Scotland's new serious organised crime laws in focus

After the recent Lockerbie Case dominated days, albeit leavened by the odd tale of an ardent litigant, I wanted to turn my attention backwards rather than forwards. In place of speculation on future elections, referendums and so on - I thought it might be instructive to lay out a piece of business recently concluded by Holyrood - the sections of the Criminal Justice and Licensing (Scotland) Bill composed to deal with serious organised crime.  On criminal justice, the SNP government are to be commended for resisting the restless and bottomless penality and illiberality of Scotland's Labour and Tory parliamentary groups. Yet this resistance hasn't always seemed entirely confident and hasn't been as thoroughgoing or consistent as I should like. Indeed, in the reform of old offences and the institution of new infractions, the Government and Parliament have tended to favour broadly-drafted, maximally criminalising definitions, relying on prosecutorial discretion to weigh the merits of individual cases and to punish the more egregious offenders and judicial interpretation to narrow the ambit of offenders. Like many interested in the liberty of the subject, I find this reliance on trusting the Crown Office and the Procurator Fiscal Services for the proper administration of our criminal justice system deeply concerning.

Criminal law, on this theory, is never really intended to be enforced. Rather, this theorem seems to posit the relative autonomy of the values informing decisions to prosecute or not -  connected but not determined by the categories of criminal law. On one level, this is nothing new. Unlike some other countries, whose prosecutors theoretically have no discretion to prevent a prosecution if a crime has been detected, Scottish procurators fiscal need not, even in theory, drag every offender before the bar of a Court and assail all lawbreakers with the instruments of indictment and complaint. The difference, the concerning difference in contemporary Holyrood legislation, is not one of kind but of degree. What worries me is that offences are being passed into law most instances of which, parliamentarians, police and prosecutors would not want to see prosecuted and don't anticipate to see prosecuted. Prosecutorial discretion becomes, paradoxically, the means by which the law is not enforced. At its most extreme, the logic of this position commends criminalising everything, authorising the forces of order to pursue any infraction. The authority of limitless justification, the official liberty that comes with the absence of constraint, permits these lawful bloodhounds to case down the "true" criminals, sinners and offenders, leaving the meek and the just and the benighted untouched. Yet by the letter of the law, the liberty of the the meek and the just and the benighted is equally imperilled by such laws. The prosecutor holds all of the cards. I should stress, I'm not suggesting that our criminal law has lapsed wholesale into this form. However, Holyrood is undoubtedly passing criminal legislation which precisely participates in the logic of this extreme case.

Not convinced? Time for an example. The recently passed Criminal Justice and Licensing (Scotland) Bill introduces novel provisions into Scots law. Heretofore, "organised crime" prosecutions have been based on non-specialised offences of our Common Law, including charges of conspiracy. The competence of these charges hasn't been ended, but has been extensively supplemented with new specific provisions criminalising participation in criminal endeavours identified as serious and organised.  A couple of preliminary definitions, important for understanding the sections which follow. Throughout, serious organised crime should be taken to denote:

“... 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 serious offences...”

What, I hear you cry, are these mysterious serious offences? Fear not, a statutory definition is to hand!

“serious offence” means an indictable offence— 
(a) committed with the intention of obtaining a material benefit for any person, or 
(b) which is an act of violence committed or a threat made with the intention of obtaining such a benefit in the future, and “material benefit” means a right or interest of any description in any property, whether heritable or moveable and whether corporeal or incorporeal.

Qualms were expressed by many in Holyrood's Justice Committee about this definition during their deliberations. Concerns included the fact that "indictable" really isn't a significant qualification. While some very minor offences are only triable summarily, most "minor" infringements of Common Law offences - petty shoplifting for example - are infractions of indictable offences, even if no indictment is laid against the accused. Equally, serious is here defined in a rather unserious manner - on its face subsection (a) only requires a de minimis intention to acquire any material benefit. A two-man fraud which means to accrue a mighty £0.01 falls within this definition. Despite these doubts, no parliamentary could apparently put together anything better and the definition stands in the final Bill, as passed. On this definition, a two-teen wheeze to shoplift a single penny sweetie from their local corner shop is serious organised crime, being a clear "material benefit" to the pair and minimally conspiratorial. By dint of Section 25, "Involvement in serious organised crime" of itself will constitute a competent charge when the Act comes into force. 

(1) A person who agrees with at least one other person to become involved in serious organised crime commits an offence.
(1A) Without limiting the generality of subsection (1), a person agrees to become involved in serious organised crime if the person—
(a) agrees to do something (whether or not the doing of that thing would itself
constitute an offence), and
(b) knows or suspects, or ought reasonably to have known or suspected, that the doing of that thing will enable or further the commission of serious organised crime.

Turn again to our extreme case and our gallant pair of callants robbing a local candymerchant of his toothsome wares. Add a third boy. This chap's duty is to distract the pious chewmonger manning the front of the shop by engaging him in an entirely lawful discussion of his favourite Biblical passage (Corinthians 2:14) while his criminal cohorts make off with the single penny sweet. His mates don't tell him why he is indulging in such a discussion, but the canny youth has his suspicions about his would-be larcenous comerades. Backstabbing villains, they don't intend to share their sweet with their third companion anyway. To fall foul of section 25 risks a maximum ten year prison sentence, if prosecuted on indictment, 12 months if the summary procedure of a sheriff sitting alone is employed by procurators fiscal. In theory, this unfortunate Biblical interlocutor could be taken to be involved in serious organised crime, gazing into the abyss of a ten year sentence. This is, of course, a very extreme example, pushed to absurdity. There is no way, you might think, that the Crown would ever institute such proceedings, no chance that a judge would impose such a sentence. And you'd probably be right. That is the devil of these trust-me statutes. The trust and confidence they invoke is not entirely misplaced and isn't as quixotic as it seems.

Onward, to the next sections. Section 26 adds connection to serious organised criminality as an "aggravation" to other offences, with a view to ratcheting up the punishment imposed. Evidence of this connection does not need to be corroborated. Section 27 enshrines a further novel offence of "Directing serious organised crime" while section 28 criminalises "Failures to report serious organised crime".  The defitions I started with a shared throughout, hence, a serious crime is an indictable offence committed with an intention to receive material benefit or violence in anticipation of such a benefit. On indictment, directing serious organised crime will now attract a maximum 14 year sentence, failures to report a maximum of 5 years in prison. 

I'm not a practitioner, hence I lack a practitioner's sensitivity to how these new offences might work in practice - and crucially, how helpful they will be in cornering the clichéd "Mr Bigs" of Scotland's criminal economy.  What does seem clear to me, however, is that the sections enacted are like a blunt piece of wood which prosecutors and police are expected to whittle down into sharp, narrow stakes to drive through the hearts of the shadowy figures peopling the upper echelons of Scotland's concerted and lucrative criminal enterprises. To do so, Holyrood has enshrined an exceedingly broad law, potentially bringing any number of petty, unserious penny-driven criminal acts within the compass of serious organised crime, technically defined. Given the reported difficulties which have hampered the prosecution of ringleaders, the move may  justified and our legislators vindicated for taking exitus acta probat for their maxim, hoping the outcomes condone the breadth and potential illiberality of the law they passed. However, once again Holyrood has invited us to implicitly trust the judgement and conduct of the Lord Advocate, Crown Office and Procurator Fiscal service not to enforce the law they've passed. If their custodianship should prove less virtuous than our tribunes hope, the Act has all the potential to produce unjust and chimerical results.