Profit-driven Environmental Crime - a future challenge - Part 1 - Organized Crime

One emerging issue that will increasingly impact on environmental policing over the next 20 years is an expansion of profit-driven environmental crime. Profit-driven environmental crime will be discussed in the context of two main categories: harm caused by organised criminal groups operating outside of the regulatory scheme; and harm caused by businesses or individuals operating within the regulatory scheme. The reason profit-driven crime is of particular concern is that its commercial nature and scale provides the potential for significant environmental harm. It also brings greater complexities for environmental policing, such as:

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Follow the Money - proceeds of environmental crime

A recent successful prosecution of person trafficking in threatened fish in Victoria, Australia provides an interesting example of lateral thinking when investigating serious environmental crime. In this case the offenders were prosecuted for money laundering, rather than the traditional environmental offences.

The crime of money laundering is probably better labelled (at least in Australia and Canada) as "dealing in the proceeds of crime". In most jurisdictions the crime of money laundering has two parts:

1. A specified unlawful activity (SUA); and
2. A transaction or act of dealing in money (or sometimes other property) that is the proceeds of that unlawful activity ("the primary act").

In the State of Victoria, the crime is very broad. For example in a case like the one referred to above, the defendant could be charged with an offence under section 195(2) of the Crimes Act 1958(Vic), which provides that it is an offence to deal with the proceeds of crime knowing that it is proceeds of crime. This crime is punishable by up to 15 years jail.

"Deal with"  is defined to include receive, possess, conceal or dispose of;

"proceeds of crime" is defined to mean property that is derived or realised, directly or indirectly, by any person from the commission of specified unlawful activity (or unlawful activity that occurred outside Victoria that would be specified unlawful activity if it had occurred in Victoria).

The specified unlawful activity can be any indictable offence or one of a number of listed summary offences. The list of specified summary offences include a large number of offences under Fisheries, Wildlife, Forestry and other environmental statutes. This means that the underlying offence (SUA) can be a minor summary offence.

Practical Application

Lets say a person (Person A) unlawfully captures a red tailed black cockatoo from the wild and transports it to Melbourne.  Person A then sells the cockatoo to another person (Person B), who pays for the bird by depositing money into Person A's bank account.

Under the Victorian law, person A will have engaged in "money laundering" on two occasions (at least):

1. The disposal of the cockatoo to Person B amounts to dealing in proceeds of crime; and
2. The receipt of the money into his or her bank account.

Other Jurisdictions

US - Federal

Many other jurisdictions have a much narrower money laundering offence that requires a further act of concealment or intention to promote the specified unlawful activity.  For example under the US federal statutes, Title 18 USC 1956(a)(1) provides that the person must:

• Knowingly conduct or attempt to conduct a financial transaction; and
• Know that the proceeds are from an illegal activity; and
• Intend to:
  • conceal or disguise; or
  • promote the carrying on of the illegal activity; or
  • avoid a transaction reporting requirement.

While some pollution offenses are listed as SUA's for the purpose of money laundering, there do not appear to be any fisheries or wildlife offenses listed.

Canada

Under section 462.31 (1) of the Criminal Code of Canada it is an offense to:

• transfers the possession of, send or deliver to any person or place, transport, transmit, alter, dispose of or otherwise deal with, in any manner and by any means;
• any property or any proceeds of any property; and
• with intent to conceal or convert that property or those proceeds; and
• knowing or believing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of -
  • the commission in Canada of a designated offence; or
  • an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.

A designated offense (SUA) is defined as any offence that may be prosecuted as an indictable offence under this or any other Act of Parliament, other than an indictable offence prescribed by regulation.  Therefore indictable offences under the Fisheries Act 1985, the Species at Risk Act 2002, and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act 1992, would be designated offenses as they are not excluded under the regulations.

Proceeds of crime laws in action for environmental law enforcement

A recent appellate court decision from the United Kingdom reinforces how proceeds of crime laws can become an effective measure in dealing with environmental crime. 

On the 5th February two English fish dealers lost an appeal against a proceeds of crime order.  The order was made following their prosecution for offences relating to a failure to keep records of the origin of fish received by them.

 On 11^th May 2007, at Newcastle Crown Court they pleaded guilty to 5 counts of failing to submit sales notes and landing declarations relating to purchases of fish that they made. They pleaded guilty and were sentenced to fines of £400 on each count.

What was unusual about this case, is that the judge also imposed confiscation orders in the sum of £188,195 ($292,228 USD) against Ian Perkes and in the sum of £150,000 ($232,934 USD) against Sean Perkes.  It was these orders that were the subject of the appeal.

Asset confiscation laws

By way of background, a number of jurisdictions have laws providing for the confiscation of instruments and proceeds of crime.  These provisions have traditionally be used in the fight against drug trafficking, terrorism and financial crime.  They can involve forfeiture of instruments of crime, such as a vehicle used to transport contraband, and/or an order that the offender pay to the State any benefits obtained as a result of the offence.  Confiscation laws can be: conviction based - where the court makes an order following conviction for a relevant offence, or alternatively a civil process - where an order can be made independently of any prosecution for the offence.

The UK Criminal Lifestyle Laws

The confiscation provisions utilised in the Perkes case are conviction based - but extend beyond the crime(s) for which the defendant has been convicted.

Under section 6 of the Proceeds of Crime Act 2002 (UK) the prosecutor may request that the Court proceed to confiscation.

When does a person have a "Criminal Lifestyle"?

The court must then decide whether the defendant has a ‘criminal lifestyle’ (as defined by s 75 and schedule 2 of the Act).

The defendant will be deemed to have a ‘criminal lifestyle’ if, one of the following conditions is satisfied:
• He has been convicted of at least one offence listed in schedule 2 to the Act;
• He has been convicted of conduct forming part of a ‘course of criminal activity’ from which, in total, he has obtained benefit of at least £5,000; or
• He has been convicted of an offence of any description committed over a period of at least six months from which he has obtained benefit of at least £5,000.

Consequences of a "Criminal Lifestyle"

Where the defendant falls within the criminal lifestyle definition, then the court is required to make the following assumptions:

1. any property transferred to the defendant at any time after the ‘relevant day’ was obtained by him as a result of his general criminal conduct and was obtained by him at the earliest time he appears to have held it;
2. any property held by the defendant at any time after the date of his conviction was obtained by him as a result of his general criminal conduct.
3. any expenditure incurred by the defendant at any time after the ‘relevant day’ was met from property obtained by him as a result of his general criminal conduct; and
4. for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it.

The burden of proof then shifts to the defendant to show that, on the balance of probabilities (preponderance of evidence), the assumption is incorrect or there would be a serious risk of injustice if the assumption were made.

The Investigation

In this case investigators conducted a detailed financial analysis of invoices recording cash purchases of fish. These did not contain the name of the purchaser in any identifiable form.  The Appellate Court held that the only realistic way the presumption could be rebutted would be for the defendants to identify the sellers of the fish and either call them to support their case When interviewed in relation to the identities of the people who sold them the fish Sean Perkes was evasive and Ian Perkes walked out of the interview.

While the appeal did not deal with any significant legal issues (it is difficult to appeal a consent order), it serves to highlight the use confiscation proceedings in the fight against environmental crime.

Guidelines for Electronic Evidence

Following on from my post on seizing internet evidence the US National Institute of Justice has released an updated version of its publication Electronic Crime Scene Investigation: A Guide for First Responders (2nd ed.).

The publication is designed to assist law enforcement officers in preserving an electronic crime scene and for recognizing, collecting, and safeguarding digital evidence.

The guide outlines types of digital evidence, digital investigative tools, as well as crime scene procedures and evidence analysis.

Another publication worth reading is the UK Association of Chief Police Officers  Good Practice Guide for Computer-Based Evidence.

The Future of Environmental Law Enforcement

We are living in a fast changing world where there is an increasing sensitivity to environmental issues.

Environmental crime is increasingly seen as a distinct category of crime and one that poses special challenges to law enforcement officials. While there are many issues that face environmental policing, there are a number of key societal and environmental factors that will shape our strategic future. 

In this series I will discuss how some of these changes may influence the future of environmental policing over the next 20 years. 

The future will see both challenges and opportunities in an era where there is a tension between shrinking budgets and an increasing demand for law enforcement services and effectiveness.

Feel free to post comments or your own observations on future directions.