Their Relevance to England and Wales (Home Office, 2002)