Heuni paper No. 11 Anticipating instead of Preventing: Using the Potential of Crime Risk Assessment in Order to Minimize the Risks of Organized and Other Types of Cri­me Seppo Leppä The European Institute for Crime Prevention and Control

Ideas for further exploration of the issue

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8. Ideas for further exploration of the issue

Two issues seem to need further exploration within the scope of law drafting activities of the type discussed in this text. One is the ques­tion of the amount of the evidence that is necessary, as discussed above. Would it suffice to establish a link - no matter how weak, taking into consideration the problem of the lack of baseline data, ­on one side, and the Dutch attempts to establish the likelihood of criminal intent as a criterion for disqualification of dishonest bidders, on the other - bet­ween the po­ten­tial crime risks and the phe­no­me­non that the plan­ned re­form is sup­posed to regulate? If not, what should be the mini­mun prere­quisites for anticipative reactions? How should we take into account the pressure tactics (such as lobbying) of potential tar­gets of a reform, those who could profit from loopholes in the measu­res?

Another issue in the anticipatory process that requires more careful examination is the screening phase in the procedure to establish whether or not a candidate is qualified. What kinds of precautions ought to be observed in the context of screening in terms of privacy protec­tion or of mandates for the competent authorities? And what could be the mecha­nisms for designing screening options in a transnational context?
The potential risks of crime brought about by the current tendency of globalizati­on should perhaps also be discussed more thoroughly, parti­cularly in the light of what diminishing public surveillance in the financial sphere might mean in terms of increasing crime opportunities. The growing globalization of business and financial transactions (legal and illegal ones alike) makes it increasingly problematic to target crime prevention methods by means of traditional methods alone. New ways and means for anticipato­ry approaches should be explored.
Lastly, efforts should perhaps be devoted to finding out wheth­er the CRA as a methodological tool is capable of anticipating potential crime risks more generally, in association with a wider sphere of illegal activities. Of particular interest in this respect should, for example, be the potential for computer and cybercrime, environmental crime, and differ­ent forms of economic crime. Also, testing the applicability of the CRA approach in the framework of more conventional illegal activities in the property crime category should be given serious thought. And, above all, "carefully and sharply delineated threat assessments are required to facili­tate prescription and to underpin policy" (Godson & Williams, p. 17), since "more aggressive measures to decapitate the leader­ship of criminal enterprises, undermine the integrity of their or­ganiza­tions, and strip them of their assets are needed" (op. cit., p. 25), keeping in mind that "since money is the foundation of most criminal enter­prises, denying the the ability to move and use money as they please is a key objective for the international community" (op. cit., p. 29). This is confirmed by Mueller who writes that "ultimately - and all of the world's isolationists to the contrary notwithstanding - we need a certain globaliza­tion of law enforce­ment and criminal justice efforts in order to deal with globe-threatening criminal activities" (Mueller, p. 15).

9. Concluding remarks

The cases studied in this paper prove fairly indisputably that the potential for crime risks is always present when considering legislative efforts that open up the possibility of making a profit. Consequently, the crime risk aspect should always be given serious thought when a law reform project is planned. In other words, it would seem that advance readiness is more cost effec­tive than retroactive preventive efforts, and may also somewhat lower the initial costs. Thus, in order to make the most of the exist­ing preven­tive capacity an early aware­ness perspec­tive should always be incorporat­ed in the drafting of legislation, result­ing in an anticipatory ap­proach. It is not, however, suggested that all aspects of life should be given normative frameworks - that would impede the realisation of human rights and civil liberties even more effectively than any threat posed by organized crime. Nonetheless, if early awareness of crimi­nal opportunities can be established, and if, in addition, a relatively modest cost of acting preemptively can be foreseen, then it is high time for action by the policymakers.

To recapitulate, in respect of reforming legislation that opens up the possibility of making a profit the anticipatory ap­proach will best be ac­hiev­ed, both na­tion­ally and transna­tional­ly, by means of: (i) in­corporating the efforts of all relevant part­ners in the reform work, (ii) securing the best avail­able external ex­perti­se, and (iii) assessing the potential crime risks associated with the reform utiliz­ing, for ex­ample, the Cri­me Risk As­sess­ment (CRA) met­hod.


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Annex I

This brief overview is based on "Methods of EIA" by Morris, P. & Theri­vel, R. (eds.) (UCL Press: London, 1995, pp. 4-6). The va­rious pha­ses of EIA are as fol­lows:
(i) A preliminary review in order to decide whether to carry out an EIA (scree­ning), with a view to the po­ten­tial con­se­quences of the adver­se im­pacts on the natu­ral, built-up and social envi­ron­ment of the proposed pro­ject;
(ii) A study to examine the objectives of the proposed project and al­ter­na­tives to it (scoping), always taking into account also the so-cal­led 'zero alternative', i.e. continuing along the present line of acti­on;
(iii) Selection of relevant parameters for describing the environmen­tal components, and for iden­ti­fying and ob­ser­ving the im­pacts, in­clu­ding the di­rect, indirect, ag­gre­gate and syner­getic impacts, to the extent the in­ter­est groups invol­ved find neces­sary;
(iv) Delineation of the impact options; a more thorough assessment should be given of those options that the par­ties involved regard as the most significant;
(v) Retrieval, analysis and presentation of baseline data, attaching par­ti­cu­lar importance to describing the current status of those fac­tors that are considered to be the most significant;
(vi) Comparison of the proposed project and alternatives, by or­ganizing and pre­sen­ting in­for­ma­tion in such a way that it is possible to utilize it in de­cisi­on making;
(vii) Interpretation and evaluation of the weight of the impacts, with the aim of ascertaining probabilities and risks involved, also chart­ing the geographical and social distribution, and the time-scale of the impacts;
(viii) Presentation of the ways and means of mitigating ad­verse im­pacts, by first establishing the acceptable risk levels and then presen­ting mea­sures to bring adverse impacts down to those levels, while at the same time not neglecting to identi­fy the unavoida­ble adver­se im­pacts;
(ix) Elaboration of a draft EIA report for comment by all part­ners in­vol­ved;
(x) Review of the draft EIA report by all partners involved;
(xi) Preparation of the final EIA report, taking into account the com­ments received;
(xii) Making of the actual decision, either as proposed in the original project plan, or as modified or rejected as the result of the EIA procedure;
(xiii) Monitoring of the impacts during and after the implementation;
(xiv) Auditing the project in order to compare the forecasted and ma­terialized outcomes, in order to assess the functioning of the moni­toring programme, and to gain experience with a view to fu­ture EIA processes.

1 Examples in this respect are: (i) target hardening in respect of situational prevention, and (ii) global efforts to prevent launder­ing of illegal assets by means of cooperation with financial institu­tions - a type of com­munity preven­tion.

2 A corresponding typology can also be observed in the fields of sentencing and corrections. 'Incapacitative sentencing' can be seen as the counterpart of 'situational and com­munity preven­tion', while 'rehabilitative sentencing', on the other hand, can be seen as the counterpart of 'criminality prevention' (Ashworth, pp. 1098 - 1099).

3 Sometimes, on the other hand, new technical inventions may in a very short time revolutionize the ways and means of prevention targeting a profit crime category. As a matter of fact, technical innovations may lead to law reforms while the case is very seldom vice versa, which means that this type of situational crime prevention will not be of any significant utility in this sector in the foreseeable future.

4 There are, naturally, exceptions to be worked out on a case by case basis - it is for example quite difficult to maintain that legislation regulating dispute settlement in business life, nationally or internationally, by arbitration as such must consider crime risks even though great financial inter­ests might be at stake. It is quite another issue that a certain part of the assets in dispute might have previously originated through shady business transactions.

5 Also "private sector corruption" as defined by van Duyne might in some cases qualify as corruption (he mentions "bidding manipulation" as an example) in the sense given to the term in this article, al­though as he himself points out: "strictly speaking this is not corruption but bid-rigging" (van Duyne, p. 12).

6 For a more detailed overview of the EIA process, please see Annex I.

7 It is not possible to envisage relevant and reliable quantitative indicators pointing to acts of modern crime - data on the activities of the law enforcement and judicial authorities do not give us reliable information about this type of criminality. Indicators must be seen as products of observa­tions. Data in this field simply do not meet this condition.

8 At the national level, however, both these crime risk categories should in some cases be given a high relevance - in Italy, for example, the 'ecomafia' is considered a highly serious threat in this field (see, e.g., Legambiente).

9 It is, naturally, quite possible that the Secretariat of the Convention elaborates internal statisti­cal tables on the incidents on an annual basis, but access to these files is not necessarily open.

10 In fact, the number of experts reporting separate cases is only five, since two ex­perts from neighboring countries reported one and the same case.

11 Resources permitting it is naturally possible to conduct a survey requesting that the competent national enforcement authorities provide the existing data on these phenomena.

12 Infiltration of legal business, however, was not noted as a punishable offence in any of the EU member states which responded to the survey, and no data whatsoever could be provided. Many of the instruments used in this kind of activity, however - falsification of documents, accounting of­fences, etc. - are as such independent criminal code offences in a majority, if not all, of the member s­tates, as already noted in section 4.1.4.

13 Such as most-favoured nation treatment and performance requirements, i.e. conditions govern­ments apply to the conduct of private business or to the use of public funds as an incentive for business or investment; the scope of country-specific exceptions must, at the same time, be acceptable to other parties to the agreement (op. cit., section 5).

14 There is one more feature of the MAI structure, which, although not a potential crime risk as such, must be taken into account when the future direction of the MAI is debated. This factor is the strong push for investor protection. Thus, if an investor feels that he or she is being met with unreasonable and discriminatory measures by the host state, due for example to suspicions of money laundering, the investor would be able to submit the dispute for resolution either to a com­petent court or to an ad­ministra­tive tribunal for arbitration. The forms of relief in a successful case - from the point of view of the investor - would be for example pecuniary compensation or restitu­tion in kind (cf. MAI dispute settlement). Potentially, it might be possible, in case of an investor who is laundering money, ­that the investor brings legal claims against the host government, and is adjudicated monetary com­pensation if the host government is unable to prove that the aim was to invest laundered money. Similarly, the MAI proposal to require compensation for expropriation or other government action which reduce the value of an investment might lead to legal indemnification to a dishonest investor.

15 Cf. for example the EC Directive on public procurement of goods (93/36/EEC), art. 21, para. 2.

16 Thus, the European Union stipulates that the national legislation of the member states must not deviate from the principle guaranteeing the four freedoms - free movement of capital, people, products and services, respectively - within the Union.

HEUNI Paper No.11 Seppo Leppä

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