Interdisciplinary Research into Organized Crime

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On Wednesday 30 January at UWE Bristol, Dr Mary Alice Young convened an interdisciplinary research event on the role of technology and the intelligent machine in organized crime. The event was supported by the Centre for Applied Legal Research and the Criminal Justice Unit. There were 60 attendees in total, including a group of senior investigators from the Metropolitan Police Service, law enforcement officers from the South West Regional Organised Crime Unit, Embassy attaches, investigators from HMRC, and colleagues from UWE’s departments including, Artificial Intelligence, History, Forensics, International Relations, Geography and Criminology. 25 students also attended (representing three faculties), and made valuable contributions to the discussion and connections with potential employers.

Event outcomes

Since the event on 30 January, Dr Young has been successful with a number of publications and planning upcoming workshops.

Dr Young’s interdisciplinary article, ‘Organised Crime and Security Threats in Caribbean Small Island Developing States: A Critical Analysis of US Assumptions and Policies’, has been accepted for publication by the European Review of Organised Crime, with one reviewer stating that it ‘re-orientates a long standing misreading of the Caribbean reality’ of organized crime. Dr Mike Woodiwiss (History, UWE Bristol) is the second author, and the work builds on interviews and field research carried out in Jamaica in 2018.

Dr Young’s forthcoming paper on the untold truth of the architecture of anti-money laundering policies has been accepted for discussion at the Tax Justice Network’s annual conference in July 2019 at City University, London.

Dr Young will also convene a plenary workshop on enablers of organised financial crime, and host the closed Think Tank on Organised Crime in September 2019, at the Cambridge International Economic Crime Symposium, Jesus College.

SLSA Seminar Series: The Perennial Problem of Disclosure – A way forward?

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By Ed Johnston

Ed Johnston has recently been award £1,500 from the annual Socio-Legal Scholars Association’s Annual Seminar Series. Ed is currently organising a one-day conference at UWE Bristol Law School on the topic “The Perennial Problem of Disclosure – A way forward?” This one day event will take place on Wednesday 3 July 2019.

Prior to the mid-1960s, there was no requirement for defence disclosure. Between 1967 and 1996 the defence only had to disclose alibi and expert evidence. The prosecution would disclose elements of their case to ensure ‘equality of arms’. The issue of balance between both parties is long-running, since the prosecution have historically commanded significant resources to investigate and prosecute crimes (in comparison to the defence). The system of disclosure is a fundamental element of fair trial procedure as it helps to compensate for this natural imbalance. However, with the advent of the defence case statement under the Criminal Procedure and Investigations Act (CPIA) 1996, both the underlying culture and systemic purpose of disclosure experienced a seismic shift.

In the following two decades, the general focus of criminal justice policy has been toward prosecuting cases in an efficient manner; the defence case statement forms a pivotal aspect of this. The disclosure regime was extended by the Criminal Procedure Rules (CrimPR) which now mean that disclosure, albeit operating under the guise of ‘case management,’ is essentially mandatory in summary trials. In contrast, under the CPIA 1996, summary trials were only the subject of a voluntary disclosure regime. Despite the insistence (via both judicial guidance and executive policy making) on the need for a culture of early disclosure and co-operative working to permeate modern criminal procedure, the post-CPIA 1996 regime is marked by practical failings and (arguably) ideological contradictions. This has generated significant and sustained criticism, and led to miscarriage of justices as a result of an inadequate disclosure system and culture.

In late 2017 and early 2018, a series of criminal cases collapsed after significant police failures in managing disclosure of key evidence. The first and most widely reported of these was the case of Liam Allan, who was accused of rape and released on bail for two years, before vital undisclosed evidence emerged days into his trial. In the wake of this, the CPS, Metropolitan Police, a Parliamentary Select Committee, and the Government have engaged in reviews of the effectiveness and fairness of the current disclosure regime in criminal proceedings. As mentioned above, this is not new; the modern system of disclosure has been lamented almost since its inception in 1996. There have been a number of critical examinations, including by academics Plotikoff and Woolfson (A Fair Balance in 2001); by Lord Justice Gross (A Review of disclosure in criminal proceedings in 2011); and by HMCPSI and HMIC jointly (Making It Fair in 2017) and the Mouncher Review (also in 2017).

Liam Allan speaking at the First Annual Criminal Justice Research Unit lecture at UWE Bristol in December 2018.

In 2018, two further reviews followed in the wake of the Allan case and others (including those of Samson Makele and Oliver Mears): the Justice Committee published Disclosure of evidence in criminal cases inquiry in July, and finally the Attorney General published a Review of the efficiency and effectiveness of disclosure in the criminal justice system in November. The latter review concluded that the ‘system is not working effectively or efficiently as it should’ and identified above all the need for a change in culture (rather than law) was needed. There is an obvious appetite for improving the function of the disclosure regime; yet, despite the numerous reviews and investigation, it remains fundamentally flawed and this represents a risk of causing further miscarriages of justice (which may or may not be detected). Speaking in June 2018, the former DPP, Lord Macdonald, suggested that it was ‘inevitable’ that innocent defendants had been imprisoned as a result of disclosure not being readily available to defence lawyers (a claim the then DPP, Alison Saunders, was hesitant to echo). Arguably, the current crisis in disclosure represents one of the most significant and impactful problems in 21st Century criminal justice.

This one day conference in July 2019 seeks to bring together academic and practitioner perspectives to examine potential avenues for reform and improvement. If you would like to attend this event, please register online here.

The confirmed speakers for the conference are: 

Anthony Edwards: “Contemporary issues with disclosure in the police station.”

Anthony is a criminal defence solicitor who specialises in Corruption, Fraud and Major Crime. He is widely acknowledged as one of the leading authorities on Police Station law and he has published widely in the areas of criminal procedure.

Dr. Abenaa Owusu-Bempah: “Reconsidering defence disclosure.”

Dr. Owusu-Bempah is an Assistant Professor of Law at the London School of Economics. Her research interests focus on criminal procedure and fair trial rights. Her recent book, Defendant Participation in the Criminal Process, examines how the disclosure provisions of the CrimPR compel the defendant to actively participate in their own criminal trial. The book examines how the adversarial criminal process can be effected by essentially non-adversarial provisions.

Dr. Hannah Quirk: “ Uncovering disclosure errors: Appeals and the CCRC.”

Dr. Quirk is a reader in Criminal Law at Kings College London. Her research interests lie in wrongful convictions and sentences. She has published extensively on the erosion of the Right to Silence and wrongful convictions.

Please see our event page for further details or click here to sign up now.

Catherine Easton (editor of the European Journal of Current Legal Issues) has been commissioned a Special Edition of the journal, which will focus on the papers presented at the seminar. This proposal has been accepted and the edition will be published in the winter of 2019.

The disclosure crisis: A suspect and practitioner perspective

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On Wednesday 5 December 2018 UWE Bristol hosted the first annual Criminal Justice Research Unit lecture on the topic “The disclosure crisis: A suspect and practitioner perspective.” The event was organised and chaired by Dr Tom Smith and Dr Ed Johnston and funded by the Centre for Applied Legal Research.

Roughly a year ago today our first speaker Liam saw accusations of rape dismissed after the police failed to disclose crucial evidence which fundamentally undermined the claims made against him. Liam gave us a very a personal account of his experiences with the criminal justice system. Jerry Hayes and Anthony Edwards each provided varied and valuable professional perspectives on the problem of disclosure. We hope that this lecture will help to promote meaningful and long term change in this area as well as furthering our goal here at UWE Bristol of research that shapes the future of organisations.

The lecture has been recorded and is available to watch online as a video, or to listen to as a podcast:

View Full video

Listen to Podcast

 

 

Liam Allan

Liam Allan is a criminology and criminal psychology graduate who was charged with rape in 2015 and spent two years on bail before his case collapsed owing to failures with the disclosure regime. Liam gave us a very personal insight into his experience and the trauma of accusation, from the moment he was arrested until the case was dropped. Liam described being made to feel that he was “guilty until proven innocent”. Liam arrived at the Crown Court charged with 13 counts of rape; days into his trial, it emerged that the police had 60,000 non-disclosed text messages containing vital information which led to the collapse of the case against him. Following these events, there was huge media interest and public outcry. Subsequently, 600 cases were dropped, 6 of which were rape cases. Since that time, Liam has continued his studies and founded the Innovation of Justice campaign, which seeks to unite organisations, lawyers and barristers, individually seeking to improve different aspects of the criminal justice system.

 

 

Jerry Hayes

Jerry was the prosecution barrister for Liam’s trial, and played a fundamental role in the discovery of the non-disclosed evidence. Jerry described some of the fundamental issues with the criminal justice system, in particular in relation to sexual offences. He argued that many members of a jury jump to conclusions in a “no smoke without fire” reaction to rape cases (something Liam suggested he had previously done, prior to his accusation). Jerry emphasised the importance of remembering that people are complainants, not victims, until a conviction or a plea of guilty. Jerry described in detail how and why the system very nearly failed Liam Allan – who would have served up to 12 years in prison and been on the Sexual Offenders Register for life. He suggested that the evidence that was withheld had been deemed “too personal” to be revealed and not relevant to the case. Yet, he argued, it was not only capable of undermining the prosecution case; it made it absolutely clear that Liam Allan could not be guilty. Jerry described Liam’s case as the worst he had seen in 41 years of practice.

 

Anthony Edwards

 

Anthony Edwards has been a practicing solicitor for 45 years and gave us a professional overview of how disclosure should be handled to avoid major miscarriages of justice. Anthony explained some of the provisions of the Criminal Procedure and Investigations Act (CPIA) and gave an overview of the recent Attorney General’s review of disclosure. He argued that, with sexual offences, there is added complexity and difficulty due to frequent “credibility contest” in such cases – that is, they turn on one person’s word against another. He stated that it is a routine part of defence practice to deal with non-disclosure issues; from major fraud to cases of minor assault. He suggested that poor disclosure practice undermines the criminal justice system, as police and prosecutors do not look for what is actually needed in a case. Anthony highlighted that this issue will not just go away (and not done so for decades), arguing for an enormous cultural shift from the police, the prosecution and defence, to ensure that all evidence is properly disclosed from the start. Anthony highlighted the need for an independent disclosure review process, conducted by an independent barrister, arguing that history tells us that the police nor the prosecution can or will do a satisfactory job. Anthony highlighted the related issues associated with the use of social media by parties in a case; particularly the problems of detecting and accessing such material when it stored on a third party’s account. He asked: how an accused can find such material if they do not know it exists? Anthony suggested that, with an independent disclosure counsel running the process, a significant proportion of cases that currently reach court and are subsequently dropped or dismissed by a jury would be filtered out of the system at an early stage, avoiding injustice.

 

Question and Answer session

We had a range of questions, some sent in advance and then opened up questions from the audience. Liam talked about how the case affected his personal life and that he was suspended from his job for 2 months. The emotional strain of the case understandably caused Liam to breakdown in court, but he also spoke about the impact on his family and friends. There was much discussion around the CPS and CPIA, whether they were fit for purpose and whether Liam was judged fairly. Anthony and Jerry gave an insightful discussion of the failings of the criminal justice system and how these failings impact genuine victims of sexual abuse. The idea of anonymity for those accused of certain types of offences was discussed by all three speakers, and the idea that it should be anonymous until a judge, because there may be other offences, directs that it should be made publicly known. There was criticism of the CPS and police using their lack of resources as an excuse for their failings, and whether this is a valid excuse or reason, nonetheless it needs to be addressed.

 

The entire lecture is available online here:

Full video

Podcast

 

The Criminal Justice Research Unit share their latest scholarly writings

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The Criminal Justice Research Unit organised on 12 November a Staff Research Seminar giving colleagues the opportunity to talk about their latest scholarly writings.

Matt Hall launched the seminar by presenting a fascinating and highly topical research piece on the legal framework relating to alcohol consumption in airports. This topic is not far off from his own PhD that examines the (ab)use of alcohol at football events and the law that governs it. As Matt pointed out, drunkenness at airports is not a new phenomenon, though it is not causing as much trouble as the media would like to portray it. What seems however new is the fact that individuals, particularly those about to embark on hen/stag/18-30’s etc., arrive at airports in a state of drunkenness which is indicative of the ‘pre-loading’ phenomena that is popular amongst many drinkers. Moreover, over indulgence in unregulated access to free alcohol in some departure lounges is also a concern. The abuse of alcohol at airports is a source of unease for the safety of the aircraft and of the passengers. It leads to disruptions to passengers, (including the planes having to be diverted) for which the airlines incur costs.

So, how is alcohol consumption regulated within society and at airports? As Matt explained, the most important piece of legislation relating to alcohol is the Licensing Act 2003. Its objectives are to prevent crime and disorder as well as public nuisance, ensure public safety and protect children. Anyone selling alcohol must comply with the Act’s principles. The system works on the basis of a licence which must be renewed and thus can also be lost. When applying for an application renewal, representations can be put forward to the relevant Licensing Authority from members of the public or the authorities, highlighting any concerns that the aforementioned principles are not being adhered to. The Act also lists a number of offences such as the sale of alcohol to drunk persons on the relevant premises, the failure to leave the relevant premises when requested to do so, obtaining alcohol for a drunk person on the relevant premises and the sale of alcohol to an individual under the age of 18, etc. The key problem is the enforcement of these offences, as for example, drunk people are regularly still being served alcohol. Remarkably, the Licensing Act 2003 does not apply to airside bars within airports as they are exempt under Section 173 which lists several designated airports. Two justifications are adduced for this exemption: a licensing officer would need to obtain airside security clearance, as well as any ‘sting’ personnel who ‘test’ licensed premises by sending in under 18’s to ‘test purchase’ and secondly, the exemption is in line with practice at airports in other countries. There is thus no surprise that in 2017 the House of Lords Select Committee on the Licensing Act 2003 recommended the repeal of Section 173.

Another important piece of legislation is the Civil Aviation Act 1982 which lists as offences entering the aircraft drunk, endangering an aircraft, endangering the safety of a person, etc. Yet, it turns out that the enforcement is poor here too as drunk individuals are very rarely stopped when boarding an aircraft. There are however on average 40 prosecutions per year which result in anything from a fine of £2000 up to 13 months custody.

Matt highlighted the fact that one problem resides in the definition of drunkenness, thus raising the issue of legal certainty. At which point is an individual deemed drunk? To explain this Matt referred to the situation of drunkenness in public places and at football events. In the former case, offenders are often ‘dispersed’ and told to go home; in the latter, they are prevented from accessing the football stadium as arresting drunk individuals is not a priority for law enforcement officers. Discretion is the key word here. A similar situation is happening at airports as fighting drunkenness is not a priority for airport officials and so enforcement of the law is low.

How can the issue be tackled? Matt went through a number of possible solutions. First, Section 173 could be repealed thus allowing airside bars to be licensed and thereby adhering to the Licensing Act’s principles. There could also be a blanket ban on alcohol consumption at airports and on board of aircraft, however, this would be unlikely given the financial interests of various stakeholders and also, issues of jurisdiction such as when an aircraft leaves UK airspace. Alternatively, individuals who are drunk could be barred from entering an aircraft, which would require a stricter approach in applying the law. In his opinion, the thrust of the problem is that there is no clear definition of the concept of ‘drunk’.

The second presentation held by Dr Noëlle Quénivet focused on the defence of duress and whether it was a justification or an excuse under international criminal law. Her presentation is based on a chapter of a book she is co-writing with Dr Windell Nortje (University of Western Cape, South Africa) on child soldiers and the defence of duress (to be published by Palgrave). Noëlle started by highlighting that, as strange as it may sound, defences are an essential component of international criminal law: individuals who have committed war crimes, acts of genocide or crimes against humanity are allowed to raise defences. The possibility to use defences should be welcomed as a sign that international criminal law is not about victor’s justice and human rights standards, and particularly the right to a fair trial, are complied with. After all, the use of defences does not mean that the act finds approval; it however does not merit condemnation and punishment.

Duress is one of the defences available to alleged perpetrators prosecuted before the International Criminal Court (ICC). It is usually understood as the compulsion of perpetrator to commit a crime because he/she fears for his/her life and limb, the threat stemming from another person (see Article 31(1)(d) of the ICC Statute). As a result, the perpetrator is placed in a position where his/her freedom of will and decision-making abilities are restricted to such level that he/she is not able to make a moral choice.

Noëlle explained that to understand how the defence of duress is applied one needs to examine the Anglo-American common law tradition in as much as the latter has been key in influencing case-law in international criminal law, namely via the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY). Under national law criminal law defences are often subdivided into justifications and excuses to distinguish between wrongfulness and blameworthiness. A justified action is not criminal because the conduct, although unlawful, is permissible or tolerated as its benefits outweigh the harm or evil of the offence. Here the focus is on the act. An excuse involves an action that is produced by the impairment of a person’s autonomy. Here the focus is on the actor.

Duress is a highly controversial defence in international criminal law. In common law countries it is a justification whilst it is an excuse in Romano-Germanic (civil law) systems. Moreover, duress is not admitted as a full defence in common law countries which means that it can never be invoked in the case of killing. To illustrate the issues relating to the application of duress Noëlle recounted the facts of the Erdemovic case and how the ICTY had come to the conclusion that ‘[d]uress does not afford a complete defense to a soldier charged with a crime against humanity and/or war crime involving the killing of innocent human beings.’ (para 19)

She then suggested that the ICC Statute might have overruled this jurisprudence since duress is accepted as a ground excluding responsibility that applies to all crimes and does not stipulate that it cannot be pleaded when taking a person’s life. Whether it is an excuse or a justification remains to be seen as the criteria for duress have been amalgamated with that of necessity (usually viewed as a justification) in a single provision and the fact that the provision requires the actor to carry out a lesser evil test seems to indicate that the defence is considered a justification.

Noëlle then explained that she would prefer the defence of duress to be an excuse. First, it ensures that the wrongful acts are viewed as such, the message being that such acts cannot be tolerated. Second, it allows to understand the act in its wider context, the focus being on the actor and his/her lack of autonomy in the given circumstances. Third, it can be used as a full defence, including killing though at this stage she indicated that she supported the application of the principle of proportionality, rather than a balance of harms test, as a limit to using duress as the defence.