Saul Better Make His Own Call: New Liability For Enablers Of Organised Crime

Summary The law in England and Wales will shortly be reformed so that those enabling the criminal activities of an organised crime group, including professionals, can be prosecuted more easily. All businesses need to be alive to the risk of not asking questions, or of failing to reconsider the wider context of their work once a suspicion arises. The new offence comes into force on 3 May 2015. We discuss the background and implications of this reform below.

The problem It is a perennial complaint that major economic crime can only occur, or be sustained, because of its 'enablers'. These are professionals who knowingly facilitate money laundering, fraud, corruption, drug-dealing and other organised crime. They provide the financial, legal and administrative cover which makes 'Mr Big' untouchable, and rich. Pop-cultural references are not far to seek: from Tom Hagen in The Godfather, Maurice Levy in The Wire, the Swiss bankers in Wolf of Wall Street and Saul Goodman (real name James McGill) in Breaking Bad; these are the people usually a long way from any dirty work but who make the crime really pay.

There can be no doubt that this is a problem. Professional enablers rarely get convicted or even charged. They are, almost always, intelligent people who are, in the parlance, highly forensically aware.

Until now, prosecutors in England and Wales suspicious of professionals who seemed to be involved in organised crime had to rely on either the offence of encouraging or assisting a crime, or of conspiracy. They have not had much success. Proving that someone was encouraging and assisting crime requires proof that the accused believed that the offence would be committed and that their act would encourage or assist it. The offence of conspiracy requires agreement by two or more persons to carry out a criminal act. There must be spoken or written words or other overt acts to prove that a person had knowledge of the crime. To rely on either of these two offences, therefore, prosecutors had to prove their mental components: knowledge or belief. This made it harder to convict those, such as lawyers, accountants or persons within the financial services sector, who may have 'asked no questions', yet provided materials, services, infrastructure or information to those they suspected of criminality.

The UK government believes that a new offence will change this. It has passed reforming legislation, the Serious Crime Act 2015, section 45, which creates an offence of participating in the criminal activities of an organised crime group.

What the new participation offence requires Section 45(1) of the Act provides:

"A person who participates in the criminal activities of an organised crime group commits an offence."

The remainder of the section unpacks this apparently simple provision and we can divine the following:

A person will be guilty if he...

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