-Caveat Lector- UK organised crime is organised by the establishment - therefore its unlikely that these sweeping new powers are aimed at a few rich gangsters on the take. the reality here is that these powers once in place can be used to arrest and convict anyone that they 'feel' may be guilty .... ____________________________________________ Losing the battle on organised crime: what the ACPO report says http://www.observer.co.uk/politics/story/0,6903,615656,00.html
Extracts from the controversial report from the Association of Chief Police Officers, arguing for sweeping reforms to make it easier to tackle organised crime Observer Liberty Watch campaign Sunder Katwala Sunday December 9, 2001 The Observer Britain's most senior police officers believe that the battle against organised crime is being lost, and that Britain's most serious lifestyle criminals are becoming "invulnerable to justice" because of the civil rights culture of a legal system that places too much emphasis on the rights of defendants. The Association of Chief Police Officers is calling for sweeping reforms on the way organised crime cases are tried, including relaxing the rules on evidence which "protect the defendant at the expense of allowing juries to hear what any 'common sense' jury would want to hear" and dropping the "unrealistic" requirement to "prosecute these offenders for specific criminal charges" by widening the laws on conspiracy and allowing criminality to be inferred from one case to another. The detailed ACPO reform agenda was set out in a 6000-word submission to Lord Justice Auld's Criminal Courts Review, seen by The Observer. While Lord Justice Auld's Commission reported in September, the submissions had not previously been made public and there will be widespread concern at the fundamental nature of the changes to the criminal justice system envisaged by the ACPO paper. ACPO chairman Sir David Philips has long been known for his strident opposition to the civil rights culture over-valuing the rights of criminal suspects over the public interest at large. The report rejects opposition to its proposals on civil liberties grounds, warning against the danger done by the "self-serving rhetoric" of legal professionals making "dire warnings of the spectre of wrongful convictions". The growth of organised crime The report claims that "lifestyle criminals' engaged in the most lucrative criminal rackets "cannot be reached under the existing rules": "Over the past five years, the number of the most serious offenders has grown by an average of 33% each year, despite a quarter of these being the subject of live intelligence and operational activity during that five year period". Bringing cases paralyse the investigators The few the successful prosecutions are not cost effective, because "the most concentrated effort from the National Crime Squad and dedicated local detectives" brings relatively few offenders to court and takes at least two years to mount each prosecution, for which "the rate of acquittal is high". This means that "the rate of attrition to organized crime is so small that it represents little threat. The successful prosecution of a few cases come at such a cost that the investigators in sizeable numbers and large measure are paralysed by a single case so that the criminal market is largely untouched and can operate with impunity." Little chance of seizing "ill-gotten gains" ACPO also say that, even if convictions are secured, "any analysis of the present confiscation law will show that we are hopelessly ineffective at depriving criminals of their wealth. Quite simply the present law does not work". The criminal standards of proof required, wariness of evidence based on association and the need to begin procedures after prosecution "will always allow sufficient time for clever criminals to have removed their wealth from the grasp of the Court." The problem with the Courts The report is scathing about the role of the courts in enabling organised crime to flourish: "the courts appear to be highly satisfied with the way in which their rules can be marshalled so as to provide a healthy rate of acquittal". "The Courts remain largely oblivious to this situation. One of the reasons for this is the constraint imposed by the legal requirement to make the realities of organized crime fit the working norms of the courtroom. We are required to pursue the unrealistic goal of prosecuting these offenders for specific criminal charges". "Those who are not involved in the actus reus of a crime but rather in its funding are seldom within reach. Further, the enormous legal effort put into the defence in all these cases places such a strain upon the investigative and intelligence systems that they are to a great extent forced onto the defensive. The Courts take the view that every kind of criminality can be reduced to a particular crime and wherever possible choose to deal with each crime separately so we cannot infer criminality from one crime to the next." "There must be something faulty in the way we contemplate the independence of the courts, if it is to mean they carry no responsibility for protecting society from the most serious criminal threat it faces. It is a curious observation that the Courts, who witness so many of these acquittals, and the lawyers who are aware of the way in which these offenders defeat the system, never themselves see injustice such as to raise comment about the inadequacy of the law in combating this kind of crime." Well-rehearsed and self-serving rhetoric The question has to be asked whether the tight professionalism of the Bar and its almost exclusive hold on qualification for judicial appointment, leads to an introverted conception of justice. Concerns of the public and victims are not a foremost issue; the threat from crime is not calculated; there is no sense of responsibility for the cost to the rest of the system of the conveniences and conventions of the court; rather we hear the well rehearsed and, some may think, self-serving rhetoric vouchsafing the benefits to the system at large of testing any case to its limits and dire warnings of the spectre of wrongful conviction. Is the natural outcome of a trial system in which the defence are expected to test the prosecution case in every way possible, with every manoeuvre and subterfuge, concealing evidence if it exists to their knowledge (it being not part of the defence role to aid the prosecution) and 'playing the system' with agility and guile, that scant regard is paid to the public interest in the conviction of the guilty?" Common sense should determine evidence rules The report argues that "lawyers exploit (lawfully) the 'system' because it is exploitable" and that the bigger questions relate to the balance of values in the legal system. "The excessive value given to mechanisms to protect the defendant at the expense of allowing juries to hear what any 'common sense' jury would want to hear, is what makes all this possible and is a function of a culture based solely around the concept of 'he who avers must prove' ...The law is tested most at the margins. It is exactly the most venal and calculating who will maximize every advantage. If we add to this the staggering rule that only the defence have any effective line of appeal, it is not surprising that organized crime cases become procedural chess games where the task of the defence is simply to put the prosecution procedures on trial against a paradigm of legal perfection inconceivable to the investigators." Proposals for reform The report identifies three main difficulties as responsible for "the inability to deal with organized crime under present legal arrangements": (1)The need for a less restrictive law on conspiracy, through a new 'Racketeering Bill'. "The first issue is absence of an effective conspiracy law. Whilst the common law conspiracy may exist as a legal relic, courts and prosecutors by practice will not entertain it, with a few exceptions. As organizers and financiers of crime rarely engage in the physical activity of crime, rather they have meetings, move money, profit and defend their position by advancing corruption and intimidation through 'enforcers' and 'frontmen', they are rarely amenable on charges of the kind courts enjoy trying. We clearly need a law of conspiracy which makes culpable involvement in the furtherance of a criminal enterprise." The report also calls for greater powers to obtain evidence of potential criminal wealth: "To prove racketeering it is necessary to prove 'life style' and associations. Evidence of criminal contacts and lavish access to wealth without legitimate means, are critical evidential matters. The law governing such cases needs to facilitate the presentation of such evidence not regard it with the traditional distaste it reserves for 'similar fact' evidence. "Taken further the police need adequate powers to obtain such evidence and are still baulked by other legislation, notably in respect of Inland Revenue. The police are not seeking unrestricted access to citizens' confidential records whether held commercially or by public bodies. What we require is the right kind of legal warranty, so that when suitable criteria are met, power to obtain information can be obtained and the evidence be admissible. It cannot be in the public interest or defensible on the basis of privacy for known criminals, with monitored contacts in racketeering and no legitimate access to wealth, to be screened from investigation." (2)The need to prevent lawyers "playing the system" to rule out crucial evidence on technical grounds "The second critical area of difficulty relates to the risk of disclosure of confidential material which will either put informants at risk or divulge investigative methods so that they will be useless henceforth. The law has always recognised the necessity of immunising some aspects of the investigations' provenance lest law enforcement would be, in the future, without arms in combating certain kinds of crime. .. [But] in reality in cases where there will generally have been months of surveillance, physical and technical, and the prolonged use of confidential sources, sufficient extraneous material exists to generate arguments and questions vectored to search for chinks in the "public interest immunity" armour. Specialist lawyers become expert in advancing "abuse of process" arguments and manufacturing applications for intelligence disclosure." "In many cases where the evidence, if it could only surface, is irrefutable, (for example covertly recorded conversations by defendants manifestly incriminating in character), the case will nonetheless be lost because the defence persuade a judge of some procedural irregularity extricated from months of investigative records, or intimidate the prosecution into withdrawal to protect intelligence sources or methods." (3)That the prosecution, as well as the defence, have a right of appeal in respect of judgements made about the exclusion of evidenceand the protection of intelligence . The most important issue however surrounds procedures for determination, with a change in the system so as to allow prosecutors to appeal, either in the pre-trial hearing or, if necessary, during the trial for an immediate determination by a higher court, on issues of admissibility, exclusion and public interest immunity. ACPO also argue that organised crime cases should be restricted these cases to specialist judges "with a proper knowledge of police methods and intelligence issues", and that steps should be taken to avoid prosecuting counsel using sensitive knowledge in the defence of other cases: "In our view the issues surrounding 'abuse of process' and attacks on 'public interest immunity' are less questions of law than matters of training, competence, and procedure. This is a difficult but not unmanageable area. Police procedures are now very formalized and accountable. Judges need to be well versed both in the practices of the police and their recording systems as well as the legal arguments. The rules for allocating judges to cases should be altered "to include categories of cases which should not be tried other than by experienced judges with a proper knowledge of intelligence issues". "Considering the case for specialist judges raises too the case for specialist counsel. If the purpose of public interest immunity applications is to retain secrecy, there is a real danger that counsel who prosecute one day can use what they learn in promulgating defences the next. There should be some means of obtaining an understanding with counsel that what they learn cannot be used directly or indirectly elsewhere. More acceptably, but perhaps more prohibitively, only counsel who are prepared to prosecute exclusively should see this kind of material in cases where the risk of disclosure is high". <A HREF="http://www.ctrl.org/";>www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance—not soap-boxing—please! These are sordid matters and 'conspiracy theory'—with its many half-truths, mis- directions and outright frauds—is used politically by different groups with major and minor effects spread throughout the spectrum of time and thought. 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