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Organised Crime and the Criminal Justice and Licensing (Scotland) Act 2010

Document Cited authorities 28 Cited in Related
Vincent
AuthorLiz Campbell
Date01 May 2014
Published date01 May 2014
Pages225-244
DOI10.3366/elr.2014.0205
INTRODUCTION

Organised crime in Scotland has been characterised, in rather lurid terms, as a blight1

Serious Organised Crime Debate, Scottish Parliament, 11 March 2010, Col 24544 per Justice Secretary Kenny MacAskill.

and a cancer.2

Scottish Government, Serious Organised Crime Taskforce (Press release, 22 October 2007).

 Regardless of whether such rhetoric is justified, describing and defining what organised crime actually is, in an effort to criminalise and punish it, poses significant theoretical and legal problems. Nonetheless, the Scottish Parliament addressed this issue in the Criminal Justice and Licensing (Scotland) Act 2010, in the first such legislative effort in the United Kingdom

The 2010 Act defines the foundational concept of “serious organised crime”, and includes a number of separate provisions predicated on it, concerning involvement, direction, and failure to report, as well as sentence aggravation. This paper presents a critical appraisal of the definition of “serious organised crime” in the first instance, and then of each of these provisions. The analysis is both doctrinal and normative, and raises a number of concerns, centring on scope, necessity and effectiveness. Overall, the provisions are expansive and capture some unproblematic actions; they often duplicate existing law; and their value in addressing this particular type of crime has yet to be established.

 DEFINING (SERIOUS) ORGANISED CRIME

The precise numbers of organised crime groups identified in 2009 by the Scottish Serious Organised Crime Group Mapping Project (367, to be exact)3

Scottish Government, Letting Our Communities Flourish: A Strategy for Tackling Serious Organised Crime in Scotland (2009) para 34. See also Scottish Serious Organised Crime Group Mapping Project, Preliminary Findings On The Scale And Extent Of Serious Organised Crime In Scotland (2009) 3.

belies the contested definition and nature of organised crime. Many variants co-exist in the academic, legal and political spheres;4

P Van Duyne, “The phantom and threat of organized crime” (1996) 24 Crime, Law And Social Change 341 at 343. Also see F Varese, “What is organized crime?” in F Varese (ed) Organized Crime: Critical Concepts in Criminology (2010) 1–33; F E Hagan, “The organized crime continuum: A further specification of a new conceptual model”(1983) 8 Crim Justice Rev 52; and F E Hagan, “ ‘Organized Crime’ and ‘organized crime’: Indeterminate problems of definition” (2006) 9 Trends in Organized Crime 127.

 the term may imply specific structures, organisations or networks that are involved in criminality, the (illegal) provision of (prohibited) goods or services, or certain types of crime that meet a given level of gravity.5

See L Paoli and C Fijnaut, “Organised crime and its control policies” (2006) 14 Eur J of Crime, Crim Law and Crim Justice 307 at 308; N Hamilton-Smith and S Mackenzie, “The geometry of shadows: a critical review of organised crime risk assessments” (2010) 20 Policing and Society 257 at 261.

The widespread popular view of organised crime, exemplified in numerous films and TV shows, mirrors Cressey's work on the Mafia in mid-twentieth century North America,6

D Cressey, Theft of the Nation: The Structure and Operations of Organized Crime in America (1969) 72. Also see H Abadinsky, Organized Crime, 9th edn (2010) 3.

in which he identified strict command structures, fixed hierarchies, and collective norms and identity in such organisations.7

See L Paoli, Mafia Brotherhoods: Organized Crime, Italian Style (2003) at 4, 21 and 220.

 However, this understanding is not substantiated by contemporary empirical studies, which depict much looser arrangements.8

Paoli, Mafia Brotherhoods (n 7) 224; D Hobbs, “Going Down the Glocal: The Local Context of Organised Crime” (1998) 37 The Howard J of Crim Justice 407 at 415.

 So, there has been a shift in the theoretical focus toward the illegality of the activities, and to a more nuanced understanding of the nature and structure of the group or network responsible.9

A Block and W Chambliss, Organising Crime (1981) 13; J Albini The American Mafia: Genesis of a Legend (1971); A K Cohen, “The concept of criminal organisation” (1977) 17 Brit J of Criminol 97 at 98.

 For example, Maltz sees organised crime as including four characteristics: violence, corruption, continuity, and variety in the types of criminality engaged in.10

M Maltz, “On defining ‘organized crime’: The development of a definition and a typology” (1976) 22 Crime and Delinquency 338.

 Hagan points to the provision of “illicit goods that are in public demand”,11

F E Hagan, Crime Types and Criminals (2010) 300.

 while Levi lays emphasis on the central aim of making a profit.12

M Levi, “The Organization of Serious Crimes for Gain” in M Maguire, R Morgan and R Reiner (eds) The Oxford Handbook of Criminology 5th edn (2012) 595.

 A rather different focus is provided by Finckenauer, who argues that organised crime can only be committed by a criminal organisation, which is an advanced, durable and constant network whose members go beyond single instances of criminality and who view themselves as a criminal organisation.13

J O Finckenauer, “Problems of definition: What is organized crime?” (2005) 8 Trends in Organized Crime 63 at 75 -76.

Conceptually and empirically, organised crime may be difficult to distinguish from other types of serious criminality such as terrorism and “white collar” crime. In the first instance, the absence of ideology is key.14

Ibid 65.

While there may be a nexus in terms of the personnel involved,15

See T Makarenko “The Crime-Terror Continuum: Tracing the Interplay between Transnational Organised Crime and Terrorism” (2004) 6 Global Crime 129–145; L Shelley, J Picarelli, et al Methods and Motives: Exploring Links between Transnational Organized Crime & International Terrorism (2005).

 for organised crime the only true motivation is profit through the creation, control or maintenance of (illicit) markets, in contrast to terrorism which aims to coerce a government or organisation to act in a particular manner through violence targeting civilians.16

A Cassese, International Criminal Law, 2nd edn (2008) 167.

 Moreover, though it has been argued that organised crime and white collar crime are interwoven and may be indistinguishable,17

V Ruggiero, Organized and corporate crime in Europe: Offers that can't be refused (1996); J Lea, Crime and Modernity (2002) 144–146.

 the latter is described as an “abuse of a legitimate occupational role which is regulated by law”.18

H Croall, Understanding White Collar Crime (2001) 6.

 Thus the status or position of the actor involved is critical. In addition, white collar crime is not underpinned by the use or threat of violence.19

See A Wright, Organised Crime (2005) 63.

Attempts to translate the imprecise concept of organised crime into law are fraught with difficulty. In the UK, Scotland alone has introduced legislation providing for substantive organised crime offences, despite the Home Office recommendation in 2004 of the criminalisation of organised crime as an enterprise in itself.20

Home Office, One Step Ahead: A 21st Century Strategy to Defeat Organised Crime (Cm 6167: 2004) 43. In England and Wales prosecutors rely on the statutory offences of conspiracy and of encouraging and assisting crime (Part 2 of the Serious Crime Act 2007), rather than on legislation against organised crime specifically. See text accompanying n 55 below.

The Criminal Justice and Licensing (Scotland) Act 2010 defines “serious organised crime” and creates a number of substantive offences based on this.21

For an examination of “lower levels” of organised crime see P Stelfox, “Policing lower levels of organised crime in England and Wales” (1998) 37 The Howard J of Crim Justice 393 at 394.

 This can be described as focusing on the “what” rather than the “who” of organised crime,22

M Woodiwiss, “Organized crime – The dumbing of discourse” (2000) 3 British Criminology Conference: Selected Proceedings, Liverpool, July 1999, 3–4.

 and contrasts with the approach of the United Nations and the European Union, which centres on the group or organisation involved23

United Nations Convention Against Transnational Organized Crime (GA Res 25, annex I, UN GAOR, 55th Sess, Supp No 49 at 44, UN Doc A/45/49 (Vol I) (2001) Art 2; Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime.

 and which has been adopted in the Republic of Ireland, for example.24

Criminal Justice (Amendment) Act 2009.

 The focus in Scotland on the crime rather than on the organisation is notable, given that organised crime usually is seen as distinctive because of the nature of its structure, and because of features like the entity's endurance, cooperation and resort to violence

In Scotland, “serious organised crime” is defined as crime involving two or more persons acting together for the principal purpose of committing or conspiring to commit a serious offence or a series of such.25

Ibid, s 28.

Here a “serious offence” means an indictable offence committed with the intention of obtaining a material benefit, or an act or threat of violence made with the intention of obtaining such benefit in future.26

Ibid, s 28(3).

 Thus, the definition is framed very broadly and may involve just two people, in contrast to the sociological and criminological understanding of organised crime as a group activity

It is questionable whether just two individuals in fact can commit organised crime, given its commonly understood structure and form. In the first instance, the constituent notions of durability and continuity that are highlighted in scholarship on organised crime27

See Maltz (n 10) and Finckenauer (n 13).

are unlikely to be evident when considering the actions of just two people. One of the distinguishing and most concerning dimensions of organised crime is that it can persist despite changes in personnel or withdrawal...

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