Over the last 20 years the use of the terms ‘Gangs’ and ‘Organised Crime Groups’ has been widely applied by agencies to multiple defendant investigations and prosecutions. Frequently these terms are used appropriately, in others they are applied in such a way that should prompt examination into whether, firstly the terms are properly applied, and secondly whether evidence of the organisation is relevant and admissible.
Gang culture is never far from the headlines, with the media regularly reporting on knife crime incidents and drugs supply prosecutions. The associated features commonly include possession of illegal firearms and offensive weapons, inter-gang violence, county lines operations and the explosion of knife assaults and associated fatalities.
Expert witness testimony from officers is frequently served about gang culture and its impact on communities. In some prosecutions this may be relevant to assisting juries with interpretation of terminology or the significance of local animosities to provide motive. At other times details are provided that seek to project a culture and threats of violence which are increasingly subject to proper challenge – such as the concentration on ‘Drill’ lyrics or images of defendants posing with knives. The consideration of whether the officer is truly an expert and whether the material properly amounts to expert evidence should be considered. Often such material may be more properly adduced at a sentencing hearing.
Myers v The Queen; Cox v Same; Brangman v Same  UKPC 40;  A.C. 31
In properly categorised gang-related cases a key consideration, both at pre-charge stage for prosecutors and defence teams post-charge, recognises that within a gang environment there are those who control the actions of others, those who act as lieutenants, and those who act as directed. It is widely recognised that exploitative techniques are employed upon those vulnerable to pressure to participate in criminal activity.
Interpretation of the 2015 Modern Slavery Act has expanded its application to cover certain aspects of County Lines operations. In the Government Response to the 2019 Modern Slavery Act Review (at –), it was agreed that the meaning of exploitation was sufficiently wide to cover emerging forms of modern slavery such as county lines drug dealing and orphanage trafficking. The Home Office Typology of Modern Slavery 2017 included “Forced gang related criminality: Victims are forced to undertake gang related criminal activities, most commonly relating to drug networks. Victims are often children who are forced by gangs to transport drugs and money to and from urban areas to suburban areas and market and coastal towns[https://www.gov.uk/government/publications/a-typology-of-modern-slavery-offences-in-the-uk]
This is further set out at p.35 and 36 from A Typology of Modern Slavery Offences in the UK – Criminal Exploitation Forced gang-related criminality.
The possibility that a ‘gang member’ may in fact be a victim of Modern Slavery and have the associated defence open to them is a matter that charging prosecutors are required to consider. Defence lawyers should therefore be familiar with the charging protocol and prosecutors need to undertake careful scrutiny to ensure that suspects, often children, are not inappropriately charged.
The CPS Guidance on modern slavery, updated April 2020 at https://www.cps.gov.uk/legal-guidance/human-trafficking-smuggling-and-slavery makes it clear that there is no definitive definition of a trafficked victim, and highlights the need for prosecutors to be alert to the indicators of trafficking. It gives direction for a structured approach to be taken to the decision as to whether the prosecution is in the public interest, setting out the prosecutor’s obligations and the four-stage approach to be taken in deciding whether to prosecute, which includes consideration of whether there is clear evidence of a s.45 defence. If there is such clear evidence, the case should not be charged or should be discontinued on evidential grounds. If not, the guidance requires the prosecutor to go on to decide whether it is in the public interest to prosecute. Thus, the guidance still applies even where the statutory defence is not available.
The decision path that has to be taken therefore is as follows
Does the full code test support charging s.2 offences – If the evidence is there, is it in the public interest to prosecute?
If yes, then it may be inappropriate / not in the public interest to prosecute the juveniles.
If no to question 1, then the runners should be considered for prosecution applying the tailored CPS charging guidelines.
Understanding the charging procedure is a key tool examining whether the case has been properly charged and whether a Modern Slavery defence should be explored. The statutory guidance to prosecuting authorities is clear: “In cases involving children, criminal activity may appear not to have been forced but decision-makers should bear in mind that children cannot give informed consent to engage in criminal or other exploitative activity, and they cannot give consent to be abused or trafficked. Not all children involved in criminality will have been trafficked; in assessing a case all the circumstances present must be taken into account to determine whether the child has been recruited, transported, transferred, harboured or received for the purpose of exploitation. Cases may be complex in nature, and the competent authorities must consider cases on the specific facts of an individual case.” [https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1055834/Modern_Slavery_Statutory_Guidance__EW__Non-Statutory_Guidance__SNI__v2.7.pdf]
An element that is important but not fundamental to raising the defence or deciding not prosecute, is an assessment under the National Referral Mechanism. Increasingly however both the length of time to receive the result and the question over the admissibility of the evidence of the assessment has reduced what was seen as intrinsic to the issue.
Frequently those running the overarching drugs supply to facilitate the actions of gang-related crime, such as drug supply, are properly described as operating within Organised Criminal Gangs. However, this terminology is one applied by investigating authorities and frequently misapplied to a disparate group of people, who are said to be involved in linked criminal activity, whether or not party to a conspiracy. It is therefore important to consider whether it is appropriate for investigating officers giving evidence in conspiracy cases to use the term as a back door route to proving the existence of a conspiracy.
Where the term is properly applied, for example in large-scale drugs importations, people smuggling rings, large-scale systematic frauds, Modern Slavery offences involving trafficking and exploitation the structure of such organisations is key to both the presentation of cases to a jury and to the examination by defence teams to understand the role alleged against a client.
Associated Proceeds of Crime Act offences r alongside the substantive activities of OCG’s will frequently feature as key elements – proving the existence of Criminal Property and / or chronicling the movement of criminal funds. The need for OCG’s to move money under the radar will inevitably involved increasingly complex methods. However, scrutiny should be intense of alleged money laundering simply by reference to techniques of money transfer unfamiliar to conventional Western systems. For example, the use of Hawala banking can be both a useful opaque method by which to launder proceeds but equally a legitimate means of money transfer outside of the banking system. Simply identifying such a method is not equivalent to proving criminal activity.