SOCA Conference
Speech by David Green QC given at the British Library on 24 March 2006
It has been an eventful 14 months since the last conference on prosecuting for SOCA in January 2005.
- SOCA has been built
- RCPO has been established
- Both CPS and RCPO have set up and launched their dedicated SOC Divisions to service SOCA work
RCPO’s arrangements for the servicing of work for SOCA
Within RCPO, our SOCA Division numbers 9 (soon 11) lawyers and 24 support staff based in London and Manchester.
They operate under the new Head of Division, Greg McGill. He comes with a proven track record of prosecuting serious crime over 15 years and in the provision of legal advice on operational issues including RIPA and covert policing pre knock and pre charge for NCS, Met Police and HMRC.
Although RCPO’s London office is undergoing a major refit, the SOCA division is installed in its new secure accommodation with Thames view.
In consultation with CPS, we have agreed levels of delegation of the new SOCPA powers and the legal instruments facilitating their use. Appropriate designations have been made by letter.
Training for lawyers in the use of SOCPA powers is nearing completion and guidance will be published shortly.
We have agreed that we will share new accommodation in Manchester with SOCA and with a team of CPS SOCA prosecutors.
Lawyers in RCPO’s SOCA Division will provide a 24/7 service as required.
We have been careful to maintain flexibility in the resource we devote to SOCA work. We will keep such provision under constant review to ensure that we have the right people in the right numbers to service the flow of work as it develops. Overall, some 50 of RCPO’s 80 lawyers have solid experience of prosecuting drug smuggling.
Where appropriate, we will continue to use the independent bar as an expert external resource for advice and advocacy. We will look to our 15 standing counsel and experienced senior juniors on the AG’s unified list to supply those services. Where appropriate, will also use our own in-house advocates in pre trial work in SOCA cases.
On statutory charging, I propose to align RCPO broadly with the CPS approach with effect from 1st April. I will move to a statutory charging scheme in relation to those investigations instigated by SOCA which fall to RCPO to prosecute. I will also be issuing appropriate Charging Guidance in accordance with the Act.
That is where we are in RCPO on providing the service to SOCA.
What of the broader picture?
For all prosecutors servicing SOCA work, attention must now focus on the crucial question:
How best can the prosecutors assist in the translation of SOCA intelligence into action which most effectively reduces the harm caused by serious organised crime?
SOCA is all about a radical change in the way we confront serious organised crime. In keeping with this new approach, our joint contribution as prosecutors begins at the Tasking and Coordination stage, designed to translate intelligence into action, be it disruption or prosecution.
What expertise can RCPO bring to SOCA?
Principally in the fields of Drug importation operations, associated money laundering and restraint and confiscation of criminal assets.
Both these areas are central to SOCA’s strategy in reducing the harm from SOC.
Drug importation
This area has long been part of RCPO’s core work
Over the last 12 months we have prosecuted some 1100 cases of drug importation ranging from routine stuffers and swallowers to complex multi defendant importations.
What’s so special about prosecuting importation?
They frequently involve factors such as:
- a sensitive intelligence background, often with multiple crossovers to other operations and cases
- defendants who have much to lose and have access to substantial funds and the power and influence that can buy, including direct subversion of the trial process
- defendants who, being a little light on a defence, attempt through their legal team to contest the case on disclosure rather than on the evidence
- these cases always involve obtaining evidence abroad working methodically backwards up the supply chain, often through layers of false human and commercial identities
- proving knowledge by inference from association, communication and arrangements
- related restraint, confiscation and money laundering.
Our usual charge in these cases is under S170 of CEMA: Being knowingly concerned in the fraudulent evasion or attempt at evasion of the prohibition on importation.
I certainly found in practice that this is a more user-friendly and jury-friendly charge than conspiracy because:
- it is wider in scope than conspiracy
- in conspiracy you have to prove that the defendant was a party to a specific agreement, eg to smuggle controlled drugs of a particular class (because an agreement to smuggle cannabis is not an agreement to smuggle heroin)
- under s170 you have to prove that the fraudulent evasion was in relation to goods the subject of a prohibition
- in conspiracy you need at least one other person was party to the agreement
- under s170, once you have proved that there was in fact a fraudulent evasion of the prohibition (which in practical terms is seldom in dispute) you need show only that, knowing that fact, the defendant was in any way knowingly concerned. this makes it easier to convict those on the periphery, such as the defendant who, with guilty knowledge, supplies the "dirty" mobile phones or the cars or the premises
- the s170 offence in law continues until detection
- under the s170 charge you are not faced with the objection that the charge is in fact a 'rolled up' conspiracy (several different criminal agreements charged in one count)
- well established case law says that as a general rule, where there is an effective and sufficient substantive offence available, a charge of conspiracy is undesirable
- generally speaking, foreign judicial and law enforcement authorities seem more willing to assist in evidence gathering in relation to a substantive offence as opposed to a conspiracy.
One of our recent large-scale importation cases provides a general illustration of the challenges faced by the prosecutor in this class of case:
It concerned a metric tonne of cocaine smuggled from Guyana to Holland in a cover load of molasses.
The organiser was a well-known career criminal using a new identity after serving his last sentence.
The load was intended for the UK, but we took the precaution of proving the export offence from Guyana under CRIJCA as an alternative count in the indictment.
When the defendant found out that the load had been intercepted, he contacted HMRC and said he knew nothing about the drugs and feared he had been framed by a business partner.
The business partner did not exist.
Analysis of a computer at his ex wife’s house showed that the defendant had manufactured documents to support the identity and existence of his fictitious business partner.
Inquiries were carried out and witnesses attended from Guyana (attempts were made to nobble them) and a Belgium witness spoke to 3 volumes of shipping document showing previous 'dummy runs' as well as the actual drugs shipment. Other evidence came from Holland and France.
Sentenced to 28 years.
A confiscation hearing is awaited. Realisable assets of £10m have been identified, including a French Chateau against a benefit figure of £35m.
Which brings me to:
Recovery of criminal assets
Terrorism aside, serious organised crime is conducted for profit and for the power, status and influence brought by that wealth.
A key focus of SOCA’s operations will be the reduction of profit opportunities in organised crime, and increasing the amount of money confiscated from criminals.
These aims will be underpinned by a tough policy aimed at total confiscation, where every viable avenue of recovery will be pursued and to its maximum extent.
Financial Reporting Orders will be available as a new means of monitoring the financial affairs of criminal convicted of certain offences, including lifestyle offences in Schedule 2 of POCA during and after their sentence.
In addition, Section 96 of SOCPA provides the vehicle for the implementation of the Council Framework Decision on the registration and execution of freezing orders within the EU. This will enable the member states (once they have sent a restraint order and had it registered in the relevant state) to secure property either for use as evidence or for the purposes of confiscation.
What are we up against in the recovery of criminal assets from SOCA targets?
It is likely that one or more of the following features will be present:
- assets put in the name of the target’s spouse or third parties
- assets held overseas in tax havens
- the use of complex corporate structures and trusts, often in the names of nominees
- contrived insolvency and bankruptcy
- sham divorces to protect assets including the matrimonial home
- creation of bogus charitable trusts
- substantial portfolios of stocks and shares, pension plans held in names of third parties or nominees.
Many of these devices will have been arranged with the benefit of professional legal or accountancy advice.
SOCA targets will have considered the risks of arrest and are likely to have made appropriate contingency plans for the rapid dispersal of assets to meet that eventuality.
Once a restraint order is in place, they are likely to bombard us with applications (allowed at 2 days notice) for the release of assets for various purposes
Confiscation proceedings themselves are likely to be vigorously contested.
Generally:
- Too often, criminal assets have been dissipated before restraint and (later) confiscation can bite.
- Too often, confiscation has been an afterthought to prosecution. In part this may be due to lack of specialist input, and application of that input at the right stage.
- Confiscation has often been the subject of attempted 'deals' sought by criminals as part of their basis of plea.
- There is also a gap to be closed between value of orders made and money paid against orders.
How will RCPO meet these challenges?
What is the current position?
On the statistics: over the period of 11 months to the end of February 2006, a total of £53 m was paid into the 'tin box' (that is, through CICFA remittances to the Home Office).
Of that, RCPO contributed 34%, or £18.1m, coming from orders enforced by us. That figure is made up of £14.5m from pre POCA orders and £3.6m in POCA orders.
We will continue to refine our approach to asset forfeiture as follows:
- Over the next few months, we will expand our AFU by the recruitment of at least 6 extra lawyers plus necessary support staff. This will enable us: Firstly, to increase substantially the number of restraint orders we obtain. At present, in too many cases the amount of the confiscation order is fixed by reference to hidden assets. By definition, such assets are difficult to find; it would be far better to restrain those assets before they are hidden.
- We will continue our programme of taking junior barristers into RCPO AFU on secondment, so that we have a wider pool of counsel with solid and practical experience available to us, particularly to respond to applications at short notice.
- In these ways we will keep our AFU as an expanding centre of excellence available for all RCPO work, including work for the SOCA Division.
- Each AFU lawyer is teamed with a casework division. Each SOCA package coming to RCPO will have a specific AFU lawyer and paralegal allocated so that AFU input can be given from the moment a case is allocated to us.
- Such input would include advice as to the timing of an application for a restraint order (now possible as soon as a criminal investigation has started), and on applications for production orders, customer information orders and account monitoring orders.
- It is likely that the financial affairs of SOCA targets will warrant the use of management receivers to preserve and manage restrained assets pending the making and enforcement of a confiscation order. AFU expertise will be deployed in applications for the appointment of management receivers and (following the Capewell decision) in the monitoring of their work, to ensure thay provide value for money at reasonable cost.
- RCPO will also continue an innovative approach to the law in this area:
In a recent appeal by RCPO (in re Hill), the CofA confirmed our contention that courts have jurisdiction to grant a restraint order under POCA even where there was evidence of criminal conduct that predated the commencement date of part 2 of POCA (24/3/03)
We are appealing the judgement of the CofA in Capewell to the HOL. The issue is whether and in what circumstances a court should depart from the established norm that a management receiver should look to the assets under his control for remuneration, and require the prosecutor to pay all or part of that remuneration.
In Bakewell the CofA upheld our contention that the correct figure for the confiscation order against a defendant convicted of large scale duty evasion was the total duty evaded regardless of whatever happened to the smuggled goods and regardless of whether he had profited from the onward sale of the smuggled goods. Had he done so, he would also have been liable for his share of the profits. This led to an order being increased from £10k to £400k.
In summary, then:
RCPO has specialist expertise in drug smuggling and asset forfeiture.
We are fully geared up to servicing SOCA work.
We are keen to play our part as prosecutors, making use of new tools when appropriate, in lessening the harm caused by serious organised crime. In this work, our priority is to provide, in full and equal partnership with the CPS, a high quality and seamless service to SOCA.