Jargon buster - being a criminal
Is a smuggler with an extra packet of cigarettes over their allowance a criminal?
A zero-tolerance answer is “yes”, because what they have done, even once, even a little, is a crime. But this blinkered approach creates practical problems for our courts. What we need, to solve those problems, is a practical definition of “being a criminal”.
The lawmakers in the UK tried, I think successfully, to write this definition. It is Section 75 of the Proceeds of Crime Act, 2002 which describes being a criminal, whether a smuggler or a money launderer or whatever, in the ordinary sense understood by ordinary people. This Section of POCA refers to a list of egregious occupational crimes such as drug trafficking and similar organised crimes. It also includes the concept that a series of small offences add up to something occupational and that a crime which has taken a long time to commit is occupational.
The lawmakers then, I think mistakenly, stated that a defendant, who committed crimes meeting these criteria, had a “criminal lifestyle”. This was a serious mistake. Most people think having a criminal lifestyle describes how someone lives, perhaps their extravagance, selfishness or the bad company they keep.
Section 75 means something else entirely. If a defendant has a criminal lifestyle the court can assume all their assets come from crime, unless the defendant can show otherwise, and order their confiscation. These are serious consequences befitting an occupational criminal.
The serious mistake was to conflate ‘being a criminal’ with having a ‘criminal lifestyle’. The result is that this remarkable and rare statutory definition of ‘being a criminal’ has not had the credit it deserves. It has the potential to inform our simplistic approach to crime and criminals. If we used Section 75 POCA as a category in our published statistics we would have some idea of how many criminals there are. That would be useful and informative and would raise the debate on crime and criminality to a more practical level.
Is there anyone there? Please comment.
Good to see somebody writing well about this subject. POCA and asset seizure did in fact hit a high and has dwindled. There doesn’t seem to be the stomach for funding the training, capacity building and the time taken to follow the money doesn’t fit the threat harm and risk model. If it doesn’t fit it doesn’t get the resources it deserves.
I really liked this reply. I cannot fault the logic of the argument. I would add, I suppose, that the person paying cash to the tradesman generally believes that they are in a conspiracy to split the tax evaded by the tradesman. Refining our knowledge about criminality might have unexpected consequences, but they don’t have to be negative, they might inform a sensible discussion about what our priorities should be. In fact we have just started a sensible conversation based on better information!