The Prosecution of Organised Crime: Removing the Jury
| DOI | 10.1350/ijep.2014.18.2.445 |
| Published date | 01 April 2014 |
| Author | Liz Campbell |
| Date | 01 April 2014 |
| Subject Matter | Article |
The prosecution of
organised crime:
removing the jury
By Liz Campbell*
Senior Lecturer in Criminal Law and Evidence, Edinburgh Law
School
Abstract Serious organised crime groups may enjoy virtual impunity through
the corruption and coercion of parties involved in the criminal justice process.
In the United Kingdom and Ireland, this is most evident in the intimidation of
witnesses and jurors, leading to difficulties in successful prosecution of
organised criminality. One notable response to this phenomenon is to hold
juryless trials for serious indictable offences, mirroring a similar approach in
counter-terrorism legislation arising from the political violence in Northern
Ireland. Despite common rationales, such trials have been operationalised
differently in these neighbouring jurisdictions: in England, Wales and Northern
Ireland ‘ordinary’ legislation was introduced, whereas in Ireland juryless trials
are permitted under existing counter-terrorism laws. This article reviews the
problematic dimensions of both legislative schemes, and considers their
application by the courts since enactment. After outlining viable alternatives, it
concludes that juryless trials may be necessary in limited instances, and if so,
the English model is to be preferred.
Keywords Organised crime; Jury trial; intimidation; Ireland; Special Criminal
Court
*
PhD, LLM, BCL; email: liz.campbell@ed.ac.uk.This article was written during my time as a Fulbright
scholar at the University of Maryland Law School (2011–12). For helpful comments and
suggestions, I would like to thank colleagues at the University of Maryland and the participants at
the seminars at New York University Law School; University of Missouri Law School; St Thomas
University Law School, Florida; Catholic University DC; and University of Illinois-Champaign.
doi:10.1350/ijep.2014.18.2.445
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THE PROSECUTION OF ORGANISED CRIME
olitical discourse in the United Kingdom and Ireland emphasises the
‘scourge’1 of organised crime that ‘blights’2 communities. In particular,
P the dominant perception is that the odds remain stacked against the
State in terms of the criminal process:3 the prosecution of suspected organised
crime poses challenges in terms of investigating and constructing cases, and also
of potential danger to individuals involved. In particular, witness testimony and
lay participation may be difficult to obtain if witnesses and jurors fear intimi-
dation or reprisal.4 Intimidation, ranging from threats to involved parties, their
families or property, through to physical violence or even homicide, results in the
neutralisation of law enforcement, because, of course, without witness testimony
and impartial juries convictions would be rather more difficult, if not impossible.5
Such ‘paralysis of justice’ has been called a cardinal feature of organised crime.6
Nonetheless, despite its political and popular use, there is no ‘agreed-upon defini-
tion’ of organised crime;7 the term may denote specific structures or organisations
that are involved in criminality; the provision of illegal goods or services; or a
certain type of crime that meets a given level of gravity.8 Maltz proposed a
definition requiring not only violence, continuity, and variety in the types of
criminality engaged in, but also corruption.9 While corruption of the criminal
justice process in other jurisdictions may involve the targeting of official agents
and parties, in the United Kingdom and Ireland the primary focus of coercion by
organised crime groups is against witnesses and jurors.
1
Stage 1 of the Criminal Justice and Licensing (Scotland) Bill, Scottish Parliament, 26 November
2009, col. 21574, per Justice Secretary Kenny MacAskill.
2
Home Office, One Step Ahead: A 21st Century Strategy to Defeat Organised Crime, Cm 6167 (TSO: London,
2004) 9.
3
Ibid. at para. 6.3.
4
See, e.g., House of Commons Northern Ireland Affairs Committee, Organised Crime in Northern
Ireland Volume I, Third Report of Session 2005–06 (TSO: London, 2006) para. 85.
5
A. K. Cohen, ‘The Concept of Criminal Organisation’ (1977) 17 British Journal of Criminology 97 at 106.
6
J. Landesco, Organised Crime in Chicago (University of Chicago Press: Chicago, 1968) 23.
7
P. Van Duyne, ‘The Phantom and Threat of Organized Crime’ (1996) 24 Crime, Law and Social Change
341 at 343. See also F. Varese, ‘What Is Organized Crime?’ in F. Varese (ed.), Organized Crime: Critical
Concepts in Criminology (Routledge: London, 2010) 1–33; F. E. Hagan, ‘The Organized Crime
Continuum: A Further Specification of a New Conceptual Model’ (1983) 8 Criminal Justice Review 52;
and F. E. Hagan, ‘“Organized Crime” and “organized crime”: Indeterminate Problems of
Definition’ (2006) 9 Trends in Organized Crime 127.
8
L. Paoli and C. Fijnaut, ‘Organised Crime and its Control Policies’ (2006) 14 European Journal of Crime,
Criminal Law and Criminal 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.
9
M. Maltz, ‘On Defining “Organized Crime”: The Development of a Definition and a Typology’ (1976)
22 Crime and Delinquency 338; also see F. E. Hagan, Crime Types and Criminals (Sage: Thousand Oaks,
CA, 2010) 300; J. Finckenauer, ‘Problems of Definition: What Is Organized Crime?’ (2005) 8 Trends in
Organized Crime 63 at 81.
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THE PROSECUTION OF ORGANISED CRIME
Though it is difficult to determine the extent of intimidation of lay participants in
the criminal process, it appears that this phenomenon is not uncommon and has
been a grave problem in certain parts of the United Kingdom for decades.10
Moreover, it appears that four to five trials per year require 24-hour police
protection for jurors,11 though, admittedly, these figures are not recent. There
remains a dearth of empirical material on juror coercion and tampering, and
when asked questions in Parliament, the Secretary of State for Justice noted that
what is now HM Courts & Tribunals Service does not record any data centrally on
the number of retrials ordered as a result of jury intimidation.12 Similarly, no
empirical study has been carried out of juror intimidation or coercion in Ireland,
but public concern has been heightened by incidents like the discovery of a jury
list for a murder trial in a house search in Dublin.13 Overall, these factors
contribute to the receptiveness to the prospect of removing the jury in certain
instances, both for the protection of the individuals involved, but also to smooth
the operation of the justice process.
Despite common rationales, juryless trials are implemented differently in the
United Kingdom and Ireland: in England, Wales and Northern Ireland ‘ordinary’
legislation was introduced to abolish the jury in certain instances for indictable
offences, whereas in Ireland juryless trials are permitted under existing
counter-terrorism laws. This article reviews the problematic dimensions of both
legislative schemes, and considers their application by the courts since
enactment. Before analysing the means by which an accused may be tried without
a jury, the article next considers the notion of a jury trial and its significance.
The jury trial
In general, the right to a jury trial is regarded as a fundamental element of the
adversarial criminal process, and as a norm that should not be interfered with
lightly or unduly. The Magna Carta alluded to trial by one’s peers,14 while in
Ireland, the jury trial is guaranteed under the Constitution.15 The significance of
this type of trial is manifold. By involving lay peers of the defendant in
fact-finding, a representative element comprising the viewpoint and judgment of
the community is imported into the justice process. Moreover, the jury trial can
comprise an element of participatory democracy,16 improving community
10 W. Maynard, Witness Intimidation: Strategies for Prevention (Home Office: London, 1994) 4.
11 HL Deb, 19 November 2003, vol. 654, col. 1963, per Baroness Scotland of Asthal.
12 HC Deb, 10 February 2010, col. 1076W.
13 ‘Murder trial jury names uncovered in Garda raid’, The Herald, 6 March 2010.
14 J. Clarke Holt, Magna Carta and the Idea of Liberty (Wiley: New York, 1972).
15 Article 38.5.
16 V. Hans and N. Vidmar, Judging the Jury (Plenum Press: New York, 1986) 248.
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knowledge of the process and enhancing its legitimacy in the eyes of citizens. As
De Tocqueville noted, juries ‘spread respect for the courts’ decisions and for the
idea of rights throughout the classes’.17 Furthermore, the integration of profes-
sional and lay decision-making in the criminal trial is viewed as providing a check
on the State. This safeguard is important both in substance and in a symbolic
sense: the jury may mitigate or overturn over-reaching State powers or biases, and
its presence demonstrates the public’s potential to hold the State to account.18
Despite the long-standing convention of jury trials for criminal cases in common
law systems, the right to a fair trial under Article 6 of the European Convention on
Human Rights (ECHR) does not guarantee a right to trial by jury. As the Court of
Appeal stated in R v Twomey:
It … does not follow from the hallowed principle of trial by jury that
trial by judge alone, when ordered, would be...
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