Introduction to criminal justice and powerful offenders

John Lea (2012)

The criminal justice system (in particular the police, prosecution system and the courts) has two key tasks which to a considerable extent pull it in two different directions

1. to protect the rights of the accused and deliver a fair trial

In a liberal democracy, the criminal justice agencies have to adhere to certain rules which are are concerned with the protection of the innocent and the prevention of wrongful convictions.They are regarded as a fundamental aspect of civil liberties and human rights in an open, democratic society. We may sum up these rules under the phrase 'due process'

Thus there are important rules concerning how long the police may detain suspects for questioning without charging them with any offence and handing the case to the prosecutors. There is the general principle of the 'Rule of Law' in which no individual, whoever they are, should be immune from prosecution if they commit a crime, and the principle (in English and American law) of Habeus Corpus specifying that no one should be constrained or imprisoned for anything but a crime duly established by a trial in the courts. Then there are the principles which govern the criminal court trial itself. The most important rules are those concerned with the right to a fair trial. In England and similar criminal justice systems around the world the most important of these can be summed up as:

• the right to be considered entirely innocent until proved guilty by the prosecution in open court. It is not up to the accused to prove their innocence but the prosecution to prove them guilty

• the standard of proof is of a very high standard: the prosecution has to prove the guilt of the accused 'beyond reasonable doubt.'

• the accused has the right to see and challenge in open court all the evidence brought against them. There can be no 'secret evidence' seen only by the judge and the prosection

All these are designed to ensure that when you are convicted and sent for punishment, the chances of you being actually guilty are very very high indeed. Even that is not sufficient to prevent miscarriages of justice! This is probably the best reason why capital punishment is to be avoided: we may be mistaken. It is sometimes said - it is better that 10 guilty persons go free than one innocent person goes to prison or is executed

2. to protect the rights of the victim and the wider public (potential victims): to guarantee security and protection for citizens

On the one hand crime control - we expect the criminal justice agencies to be efficient at protecting the public by demonstrating a reasonable level of efficiency in apprehending offenders and producing successful prosecutions in the courts. In recent years there has been much talk of  'closing the justice gap', (between crimes committed and offenders successfully prosecuted). An important consequence of an efficient criminal justice system is held to be the deterrence of wider groups of potential offenders. While doing all this the police, courts and also the prison and probations systems (the latter two we are not considering here) are, like other public sector institutions, expected to meet efficiency targets and show value for money, targets etc.

Is there a conflict between these two aims of the criminal justice system? That is basically what this series of seminars is all about.  Sometimes cops feel they 'know' they have got the right person for the crime and after a 'not guilty' verdict at court they may feel "we knew he was guilty as hell but those clever lawyers got him off". But of course we cannot reduce the working of the courts to the hunches of even the most experienced detectives. That is the beginning of the police state!

Nevertheless it is possible to see a conflict between the pressures to maximise the numbers of crimes solved and offenders 'brought to justice' and on the other hand the elaborate procedures designed to protect the suspect. This has become an important issue because the previous government certainly believed there was a conflict. One of its key slogans was 'rebalancing the criminal justice system in favour of the victim of crime.'

I wrote a short piece on this which you can read here

Of course the simple answer to this type of argument is that the rules of due process are designed to prevent falso convictions. If innocent people are sent to prison or other punishment then the criminal justice system is hardly being efficient in protecting the public from crime!

However this discussion can remain rather abstract if it just remains at the level of talking about 'the offender' and 'crime'. There are different crimes and different types of offenders. Perhaps some types of offenders or certain types of crimes harder to convict than others. Certain categories of so-called 'powerful offenders' have been the focus of much discussion in recent years. Organised drugs traffickers, bank robbers, terrorists, complex commercial fraudsters are, it is frequently argued, are getting increasingly difficult to convict in the courts unless we compromise on some of the principles of due process we noted above.

So let's begin by looking at the various ways in which certain types of offenders might be said to present obstacles to the criminal justice system. To do this it is very useful to begin with the framework of the 'square of crime' provided by Left Realist criminology. One of the advantages of the 'square of crime' or the 'social relations of crime control' (see Lea 2002 Crime and Modernity) is that it maps out for us first and foremost who the real participants in the criminal justice process are. Rather than a simple the relationship between the criminal justice system and the offender, or the offender and the victim of crime, there is a complex relationship between these three and also the general public - or at least the community in the areas where the offence was committed. The square of crime maps out the complexity of these relations and interactions. The more complex the process, the more things can go wrong. Bringing offenders to justice is not simply a process of tracking them down with good detective work. Indeed the latter itself is very dependent on the interactions between the police, the public, the victim and the offender. [You can read a more systematic presentation of these ideas both in the first chapter of my book (Crime and Modernity) and in a much earlier publication.

The 'square of crime' approach lays bare the key processes which underlie criminal justice. They are quite simple

    •    The offender inflicts criminalised harm on the victim

    •    The victim calls on the criminal justice system

    •    The criminal justice agencies get evidence from the victim and the public (witnesses etc.)

    •    This evidence is used to track and apprehend the offender whose guilt is established in court beyond reasonable doubt

But the important question is that for the above process to work smoothly what power relations between the participants are pre-supposed. More specifically how far is it the case that the process works most smoothly where the offender is weak in relation to the other participants. To see the implications of  this we can look in more detail at the various interactions involved

OFFENDER - VICTIM

The supposition is that although offenders may be more powerful than their victims at the time of committing the offence. they are nevertheless not able to prevent the victim from giving evidence and appearing as witness for the prosecution in court. (with the obvious exception of homicide cases)

But, as we shall note, it may be that the victim is dependent, either in an emotional or economic sense, on the offender and reluctant to give evidence. The offender may be able to terrorise the victim in other ways, even after arrest

PUBLIC - VICTIM

A key factor governing the likelihood of the victim giving evidence is if they feel legitimised and supported by the surrounding community which agrees that a crime has been committed and the victim has suffered a violation. We can say that the community grants the injured person 'victim status'

But there can be cases where the community, or substantial sections of it, disagree. They may blame the victim for having provoked the attack. In some cases of sexual or domestic assault this may be the case. Or they may in fact agree with the motives of the offender. This might be the case for example in racial or homophobic hate crime where onlookers and locals actually have the same prejudices as the offender even though they would not be prepared to act. Such a situation weakens the position of the victim and may make them reluctant to report to or collaborate with the police

CRIMINAL JUSTICE - VICTIM

In a similar way the victim is most likely to collaborate with the criminal justice agencies if they feel that their victimisation is taken seriously and that they are supported by, and trust, the criminal justice agencies and do not feel that the police or other criminal justice agencies are prejudiced or incompetent or just not concerned. Sexist, homophobic or racist attitudes on the part of police officers would, for example, be a serious deterrent to victims reporting sexual assault, homophobic or racist hate crime

OFFENDER - PUBLIC

The public, in particular the surrounding community who may have witnessed the offence or have other bits of evidence have a crucial role in helping the police to piece together what happened and as witnesses, to appear in court for the prosecution. The weak offender is unable to prevent the public, who witnessing his crime or know his whereabouts, from informing the authorities. But if the public in general fear the offender they will think twice. People in small villages in Sicily still think very carefully about informing on the Mafia or other powerful criminal groups. People living in areas where gangs are a constant presence may think in similar ways. Detectives investigating a crime may meet with a 'wall of silence' from the local public.

A similar effect may be where the local community genuinely support the offender either as noted already that they share the offender's motives or that they are prepared to 'turn a blind eye' for example to shoplifters or thieves who, as long as they don't commit their crimes amongst local people, may bring a supply of cheap goods into the area in the form of stolen property

CRIMINAL JUSTICE - OFFENDER

The relations between the offender and the criminal justice agencies is obviously crucial. Weak offenders are not in a position to prevent the criminal justice authorities from tracking them down and apprehending them. But again, one only has to think of powerful organised criminal gangs, the occasional case of police corruption - which may be a variety of 'looking the other way', to realise that it may be the weak, petty offender that is most likely to get caught and 'brought to justice'

To sum up we can say that the general conditions for the criminal justice system to be efficient in tracking down and bringing offenders to justice are:

    •    a weak offender

    •    public trust of criminal justice system

    •    public legitimation of the victim and denigration of the offender

Under these conditions the conflict between a concern with due process on the one hand and effective crime control on the other, are minimised

We can then give a precise definition of the 'powerful offender' as constituting a problem for the criminal justice system:

"Powerful offenders are those who can mobilise resources to effectively obstruct the criminal justice system. They mobilise these resources against either the criminal justice agencies, the public, the victim, or all three"

We are going to spend the rest of this course talking about examples of powerful offenders. But admitting the existence of powerful offenders does not, it should be made clear, necessarily legitimise bending the rules to undermine due process so as to make it easier to convict such individuals. In each case, as we shall make clear, there are usually alternative strategies that can be pursued without undermining our civil liberties. Nevertheless the problem is a real one.

For example: in dealing with powerful organised crime or gangs, if one approach is to bend the rules of evidence to enable conviction on the basis of less than 'beyond reasonable doubt', an alternative is to invest more resources in community development and organisation, ensure an uncorrupt and efficient police for such that people feel less frightened of the criminal

Finally, it is useful to summarise some of the main types of power that can be exercised over victims and public by offenders

DEPENDENCE

of the victim on the offender

emotional dependence - in some cases of rape by a spouse or partner or a friend and domestic violence as we shall see later. Some victims feel that they would rather suffer the violence than lose the relationship. Also sexist culture encourages self-blame: 'it was my fault, I must have led him on'. Other members of the community may reinforce such beliefts

economic dependence -  a non-working wife with children suffering domestic violence feels she may end up penniless after a divorce. An emotional element also disempowers the victim as she just cannot imagine life without even a violent husband with whom she has invested a large part of her life

of the public on the offender

The offender may be a powerful employer in the area and which employees fear dismissal if they become 'whistleblowers' about fraudulent practices by managment or company directors

FEAR OF REPRISALS

Victims may feel the threat of (usually physical) reprisals by offender such as violent husband or rapist

In deprived and isolated communities, street gangs or drugs traffickers may inspire fear which encourages people to keep silent in the belief that the offenders witll come out of prison at some time and seek revenge and the police will have little interest in the permanent protection of those who gave evidence in a court trial several years ago

COMPLEXITY

In some cases the power of the offender to obstruct criminal justice resides in the character of the offence itself. Three examples can be given

non-visibility of the ongoing offence

- most corporate fraud involves people working at their normal desks looking 'normal' (unlike the stranger in your front room at 3 am armed with a crowbar) - the 'legitimate presence of the offender' at the scene of the crime means that it may not be discovered until much later - e.g. when the auditors go through the company accounts. Meanwhile the offender has had an opportunity to cover their tracks to a considerable extent

Some cases of child abuse may go unreported until doctors or social workers, visit the family on another issue (e.g. non-attendance at school)

Such crimes often not discovered until well under way or passed. Often by accident by people looking for other things

Cybercrime - the use of computers and the internet for  criminal purposes, basically elaborate forms of fraud or theft, - frequently relies on techniques in which the victim is completely unaware of the crime while it is being committed and once the crime is know - like your bank account has been emptied - it is extremely difficult to identify the offender

rapid disappearance of evidence

- sophisticated money laundering techniques, rapid global communications enable evidence of financial crimes (involving profits from drugs dealing, fraud or robbery) to be rapidly siphoned off into bank accounts abroad leaving no trace of crime

the potential impact of the crime

- terrorism cases, as we shall see, present particular problems. Normally criminal justice is proactive, acting in response to criminal action which have been committed (or about which there is clear evidence of criminal conspiracy) and acting after enough evidence has been gathered for arrest and prosecution

But in recent years the spectre of terrorists armed with Weapons of Mass Destruction has changed the balance of risk.  It is argued that the risk of a devastating terrorist action forces the police and security services to take pre=emptive action even though there is insufficient evidence to sustain arrest and conviction in the courts for conspiracy.

THE SOCIAL STATUS OF THE OFFENDER:

we are familiar with the notion that the rich get treated with 'kid gloves

Mistake to think that all criminal offenders are isolated individual deviants or members of a deviant underworld. Most are ordinary people in the sense of being integrated into normal social and economic networks

These networks may count for little, or they may be a very important factor in mitigating the offence, even leading to non-prosecution in some (rare?) case. Three examples:

The family

Even a fairly weak criminal offender may be nevertheless a family breadwinner. If he goes to prison the family may collapses, the kids turn to crime themselves In strong cohesive communities relatives or neighbours living nearby can help. Probation officers and social workers understand this and may work to try and keep the family together by

- persuading the court to impose a non-custodial sentence

- frequent prison visits

- sending the offender to a local prison near the family to facilitate visits

Historically there has often been a reluctance to pursue family crime on the grounds that relations within the family were 'private'. However this was modified by many important inroads in which the state assumed the right to survey and regulate private family relations. From the standpoint of criminal justice the two most important have been:

    •    child protection

    •    marital rape and domestic violence

So these days the criminal justice system is less reluctant to intervene in intimate personal relations.

The company

consider another case: the offender is a director /directors of a large and important company. Evidence comes to light of major fraud, bribery and corruption involving the company. Prosecutors begin to prepare the case.

But then the government intervenes to try and dissuade the investigators from continuing. Acting very much behind the scenes government representatives argue:

- this company is vital to British exports

- any prosecution for corruption will embarrass and expose members of important foreign governments (who maybe have been receiving bribes) who are our allies and supporters. We cannot endanger our relationship with them

Therefore it would be a good idea if the prosecution were 'kicked into the long grass. Law and politics begin to blur.
But one of the key characteristics of liberal democracy is the rule of law - no-one is above the law

We shall consider an example of this

More generally, police and prosecutors (in England in particular) may be more reluctant to pursue high status businessmen and bankers for crimes which do not involve violence but rather complex financial transactions (such as 'insider trading' ) which do not seem to harm anyone in a sense analagous to violence or robbery and whose investigation is incredibly costly and time consuming

The state

Finally, the most powerful position to be in as a criminal offender is head of state and even more here is the decision to prosecute (or impeach) a political decision. There are two scenarios

The head of the state within which prosecution (potentially) takes place:

Imagine a country in which the prime minister is widely rumoured to be having illegal sex with under -aged girls and also to be engaging in money laundering and illegal financial deals. Prosecutors and investigators are continually thwarted by parliament (in which the prime minister's party has a governing majority) passing legislation to make it illegal to prosecute government ministers while they are in office. The prosecutors may well feel that the rule of law is being openly flouted. All they can do is wait until the individual is no longer a minister but they worry that by then the evidence will have been effectively covered up, witneses bribed and so on. Can you imagine that such a country would exist in Western Europe?

The head of another state:

In recent years the willingness of the international community to prosecute heads of state, or former heads of state for war crimes and crimes against humanity has markedly increased and since 2002 a permanent International Criminal Court has been in existence. There have also been several ad hoc tribunals to try particular individuals. This new type of international criminal justice in seeking to put on trial heads of state is dealing with arguably the most powerful category of offenders who may well have all the resources of a national state apparatus behind them to resist international justice. Like the case of the company whose activities are regarded as vital to the national interests, the decision to prosecute is political and is weighed against other considerations: will prosecution further political stability?