Legal opinion:We watch films about it. Politicians lament its increase. And critically, in a bid to deal with it, civil liberties are eroded, policing practices are altered, and new state agencies are established. Yet, organised crime eludes definition.
Pinpointing what it is, and is not, is critical if we want to determine the extent of the problem, and then figure out what to do about it.
“Organised crime” may mean specific structures; the provision of illegal goods or services; or certain grave types of crime. In the words of sociologist Michael Woodiwiss, the term may refer to both the “who” and the “what”. Other interpretations emphasise the need for violence, corruption, continuity, and variety in the types of criminality, with the central aim of making a profit.
An absence of ideology distinguishes organised crime from terrorism; but this distinction is becoming less clear, and increasingly there is a nexus in terms of the personnel involved.
Arguably, organised crime may also be distinguished from “white-collar” crime, which usually is seen as criminal behavior of professional people in the course of their work. Though it may be difficult to differentiate between such crime in terms of gravity and harm, the position of the white-collar criminal and the absence of violence seem critical. These issues underline the ambiguity and contested nature of the concept of organised crime, and the difficulty in determining which acts and actors fall within its scope.
Irish approach
Rather than defining “organised crime” in legislation, in Ireland we see the criminalisation of offences involving a “criminal organisation”. The Criminal Justice Act 2006 and the Criminal Justice (Amendment) Act 2009 seek to address organised crime at the group level and as an enterprise, akin to the Racketeer Influenced and Corrupt Organizations Act (RICO) in the US.
A criminal organisation is a structured group whose purpose is the commission of a serious offence (that which a person may be imprisoned for at least four years). Violence or its threat is not a prerequisite. A structured group comprises at least three and cannot be randomly formed for the immediate commission of a single offence, and the involvement in the group by two or more of those persons must be with a view to acting in concert.
For the avoidance of doubt, the legislation emphasises that a structured group may exist without formal rules or membership, any leadership structure, or continuity of involvement. This seeks to address the ephemeral and flexible nature of criminal groups in Ireland.
Directing the activities of a criminal organisation is an offence punishable by up to life imprisonment. Moreover, it is an offence for a person, with intention or recklessness, to contribute to or facilitate any legal or illegal activity that could enhance the ability of a criminal organisation or its members to commit a serious offence. A person who commits a serious offence for or with a criminal organisation is guilty of an offence punishable by up to 15 years’ imprisonment.
The acts do not specify whether the person needs to know he is committing an offence for the benefit for a criminal organisation, although such a subjective element was read into an equivalent measure in Canada.
This attempt to criminalise “organised crime” raises a number of issues. Trials for these offences are held in the non-jury Special Criminal Court, on the basis that the ordinary courts are deemed inadequate to secure the effective administration of justice and the preservation of public peace and order. This presumption regarding the perceived inadequacy of the courts and the erosion of the right to a jury trial is problematic. And it is questionable whether these provisions are necessary, given the common law offence of conspiracy, where two or more parties agree to commit an unlawful action (R v Jones (1832) 110 ER 485).
These separate provisions are hoped to improve the likelihood of securing of a conviction, on the basis that involvement in a specific offence needs to be proved for conspiracy. However, the statutory offence of contributing to an activity that enhances the ability of a criminal organisation or its members to commit a serious offence is narrower as it only relates to crimes punishable by four years or more, rather than unlawful conduct.
Time lag
Limited use of these measures may suggest that the legislation is unnecessary. But there is an inevitable time lag between a law’s enactment and its application in complex prosecutions, and appraisal of its use and effectiveness is difficult. Last year two men pleaded guilty to committing offences to the benefit of a criminal organisation (“Brothers jailed under gang laws,”, The Irish Times, June 11th) after originally being charged with directing a criminal organisation. There have been no other convictions.
In spite of difficulties in defining organised crime, and thus in quantifying the number of groups and costs, politicians can tend to over-egg the problem.
Labels have an emotive effect: the use of this terminology may garner support for measures introduced to counter such crime, such as expanded powers of surveillance, civil asset forfeiture and robust sentences. This is not to diminish the real harm of systematic serious criminality, but to call attention to the contestable idea on which drastic alterations to legal norms are based.
Furthermore, attempts to translate into law our popular understanding of organised crime pose problems and duplicate the criminal law. The introduction of such measures conveys legislative and societal condemnation towards organised criminality.
What is needed to address systematic, violent and profiteering serious crime is not necessarily more law, but rather increased resources for police investigations, underpinned by a more muted and measured tone of political discourse.
* Dr Liz Campbell is senior lecturer, School of Law, University of Edinburgh. Her Organised Crime and the Law: A Comparative Analysis was published by Hart Publishing earlier this year (£35).