FULL‐TIME MAJOR CRIMINALS AND THE COURTS
| Date | 01 May 1976 |
| Published date | 01 May 1976 |
| DOI | http://doi.org/10.1111/j.1468-2230.1976.tb01456.x |
| Author | J. A. Mack |
THE
MODERN
LAW
REVIEW
Volume
39
May
1976
No.
3
FULL-TIME MAJOR CRIMINALS AND
THE COURTS
THIS
article continues the important debate initiated by
a
report of
the Criminal Law Revision Committee (C.L.R.C.
1972)
and carried
on
by Sir Robert Mark, Commissioner of the Metropolitan Police,
and by Mr. Michael Zander. The question under debate is concisely
defined by the latter-Are too many professional criminals avoiding
conviction? The Criminal Law Revision Committee had suggested
that too many guilty defendants were securing unjustified acquittals.
That is Mr. Zander’s way of putting it.2 The Committee’s actual
words are:
“There is now
a
large and increasing class of sophisticated
professional criminals who are not only highly skilful in organis-
ing their crimes and in the steps they take to avoid detection
but are well aware of their legal rights and use every possible
means to avoid conviction if caught.”
’
Sir Robert Mark had put the matter more sharply in
a
public lecture
given a week before publication of the Committee’s rep~rt.~ He said
that
“
Only a small proportion of those acquitted by juries are likely
to be innocent in the true sense of the word
”
and that under the
present system it was the professional criminal who was
‘‘
the very
man most likely to escape society’s protective net.”
Most criminologists would accept these
statement^.^
A
number
of
American studies have asserted or repeated them
on
the basis of
a
variety of empirical research findings. But few of these findings have
strong statistical backing.E This shortage of statistics is not necessarily
1
Criminal Law Revision Committee: Eleventh Report-Evidence (General) 1972,
London
:
H.M.S.O. Cmnd. 4991.
2
Michael Zander.
‘‘
Are too many Professional Criminals avoiding
Conviction?-
A
Study in Britain’s two busiest courts
”
(1974)
34
M.L.R. 26-61. (Referred to below
as
Zander 1974.)
3
C.L.R.C. 1972, para.
21.
4
Sir Robert Mark,
The Disease
of
Crime: Punishment or Trearment,
London:
Royal Society
of
Medicine, 1972.
5
A
distinction is implied here between criminologists and criminologically-minded
lawyers. Perhaps one might say, most criminologists (although perhaps not most
lawyer-criminologists) would accept etc. ete.
6
See
W.
J.
Chanibliss and R.
B.
Seidman.
Law,
Order
and Power,
London:
Addison-Wcstley, 1971,
for
a useful statistical table at p. 486.
24
1
VOL.
39
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1
242
THE MODERN
LAW
REVIEW
[Vol.
39
damning. There are other kinds of evidence. A good recent
example of the kind of work being done is the brief survey conducted
for the United States President’s Commission in
1967
by Pro-
fessor Leroy Gould and others, which found that the principal item
in the American professional criminal’s repertoire is the “fix,”
a
well-established arrangement whereby a substantial specialised sub-
group of lawyers in good standing, operating as bona fide lawyers,
derive a substantial specialised income from helping American
professional criminals to avoid being arrested, or charged, or brought
to court, or found guilty, or imprisoned, for offences which they
have in fact committed.’ But what appears to be
a
well-established
practice in the United States of America appears to have no analogue
in this country.8 Also no research, statistical or other, has been
published in this country on this precise question as far as British
professional criminals are concerned. Mr. Zander is therefore
entitled to say as he does that there is as yet
no
supporting evidence
-that
is
to say no findings established by independent researchers
and accepted by the research community-for either of
Sir
Robert
Mark’s statements, or similar statements which refer precisely to the
court process.
But Mr. Zander has not confined himself to this negative position;
he has lifted the question on to the level of research. His
1974
article
reports
a
study which sought to establish “to what extent those
acquitted in the higher courts were likely to be professional criminals
and
to
what extent the professional criminal stood an unduly high
chance of avoiding conviction.”
lo
The present article is in three parts. Part
I
summarises the Zander
thesis. Part
I1
criticises that thesis using data from another research
operation working on a different population from that selected by
Mr. Zander. Part
111
examines the main question under debate-are
professional criminals getting
away
with it?-in the light of findings
established by this second research operation.
I
THE
ZANDER
STUDY
The Zander study not only works on court decisions-which are of
course what his question is about-it also selects and establishes its
research population entirely on the basis of court records.
Two courts were chosen-the Old Bailey and the Inner London
7
Leroy Gould.
“
The Professional Criminal.” Mimeograph
of
Report presented
to the United States President’s Commission
on
Law Enforcement and Administration
of
Justice, Washington. 1967.
8
It may be relevant to note here that the comparatively recent establishment
in
the United Kingdom of official legal aid for impecunious defendants has enabled
a
few lawyers
in
a number
of
cities to earn a higher income defending full-time cri?finals
than they might otherwise have obtained. See J. A. Mack and H. J. Kerner.
The
Professional and Organised Crime: A Comparative Approach,”
The International
Journal
of
Criminology and Penology,
to appear in 1976.
0
A piece
of
research
on
a closely related topic
is
referred to below. See
inter
alia,
J.
A.
Mack and
H.
J. Kerner,
The Crime Industry,
London: Saxon Housc and
Lexington
Books
(D.
C. Heath Ltd.), 1975, pp. 185-194.
10
Zander, 1974, p.
28.
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