A Fair Cop

A decade of funding cuts and now the need to police a public health emergency means an ever-increasing need to do more with less. In the mid-nineties the gap between resources and demand led to innovative solutions like computerisation and intelligence-led policing. We need to innovate again. One way to focus stretched resources would be to focus them on the people causing the most harm in society, the ‘real’ criminals. Unfortunately, despite seemingly endless discussion, we have never been able to settle on a working definition that the public understands and yet is operationally and legally robust. A definition which would allow us to really focus our resources on criminals and assess the results.

Strangely the UK did come up with a brilliant, legally robust definition, that fits what an ordinary member of the public would think of as ‘being a criminal’, but it was overlooked. It had been wrongly named and therefore misunderstood. It’s time to look again at Section 75 of the Proceeds of Crime Act and understand what it means to ‘be a criminal’.

One of the main hurdles to fighting crime in the UK is that we have not agreed who are the real criminals. One person’s criminal is another person’s climate warrior. A persistent parking nuisance might well be a criminal if they keep blocking your drive. Even dabbling your finger in some water may be a crime, it depends where you do it.

Dictionary definitions confuse rather than define. Most of the dictionaries explain that a criminal is ‘a person who has committed a crime’, although Collins Dictionary preferred ‘a person who regularly commits crimes’, but that is only one definition among many, because of the enormous diversity of crimes in UK legislation, between trivial and grave.

Serious

We might think that ‘real’ criminals are those who commit serious crimes; at least that has some legal rigour because serious crimes are only tried in our senior criminal court (the Crown Court). The trouble is that some offences tried there have been committed by people who have committed just one crime driven by drink or drugs, mental aberration, political conscience, emotional desperation or any of a countless number of other motives. The gravity of the crime is irrelevant to risk of the offender doing it again, which the moniker ‘criminal’ surely suggests.

Organised

We might think that organised criminals are ‘real’ criminals and this has legal rigour too, the Crown Prosecution Service website (as at 17 April 2020) stated:

“In December 2013, it was estimated that there were 36,000 organised criminals in 5,300 groups affecting the UK”

The trouble is that once they are caught it is very difficult to pin a definition of ‘criminal’ to the offence for which they are actually convicted. Their exact role is what defines the conviction, not their connection to ‘organised crime’. Once they are convicted you can’t tell if they were organised or not.

Dangerous

There are some dangerous individuals about: terrorists, predatory rapists, deranged murderers, but in reality, these people are rarities and the huge well organised resources devoted to their prevention and capture ensure that they are seldom at liberty for long.

But in the normal run of life there are other people who are regularly preying on the great British public on a vast scale: habitual criminals, recidivists, occupational criminals, career criminals. These present a real risk to all of us, they are responsible for the vast majority of crimes, whether these are reported to Police, Action Fraud, Trading Standards, the Environment Agency or not reported at all, but rooted out by HM Revenue and Customs or the National Crime Agency. These are the ones who are the ‘real’ criminals, in my view. 

The need for a definition

If only there was a definition of ‘criminal’. Then the focus of our agencies, our courts, our politicians, our general public would be on those who consistently present a clear and present danger to all of us. Language really matters and as long as we fail to agree what a criminal is, we will continue to fumble around chasing crimes that are fashionable rather than criminals that matter. It is traditional for the British to develop a brilliant idea and then fail to recognise its brilliance. So it is with the Proceeds of Crime Act, 2002, a wonderfully diverse and useful law that includes the best ever definition of ‘being a criminal’.

In 2003 the UK Parliament enacted a definition of ‘being a criminal’. It is brilliant, clear, and kept up to date by Statutory Instrument. The only mistake was a marketing error. Having written a definition that is an adaptable, comprehensive description of ‘being a criminal’, the officials in charge decided to call the definition ‘criminal lifestyle’, which in ordinary English means something else entirely. What were they thinking?

The legal definition of ‘being a criminal’ is Section 75 of the Proceeds of Crime Act 2002.

It has consequences that are appropriate for ‘real’ criminals. If you are found to meet the criteria of Section 75 all of your assets can be confiscated; now we’re talking a language that everyone understands. This is technically known as having a ‘criminal lifestyle’, which is absolutely nothing to do with owning an expensive holiday villa, driving a fast car or having bad taste in clothes or interior decoration.

Criminal lifestyle defines how real crime is committed

Section 75 of POCA defines a criminal ‘lifestyle’ for the purpose of criminal confiscation. Let me explain; if a person is convicted of robbing a bank of £50,000 then they should be given a confiscation order for that particular offence and required to pay back that particular sum. The brains behind POCA recognised that often a particular offence cannot be identified; an active drug dealer may do many deals in a day, each one a ‘particular’ offence. Over time even the drug dealer can’t recall the details, so our public servants came up with a brilliant solution. I must declare an interest, I was there when it was being written but I did not come up with it; it was my sergeant at New Scotland Yard, among others, who did.

The solution was to define ‘being a criminal’. This is not as easy as it sounds; a person convicted of a criminal offence is a ‘criminal’, but it doesn’t help describe the sort of person that people think of as ‘being a criminal’. I mean ‘Norman Stanley Fletcher’ (Porridge) or ‘Bill Sykes’ (Oliver Twist) or even Keyser Söze (The Usual Suspects). These would all meet the definition in Section 75. It’s clever. It defines a series of situations that we would all recognise as being the conduct of habitual criminals. Some of the situations are already defined by crimes and these are listed in Schedule 2 of POCA; they include things like drug trafficking and human trafficking. Other situations are consistent with organised crime methodologies but POCA actually defines them. ‘Lifestyle’ includes an offence that takes six months to commit, or number of minor offences, which together add up to a serious financial gain for the criminal. The relevance of this is that a person convicted of a ‘lifestyle’ matter as defined in Section 75, is treated by our courts in a significantly different way, and rightly so. Such people are much more vulnerable to confiscation. The Court is allowed to assume that their assets are the proceeds of crime. The consequence of the ‘lifestyle’ provision has been to make confiscation more effective.

International application

In countries without a POCA equivalent the authorities are required to connect a particular asset to the proceeds of crime. This is almost impossible in practice. Consider the till in a shop that sells both legitimate and counterfeit goods. Some cash in the till is used to buy a TV. Was the TV bought with the proceeds of crime? The law in many countries requires the police to show that one of more of the notes used to buy it came from the sale of a counterfeit product. It’s absurd.

For this reason, criminals in 77% of countries[1], keep the proceeds of their crimes. That’s absurd too and the causal link is that the law in those countries allows this.

Academic research

So, section 75 defines ‘being a criminal’; it is used for a technical legal purpose but it has great potential for policy. Home Office research[2] shows that financial investigation is the best new way to tackle organised crime, this should not surprise readers of this site, but it may be a surprise to find that the only database of organised criminal casework available to the researchers was the Joint Asset Recovery Database held at the National Crime Agency. Interestingly, this critical fact is omitted from the published research itself, although the policy implications of using JARD to direct our national resources seem quite clear. JARD started as a tool for adding up money taken from criminals, but is now a national list of cash couriers, organised criminals and money launderers.

So, what is a ‘criminal’? How do we find a single definition of “a habitual criminal”, a “repeat offender”, a “recidivist”, an “occupational offender”, a “serious organised criminal” or any of the many euphemisms that we have invented to get around the awkward absence of a legal definition? The answer is to use the definition in Section 75 POCA, 2002.

Because it is a definition set out in law it is easy to use by law enforcement agencies for operational deployment and post-operational assessment of performance. Because the definition has real world consequences in our criminal courts, we can evaluate impact. It can also be applied across agencies and potentially across national boundaries (a few other countries like Ireland and Jamaica have POCA). We will always have insufficient resources to meet what the public demands, but focusing on real criminals would be a good way to achieve tangible results.

This article has been updated from an original article published in the Money Laundering Bulletin in 2013 and is reproduced by kind permission of Editor, Timon Molloy. https://www.moneylaunderingbulletin.com/

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[1] Money Laundering Bulletin, 2^nd August 2019, “It’s shocking we need a Task Force”

[2]The Contribution of Financial Investigation to Tackling Organised Crime: A Qualitative Study. Rick Brown, Emily Evans, Sarah Webb, Simon Holdaway, Geoff Berry, Sylvia Chenery, Brian Gresty and Mike Jones, Home Office, 2012