Taking Britain’s crime bosses to the cleaners

The measures proposed in the Serious Crime Bill are a further step in building a framework of lifetime serious-offender management begun in the civil recovery component of the Proceeds of Crime Act 2002 and in the Serious Organised Crime and Police Act 2005.

Part 3 of the Bill includes in chapter 1 praiseworthy provisions to extend the ambit of the National Fraud Initiative to other central government bodies, which has yielded major savings by data-matching and encourages public sector agencies to take advantage of the data-sharing benefits of joining the not-for-profit private and public sector fraud prevention body CIFAS.

In chapter 2 it makes a number of amendments to the Proceeds of Crime Act 2002, which enable the transfer of functions of the soon-to-be-abolished Assets Recovery Agency to the Serious Organised Crime Agency (SOCA) and to other bodies, extends the powers of civilian financial investigators operating under that Act, provides greater investigative powers in respect of the cash forfeiture regime, and grants powers to force entry in the execution of search warrants issued and executed in Scotland. Chapter 3 extends powers to officers of HM Revenue and Customs, which retains an important role not just in ‘organised’ tax frauds but in other areas.

The part of the Bill that will receive the most attention, however, is Part 1. Clause 1 gives the High Court the power to make a Serious Crime Prevention Order, a new kind of civil injunctive order which is aimed at preventing serious crime opportunities.

If a person breaches an order he commits a criminal offence. Subsection (1) sets out the test which the High Court in England and Wales must apply to determine whether such an order can be made. It provides that an order may be made if the court is satisfied that a person has been involved in serious crime, whether that involvement was in England and Wales or elsewhere in the world, and where it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in England and Wales. Crown Court judges are to be given the power to make such orders, but only after conviction for a serious offence. These orders — consistent with the notion that SOCA is a harm reduction agency, not just a law enforcement agency — can be applied to legal persons such as companies as well as to natural persons.

The proposals would enable — on a civil burden of proof — the restriction of the activities of persons and businesses to be designated as ‘serious criminals’. These include limits on their financial, property or business dealings, their working arrangements, the people they associate or communicate with, premises they have access to and their travel. A court could, for example, ban a ‘more probable than not’ gangster from owning a mobile phone, or from attending a night club or a ‘super casino’ where police or SOCA believe criminal activity is taking place.

What the basis for this estimate of 30 orders annually is, and whether it will remain at this figure, is unknown. The direct cost of each order is put at £40,000, but this may at least double if the targets are granted legal aid (counterbalanced, presumably, by the assets forfeited subsequently — it would be curious if no assets were forthcoming for such prestige targets). However, the logic of the bans imply some monitoring process, though whether this will be a net increase in resources for SOCA and others is open to question.

In essence, as with ASBOs, the legislation brings in judicially approved restrictions whose identified and proven violation can lead to lengthy prison sentences. Judges can make an order not just against alleged ‘kingpins’ but against people who might argue that they were unaware of any criminality.

Thus, if drugs were found in a false storage compartment in the back of a horse box, the business that made it might be ordered to disclose all its other customers.Judges will have to perform the balancing act of working out what legitimate purpose might be served by having such false compartments (other than, for example, to protect property from thieves).

No definitive list of serious crimes is included but examples in the Bill include drug trafficking, prostitution, people trafficking, money laundering, fraud and counterfeiting. There is also a reference to environmental crimes, including fly-tipping and fishing for salmon, trout or freshwater fish with prohibited implements — so both pollution and poaching are included.

It would be too easy to argue that these proposals are a ‘counsel of despair’ provoked by the ‘failure’ of the criminal justice system (or, on another view, of the evidence-gathering and presentation skills of the investigators and prosecutors).

The 21st century New Labour governance agenda treats the criminal process not so much as an end in itself — ‘justice’, for traditionalists — but as merely one tool among many for the reduction of harm from organised/serious criminals and, it is hoped and expected, from serious crimes.

These are not quite the same thing — drugs themselves may be no more nor less harmful or plentiful whether delivered by ‘organised’ or ‘disorganised’ criminals, though stopping people becoming powerful and rich from crime is an end in itself.

Stimulated by the press release references to attacking the ‘Mr Bigs’, the media reaction was to label the new powers ‘gangster ASBOs’ (which one might shorten to ‘GASBOS’). But whereas there is an argument that ASBOs can artificially demonise young people who have just drifted into delinquency, GASBOs will be aimed at those who are considered to be significant beneficiaries of crime and who, without such measures, would have no reason to stop.

What their impact will be remains to be seen, but in combination with civil recovery the aim is to reduce enthusiasm for a life of crime by making it a life of ‘grief’. It would be wrong to argue that SOCA makes no sense without these powers, but one of the political battlegrounds over the Bill may be precisely the way in which it transforms conventional notions of the policing-conviction-prison cycle into the much more complex world of crime-risk management.

This carries with it problems of monitoring and providing the resources to do so — for example, will wiretaps eventually be used in civil evidence even if they are to remain unusable in criminal trials? — but the GASBO targets are people who should anyway be under the monitoring of an intelligence-led policing regime. The shape of regulatory justice to come?

Dr. Michael Levi is Professor of Criminology in the School of Social Sciences at Cardiff University. He is the author of several research studies and books on fraud and organised crime. He writes the chapter on ‘Organised crime and terrorism’ in the ‘Oxford Handbook of Criminology’ and has co-authored ‘Reducing and preventing organised crime: An evidence-based critique’, Levi, M. and Maguire, M., Crime, Law and Social Change, 41 (5), pp. 397-469.