Is serious organised crime really a priority for Scots prosecutors?

Characterising it as a "blight on our communities", three years ago, Kenny MacAskill told Holyrood that "tackling serious organised crime is a priority for this Government". Detailing various actions which the SNP government has taken, amongst its achievements, Kenny cited the creation of: 

"... four new offences in the Criminal Justice and Licensing Bill. This package of offences targets the top of the criminal networks right down to the street drug dealer and the professionals who either facilitate such crime or turn a blind eye to it."

Strictly speaking, this isn't quite right. The new legislation created three new offences and one new aggravation.  The three offences hit the statute book in 2010, ranging from involvement in, to directing and failing to report serious organised crime.

Wending its way through Holyrood, the main justification used to promote the new legislation was that it would make it easier to land the whole octopus of professional criminal cartels operating in Scotland. Head, tentacles, the lot.  Before 2010, in the absence of evidence that the accused actually committed a crime himself, prosecutors had to substantiate a conspiracy, or the Scots equivalent of "aiding and abetting", if organised criminals were to face criminal sanctions.

According to ministers, and their props in senior police officers, and prosecutors, these standalone offences would greatly facilitate the investigation and prosecution of organised crime in Scotland. The Explanatory Report to the legislation talks of "making it easier to convict criminals involved in serious organised crime". While no stern slew of investigations and prosecutions were promised, you might have expected some sort of action.

A month or so ago, however, I realised we hadn't heard a peep about these new offences from ministers, or the Crown Office. While we are graced weekly with piffling tales of cretins at football matches, getting the book thrown at them, a queer silence surrounds these serious organised crime offences, which came into law some two years before the first hapless football fan felt the wrath of the establishment, and found himself up before the Sheriff.  Are they working as intended? Are they being used at all?

Nothing in the official Crown Office news releases gave much clue, so I popped in a freedom of information request.  How many reports had prosecutors received under the three offences of involvement in, of directing, and of failure to report serious organised crime? What was the outcome of those trials, where these had been concluded?

The response, received a week or two ago, is pretty startling.  To date, the Procurator Fiscal has received reports of 368 serious organised crime offences from the police from 2010 to date.  To date, only one person has been convicted, in 2011/12, of involvement in organised crime. Two further charges, taken in the High Court, resulted in acquittal. The only person yet prosecuted for directing serious organised crime, again in 2011/12, was also acquitted.  Nobody has seen the inside of a cell for directing concerted, corporate criminality.

Nor has any professional facilitator, corruptly betraying the ethics of their vocation, has felt the sting of the law for it.  On the offence of failing to report organised crime, the figures are particularly small. The Procurator Fiscal received just four complaints from the police in 2012/13, and none in either previous year. No decision has yet been taken on whether to prosecute those involved.

To put that figure in a little context, in 2009, the Scottish Organised Crime Group mapping project identified 241 “specialists” operating in Scotland. As opposed to mere “members or associates” of criminal organisations, these specialists have been engaged for their particular knowledge of public systems. Corrupt lawyers, shifty accountants, and so on: just the sort of characters that the section 30 offence of failure to report dodgy dealing aims at netting.

This 2009 police intelligence showed a further 4,066 individuals were involved in 367 serious organised crime groups. 176 of these groups were believed to be involved in drugs offences, 202 had accused to guns, 161 engaged in murder or serious violence, 81 in money laundering. With grim predictability, 77% of those groups known to be involved in violence were based in the Strathclyde area. 19 groups were known to be involved in sexual offences, 10 involving human trafficking.  Not every reasonable suspicion is prosecutable, and not every piece of intelligence can be acted on.  Nevertheless, the gap separating this police intelligence from the prosecution statistics seems conspicuously large.

But what to make of this? What explanation for the paltry (and hitherto largely unsuccessful) prosecution statistics? Firstly, serious organised crime investigations and prosecutions are notoriously tricky and time consuming.  As the figures I've received from the Crown indicate, proceedings involving a further 109 charges of involvement in organised crime are still ongoing in the High Court, 11 of them dating back to 2010/11. 38 other cases are ongoing, also in the High Court, alleging that the accused directed organised crime groups. Criminal justice takes time, more time than many folk would imagine. It may be that these offences just haven't yet come into their own.

What's more, these offences are a little different from your average theft or assault charge.  You know a crime has been committed when the mugger makes off with your wallet, or smacks you in the jaw, and complain to police.  These organised crime offences, by contrast, are far more broadly drafted.

For example, to be convicted of involvement in serious organised crime, the Crown doesn't have to prove that you've done anything particularly wicked in and of itself. Instead, they've got to demonstrate that you've (a) agreed to do something (whether or not the doing of that thing would itself constitute an offence), and (b) know or suspect, or ought reasonably to have known or suspected, that the doing of that thing will enable or further the commission of serious organised crime.

Seen as the organised criminal is unlikely to refer himself to the police, and in many instances, there will be no obvious victim of this offence, it seems likely to be particularly reliant on the investigative initiative of the police.  Most offences are only liable to come to light, if officers go digging.  And their capacity to dig - understandably - is limited by resources and other priorities.

I'm sure there's something too this, but there may be wider lessons for us about being more realistic about what our prosecution system is capable of, and the changing priorities which it is actually capable of responding to.

When they think of the justice brief, Scottish politicians seem obsessed with the criminal law, criminal courts, prisons and sentencing.  There is always another demand for a new law, a new working practice, a new priority, more bodies in court, and behind bars. The abolition of corroboration, argue some, will throw open the hitherto shut doors to justice for many Scots.  Others behave as if there are endless coffers to expend, prosecuting daft lads for singing songs about Bobby Sands.

The evidence at the very least throws this into serious doubt.  Consider the following salutary details from a recent Crown Office personnel survey, or last month's survey from the FDA union, reporting further evidence of prosecutorial overwork, insufficient time to prepare cases, and low morale.  If you are going to make an issue a priority, others will fall by the wayside. It is a near constant of bureaucratic activity, that decision-makers working under pressure, to processing deadlines, focus on simpler cases to improve their annual totals.  More complex, investigatively more demanding cases? Perhaps with a sigh, maybe with regret - they die quiet deaths in many bureaus, in databases and groaning metal cupboards. 

To demand more attention be expended here is almost always to insist that another issue be neglected there.  Our politics too often labours in the childish belief that the statute book may always expand, that prosecution, capacity is limitless, and that if neither of these propositions is true, it is important for public confidence in the justice system to pretend both are so.  It may be that in the next year or so, the Crown Office will pick up the pace, and give these new organised crime laws some of their belated, promised effect. 

But it's worth remembering, you only get the quality of justice which you're prepared, or able, to pay for.