Author(s)

John M. Sellar OBE

Posted on 02 Aug 2016

Abajo la versión en español

Picture1There’s a situation that occurs in the field of law enforcement, probably just about every day, which poses a considerable legal quandary for Customs, border control, air and seaport personnel, Police, and more or less every government agency official who detains or arrests people in the course of their duties. And it is, perhaps, presenting a significant hurdle or barrier to our efforts to combat organized crime.

It is well-recognized that the chain of criminality which is present in transnational organized crime is one that is made up of numerous connections. At one end, and depending upon the crime-type, the first link may be: the cultivator of poppies; the counterfeiter of currency, medicines, aircraft parts or fashionable handbags; the poacher of elephants, rhinos or tigers; the recruiter of young girls in the developing world, promising them well-paid employment in Europe or North America, when what they will actually be subsequently forced into is the sex trade; or thieves who steal the motor vehicles, firearms, or iPads wanted in another continent.

One of the other bonds, not far up the chain from that first link, contains the couriers and smugglers who are recruited to move that massive variety of contraband from its place of origin, often through several countries of transit, towards its eventual country of destination and consumption.

It is the people within those links who are, relatively regularly, intercepted; either by happenchance or through careful, deliberate, and ideally intelligence-led, patrolling, risk-assessment, profiling and targeting. To be fair, the grower of a crop that narco-traffickers are funding or the poacher equipped by a rhino horn trader, are probably more easily-detected than someone with the skills to fake parts for an Airbus 380. But the transporters of each commodity are doubtless fairly similarly-prone to detection and detention.

It is what happens, or does not happen, after such low-level criminals are taken into custody that, to a substantial degree, dictates whether the law enforcement community makes progress.

Each of these individuals is, potentially, a significant source of ‘intelligence’.
For example:

  • the poacher of endangered species will know who his (they are predominantly male) fellow gang members are. They also know who supplied their weapons, ammunition and to whom they are expected to deliver the tusks, horns or skins. They will also likely know the names and addresses of other poachers operating in that area;
  • the narcotic crop cultivator knows who provides the seeds and who collects the harvest;
  • the human-traffickers know the individuals that tell them who to target, who delivers the falsified passports, other travel documents, and who organizes the transport;
  • the smugglers will know who recruited them, made their travel arrangements, and who gave them the contraband in question. They will also know the name or address to which the contraband is to be delivered.

It is the knowledge held by these persons which can guide investigators towards the occupants of other links. But this, potentially, is where the problems arise.

The majority of those occupying the first or low-level links tend to be detected and intercepted in-the-act. When a person is caught in circumstances that may be described by the well-known legal term in flagrante (also often expressed in English-speaking countries as ‘red-handed’), law enforcement officers frequently find themselves in what can be a difficult situation, from a legal viewpoint.

In many jurisdictions, such circumstances will often be viewed as meaning that sufficient evidence exists to simply charge the individual and report them for prosecution. Depending upon the nature of the crime, its seriousness, the nature of the offender, relevant legislation, protocols and agency policies, etc. the person may, or may not, be kept in custody until appearance in court.

The discovery of someone unlawfully present in a national park and armed with a hunting rifle might well be seen as an ‘open-and-shut’ case. So, too, might the scenario of someone disembarking from an aircraft and passing through a ‘Nothing To Declare’ Customs channel whilst carrying a rhino horn or heroin in their hand baggage.

It is, consequently, in situations like these that a decision needs to be taken as to whether such individuals may, legally, be questioned; not necessarily to strengthen the evidence against them but to learn about ancillary matters. This is when and where the problems arise. And there are, primarily, two problems.

The first is that, frequently, those responsible for the detection or interception may lack adequate training, experience and expertise in questioning. Not enough anti-poaching, anti-counterfeiting or anti-human-trafficking personnel have been coached in such skills. Depending upon the priority of their agency – revenue-gathering, border control/security or enforcement – some Customs officials may be similarly unprepared.

Secondly comes the issue as to whether such persons, or anyone else, have the legal authority or right to conduct such interviewing or interrogation? Specifically, has the case reached a point where it is no longer appropriate to pose questions?

It is interesting that most Police officers, beginning their careers in uniformed patrol duties, are often instructed very firmly during basic training that questioning must cease, or not even be started, if sufficient evidence exists to allow a suspect to be charged. By comparison, detectives will inevitably be taught that questioning is an essential part of their task. Indeed, substantial ‘case law’ precedents and appeal court decisions in numerous jurisdictions have recognized that questioning is something which society expects its investigators and law enforcers to undertake. But this is invariably tempered with requirements as to the manner in which interviewing may be conducted and the ‘admissibility’ in evidence of any answers. The prerequisite that suspects are warned that they are not obliged to answer questions, and that the answers may be given in evidence, is commonplace.

An increasing number of judicial systems do, though, allow judges or juries to draw inference from the fact that a suspect declined to answer questions or failed to offer any explanation to investigators.

Most judicial systems recognize, or explicitly provide for, the right of a suspect to ‘remain silent’ when questioned. Research suggests that only about 25% of suspects exercise that right; those who do tend to be ‘hardened’ criminals. The same research indicated, if the investigator fails to ask questions, that the suspect will remain silent. However, if questions are asked, some answers will be given, even by hardened criminals. A well-trained and experienced investigator, posing appropriate and probing questions, will often prompt responses. It is difficult for individuals to resist the temptation to give ‘their version’ or tell ‘their side’ of a story.

Legal niceties aside, though, the focus here is not on interviewing to determine whether a suspect may be a guilty party, but rather that an apparently or obviously guilty party is spoken to with a view to obtaining insights into how he or she fits into a crime scenario, a deeper understanding of that crime-type, and who is ‘managing’ it. Some jurisdictions provide for reduced sentences for those who ‘cooperate’. In a similar vein, some of these individuals might better appear in court occupying the witness box, providing evidence against their controllers, financers and recruiters, than in the dock awaiting sentence. It is all too easy to be satisfied with a ‘capture’ rather than looking towards the identification of those more deserving of prosecution.

The dearth of intelligence relating to transnational organized crime would seem to indicate that this field warrants much greater attention. Given its potentially complicated legal and jurisdictional implications, it appears something that law enforcement agencies need to clarify at a national, or even State, level; since no general guidance will apply in every jurisdiction. And if, as is suspected, many of the agencies responsible for detecting, intercepting and detaining lower-level and first-link offenders do not have sufficiently-experienced interviewers, they must be encouraged to build relations with counterpart enforcement bodies which do. And call upon their resources as and when appropriate.

There appears ample reason to believe that the law enforcement community is, currently, failing to fully and adequately exploit opportunities to gain productive insights as to how transnational organized crime groups and networks operate. This gap in the response deserves to be plugged. The prisons of the world seem packed with the disadvantaged and exploited, whilst those reaping the most profits remain at liberty. We surely must do more to reverse this trend?