Organised crime in English criminal law. Lessons from the United States on conspiracy and criminal enterprise
| Pages | 182-201 |
| Published date | 05 May 2015 |
| DOI | https://doi.org/10.1108/JMLC-10-2014-0038 |
| Date | 05 May 2015 |
| Author | Anna Sergi |
| Subject Matter | Accounting & Finance,Financial risk/company failure,Financial compliance/regulation |
Organised crime in English
criminal law
Lessons from the United States on conspiracy
and criminal enterprise
Anna Sergi
School of Law, University of Essex, Colchester, UK
Abstract
Purpose – The purpose of this paper is to consider the rationale behind the approaches to organised
crime in criminal law to understand the basis of the law on conspiracy in England and Wales and why
this country has refused to amend conspiracy in favour of a membership offence or a criminal enterprise
model, similar to the USA’s offences.
Design/methodology/approach – The analysis is based on a legal comparison between the law of
conspiracy in England and Wales and the USA’s Racketeer Inuenced and Corrupt Organizations Act
(RICO) statute, as example of best practice targeting criminal enterprises. The legal comparison is also
substantiated by case law examples and interviewees with prosecutors and lawyers collected both in
London and in New York City.
Findings – After briey describing how the two systems (English and American) are intended to
work, the paper will develop a discussion on the difculties and advantages of introducing a RICO-style
legislation in England and Wales and shall conclude that it is the way organised crime is socially
perceived in the English/British scenario that justies the choice to remain on the level of conspiracy
and not move towards membership/enterprise offences.
Research limitations/implications – This study shall be primarily intended as an opportunity to
assess the criminal law tools in the ght against organised crime available in England and Wales. The
comparative side of this research, the RICO statute, would require more attention which this paper
cannot give for reasons of brevity. Therefore, the study is a preliminary study in comparative criminal
law.
Originality/value – The central idea of this work is to suggest that differences in criminal law are
based on different perceptions of the wrongfulness of the offending. For the law to change in favour of
a criminal enterprise offence in England and Wales, there is a need to reshape the wrongfulness of
organised crime. A study into the wrongfulness of organised crime as a criminal offence, with a
comparative outlook, has never been conducted before in England and Wales.
Keywords Conspiracy, Enterprise corruption, Membership offences, Organised crime
Paper type Research paper
1. Introduction
In the modern world, organised crime (OC) features prominently in the criminal justice
agendas of many countries, being a threat to public order, national security or economic
stability. Broadly speaking, the academic community approaches the problem of
organised crime either from the point of view of the actors (focussing on the structure of
organised crime groups) or from the point of view of the activities (focussing on crimes
which ought to be intrinsically organised) (Obokata, 2010;Cancio Melia`, 2008;Paoli and
Fijnaut, 2006). Approaches in criminal law against organised crime usually mirror this
The current issue and full text archive of this journal is available on Emerald Insight at:
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JMLC
18,2
182
Journalof Money Laundering
Control
Vol.18 No. 2, 2015
pp.182-201
©Emerald Group Publishing Limited
1368-5201
DOI 10.1108/JMLC-10-2014-0038
dichotomy (Sergi, 2013). It can be noted how a criminal justice system willing to focus on
the structures and networks of organised crime groups, like Italy or the USA, would
ideally target organised crime as a unitary entity, often by criminalising unlawful
associations or criminal enterprises. On the other side, a system, like the English system,
accepts an “activities-based” denition of organised crime, would engage in targeting
serious organised crimes as manifestations of organised crime (Sergi, 2013). This
divergence in the way legal systems approach organised crime might create semantic
criminogenic asymmetries (Passas, 1999;Arsovska and Kostakos, 2010) legal loopholes,
which eventually are exploitable for criminals who learn how to avoid prosecution and
where to be successful in committing crimes.
This paper aims to consider the rationale behind these two approaches to organised
crime in criminal law to understand the basis of the law on conspiracy in England and
Wales and why this country has refused to amend conspiracy in favour of a membership
offence or a criminal enterprise model. The analysis is substantiated through the
comparison with the USA’s Racketeer Inuenced and Corrupt Organizations Act (RICO)
statute (corroborated by interviewees with law enforcement staff collected in England
and others with judges and prosecutors collected in New York City), as example of best
practice, targeting criminal enterprises in organised crime cases. The US Federal RICO,
in fact, approaches organised crime as enterprise conspiracy to commit crimes.
Therefore, the paper explores the rationales behind RICO and aims at capturing the
concepts at the basis of criminal law choices as well as political changes.
The central idea of this work is to suggest that differences in criminal law are based
on different perceptions of the wrongfulness of the offending. For the law to change in
England and Wales, there is a need to reshape the wrongfulness of organised crime,
which, at the same time, embodies the perception of organised crime in the legal system
of reference and implies judgements on the real nature of offending in organised crime
cases. The concept of wrongfulness is the primary, often overlooked, element of every
offence (Cancio Melia`, 2008), and the way organised crime is valued in terms of its
wrongfulness marks the difference between a conspiracy offence (intended as
complicity in committing crimes) and offences of unlawful association. The way states
perceive the wrongfulness of organised crime is, therefore, the cause of legislative
choices. This exploration is also relevant because of calls for action from the Council of
Europe and the United Nations (UN) to improve the dialogue on the subject of organised
crime criminal law beyond national borders.
Following this introduction on the purposes and relevance of this work, the paper
shall introduce the two main forms of organised crime legislation – conspiracy and
membership offences – as described by international documents, before focussing on the
English law on conspiracy, compared with the USA’s RICO statute. As it will be seen,
although RICO is meant to deal specically with organised crime groups’ inltration in
legal businesses, English conspiracy is a general norm, which might or might not apply
to organised crime activities. The UK (England and Wales specically) not only does not
have anything like an unlawful association offence for organised crime, but it has in
more than one occasions refused to consider introducing such a law on the basis that the
law on conspiracy and joint enterprise sufce. Therefore, this study shall be primarily
intended as an opportunity to assess the criminal law tools in this eld available in
England and Wales. After briey describing how the two systems (English and
American) are intended to work, the paper will develop a discussion on the difculties
183
Organised
crime in
English
criminal law
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