Here’s why a law against organised crime isn’t such a good idea

New law upsets proceedings. steakpinball/Flickr, CC BY

Organised crime is estimated to cost the UK at least £24 billion each year, as well as blighting lives and damaging communities. The government has attempted to tackle the issue by introducing new laws against participating in organised crime. This may seem like a logical approach, but it could actually create more problems than it fixes.

With the introduction of the Serious Crime Act 2015, England and Wales follow in the footsteps of countries like the US and Italy, which criminalised organised crime activities back the 1970s and 80s. It is now an offence in the UK to participate in the criminal activities of an organised crime group, with a view to directly or indirectly obtaining any financial gain or benefit.

Defining the crime

When we talk about organised crime, researchers inevitably encounter the old dilemmas around what organised crime actually is, and how and why we choose to define it. These dilemmas arise because it is very difficult – if not impossible – to come up with an internationally applicable, legal definition of organised crime, which can also account for the great variety of national instances.

According to the UK’s new act, there are two criteria that make an “organised crime group”. First, the group must have – as at least one of its purposes – the carrying on of criminal activities. Second, it must consist in three or more people, who either act, or agree to act, to accomplish that purpose.

But this definition has been criticised by the Law Society, and the Institute of Chartered Accountants of England and Wales, for being too broad, and too demanding. This is because the UK law adopts the very broad definition of organised crime in the international UN Palermo Convention. Unfortunately, the problems with the legislation don’t end there.

Mixed messages

In the UK, there are two stories about so-called organised crime: the one told by research, and the one told by policymakers.

In the minds of policymakers, organised crime is a single threat to national security, made up of various different groups. The idea is that, by virtue of being “organised” – that is, involving a lasting, formalised structure – all of these groups have something in common. So, by picking out this feature, and using it to create a law, the government hopes to give prosecutors a tool to use against these groups.

But research tells us that we cannot justify creating the offence of “organised crime”, because it simply does not align with the reality found on the ground. Research in the UK indicates that organised crime consists in a number of serious criminal activities, from illicit trades, to trafficking networks. These activities harm businesses and communities in very different ways; they affect the economy, business competition, health, human rights and security.

Proceeds of crime. HM Revenue & Customs/Flickr, CC BY

One problem with the new offence is that it doesn’t resolve the conflict between these two stories. Instead, it overlaps both of them, and creates even more confusion about the nature of organised crime, and how we should deal with it.

Research on criminal networks across the UK has looked at specific crime hotspots like Liverpool or London, or at specific crimes, like money laundering and international child trafficking. The evidence shows that there are indeed networks – of varying degrees of sophistication – running small-scale, high-frequency criminal activities, from cybercrime, to drug trafficking, to illegal trades in tobacco and alcohol.

But crucially, these networks are not really “organised” in the same sense as the mafia in Italy, or mob families in the US: well-established, long-lasting organisations which offer members a sense of identity. Instead, these networks tend to come together and move apart very quickly, for opportunistic reasons – like the chance to increase profits.

Given that the serious crimes being committed by these networks are already illegal under UK law, it doesn’t seem necessary to introduce a new offence which criminalises association with these networks.

Practical consequences

The evolution of law in the UK is often closely linked to what’s going on internationally. Especially when it comes to organised crime, international rhetoric and precedent often guides national policymaking. This isn’t surprising if we consider that today, organised crime is perceived as a transnational, cross-border threat to national economies and societies.

But in the case of the new organised crime law, it seems like national policy has been based on international trends, rather than the requirements of law enforcement on the ground. This could lead to a number of practical issues, which will appear once the new law is fully in force.

For instance, there is a risk that the new offence of organised crime will demand stronger evidence than is required to prosecute serious crimes. Proving participation in organised crime groups activities, in fact, will require the proof of the criminal activity, proof of the existence of a group behind it and proof of the individual’s participation in it.

This demands more intrusive intelligence – in the form of wiretaps, interceptions and undercover operations – which will in turn require important changes in the law of evidence. This is a costly additional requirement for law enforcement agencies, which are already struggling. And it will put pressure on the daily practice of other laws already in place in the same fields, such as the Proceeds of Crime Acts.

While new provisions against organised crime in the Serious Crime Act may be a step forward from a political point of view, it may cause more harm than good from a legal perspective. It is understandable that the UK wants to be seen to be taking organised crime seriously. But a thorough assessment of the effects and consequences of this law is desperately needed, avoid the waste of resources and confusion in the system.