ANNUAL REPORT FOR 2000
andRESOURCE MATERIALSERIES No. 59

UNAFEI
Fuchu, Tokyo, Japan

October 2002

Kunihiko Sakai
Director
Asia and Far East Institutefor the Prevention of Crime andthe Treatment of Offenders(UNAFEI)
1-26 Harumi-cho, Fuchu, Tokyo 183-0057, Japan

CONTENTS
INTRODUCTORY NOTE .....................................................................vii
PART ONEANNUAL REPORT FOR 2000
Main Activities of UNAFEI....................................................................... 3
UNAFEI Work Programme for 2001 ...................................................... 19
Appendix .................................................................................................. 21
PART TWOWORK PRODUCT OF THE
118TH INTERNATIONAL TRAINING COURSE“BEST PRACTICES IN THE INSTITUTIONAL AND
COMMUNITY-BASED TREATMENT OFJUVENILE OFFENDERS
Visiting Experts’ Papers•Cognitive Behavioural Treatment for Young Offenders and an
extra bit to set the length of a title
by Alan W. Leschied (Canada) .................................................... 43•Multisystemic Therapy: Community-Based Treatment for High
Risk Young Offenders
by Alan W. Leschied (Canada) .................................................... 54•What Works With Young Offenders: Summarizing the Literature
by Alan W. Leschied (Canada) .................................................... 83•Challenges to Juvenile Treatment in New Zealandby Pamela Phillips (New Zealand) ............................................. 99•Restorative Justive Initiatives in New Zealandby Pamela Phillips (New Zealand) ........................................... 106•Directions of Juvenile Justice Reforms in Singapore
by Chomil Kamal (Singapore)................................................... 113•Juvenile Justice Reform in England and Walesby Rob Allen (United Kingdom) ................................................ 128iii

• Youth Justice Board Initiatives in Reducing Offending
by Rob Allen (United Kingdom) ................................................ 144• Involving Community in Youth Justiceby Rob Allen (United Kingdom) ................................................ 164• A Prevention Science Framework Aimed at Delinquincy
by Tracy W. Harachi (U.S.A.).................................................... 183• Prevention Science Principles for Intervention
by Tracy W. Harachi (U.S.A.).................................................... 195
Participants’ Papers• Institutional Treatment and Management of Organizations for
Juvenile Offenders in Malaysia
by Teh Guan Bee (Malaysia) ..................................................... 203• Operational Issues in Institutional Treatment and CommunityBased Treatment Methods for Juvenile Offenders in Sri Lanka
by Rajapakshage Sunethra Gunawardhana (Sri Lanaka)...... 220• Juvenile Justice System in Thailand
by Duangporn Ukris (Thailand) ............................................... 234
Reports of the Course• Best Practices in Delinquency Prevention
by Group 1 .................................................................................. 260• Best Practices in Community-Based Treatment
by Group 2 .................................................................................. 298• Best Practices in Institutional Treatment of Juvenile Offenders
by Group 3 .................................................................................. 319

iv

PART THREE
WORK PRODUCT OF THE
119TH INTERNATIONAL TRAINING COURSE“CURRENT SITUATION OF AND COUNTERMEASURESAGAINST TRANSNATIONAL ORGANIZED CRIME
Visiting Experts’ Papers•International Cooperation Against Transnational Organized
Crime: The General Development
by Matti Joutsen (Finland)........................................................ 345•International Cooperation Against Transnational Organized Crime:
Extradition and Mutual Legal Assistance in Criminal Matters
by Matti Joutsen (Finland)........................................................ 364•International Cooperation Against Transnational Organized
Crime: The Practical Experience of the European Union
by Matti Joutsen (Finland)........................................................ 394•International Cooperation Against Transnational Organized
Crime: Criminalising Participation in an Organized CriminalGroup
by Matti Joutsen (Finland)........................................................ 417•The Current Situation of and Countermeasures Against
Transnational Organized Crime in the Republic of Philippines
by Severino H. Gaña (Philippines)............................................ 429•Overview of the Provisions of the United Nations Convention
Against Transnational Organized Crime and its Protocols
by Dimitri Vlassis (United Nations) ......................................... 452•The Global Situation of Transnational Organized Crime, The
Decision of the International Community to Develop an
International Convention and the Negotiation Process
by Dimitri Vlassis (United Nations) ......................................... 475•Efforts of the Centre for International Crime Prevention to
Promote Expeditious Entry into Force of the United Nations
Convention Against Transnational Organized Crime and its
Protocols and Expected Impact of These New Instruments
by Dimitri Vlassis (United Nations) ......................................... 495v

• An Overview of Electronic Surveillance in the United States:
Law, Policy, and Procedureby Julie P. Wuslich (U.S.A.) ...................................................... 514• Electronic Surveillance in the United States: A Case Study
by Julie P. Wuslich (U.S.A.) ...................................................... 526
Participants’ Papers• Current Situation of Organized Crime in Honduras
by Gina Antonella Ramos Giron (Honduras) ........................... 563• Transnational Organized Crime: The Indian Perspective
by Shankar Pratap Singh (India) ............................................. 570• Current Situation of and Countermeasures Against Transnational
Organized Crime in Relation to Corruption in Malaysia
by Sazali Bin Salbi (Malaysia) ................................................. 588• Transnational Organized Crime in Thailand
by Sittipong Tanyapongpruch (Thailand) ................................ 601
Reports of the Course• Analysis of Current Situation of Illicit Drug Trafficking
by Group 1 Phase 1 .................................................................... 608• Analysis of Current Situation of Illegal Firearms Trafficking andHuman (Women, Children and Migrants) Trafficking
by Group 2 Phase 1 .................................................................... 616• Analysis of Current Situation of Money Laundering
by Group 3 Phase 1 .................................................................... 625• Tools Facilitating the Investigation of Illicit Drug Trafficking
by Group 1 Phase 2 .................................................................... 635• Criminalization of Participation in an Organized Criminal Groupand Conspiracy, Immunity System, and Witness and Victim
Protection Programmes
by Group 2 Phase 2 .................................................................... 645• Countermeasures Against Money Laundering
by Group 3 Phase 2 .................................................................... 657
APPENDIX ........................................................................................... 669

vi

INTRODUCTORY NOTE
It is with pride that the Asia and Far East Institute for thePrevention of Crime and the Treatment of Offenders (UNAFEI) offers
to the international community Resource Material Series No. 59.
This volume contains the Annual Report for 2000 and the work
produced in two UNAFEI international training programmes: the118th International Training Course (conducted from 21 May to 12 July
2001) and the 119th International Training Course (conducted from 10
September to 1 November 2001). The main themes of these courses
were “Best Practices in the Institutional and Community-Based
Treatment of Juvenile Offenders” and “Current Situation of andCou nterm easu res a g ai nst Tra nsn a ti o na l Org a ni zed Crim e”,
respectively.
The United Nations has long recognized the specific problems posedby juvenile offending and at the Tenth United Nations Congress on thePrevention of Crime and the Treatment of Offenders held in Vienna,
April 2000, it urged for measures to be taken to address the root causes
and risk factors related to juvenile delinquency. Further, in the “Vienna
Declaration on Crime and Justice: Meeting the Challenges of theT w ent y -f i rst Ce n tu ry ”, ad op ted b y t h e Ten th Con g ress , th einternational community has accepted that a minimum use of theformal juvenile justice system is compatible with the recent trend
towards community and restorative justice (paragraphs 27 and 28 of
the Vienna Declaration). It is within this climate that the 118th
International Training Course specifically considered the treatment ofjuvenile offenders both institutionally and in the community.
The 119th International Training Course, in considering the main
theme of transnational organized crime, represented one of the annual
courses UNAFEI has recently been holding towards the autumn of eachyear concentrating on this issue. It is anticipated that global
commitment to combat organized crime will soon see itself manifested
in the ratification of the United Nations Conventi on a gainst
Transnational Organized Crime that was signed in December 2000 by
more than 120 member states. Added significance was given to thisvii

Course as it began the day after the atrocities occurred in the UnitedStates of America on 11 September 2001. This was an event that has
strengthened the international community’s resolve to counter every
form of organized crime.
In this issue, papers contributed by visiting experts, selectedindividual presentation papers from among the Course participants,
and the reports of the Courses are published. I regret that not all thepapers submitted by the Course participants could be published. Also, I
must request the understanding of the selected authors for not having
sufficient time to refer the manuscripts back to them before publication.
I would like to pay tribute to the contributions of the Government ofJapan, particularly the Ministry of Justice, the Japan International
Cooperation Agency and the Asia Crime Prevention Foundation forproviding indispensable and unwavering support to UNAFEI’sinternational training programmes.
Finally, I would like to express my heartfelt gratitude to all who sounselfishly assisted in the publication of this series; in particular theeditor of Resource Material Series No. 59, Mr. Sean Eratt (Linguistic
Adviser) who so tirelessly dedicated himself to this series.
October 2002

Kunihiko Sakai
Director of UNAFEI

viii

PART ONEANNUAL REPORTFOR 2000• Main Activities of UNAFEI• UNAFEI Work Programme for 2001
• Appendix

UNAFEI

MAIN ACTIVITIES OF UNAFEI(1 JANUARY 2000 - 31 DECEMBER 2000)
I. ROLE AND MANDATE
The Asia and Far East Institute for the Prevention of Crime and the Treatment of
Offenders (UNAFEI) was established in Tokyo, Japan in 1961 pursuant to anagreement between the United Nations and the Government of Japan. Its goal is tocontribute to sound social development in Asia and the Pacific region by promoting
regional cooperation in the field of crime prevention and criminal justice, throughtraining and research.
UNAFEI has paid utmost attention to the priority themes identified by theCommission on Crime Prevention and Criminal Justice. Moreover, UNAFEI has been
taking up urgent, contemporary problems in the administration of criminal justice inthe region, especially problems generated by rapid socio-economic change (e.g.,transnational organized crime, corruption, economic and computer crime and the reintegration of prisoners into society) as the main themes and topics for its training
courses, seminars and research projects.
II. TRAINING
Training is the principal area and priority of the Institute’s work programmes. In
the international training courses and seminars, participants from different areas ofc rim inal ju stice d iscu ss an d stud y pr es sing pr ob le m s o f cr im in al ju sticeadministration from various perspectives. They deepen their understanding, with thehelp of lectures and advice by the UNAFEI faculty, visiting experts and ad hoc
lecturers. This so-called “problem-solving through an integrated approach” is one of
the chief characteristics of UNAFEI programmes.
Each year, UNAFEI conducts two international training courses (three months
duration) and one international seminar (one month duration). Approximately 80
government officials from various overseas countries receive fellowships from theJapan International Cooperation Agency (JICA; a governmental agency for ODA
programmes) each year to participate in all UNAFEI training programmes.
Training courses and seminars are attended by both overseas and Japaneseparticipants. Overseas participants come not only from the Asia-Pacific region but
also from the Middle and Near East, Latin America and Africa. These participants areexperienced practitioners and administrators holding relatively senior positions incriminal justice fields.
During its 39 years of existence, UNAFEI has conducted a total of 116 international
training courses and seminars, in which approximately 2800 criminal justicepersonnel have participated, representing 100 different countries. In their respective
countries, UNAFEI alumni have been playing leading roles and holding important3

ANNUAL REPORT FOR 2000
posts in the fields of crime prevention and the treatment of offenders, and in relatedorganizations.
A. The 114th International Seminar
1. Introduction
From 17 January to 18 February 2000, 26 participants from 21 countries attended
the 114th International Seminar to examine the main theme of “International
Cooperation to Combat Transnational Organized Crime - with Special Emphasis on
Mutual Legal Assistance and Extradition”.
2. Methodology
Firstly, the Seminar participants respectively introduced the current situation
regarding the role and function of criminal justice agencies in their country in thefight against transnational organized crime. Secondly, General Discussion Sessions in
the conference hall examined the subtopics of the main theme. In sum, theparticipants comprehensively examined the manifestations of transnational organizedcrime, including drug trafficking, money laundering and trafficking in women andchildren, which pose a growing threat to the security of the international society andthe stability of sovereign states. How modern criminal justice agencies are to respondto this emerging form of crime through the use of mutual legal assistance andextradition was analyzed, in order to seek concrete recommendations. To conduct eachsession efficiently, the UNAFEI faculty provided the following three topics forparticipant discussion:
Topic 1:

Specific problems and solutions that arise from cases involving
international mutual legal assistance or extradition;
Topic 2: Refusal of mutual legal assistance or extradition; andTopic 3: The framework of mutual legal assistance and extradition: scope,advantages/disadvantages, and the structure and function of a central
authority.

A chairperson, co-chairpersons, rapporteur and co-rapporteurs were elected foreach topic and organized the discussions in relation to the above themes. In theconference hall, the participants and UNAFEI faculty seriously studied thedesignated subtopics and exchanged views. Final reports were compiled, based on thesaid discussions, and were ultimately adopted as the reports of the Seminar. These
reports were printed in their entirety in UNAFEI Resource Material Series No. 57.
3. Outcome Summary
Of grave concern worldwide is the prevalence and complexity of transnationalorganized crime. Its perpetration, under the influence of criminal organizations, hasbeen a serious problem in various countries in the world, including the Asia-Pacificregion. In recognition of the gravity of this situation, the United Nations has given
special attention to the issue of transnational organized crime, establishing the Ad
Hoc Committee on the Elaboration of a Convention against Transnational Organized
Crime in 1998. During the debates of the Committee, it has been generally understood4

MAIN ACTIVITIESthat mutual legal assistance and extradition are two major weapons for effectively
combating transnational organized crime.
However these modalities, in their present manifestations and procedural practices,
are not entirely satisfactory. For example, establishing dual criminality, one of the
traditional prerequisites for rendering mutual legal assistance and extradition, isoften a difficult and time-consuming task for both the requesting and requested
states. Up-to-date information on the pertinent law and its interpretation by bothstates is not always fully available. Thus requiring dual criminality rigidly may
sometimes undermine the efficiency and effectiveness of the mutual legal assistanceand extradition procedure.
Giving due consideration to issues such as the above, the strengthening andimprovement of international cooperation in the fight against transnational organizedcrime through mutual legal assistance and extradition mechanisms were explored.
Recommendations included:(i)

To bridge differences in civil and common law systems, there should be limited
requirements imposed on a requesting country to provide evidence in its request
for extradition or mutual legal assistance. There should also be a flexible
interpretation of dual criminality for extradition.
(ii) Adoption of bi-lateral and multi-lateral agreements to decrease uncertainty in theassurance of reciprocity and to increase cooperation in combating serious crime.
Referral to the United Nations Model Treaty should be promoted.
(iii) The principle of aut dedere aut judicare (extradite or prosecute) should be
implemented to bring fugitive offenders to justice. States should enact laws thatallow their nationals to be extradited, especially when there is the consent of theoffender. Alternatively, states could extradite their own nationals for trial abroadon the condition that, once convicted, the fugitive offenders will serve theirsentences in their respective countries.
(iv) The minimum imprisonment system should be adopted by all states to make thescope of offences for which mutual legal assistance can be granted as wide as
possible (except in regard to coercive measures).
(v) Where the proceeds of crime are confiscated, the assets should be shared amongst
countries to enhance and acknowledge the cooperation necessary to fightorganized crime. The basis for asset sharing should be clearly defined in bilateralagreements.
(vi) United Nations to help member states, through the provision of educationmaterials and conferences, to modernize and harmonize their domestic laws.
With transnational organized crime increasing exponentially, it is imperative thatthe relevant agencies strengthen and improve existing mechanisms for international
co-operation in regard to extradition and mutual legal assistance. The introduction ofrelated agreements and treaties, flexible requirements or conditions, and an ethos ofcooperation is essential to combat the growing threat of transnational organized crimein the twenty-first century.

5

ANNUAL REPORT FOR 2000
B. The 115th International Training Course
1. Introduction
UNAFEI conducted the 115th International Training Course from 15 May to 7 July
2000 with the main theme, “Current Issues in Correctional Treatment and Effective
Countermeasures”. This Course consisted of 23 participants from 14 countries. The
Institute’s selection of this theme reflects its concern regarding the contemporary
problems increasingly faced by correctional administrations worldwide. These
problems include overcrowding and the treatment of special categories of prisoners,
particularly women, drug-addicted and foreign offenders. By clarifying the actual
situation experienced by correctional administrators in the Asia-Pacific region,
solutions and countermeasures to the challenges in these areas can be developed andimplimented for the betterment of criminal justice.
2. Methodology
The participants identified the current situation of and problems experienced inrelation to current correctional administration, particularly overcrowding and thetreatment of female, foreign and drug-addicted prisoners. In this regard, the current
trends of prisoners and their problems, and the underlying causes of overcrowding,were acknowledged and explored with a view to reducing disparities in treatment andfor the overall improvement of correctional practices.
The objectives of the Course were primarily realized through the Individual
Presentations and Group Workshop sessions. In the former, each participant
presented the actual situation, problems and future prospects of their country withrespect to the main theme of the Course. The Group Workshops further examined thesubtopics of the main theme. To facilitate discussion, the participants were divided
into the following three groups under the guidance of faculty advisers:
Group 1: Practical Measures to Alleviate the Problem of Overcrowding;Group 2: Practical Measures to Improve Prison Conditions; andGroup 3: Current Trends and Problems of Prisoners, and Measures for Effective
Treatment.
Each group elected a chairperson(s) and rapporteur(s) to organize the discussions.
The group members seriously studied the designated subtopics and exchanged theirviews based on information obtained through personal experience, the Individual
Presentations, lectures and so forth. Sixteen sessions were allocated for Group
Discussion. In the fifth, sixth and seventh week, Plenary Meetings were held todiscuss the interim outline of the Group Workshop reports and to offer suggestions
and comments. During the final Plenary Meetings in the seventh week, drafts of theGroup Workshop reports were examined and critiqued by all the participants and the
UNAFEI faculty. Based on these discussions, the Groups further refined their reports
and presented them in the Report-Back Sessions, where they were endorsed as thereports of the Course. The full texts of the reports were published in the UNAFEI
Resource Material Series No. 57.

6

MAIN ACTIVITIES
3. Outcome Summary
In recent years, many countries have been confronted with important issues such as
overcrowding in correctional facilities, improvement of prison conditions, an increaseof drug-related offenders and the shortage of effective treatment programmes. Longer
terms of detention for unsentenced inmates and ineffective options for noninstitutional treatment are considered two of the major causes of overcrowding.
On the improvement of prison conditions, the Standard Minimum Rules for theTreatment of Prisoners adopted by the First United Nations Congress on thePrevention of Crime and the Treatment of Offenders, defines the standard of
institutional treatment (including prison conditions) to be satisfied by each country.
However, many countries are confronted with problems which hinder the fulfillmentof this standard.
Similarly, the development and promotion of effective treatment methods forproblematic prisoners is becoming more necessary. With the international tendency
towards borderless crime, foreign prisoners are increasing in number; with different
life customs, language and difficulty in communication becoming significant
treatment issues. Additionally, how to control the health of inmates (including HIV
positive inmates) has become an important correctional issue, particularly in relation
to the treatment of drug-related prisoners. Finally, gender differences in thetreatment of prisoners requires equal attention.
In response to the above issues, the following countermeasures are suggested inregard to resource constraints and overcrowding:(i)

Speedy criminal procedure and effective use of alternative measures toimprisonment including the use of fines, suspension of sentence, community
service orders, weekend detention, house arrest, binding over and recognizance.
(ii) Introduction of Drug Court, utilizing treatment programmes as an alternative to
imprisonment.
(iii) Better utilization of budget to update obsolete facilities, meet base needs anddevelop reporting/assessment systems to ensure the best use of current resources.
(iv) Consider alternatives to budgetary and space constraints including privatizationof services, private sector joint enterprises/ prison works (to augment funding)and open camp prison accommodation.
(v) Increase transparency of the prison administration to raise public awareness andsupport for non-custodial measures.
(vi) Early release measures including parole, remission/reduction of sentence period
and pardons.
Similarly, the following countermeasures are suggested in relation to the treatmentof foreign, female and drug-addicted prisoners:(i)

Educate prison officials on the human rights of prisoners, law/legislation,
multicultural and addiction issues. Recruit skilled and bi-lingual staff.

7

ANNUAL REPORT FOR 2000(ii) Develop inmate handbooks to advise prisoners (especially new entrants) on
human rights expectations and obligations. Provide local language and culturalawareness programmes for foreign prisoners.
(iii) Utilize public sector support and the availability of volunteers for prisoner
treatment programmes.
(iv) To ensure the effectiveness of therapeutic programmes, implement measures tocontrol the influx of drugs into prisons and to reduce drug use recidivism.
Separate drug-related/abusing prisoners from mainstream prisoners to reduce
contact and negative influences.
(v) Ensure that female prisoners receive equal treatment including access torehabilitative and educational programmes. Provide adequate health and childcare services, including necessities and child care facilities such as nurseries.
(vi) The development and promotion of bilateral and multilateral conventions on thetransfer of foreign prisoners.
It is necessary for all correctional administrators to work towards the common goalof corrections, that is, to provide humane treatment to all offenders (taking into
consideration human rights concepts) and to help them re-integrate successfully backinto society. Addressing the special needs of specific groups of prisoners, such as drugrelated, female and foreign prisoners, is a fundamental part of this treatment
philosophy. Without commitment from all sectors of the criminal justice system, andgovernmental support, this goal will not be achieved.
C. The 116th International Training Course
1. Introduction
From 28 August to 15 November 2000, UNAFEI conducted the 116th International
Training Course with the main theme, “Effective Methods to Combat Transnational
Organized Crime in Criminal Justice Processes”. This Course consisted of 25
participants from 15 countries. The Institute’s selection of this theme reflects its
concern regarding the increase of transnational organized crime worldwide. The
Course examined current trends and issues in investigating and prosecuting
transnational organized crime, particularly the expansion of investigative techniquesin the areas of electronic surveillance, controlled delivery, undercover operations andtracing crimes.
2. Methodology
The 116th Course endeavored to explore the best means to more effectively combat
transnational organized crime, particularly through the development and expansionof investigative techniques. This was accomplished primarily through the comparative
analysis of the current situation and problems in the participating countries. Our indepth discussions enabled us to put forth effective and practical countermeasures tothis problem, so as to improve the global fight against crime.
This Training Course provided a forum for the exchange of information and views
on how criminal justice agencies in the respective countries detect, investigate andprosecute transnational organized crime cases, as well as the problems and difficulties
encountered in that regard. Discussions also highlighted the importance of8MAIN ACTIVITIES
establishing more efficient investigate systems and the need to increase international
cooperation in this area in order to eradicate such crime.
The objectives were primarily realized through the Individual Presentations andthe Group Workshop sessions. In the former, each participant presented the actual
situation, problems and future prospects of their country with respect to the main
theme of the Course. The Group Workshops further examined the subtopics of themain theme. To facilitate discussions, the participants were divided into the following
three groups, with two focus areas respectively, under the guidance of faculty
advisers:
Group 1: (i) Analysis of the current situation of illicit drug trafficking(ii) Tools facilitating the investigation of transnational organized crime.
The current situation, problems and solutions for:(a) Controlled delivery(b) Electronic surveillance (wire-tapping, communications
interception, etc)(c) Undercover operations;Group 2: (i) Analysis of the current situation of illegal firearms trafficking andhuman (women, children, migrants) trafficking(ii) Methods for obtaining the cooperation of witnesses to punish
organized criminals. Current situation, problems and solutions for:(a) Immunity system(b) Witness and victim protection programmes; andGroup 3: (i) Analysis of the current situation of trafficking in stolen vehicles, cardfraud, money laundering, major transnational organized criminalgroups.
(ii) Components and legal frameworks for combating transnationalorganized crime:(a) Criminalisation of participation in an organized criminal group(b) Anti-money laundering system(c) Asset forfeiture system (for assets derived from organized crimes)
Each group elected a chairperson(s) and rapporteur(s) to organize the discussions.
The group members seriously studied the designated subtopics and exchanged theirviews based on information obtained through personal experience, the Individual
Presentations, lectures and so forth. Seventeen sessions were allocated for Groupdiscussion.
In weeks five and ten, Plenary Meetings were held to discuss the interim outline of
the Group Workshop reports and to offer suggestions and comments. During the
Plenary Meetings, drafts of the Group Workshop reports were examined and critiquedby all the participants and the UNAFEI faculty. Based on these discussions, theGroups further refined their reports and presented them in the Report-Back Sessions,where they were endorsed as the reports of the Course. The reports were published infull in the UNAFEI Resource Material Series No. 58.

9ANNUAL REPORT FOR 2000
3. Outcome Summary
Transnational organized crime is a growing threat to the security of theinternational society and the stability of sovereign states. It undermines the integrityof legitimate national economies, global financial systems, the rule of law andfundamental social values. It incorporates all areas of traditional crime including drugtrafficking, money laundering, the use of violence and extortion, acts of corruption,
trafficking in women and children, fraud, industrial espionage, infringement ofintellectual property rights and so forth.
The detection and suppression of transnational organized crime poses uniquechallenges to investigative authorities. Before addressing these challenges, the groups
addressed the current situation regarding illicit drug trafficking, firearms trafficking,the trafficking of stolen vehicles, card fraud, money laundering and the status ofmajor crime groups, to better assess the measures that can be taken to prevent thesecrimes.
In regard to drugs, the shift of opium production from South East Asia to SouthWest Asia denotes an alarming trend. As the refinement of heroin has diminished inSouth East Asia, increased production in methamphetamine has occurred in thisregion. Similarly, increased levels of international drug consumption have been notedin these regions (amongst others), with former drug transit nations now (also)
becoming significant drug consuming nations. Corresponding to these shifts in usage,
the modus operandi and trafficking routes, as wells as the mafia groups involved,
have altered dramatically and expanded expoentially.
From the seizures recorded in 1998/99, it is predicted that amphetamine typestimulants (ATS) will be the major drug problem of the 21st century. The small-scale
production and easy concealment of these drugs presents complex problems for
authorities in terms of detection and prevention, and requires concerted international
effort to contain.
Connected to this, the trafficking of firearms has proliferated in many nations due
to inter-regional conflicts and porous borders. In some regions, such as Brazil andPapua New Guinea, firearms are allegedly used to purchase narcotics. In otherregions, such as Japan, they are primarily used by organized crime groups to carry out
their illicit activities. Similarly, aside from human rights considerations, thetrafficking of persons has provided increased finance and human resources forinternational crime groups and their nefarious undertakings. In several regions,
illegal immigrants seeking economic alleviation or political refuge have been coerced
into prostitution or illegal labor through their links with organized crime groups
offering ‘safe passage’ to foreign nations. In other regions, women and children are
forcibly removed from their homelands to be used in combat, slavery or, particularly
in Africa, be exchanged for guns.
Of equal concern is the traffic of stolen motor vehicles, card fraud and money
laundering mechanisms. The use of underground banking channels such as Hundi or
Hawala allows organized criminal groups to legitimise the proceeds of crime. Thesechannels and similar methods are used to ‘clean’ funds obtained from the above

10

MAIN ACTIVITIES
activities. Thus the elimination of money laundering plays a pivotal role in crime
prevention strategies.
The use of traditional investigative methods to combat transnational organizedcrime has proved to be very difficult and ineffective. This demands that law
enforcement agencies utilize special investigative tools such as controlled delivery,
undercover operations and electronic surveillance (wiretapping, communications
interception, etc), whilst maintaining citizens’ human rights and reasonable rights to
privacy. Further strategies to counter transnational organized crime and enhance theoverall effectiveness of investigations at the international level are:(i)

Ratification of the United Nations Convention against Transnational Organized
Crime.
(ii) Development of multilateral and bilateral treaties for the sharing of intelligenceand the transfer of seized assets.
At the national level, recommendations include:(i)

Development of anti-money laundering legislation and reform of bank secrecy
provisions/ company law (especially in regard to establishing offshore companies).
(ii) Criminalization of participation in organized criminal groups.
(iii) Adoption of an immunity system for co-operating defendants in organized crime
investigations and trials.
(iv) Introducing witness protection programmes, including relocation, identitychange, police protection and financial assistance, for organized crime trials.
(v) Identity protection mechanisms in organized crime trials, including nondisclo sure of w itness informa tion, video link testim onies, out- of-court
examination etc.
(vi) Denial of bail for organized crime defendants.
D. Special Seminars and Courses
1. Fifth Special Seminar for Senior Criminal Justice Officials of the People’s
Republic of China
The Fifth Special Seminar for Senior Officials of Criminal Justice in the People’s
Republic of China, entitled “Participation of the Public and Victims in Criminal
Justice Administration”, was held from 28 February to 17 March 2000. Ten seniorcriminal justice officials and UNAFEI faculty comparatively discussed contemporary
problems faced by China and Japan in the realization of criminal justice.
2. First Special Seminar for Kenya on Juvenile Delinquent Treatment Systems
UNAFEI conducted the First Special Seminar for Kenyan criminal justice officials
who are working for the prevention of delinquency and the treatment of juvenile
delinquents in their country. The Seminar, entitled “Juvenile Treatment Systems”,
was held from 2 October to 25 October 2000. The Seminar exposed Kenyan officials to
the workings of the Japanese juvenile justice and treatment system through lecturesand observation visits to relevant agencies. As a result of this comparative study, theofficials successfully developed action plans for the implementation and development

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ANNUAL REPORT FOR 2000
of institutional and community-based treatment systems for juvenile delinquents in
Kenya.
3. Third Special Training Course on Corruption Control in Criminal Justice
UNAFEI conducted the Third Special Training Course entitled “Corruption
Control in Criminal Justice” from 6 November to 1 December 2000. In this course,
thirteen foreign officials engaged in corruption control comparatively analyzed thecurrent situation of corruption, methods of corruption prevention, and measures toenhance international cooperation in this regard.
III. WORKSHOP ON CRIMES RELATED TO THE COMPUTER NETWORKUNAFEI organized the Workshop on “Crimes Related to the Computer Network”,
during the Tenth United Nations Congress on the Prevention of Crime and theTreatment of Offenders, which was held in Vienna from 10 to 17 April 2000.
The Workshop was a one-day programme held on 15 April 2000. It consisted of a
keynote speech, presentations and panel discussions, with the participation of 17
experts from all over the world. The objective of the Workshop was to provide
participants with information and knowledge about computer crime from both asubstantive standpoint and an investigative standpoint.
In the Keynote address, the Honourable Ms. Anne McLellan, Minister of Justiceand Attorney-General of Canada, noted the growing seriousness of domestic andtransnational computer crime, and the importance of developing effective laws andprocedures for controlling it, without unduly interfering in the legitimate andbeneficial effects of this new technology.
The Workshop held a series of panel discussions. The first panel, entitled “Crimes
Related to the Computer Netw ork: What are they? Which abuses should be
criminalized, and how? How can they be prevented?”, reviewed computer crimes froma criminological and legal point of view. The second panel, entitled “Search and
Seizure: Obtaining Data within a Networked Environment”, comprised of a case-study
scenario on the technical and legal issues that arise from the legal search and seizureof data from computer networks. The third panel, “Search and Seizure: Tracking
Suspects across Computer Networks”, consisted of a case-study scenario on the
tracing of computer communications in multinational networks. The fourth and final
panel, “New Partnerships: Law Enforcement and Industry Cooperation”, dealt withthe relationship between law enforcement, and computer and Internet industries.
As a result of the discussions, the Workshop reached the following conclusions:
1. Computer-related crime should be criminalized;
2. Adequate procedural laws are needed for the investigation and prosecution of
cyber-criminals;
3. Government and industry should work together towards the common goal of
preventing and combating computer crime, so as to make the Internet a secure
place;

12

MAIN ACTIVITIES
4. Improved international cooperation is needed in order to trace criminals on theInternet;
5. The United Nations should take further action with regard to the provision oftechnical cooperation and assistance concerning crimes related to computer
networks.
In furtherance of the objectives of the Workshop, in April 2000 UNAFEI published“Crimes Related to the Computer Network - Challenges of the Twenty-first Century”,
a compilation of the written contributions to the first Experts Meeting on theWorkshop on Crimes Related to the Computer Network held at UNAFEI October 5 to9, 1998. These contributions provide the common basis of discussion amongst the
Meeting’s members in determining the scope of the Workshop and the issues to be
discussed. It is believed that this publication will benefit those generally interested incrimes related to computer networks, as well as provide a contextual background to
the Workshop’s development.
IV. TECHNICAL COOPERATION
A. Joint Seminars
Since 1981, UNAFEI has conducted 21 joint seminars under the auspices of JICA
and in collaboration with host governments in Asia and the Pacific. With theparticipation of policy-makers and high-ranking administrators, including members ofacademia, the joint seminars attempt to provide a discussion forum in which
participants can share their views and jointly seek solutions to various problems
currently facing criminal justice administration in both the host country and Japan.
1. Nepal-UNAFEI Joint Seminar
The Nepal-UNAFEI Joint Seminar was held in Kathmandu under the theme of“Effective Countermeasures to Combat Organized Crime in Criminal Justice
Processes” from 19 to 22 December 2000. The Government of the Kingdom of Nepal,
through the Ministry of Home Affairs, and UNAFEI organized the Joint Seminar. The
Joint Seminar was attended by high-ranking Nepalese government officials,
representing all sectors of the criminal justice system. The UNAFEI delegation
comprised of the Director, Deputy Director, three professors, the Linguistic Adviser
and an official from the National Police Agency of Japan. The Joint Seminarconcluded with the adoption of the resulting recommendations for the betterment of
the Nepalese criminal justice system, as from each session.
B. Regional Training Programmes
1. Thailand
In January 2000, UNAFEI dispatched two professors to Thailand to assist the
Office of the Narcotics Control Board (ONCB) in organizing the Eighth Regional
Training Course on “Effective Countermeasures against Drug Offences and theAdvancement of Criminal Justice Administration.”

13

ANNUAL REPORT FOR 2000
2. Costa Rica
In July 2000, UNAFEI dispatched two professors to Costa Rica to attend the Second
Regional Seminar on “Effective Measures for the Improvement of Prison Conditions
and Correctional Programmes”, organized and hosted by the Government of Costa
Rica through the United Nations Latin American Institute for the Prevention of
Crime and the Treatment of Offenders (ILANUD).
3. Others
In July and August 2000, two UNAFEI professors were dispatched to Kenya toassist the Children’s Department of the Ministry of Home Affairs and National
Heritage in a project to develop nationwide standards for the treatment of juvenile
offenders.
V. COMPARATIVE RESEARCH PROJECT
Reflecting its emphasis on the systematic relevance of training activities andpriority themes identified by the UN Commission, the research activities of theInstitute are designed to meet practical needs, including those for training materials
for criminal justice personnel. For example, in 2000 UNAFEI updated its research byrequesting several experts from countries in the Asia-Pacific region to report on theirrespective correctional systems. UNAFEI subsequently compiled and published thesereports in a book entitled “Institutional Treatment Profiles of Asia” and distributed
copies internationally.
VI. INFORMATION AND DOCUMENTATION SERVICES
The Institute continues to collect data and other resource materials on crime
trends, crime prevention strategies and the treatment of offenders, from Asia, thePacific, Africa, Europe and the Americas, and makes use of this information in its
training courses and seminars. The Information and Library Service of the Institutehas been providing, upon request, materials and information to United Nations
agencies, governmental organizations, research institutes and researchers, both
domestic and foreign.
VII. PUBLICATIONS
Reports on training courses and seminars are published regularly by the Institute.
Since 1971, the Institute has issued the Resource Material Series, which contains
contributions by the faculty members, visiting experts and participants of UNAFEI
courses and seminars. In 2000, the 55th edition of the Resource Material Series was
published, as was “Criminal Justice in Japan”, a book presenting a concise picture of
the actual practices in, and administration of, criminal justice in Japan. Additionally,issues 101 to 103 of the UNAFEI Newsletter were published, including a brief reporton each course and seminar (from the 114th to the 116th respectively) and providing
other timely information.
UNAFEI also published “Crimes Related to the Computer Network - Challenges of
the Twenty-first Century”, a compilation of the written contributions to the first14

MAIN ACTIVITIES
Experts Meeting on the Workshop on Crimes Related to the Computer Network, held
at UNAFEI 5 to 9 October, 1998 in preparation for the Tenth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders.
VIII. OTHER ACTIVITIES
A. Public Lecture Programme
On 10 February 2000, the Public Lecture Programme was conducted in the Grand
Conference Hall of the Ministry of Justice. In attendance were many distinguishedguests, UNAFEI alumni and the 114th International Seminar participants. This
Programme was jointly sponsored by the Asia Crime Prevention Foundation (ACPF),
the Japan Criminal Policy Society (JCPS) and UNAFEI.
Public Lecture Programmes increase the public’s awareness of criminal justiceissues, through comparative international study, by inviting distinguished speakers
from abroad. This year, Dr. Michael Platcha (Professor, Faculty of Law, Gdansk
University, Poland) and Mr. John E. Harris. (Acting Director, Office of International
Affairs, Criminal Division, US Department of Justice, the United States of America)
were invited as speakers to the Programme. They delivered lectures respectively
entitled “The Lockerbie Affair: When Extradition Fails, are the United Nations
Sanctions a Solution? The Role of the Security Council in the Enforcing of the RuleAut Dedere Aut Judicare” and “Mutual Legal Assistance Treaties: Necessity, Merits
and Problems arising in the Negotiation Process”.
B. Assisting UNAFEI Alumni Activities
Various UNAFEI alumni associations in several countries have commenced, or areabout to commence, research activities in their respective criminal justice fields. It is,therefore, one of the important tasks of UNAFEI to support these contributions toimprove the crime situation internationally.
C. Overseas Missions
Mr. Masahiro Tauchi (Deputy Director) and Mr. Hiroshi Tsutomi (Professor)
r ep r e se nte d UN A F E I at the “8th R e g ion al T rain ing C o ur se on E ff e ct ive
Countermeasures against Drug Offenders and the Advancement of Criminal Justice
Administration” convened by the Office of the Narcotics Control Board (ONCB),
Thailand. Mr. Tauchi and Mr. Tsutomi presented expert lectures on the role of the
UNDCP in narcotics law enforcement, and on the work of the ONCB in this regard.
The Training Course was held in Thailand from 16 to 29 January 2000.
Mr. Keiichi Aizawa (Professor) and Mr. Shoji Imafuku (Professor) presented at aconference on “Cooperation in Community-based Corrections in 2000”, held in
Pattaya, Thailand, 21 to 22 February 2000. Mr. Imafuku then traveled to Singapore to
conduct research on community-based treatment systems in the field of corrections
between 23 to 25 February 2000.
Mr. Hiroshi Tsutomi (Professor) attended the Regional Seminar on Assessment andClassification of Adult Offenders and Juvenile Delinquents held by the Economic and

15

ANNUAL REPORT FOR 2000
Social Commission for Asia and the Pacific (ESCAP) in Bangkok, Thailand, from 12 to
16 March 2000.
Mr. Mikinao Kitada (Director) and Mr. Chikara Satou (Professor) visited Tashkent,
Uzbekistan, from 19 to 25 March 2000, to attend the Central Asian Seminar on
Transnational Organized Crime, held by the United Nations Office for Drug Control
and Crime Prevention (UNODCCP).
Mr. Masahiro Tauchi (Deputy Director), Mr. Hiroshi Iitsuka (Professor), Mr.
Akihiro Nosaka (Professor) represented UNAFEI at the follow-up seminar to the
Bangladesh-UNAFEI Joint Seminar of March 1998, held in Dhaka, Bangladesh 19 to
21 March 2000. The Deputy Director and the professors then visited Manila, thePhilippines, to conduct a study tour of the Muntinlupa Halfway House and thePhilippine Department of Justice, from 22 to 24 March 2000.
Mr. Mikinao Kitada (Director), Mr. Keiichi Aizawa (Deputy Director), Mr. Hiroshi
Iitsuka (Professor), Mr. Shinya Watanabe (Professor) and Mr. Katsuhiko Jimbo(officer) attended the Tenth United Nations Congress on the Prevention of Crime andthe Treatment of Offenders in Vienna, from 10 to 17 April 2000. The UNAFEI
delegation then attended the Ninth United Nations Commission on the Prevention of
Crime and Criminal Justice, also held in Vienna, from 18 to 20 April 2000.
Mr. Yuichiro Tachi (Professor) and Mr. Chikara Satou (Professor) attended theninth session of the Ad Hoc Committee on the Elaboration of a Convention against
Transnational Organized Crime, held in Vienna, Austria from 12 to 18 June 2000.
Mr. Keiichi Aizawa (Deputy Director), Mr. Chikara Satou (Professor), Ms. Mikiko
Kakihara (Professor), and Mr. Kenji Koroyasu (President, Research and Training
Institute, Ministry of Justice) visited the People’s Republic of China, from 12 to 19
July 2000, for the purpose of fostering international exchange in criminal justiceadministration.
Mr. Hiroshi Tsutomi (Professor) and Mr. Akihiro Nosaka (Professor) visited Kenya
as short-term experts, as part of a JICA international assistance scheme for theprevention of crime by children and young persons, from 16 July to 25 August 2000.
Mr. Hiroshi Iitsuka (Professor) and Mr. Shinya Watanabe (Professor) represented
UNAFEI at the Second International Training Course on the Improvement of Prison
Conditions and Correctional Programmes, San Jose, Costa Rica, from 18 to 26 July
2000.
Mr. Mikinao Kitada (Director) presented a lecture on behalf of UNAFEI at the FirstWorld Congress on Public Security and the Procurement and Administration of
Justice, Mexico City, Mexico, 25 to 29 July 2000.
Mr. Mikinao Kitada (Director) visited the International Center for Criminal Law
Reform and Criminal Justice Policy (ICCLRCJP) in Vancouver, Canada, from 28 to 30

16

MAIN ACTIVITIESJuly 2000, to exchange views on the administration of criminal justice institutes andthe working programme of each institute for fiscal year 2001.
Mr. Hiroshi Iitsuka (Professor) visited Kathmandu, Nepal, from 8 to 13 August
2000, in preparation for the Nepal-UNAFEI Joint Seminar to be held December 2000.
Mr. Hiroshi Tsutomi (Professor) participated in the Youth Justice 2000 Conference
Singapore from the 13 to 15 September 2000.
Mr. Mikinao Kitada (Director) attended the Fifteenth Coordination Meeting of the
Network of UN Institutes in Turin, Italy from 19 to 20 September 2000. He thentraveled to Courmayeur, Italy to attend the Eighth ISPAC Plenary Session and theInternational Conference on “Countering Terrorism through Enhanced International
Co-operation” from 21 to 22 September and 22 to 24 September 2000, respectively.
Mr. Mikinao Kitada (Director) and Mr. Keiichi Aizawa (Deputy Director) attended
the Eighth Asia Crime Prevention Foundation World Conference held in Beijing, The
People’s Republic of China from 11 to 16 October 2000. UNAFEI was co-organizer of
the Group Meeting “Internet Related and Other ‘High-tech’ Crimes” for thisconference; a follow-up forum to the “Workshop on Crimes Related to the Computer
Network”, which UNAFEI coordinated as part of the Tenth United Nations Congresson the Prevention of Crime and Treatment of Offenders, held in Vienna, April 2000.
Mr. Shinya Watanabe (Professor) represented UNAFEI at the Twentieth Asian andPacific Conference of Correctional Administrators in Sydney, Australia from 5 to 11
November 2000.
M r. Keiichi Aizawa attended the First Independent Commission Against
Corruption (ICAC) Symposium in Hong Kong from 13 to 16 November 2000.
Mr. Mikinao Kitada (Director), Mr. Keiichi Aizawa (Deputy Director), Mr. Yuichiro
Tachi (Professor), Mr. Hiroshi Iitsuka (Professor), Mr. Hiroshi Tsutomi (Professor),and Ms. Rebecca Findlay-Debeck (Linguistic Adviser) represented UNAFEI at the
Nepal-UNAFEI Joint Seminar on “Effective Countermeasures to Combat Organized
Crime in Criminal Justice Processes”, in Kathmandu, Nepal, from 19 to 22 December
2000.
D. Assisting ACPF Activities
UNAFEI cooperates and corroborates with the ACPF to further improve crime
prevention and criminal justice administration in the region. Since UNAFEI and the
ACPF have many similar goals, and a large part of ACPF’s membership consist of
UNAFEI alumni, the relationship between the two is strong. An example of thiscooperation and corroboration can be seen in 8th ACPF International World
Conference, which was held in Beijing, the Peoples Republic of China, in October
2000. UNAFEI co-organized the Group Meeting “Internet Related and Other ‘Hightech’ Crimes” as part of the World Conference. This Group Meeting was a follow-up
forum to the “Workshop on Crimes Related to the Computer Network”, which

17

ANNUAL REPORT FOR 2000
UNAFEI coordinated as part of the Tenth United Nations Congress on the Preventionof Crime and Treatment of Offenders, held in Vienna, April 2000.
IX. HUMAN RESOURCES
A. Staff
In 1970, the Government of Japan assumed full financial and administrative
responsibility for running the Institute. The Director, Deputy Director and sevenprofessors are selected from among public prosecutors, the judiciary, corrections andprobation. UNAFEI also has approximately 20 administrative staff members, who areappointed from among officials of the Government of Japan, and a linguistic adviser.
Moreover, the Ministry of Justice invites visiting experts from abroad to each training
course and seminar. The Institute has also received valuable assistance from various
experts, volunteers and related agencies in conducting its training programmes.
B. Faculty Changes
Mr. Masahiro Tauchi, formerly Deputy Director of UNAFEI, was transferred toTokyo Public Prosecutors Office and appointed Deputy Director of General Affairs
Department on 1 April 2000.
Mr. Keiichi Aizawa, formerly Professor of UNAFEI, was appointed Deputy Directorof UNAFEI on 1 April 2000.
Mr. Shoji Imafuku, formerly Professor of UNAFEI, was transferred to the Kanto
Regional Parole Board as Assistant Chief of General Affairs Division on 1 April 2000.
Mr. Yuichiro Tachi, formerly a Public Prosecutor with the Osaka District Public
Prosecutors Office, joined UNAFEI as a Professor on 1 April 2000.
Ms. Mikiko Kakihara, formerly an Administrative Official in the Counsellors’ Officeof the Rehabilitation Bureau of the Ministry of Justice, joined UNAFEI as a Professoron 1 April 2000.
X. FINANCESThe Ministry of Justice primarily provides the Institute’s budget. The total amountof the UNAFEI budget is approximately ¥336 million per year. Additionally, JICA
and the ACPF provides assistance for the Institute’s international training courses
and seminars.

18

UNAFEI WORK PROGRAMMME FOR 2001
I. TRAINING
A. 117th International Seminar
The 117th International Seminar, “Current Situation and Countermeasuresagainst Money Laundering”, is scheduled to be held from 15 January to 16 February,
2001. The 117th Seminar purports to explore the ways and means of strengthening
and improving international cooperation in the fight against transnational organizedcrime, particularly through anti-money laundering initiatives. Sharing practicalinformation and experience on how other countries tackle common issues will
facilitate our efforts in the fight against transnational organized crime and the illicit
proceeds gained therefrom.
B. 118th International Training Course
The 118th International Training Course, tentatively entitled “Best Practices in
Institutional and Community-based Corrections”, is scheduled to be held from 21 May
to 13 July 2001. The 118th International Training Course will examine current trends
and issues in Corrections, including the improvement of the treatment of juvenile
offenders.
C. 119th International Training Course
The 119th International Training Course, tentatively entitled the “Current
Situation of and Countermeasures against Transnational Organized Crime,” isscheduled to be held from 10 September to 2 November 2001. The 119th International
Training Course will examine the current trends and issues in transnationalorganized crime, particularly in light of the United Nations Convention against
Transnational Organized Crime. This course will assess the current manifestations oforganized crime and consider the development and expansion of investigativetechniques and legal frameworks and practices, in addition to the strengthening ofinternational cooperation, to combat this type of crime.
D. Sixth Special Seminar for Senior Criminal Justice Officials of thePeople’s Republic of China
The Sixth Special Seminar for Senior Criminal Justice Officials in the People’s
Republic of China, “International Cooperation in Criminal Matters”, is scheduled to beheld at UNAFEI from 26 February to 16 March 2001. Ten senior criminal justiceofficials and UNAFEI faculty will discuss contemporary problems faced by China andJapan in relation to the above theme.
E. Second Special Seminar for Kenya on Juvenile Delinquent Treatment
Systems
UNAFEI will hold the Second Special Seminar for nine Kenyan criminal justiceofficials who are working for the prevention of delinquency and the treatment ofjuvenile delinquents in their country. The Seminar, entitled “Juvenile Delinquent
Treatment Systems”, will be held in October 2001. The Seminar will expose Kenyan

19

ANNUAL REPORT FOR 2000
officials to the workings of the Japanese juvenile justice and treatment systems
through lectures and observation visits to relevant agencies.
F. Fourth Special Training Course on Corruption Control in Criminal
Justice
UNAFEI will conduct the Fourth Special Training Course entitled “Corruption
Control in Criminal Justice” from November to December 2001. In this course, twelve
foreign officials engaged in corruption control will comparatively analyze the current
situation of corruption, methods of corruption prevention, and measures to enhanceinternational cooperation in this regard.
III. TECHNICAL COOPERATION
A. Joint Seminars
1. Kenya-UNAFEI Joint Seminar
In August 2001, the Kenya-UNAFEI Joint Seminar, tentatively entitled “Effective
Coordination and Cooperation of all Criminal Justice Agencies in the Effective
Administration of Juvenile Justice”, is scheduled to be held in Nairobi, Kenya. The
High Court of Kenya and UNAFEI will organize the Seminar.
2. Philippine-UNAFEI Joint Seminar
In December 2001, the Philippine-UNAFEI Joint Seminar, tentatively entitled“Community Involvement in Criminal Justice”, is scheduled to be held in Manila,
Philippines. The National Police Commission of the Philippines and UNAFEI willorganize the Seminar.
B. Regional Training Programmes
1. Thailand
In January 2001, two UNAFEI professors will travel to Thailand to assist the Royal
Thai Government and the Office of the Narcotics Control Board (ONCB) in organizing
the Ninth Regional Training Course on “Effective Countermeasures against Drug
Offences and the Advancement of Criminal Justice Administration.”
2. Costa Rica
In July 2001, two UNAFEI professors will represent the Institute at Third
International Training Course on the Improvement of Prison Conditions andCorrectional Programmes, San Jose, Costa Rica.
C. Others
In August 2001, two UNAFEI professors will be dispatched to Kenya to assist theChildren’s Department of the Ministry of Home Affairs and National Heritage in a
project to develop nationwide standards for the treatment of juvenile offenders.

20

APPENDIX

MAIN STAFF OF UNAFEI
Director

Mr. Mikinao Kitada

Deputy Director

Mr. Keiichi Aizawa

Faculty
Chief of Training Division, Professor

Mr. Hiroshi Iitsuka

Chief of Research Division, Professor

Mr. Shinya Watanabe

Chief of Information & Library Service Division,
Professor

Mr. Akihiro Nosaka

Professor

Mr. Yuichiro Tachi

Professor

Mr. Chikara Satou

Professor

Mr. Hiroshi Tsutomi

Professor

Ms. Mikiko Kakihara

Linguistic Adviser

Ms. Rebecca Findlay-Debeck

Secretariat
Chief of Secretariat

Mr. Yoshinori Miyamoto

Deputy Chief of Secretariat

Mr. Miyoshi Chishima

Chief of General and Financial Affairs Section

Mr. Norihiko Kimura

Chief of Training and Hostel Management, Affairs
SectionMr. Yoshinobu Gohda

Chief of International Research Affairs Section

Mr. Takuma Kai<AS OF 31 DECEMBER 2000>

21

ANNUAL REPORT FOR 2000

2000 VISITING EXPERTS
THE 114TH INTERNATIONAL SEMINAR
Mr. Hans G. Nilsson

Head of Division, Section III -Judicial Cooperation,
Directorate II,
Directorate General H-Justice and Home Affairs,
Council of the European Union,
Brussels

Mr. Senerino H. Gana Jr.

Senior State Prosecutor,
National Prosecution Service,
Philippines Department of Justice,
Philippines

Dr. Michael Plachta

Professor & Chair of Criminal Procedure,
Faculty of Law,
Gdansk University,
PolandMr. Sirisak Tiyapan

Expert State Attorney, Legal Counsel Department,
Office of the Attorney General,
Thailand

Mr. John E. Harris

Acting Director, Office of International Affairs,
Criminal Division,
U.S. Department of Justice,
United States of America

THE 115TH INTERNATIONAL TRAINING COURSE
Mr. Luke Grant

Director, Inmate Classification and Programmes,
New South Wales Department of Corrective Services,
Australia

Dr. Laurence L. Motiuk

Director General Research,
Correctional Service of Canada,
CanadaMr. Candido Cunha

Head,
Division of Criminal Law and Justice,Council of Europe,
FranceDr. Hanns von Hofer

Professor, Vice-Director,
Department of Criminology,
Stockholm University,
Sweden22

APPENDIX
Mr. Somboon Prasopnetr

Deputy Director-General,
Department of Corrections,
Ministry of Interior,
ThailandTHE 116TH INTERNATIONAL TRAINING COURSE
Mr. Peter Yam Tat-Wing

Assistant Commissioner (Crime),
Hong Kong Police Force Headquarters,
Hong Kong

Mr. Yong-Kwan Park

Director,
1st Prosecution Division,
Ministry of Justice,
Republic of Korea

Dr. Johan Peter Wilhelm
HilgerFormer Head of Division of Judicial System,
Ministry of Justice,
Germany

Mr. Franco Roberti

Deputy Prosecutor,
National Anti-mafia Bureau,
Office of the Prosecutor General,
Italy

Mr. Bruce G. Ohr

Chief,
Organized Crime and Racketeering Section,
Criminal Division,
Department of Justice,
United States of America

23

ANNUAL REPORT FOR 2000

2000 AD HOC LECTURERS
THE 114TH INTERNATIONAL SEMINAR
Mr. Yuuki Furuta

Director General of Criminal Affairs Bureau,
Ministry of Justice,Japan

Mr. Toshinori Kanemoto

Director General of International Affairs
Department,
National Police Agency,Japan

THE 115TH INTERNATIONAL TRAINING COURSE
Mr. Noriaki Kojima

Deputy Director,
International Research and Training Institute for
Criminal Investigation,
National Police Academy,Japan

Mr. Rokuro Tsuruta

Director General,
Correction Bureau,
Ministry of Justice,Japan

Mr. Yoshinobu Baba

Director General,
Rehabilitation Bureau,
Ministry of Justice,Japan

Ms. Mioko Kuga

Lecturer,
Kokugakuin University,
Japan

Mr. Takeshi Koyanagi

International Affairs Coordinator,
Correction Bureau,
Ministry of Justice,
Japan

24

APPENDIX
THE 116TH INTERNATIONAL TRAINING COURSE
Mr. Noriaki Kojima

Director,
International Research and Training Institute for
Criminal Investigation,
National Police Academy of Japan,
Japan

Mr. Kou Akatsuka

Director of Management,
Asia Crime Prevention Foundation (ACPF),
Japan

Mr. Yuuki Furuta

Director General,
Criminal Affairs Bureau,
Ministry of Justice,Japan

Prof. Masahito Inouye

Professor,
Tokyo University,
Japan

Mr. Jiro Ono

Director,
First Organized Crime Control Division,
National Police Agency,
Japan

Mr. Minoru Ui

Deputy Director,
Criminal Affairs Department,
Tokyo District Public Prosecutors Office,Japan

Mr. Yasushi Iijima

Attorney,
Ministry of Justice,Japan

Mr. Mune Ohno

Deputy Director,
Criminal Affairs Department,
Tokyo District Public Prosecutors Office,Japan

Mr. Isamu Ikenoue

Enforcement Division,
Customs & Tariff Bureau,
Ministry of Finance,Japan

Mr. Megumi Yamamuro

Judge,
Tokyo District Court,
Japan

25

ANNUAL REPORT FOR 2000
Mr. Kenzaburo Yazawa

Attorney,
Ministry of Justice,Japan

Mr. Masayoshi Kimura

Attorney,
Finance Service Agency,Japan

Mr. Takayoshi Tsuda

Superintendent,
National Police Agency,
Japan

Mr. Keisuke Senta

Public Prosecutor,
Criminal Affairs Department,
Tokyo District Public Prosecutors Office,
Japan

26

APPENDIX

2000 UNAFEI PARTICIPANTS
THE 114TH INTERNATIONAL SEMINAR
Overseas Participants
Mr. Md. Abdur Razzaque

Additional District Magistrate,
Gopalgonj, Bangladesh

Ms. Miranjela Maria
Batista Leite

Police Officer,
Fiscal Offences Division,
Department of Federal Police,
Sao Paulo, Brazil

Mr. Wei Wang

Judge, Research Department,
Supreme People’s Court,
Beijing, People’s Republic of China

Mr. Jese Vukinagauna
Marovia

Superintendent of Police, Divisional Crime Officer,
Southern Division,
Fiji Police Force,
Suva, Fiji

Mr. Shyam Sundar Prasad
Yadav

Inspector General of Police (Recruitment),
Office of the Director General and Inspector Generalof Police,
Lakdi Ka Pul, Andhra Pradesh,
Hyderabad, India

Mr. Salahudin

Head of Section, Evaluation and Monitoring,
Directorate of Criminal,
Directorate General of Law and Legislation,
Department of Law and Legislation,
Jakata, Indonesia

Mr. Sh. Mutlaq Odeh
Mutlaq

Lieutenant Colonel District Commander,
Almoaqer Police Sulaymaniyin District,
Zakar, Jordan

Mr. Eugenijus Usinskas

Commissar of the Criminal Investigation Service,
Vehicle Crime Section,
Police Department, Ministry of Internal Affairs,
Vilnius, Lithuania

Mr. Md. Abdul Jalal Bin
Yunus

Officer-in-charge of Criminal Investigation,
Kedah Contingent Police Headquarters,
Kedah, Malaysia

27

ANNUAL REPORT FOR 2000
Mr. Raj Narayan Pathak

Joint Attorney,
Office of the Attorney General,
Kathmandu, Nepal

Mr. Sotonye Leroy
WakamaDetective, Special Fraud Unit,
Criminal Investigative Department,
Nigeria Police Force Headquarters,
Abuja, Nigeria

Mr. Sh. Ahmad Farooq

Additional Secretary,
Law and Parliamentary Affairs Department,
Government of Punjab,
Lahore, Pakistan

Mr. Fakhari Salama El
NabrisLegal Consultant,
Preventive Security,
Gaza, Palestine

Ms. Luz Del Carmen
Ibanez Carranza

Public Provincial Prosecutor for Criminal Matters,
Public Ministry,
Trujillo, Peru

Mr. Geronimo Cepillo
Datinguinoo

Chief, Local Training Section and Administrative
Officer,
Directorate for Human Resource and Doctrine
Development, National Headquarters,
Philippine National Police,
Quezon City, the Philippines

Mr. Chun Taek Lim

Senior Prosecutor,
Pusan High Public Prosecutors Office,Pusan, Republic of Korea

Mr. Parana
Widaneralalage Daya
Chandrasiri Jayathilake

District Judge and Magistrate, District Court andMagistrates
Court of Horana,
Colombo, Sri Lanka

Mr. Jumpol Pinyosinwat

Judge attached to the Ministry of Justice,
Office of the Judicial Affairs,
Ministry of Justice,
Bangkok, Thailand

Mr. Asan Kasingye

Superintendent of Police,
Senior Superintendent of Community Policing andCrime Prevention,
Uganda Police Headquarters,
Kampala, Uganda

28

APPENDIX
Mr. Afzal Nurmatov

Special Agent of the NCB-Interpol,
Senior Lieutenant,Ministry of Internal Affairs,
Tashkent, Uzbekistan

Japanese Participants
Mr. Masafumi Nishiguchi

Director of Guard and Rescue Department,
6th Regional Maritime Safety Headquarters,
Hiroshima

Mr. Yasuhiro Sanada

Deputy Superintendent,
Shimei Juvenile Training School for Girls,
Hokkaido

Mr. Kazumitsu Suzuki

Director,
General Affairs Division,
Kinki Regional Parole Board,
Osaka

Mr. Makoto Tamura

Judge,
Tokyo District Court,
Tokyo

Mr. Satoru Yoshimatsu

Prosecutor,
Tokyo District Public Prosecutors Office,Tokyo

Mr. Masaaki Yoshiura

Professor,
Research and Training Institute,
Ministry of Justice,Tokyo

THE 115TH INTERNATIONAL TRAINING COURSE
Overseas Participants
Mr. Wayne Albert Moody

Director of Programmes,
Department of Corrections,
Belize City, Belize

Mr. Roy Alexander Murillo
Rodriguez

Judge in Charge of Penal Sentence,
Supreme Court of Justice,
San Jose, Costa Rica

Mr. Sikeli Dau Tamani

Officer in Charge of Medium Security Prison,Fiji Prisons Service,
Suva, Fiji

29

ANNUAL REPORT FOR 2000
Mr. Negi Jagat Bahadur

Inspector General of Prisons,
Manipur Central Jail,
Department of Prisons,
Manipur, India

Mr. Marwan Adli

Head of the Administration of the Cipinang Prison,
Department of Law and Legislation,
Jakarta, Indonesia

Mr. Peterson Kamunyu
MuhoroDirector,
Probation and Aftercare Service,
Nairobi, Kenya

Mr. Zulkifli Bin Omar

Senior Superintendent of Prison,
Alor Setar Prison,
Malaysian Prison Department,
Kedah, Malaysia

Mr. Babu Ram Regmi

Joint Secretary,
Ministry of Law, Justice and Parliamentary Affairs,
Kathmandu, Nepal

Mr. Iftikhar Ahmad Rao

Additional Secretary Home,
Government of the Punjab,
Home Department,
Lahore, Pakistan

Ms. Martina Davila
Jimenez

Director of Womens Penitentiary Center Quenccoro,
National Penitentiary Institute,
Cusco, Peru

Ms. Rebecca Ang
Santamaria

Social Welfare Officer V,
Regional Rehabilitation Center for Youth,
Department of Social Welfare and Development,
Davao City, Philippines

Mr. Gunarathna Kuruppu

Superintendent of Prisons,Welikada Prison,
Colombo Department of Prisons,Colombo, Sri Lanka

Ms. Sivakorn Kuratanavej

Senior Penologist,
Department of Corrections,
Nonthaburi, Thailand

Japanese Participants
Mr. Yoshia Baba

30

Classification Officer,
Tokyo Detention House,
TokyoAPPENDIX
Mr. Masamitsu Fujioka

Probation Officer,
Yamaguchi Probation Office,Yamaguchi

Ms. Hiromi Kobayashi

Chief Supervisor,
Sapporo Prison,
Hokkaido

Mr. Hiroshi Kubo

Public Prosecutor,
Kobe District Public Prosecutors Office,Amagasaki Branch,HyougoMr. Shigeru Nakasato

Family Court Probation Officer,
Sendai Family Court,
MiyagiMs. Noriko Ota

Probation Officer,
Tokyo Probation Office,Tokyo

Mr. Akihiko Sakamoto

Official, Enforcement Division,
Immigration Bureau,
Ministry of Justice,Tokyo

Mr. Takahiro Terasaki

Narcotics Control Officer,
Technical Officer,
Kanto-Shin’etsu Regional Narcotics Control Office,Tokyo

Mr. Naokuni Yano

Assistant Judge,
Tokyo District Court,Tokyo

Mr. Akira Yokoi

Public Prosecutor,
Nagano District Public Prosecutors Office,NaganoTHE 116TH INTERNATIONAL TRAINING COURSE
Overseas Participants
Mr. Ruy Gomes Silva

Officer of Interpol,
Federal Police Agent,
Federal Police Department of Brazil,
Bahia State, Brazil

31

ANNUAL REPORT FOR 2000
Mr. Wang Xue-Qin

Chief of International Cooperation Section,
Division of Administration of Aliens and Exit-Entry
P.S.B,
Yunnan Province, China

Mr. Ramend

Officer in Charge of Advanced Training,
Fiji Police Academy,Suva, Fiji

Mr. Sanjiv Kumar
Upadhyay

Joint Director,
Anti-Corruption Headquarters,
Central Bureau of Investigation,
New Delhi, India

Mr. Genot Hariyanto

Chief of Criminal Investigation Department,
Regional Police of Bengkulu,
Indonesia National Police,
Bengkulu, Indonesia

Mr. Sengsouvanh
Chanthalounnavong

Judge,
Criminal Justice Section Supreme People’s Court,
Vientiane, Laos

Mr. Mustafa Bin Abdullah

Senior Assistant Commissioner of Police,
Northeast Police District Headquarters,
Royal Malaysia Police Force,
Penang, Malaysia

Mr. Donald NgorNgor
AwunahDetective Superintendent of Police,‘D’ Department, Force Criminal Investigation
Department,
Nigeria Police Force,
Abuja, Nigeria

Mr. Zafar Iqbal Gondal

Section Officer,
Law, Justice and Human Rights Division,
Ministry of Justice,
Islamabad, Pakistan

Mr. Hubert Sarake

Senior Magistrate,
Department of Justice,
Bougainville Province, Papua New Guinea

Mr. Ricardo Tiuseco
Pamintuan

Court Attorney,
Supreme Court of the Philippines,
Manila, Philippines

Mr. Iddi Saidi King’wai

Criminal Investigation Department Headquarters,
Tanzania Police Force,
Daressalaam, Tanzania

32

APPENDIX
Mr. Suwit Savaengthong

Senior State Attorney,
Office of the Attorney General,
Bangkok, Thailand

Mr. John Kamya

Officer in Charge of Crime Prevention,
Crime Prevention Office,Uganda Police Force Headquarters,
Kanpala, Uganda

Japanese Participants
Mr. Hiroyoshi Amamoto

Senior Programme Officer,
International Affairs Division,
Osaka Prison,
Osaka

Mr. Toshihiro Fukushi

Assistant Judge,
Tokyo District Court,
Tokyo

Mr. Yoshihiko Hatanaka

Public Prosecutor,
Shizuoka District Public Prosecutors Office,Hamamatsu Branch,
Shizuoka

Ms. Keiko Hoshi

Public Prosecutor,
Criminal Affairs Division,
Urawa District Public Prosecutor’s Office,Saitama

Ms. Mitsuyo Inada

Probation Officer,
Aftercare Section,
Fukuoka Probation Office,Fukuoka

Mr. Shuichi Inoue

Immigration Control Officer,
Enforcement Department,
Fukuoka Regional Immigration Bureau,
Fukuoka

Mr. Satomi Konno

Intelligence Officer,
Tohoku Regional Narcotics Control Office,Miyagi33

ANNUAL REPORT FOR 2000

FIFTH SPECIAL SEMINAR FOR SENIOR CRIMINAL JUSTICEOFFICIALS OF THE PEOPLE’S REPUBLIC OF CHINA
Mr. Fu-Qi Zhang

Judge,
Supreme People’s Court of the People’s Republic of
ChinaMr. Feng Zhou

Judge,
Supreme People’s Court of the People’s Republic of
China

Ms. Qui-Yuan Shen

Judge,
Supreme People’s Court of the People’s Republic of
China

Mr. Jun-Sheng

Director,
Department of Grassroots,
Ministry of Justice of the People’s Republic of China

Ms. Ping Bai

Deputy-Director,
International Division,
Department of Judicial Assistance and Foreign
Affairs,
Ministry of Justice of the People’s Republic of China

Mr. Yong-Liang Xu

Deputy Warden,
Shanghai Bao Shan Prison

Mr. Jin Wang

Deputy-Director General,
Foreign Affairs Bureau,
Supreme People’s Procuratorate of the People’s
Republic of China

Mr. Li-Quan Sun

Director,
Procuratorial Department for Accusation andPetitions,
Supreme People’s Procuratorate of the People’s
Republic of China

Mr. Bao-Ping Zhang

Associate Professor of Law,
The Chinese People’s Armed Police Force Academy

Mr. Jun Yu

Chief of Staff,
Shanghai Municipal Public Security Bureau

34

APPENDIXFIRST SPECIAL SEMINAR FOR KENYAN OFFICIALS ON
JUVENILE DELINQUENT TREATMENT SYSTEMS
Mr. Thomas Otieno Naam

Officer in Charge,
Nakuru Juvenile Remand Home,
Nakuru, Kenya

Ms. Elizabeth Nyambura
Wainaina

Senior Housemistress,
Getathuru Approved School,
Nairobi, Kenya

Mr. Patrick Wakhungu
Nakasana

Headteacher,
Kabete Approved School,
Nairobi, Kenya

Ms. Catherine Wanjiru
MainaChildren’s Officer,
Nyeri District Children’s Office,Nyeri, Kenya

Mr. Anthony Lundi
Mngolia

Children’s Officer,
Headquarters,
Nairobi, Kenya

Ms. Ruth Kanaiza OtworiChildren’s Officer,
Dagoretti District Children’s Office,Dagoretti, Kenya

Ms. Imbayi GenvieveChildren’s Officer,
Kakamega Approved School,
Kakamega, Kenya

Mr. Julius A. Morumbi
Ngoko

Children’s Officer,
Kericho Approved School,
Kericho, Kenya

Mr. Charles Okeyo Ogolla

Member,District Children’s Advisory Committee,
Kisumu, Kenya

35

ANNUAL REPORT FOR 2000

THIRD SPECIAL TRAINING COURSE ON
CORRUPTION CONTROL
Overseas Participants
Mr. Linbert Llewelyn
WillisProsecuting Counsel,
Director of Public Prosecutions of Belize Office,
BelizeMr. Thai Chanrith

Deputy General Director of Inspection,
Ministry of National Assembly Senate Relations andInspection,
Cambodia

Mr. Li Yong

Deputy Division Chief,
Policing Supervision Department,
Ministry of Public Security,
Peoples’ Republic of China

Mr. Bachtiar Robin
Pangaribuan

State Prosecutor,
Attorney General’s Office,Indonesia

Ms. Shikuku Agnes Nafula

Acting Principal State Counsel,
Public Prosecutions Department,
Attorney Generals’ Chambers,
Kenya

Mr. Nurlan Isaev

Special Agent,
Central Department of Struggle against Organized
Crime,
Ministry of Interior,
KyrgyzMs. Nur Aini Zulkiflee

Senior Federal Counsel,
Anti-Corruption Agency of Malaysia,
Malaysia

Mr. Eruult Sagsai

Chief Prosecutor,
Capital City Prosecutor’s Office,Ministry of Justice,
Mongolia

Mr. Abdalkarim K. S.
AlshamiLegal Adviser,
Ministry of Justice,
Palestine

36

APPENDIX
Mr. Jorge Enrique Bogarin
Gonzalez

Judge,
Supreme Court of Justice,Paraguay

Mr. Chavez Riva
Castaneda Pedro Abraham

Vice-Supreme Prosecutor,
General Prosecutor’s Office,Peru

Mr. Potjawin Sitsanguan

Judge,
Criminal Court of Southern Bangkok,
Thailand

Mr. Kalekyezi Edmund
Paul

Principal Legal Officer,
Inspectorate of Government,
UgandaJapanese Participants
Mr. Tatsuya Kaneko

Public Prosecutor,
Yokohama District Public Prosecutors Office,Sagamihara Branch Office,Kanagawa

Mr. Masanori Ogushi

Public Prosecutor,
Niigata District Public Prosecutors Office,Niigata

Mr. Masato Tesaki

Judge,
Nagoya High Court,
Aichi

37

ANNUAL REPORT FOR 2000

Distribution of Participants by Professional Backgrounds andCountries(1st International Training Course - 119th International Training Course, U. N.
Human Rights Courses and 1 Special Course)
Professional
Background

Country

Judicial
and
Other
Administration

Correc- CorrecProbaPublictionaltionalPolicetion
ProsecuOffiOffiOfficials
Paroletors
cials(Ad cials(JucOfficers
ult)
enile)

Judeg

1

Afghanistan

7

8

2

Bangladesh

20

11

3

Bhutan4

Brunei45Myanmar

3

6

China

12

7

Hong Kong

14

8

India

13

5

Child
WelfareOfficers

TrainSocial
ing&Res
Welfareearch
Officers
Officers

Others

3
11

4

5

2

3

6

2
5

10

58
3

2
3

Total

23
5

5

10

7

11

24

3

9

3

1

7

1

1

2

6

3

93

3

6

1

103

2

1

41

9

Indonesia

20

20

19

20

14

Iran

5

11

8

8

6

11

Iraq

5

3

3

5

5

12

Jordan13

Cambodia

14

Oman

15

Korea

16

Kyrgyz

1

17

Laos

18

Malaysia

19

Maldives

20

Mongolia

1

21

Nepal

27

13

8

31

22

Pakistan

18

10

2

28

23

Palestine

1

24

Philippines

17

25

Saudi Arabia

426

Singapore27

Sri Lanka

1

37

50

10

5

66

2

28

4

4

1

2

1

5

1

12

3

53

6

10

1

2

5

5

4

10

24

19

2

3

42

3

3
19

31

4

8

3

3

1

5

100

3

117

1

1
1

2
8

21

33
6

3

10

18

5

12

21

20

12

20

8

3

9

10

3

10

18

1

11

8

10

Taiwan

12

4

2

2

1

29

Thailand

21

30

37

14

14

30

Turkey

2

1

1

2

31

United ArabEmirates

1

32

Uzbekistan

33

Vietnam

10

5

2

7

ASIA

286

188

192

351

3

2

Algeria2

Botswana

1

3

Cameroon

3

4

Cote d’Ivoire

5

Egypt

81

2

1

72

3

5

118

1

1

15

1

1

73

1

107

1

148

3
3

1

6
3

1

2

21
1

8

4
1

7
1

176

37

63

4

4

4

1

44

37

1

1

20

1402

29
5

2

3
3

1
1

2

2
1

9

1

1

1

28

38

FamilyCourt
Incestigation
Officers

1
1

2
2

1

5

APPENDIX
Professional
Background

Country

Judicial
and
Other
Administration

Correc- CorrecProbaPublictionaltionalPolicetion
ProsecuOffiOffiOfficials
Paroletors
cials(Ad cials(JucOfficers
ult)
enile)

Judeg

6

Ethiopia

7

Gambia

3

8

Ghana

9

Guinea

10

Kenya

11

Lesotho12

Liberia13

Madagascar

14

Mauritius

15

Morocco16

Mozambique

1

1

1

17

Nigeria

1

5

5

18

South Africa

2

1

19

Seychelles

3

20

Sudan

21

Swaziland

22

TanzaniaChild
WelfareOfficers

TrainSocial
ing&Res
Welfareearch
Officers
Officers

Others

1

1
6

3
4

1

2

1

11

2
1

5
3

7

6

1

2

37

2

3
1

1

1

1

1

1
1

2

4

1

13

4

4

5
3
1

Zambia24

Uganda25

Zimbabwe

1

AFRICA

24

3
1

4

2

19

4

1

2
1

16

6

7

5

1

Australia

2

Vanuatu

3

Fiji

4

Kiribati

1

5 Marshall Island

1

1

6

3

156

2
13

10

72

3
17

0

1

9

0

0

1

0

8

1

3

1

51

1
6

6

Micronesia

7

Nauru

8

New Zealand

1

9Papua New
Guinea

10

1

9

20

1
14

1
3

4
1

10 Solomon Islands

3

11

2

1

4

1

1

1

1

2

11

9

3

1

2

2
1

12 Western Samoa

1

THE PACIFIC

25

3

1

Argentina

22

2

Barbados

6

1

1
14

46

1
25

0

6

0

0

3

1

12
1

4

3

126

2

3

Belize4

Bolivia1

5Brazil

2

6

Chile

1

6

7

Colombia

3

1

2

8

Costa Rica

3

4

4

9

Ecuador10

El Salvador

11

Grenada12

Guatemala13

Honduras

14

Jamaica

1

2

1

2

1

1
3

14
2

1

41
5

2

1

1

1

5

3

1
1

4

2
21

2

1

1

1

11

2

14
6
1

1

1
1

1
3

12

1
1

2
4

Total

4

2

23

Tonga

FamilyCourt
Incestigation
Officers

3

1
4

1

4

39

ANNUAL REPORT FOR 2000
Professional
Background

Country

Judicial
and
Other
Administration

15

Mexico16

Nicaragua

17

Panama18

Paraguay

19

Peru

4

20

Saint Lucia

1

21

Saint Vincent

22

Trinidad andTobago123Venezuela

1

Correc- CorrecProbaPublictionaltionalPolicetion
ProsecuOffiOffiOfficials
Paroletors
cials(Ad cials(JucOfficers
ult)
enile)

Judeg

Others

1
1

2
9

10

4

2

1

4

2

24

1

10

1

1

1

2

1

1
1

1

2

8

1

11

1
24

Total

1

19

17

53

1

Bulgaria
Hungary

1

3

Macedonia

1

4

Poland15Lithuania

1

40

TrainSocial
ing&Res
Welfareearch
Officers
Officers

1

2

1

Child
WelfareOfficers

1

24 U.S.A(Hawaii)
NORTH &SOUTH
AMERICA

FamilyCourt
Incestigation
Officers

7

2

1

1

1
2

1

3

7

1

137
1
1
1

3

1
1

EUROPE

2

0

0

0

0

0

0

0

0

0

0

5

JAPAN

103

138

226

87

71

72

170

57

38

2

48

58

1070

TOTAL

464

361

459

612

306

111

249

62

44

50

97

91

2906

PART TWORESOURCE MATERIAL SERIES
No. 59Work Product of the 118th International Training Course“BEST PRACTICES IN THE INSTITUTIONAL AND COMMUNITY-BASEDTREATMENT OF JUVENILE OFFENDERS”

UNAFEIVISITING EXPERTS’ PAPERSCOGNITIVE BEHAVIOURAL TREATMENT FOR
YOUNG OFFENDERS
Alan W. Leschied, Ph.D. C. Psych.*
I. RATIONALE FOR APPLYINGCOGNITIVE BEHAVIOURALINTERVENTIONS WITH YOUNG
OFFENDERS
M ore than any other intervention,
Cognitive Behavioural Treatment has
garnered the greatest amount ofattention in relation to eff ective
correctional treatm ent. In North
America, CBT has become the single mostidentifiable treatment component in bothyouth and adult correctional
intervention. This chapter situates CBT
w ithin the larger sphere of effective
correctional practice, emphasizing therole of assessment, case formulation andplanning as well as its relation to othersystemic interventions. Specific aspects ofsocial learning theory as they relate to
CBT are presented along with specificexamples of CBT interventions.
A. General Orientation to CBT
Cognitive behavioural treatment (CBT)
is a phrase describing interventions thatconnect responses of a n individual’s
behaviour to the process and content of
their thinking. CBT as a generalapproach to describing psychologicalintervention became popular during theearly part of the 1970’s. With leading
researchers
suchasDonaldMeichenbaum and Michael Mahoney,p r o gr e s s in e f f e c ti ve p s yc h o l o gi c a lintervention capitalized on developmentsfrombehaviouralpsychology,
psychodynamically-oriented treatment* Professor, Faculty of Education, University ofWestern Ontario, London Ontario, CANADA

and cognitive science. The results of thisconfluence of understanding have led to,what has been called, the “fourth pillar”
of under standing in psy chologic altreatment—behavioural, person-centred
and psychodynamic, being the other threeorientations.
With respect to intervention, CBT has
been used in many applications,e xt en d in g f r o m p s yc ho s o m a t ic a lly oriented illnesses—hypertension - toemotionally based concerns - anxiety anddepression - to interpersonal development- assertiveness training. Many outcome
studies have reported the success of CBTcompared with competing interventionsof bo th a p sycho lo gica l a nd m edica lnature. While m ost of the a cad em ic
journals in clinical psychology publish
routinely on the benefits of CBT,
Cognitive Therapies is a journal dedicatede x p r e s s l y t o r e p o r ti n g p r o g r e s s indeveloping effective cognitively based
interventions.
B. Relevance to Child and Youth
Populations
CBT has shown itself to be effective
through interventions targeting youth. In
contrast to the general CBT literature,
CBT interventions with young people
need to be developmentally appropriate
given the context of the stage at whichchildren are able to show flexibility inconcept formation and ability togeneralize from one set of circumstances
to another. The balance of this chapter
will focus on interventions with young
offendersthat
co ntributetounderstanding the role that CBT plays in

43

RESOURCE MATERIAL SERIES No. 59
effective correctional treatment. It will
include a review of; the major predictorsof risk, general assessment with youthful
offenders, measurement issues in thea ss e s sm e n t o f re le v a n t co gn it io ns ,ge ner al trea tm ent issue s re garding
effective correctional intervention withyouth, principles of CBT w ith young
offenders and examples of specific CBT
programmes for young offenders
1. The Major Predictors of Risk.
Andrews, Leschied and Hoge (1992)
provided an extensive summary of thecross-sectional and longitudinal
literature related to anti-social outcomesin youth. In their review, the principle

factors that accounted for prediction
included; early behavioral history, peer
associates, early a nd current family
conditions, interpersonal relationships,
personal attitudes/values/beliefs andschool-based risk factors. The group off a c t o rs su m m a r iz e d in th a t re vie w
contributed to the body of w ork that
Andrews and Bonta (1998) later referred
to as the Psychology of Criminal Conduct;a generalized term for criminogenic riskf a c to rs th a t r e fl e ct a p syc h o- s o ci a lunderstanding of the nature of criminal
conduct in general as well as pertaining
to youth in particular. The complete list
and descriptors are found in Table 1.

Table 1
Summary of Major Risk Factors for Adolescents(excerpted from Andrews, Leschied and Hoge, 1992)
FactorDescriptors

Behaviour

early generalized misconduct, aggression, a tasteof early behavioral history or risk, problem-solving
ability, egocentric.

Peer Associates

association with anti-social others, isolation frompro-social others.

Interpersonal Relationships

indifference to the opinions of others, weak affective ties.

Family Conditions

low levels of family affection/cohesiveness, low levels of supervision, inconsistent discipline

School-based risk factors

below average effort,

Attitudes, Values andBeliefs

high tolerance for deviance, rejection of the validity of the law, applies rationalizations for law violations, thinking style and content are anti-social.

Assessment of general criminogenic
risk is an important and critical first stepin understanding the nature and context
of individual youthful offenders. While
several measures of general risk havebeen developed, the Risk/Need Inventory(Hoge, Andrews and Leschied, 1995) andthe Youth Level of Service Inventory(Hoge and Andrews, 1994) are
instruments enjoying the widest use in
44

Canada. Beyond the use of a generalm e a s u re o f r i s k , p r a c t i ti o n e r s a n dadministrators may want to know moredetail about specific issues regarding
offenders and their offences—including
sp ecific a ttitudes—in order to m ake
clinical/management decisions.
Knowledge of the general literature ofrisk is critical in the development of

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
broad-based strategies to assess
criminogenic potential in adolescents.
Following from the risk principle of caseclassification (See Andrews, Bonta &Hoge, 1990 for a more complete review of
the risk-based concept of classification),knowledge and measurement of risk can
assist in case planning and selection of
appropria te targets for service to b eeffective. Hoge and Andrews (1998) makethe po int that f o r ass essm e nt to beeffective for case planning with youngo f f e nd e rs , th e a ss e ss o r m u st m a k e
m e a n i n gf u l a ss um p t i o n s a b o u t t h egeneral level of risk to guide the intensityof intervention, and specific statements ofareas of risk to provide relevance in caseplanning and targeting for appropriate
treatment to take place. Knowledge withrespect to the major predictors of youth atrisk have led to the means by w hichassessment strategies can reflect thedegree and nature of risk that a
particular youth may be presenting.
C. Measures of General Risk
1. The Risk/Need Inventory
While several general measures of risk
with young offenders exist, in order tomeet the requirements of accuracy andfunctionality, Andrews et. al. developedth e R isk /N e e d I nve n to ry f o r u se in
Ontario to classify young offenders age
12-15 years. This assess ment an dclassification system includes a summaryof items based on the major risk factors.
Each item is weighted and scored using a
0 , 1 system b ased on file review s orinterviews with the youth or key
informant(s). Totals are then taken tor e f l e c t a n o v e r - a l l r is k s c o r e w i t hsummaries also provided for each risk
category. Informed individuals can override the total score and categorization incertain cases. Planning with respect tothe extent of supervision and specific caseplanning decisions related to targets forin te r v e n tio n c a n b e d e te rm in e d byinformation in each category. The R/NInventory has been evaluated in several
studies re la ted to pred iction ( Hoge,
Andrews & Leschied, 1996; Simourd,
Hoge, Andrews & Leschied, 1994).
2. The Youth Level of Service Inventory.
An analogous system of classification,referred to as the The Youth Level ofService Inventory is also available thatprovides summaries and classifications
for individual offenders. The YLSI is usedwith older adolescents age 17-18.
D. Some Promising Assessment
Measures for Specific Purposes
There are a variety of measures in usethat are relevant to the question(s) beinga s k e d o f t h e a s s e s s o r . P e r s o n a l i ty
assessm ent co ntinue s to be actively
pursued in relating adjustment patterns
to an individual youth’s programme need.
The B asic Personality Inventory(Jackson, 1989; Austin, Jaffe, Leschied,S m i le y a n d S a s , 1 9 8 8 ) p r o v id e s a n
assessment of youth related to factors ofdepression, psychiatric stability,interpersonal maturity and socialization.
T he M il lo n A d o le s ce n t P e rs o n a l ity
Inventory is another m easure inwidespread use. Similar to the BPI, the
MAPI provides useful information abouta w id e ra nge o f co nce rns re la te d toemotional, cognitive and behaviouraladju stm en t. Simi larly, the Ch ild/
Adolescent Behavior Checklists
developed by Thomas Achenbach and hiscolleagues are useful since theirassessment contents relate scales thatare m eaningful to overall youth
adjustment. The CBCL has forms thatcan be completed by the youth, theirparents as well as teacher rating forms.
Lastly, assessment of psychopathy withyoung offenders, while not attracting thesame degree of interest that is currently
displayed in the adult literature, has still45

RESOURCE MATERIAL SERIES No. 59
generated some interest (Hare, 1991;
S imourd et .a l., 19 94 ). The Hare
Psychopathy Checklist, is the standard
m ea s ure i n t hi s a rea . O f a dd itio nal
i nt e r e st is t he u s e o f m e a s u re s f o r
investigating anxiety — the State/Trait
Anxiety Inventory (STAXI); nature off am ily ad justm ent in the use of theF a m ily A dj ustm e nt M e a sure or th e
FACES; and offense-specific measures
such as in the use of assessment withadolescent male sex offenders, The Abeland Baker Sexual Interest Card Sort andCognitions Scale.
Lastly, the choice to be made of theappropriateness of an assessment battery
w ill be dictated by the nature of thedecisions to be made. There are many
points along the continuum of juvenile
justice processing that may/will require
input relevant to the needs of both theyouth and of the justice system. These
decisions may include the decision to finda youth: not fit to stand trial, to query the
youth’s understanding of the nature of
the proceedings or to consider a youth fortransfer to ordinary court.
E. Specific Measurement Issues in
the Assessment of Cognitions
General measure s of risk andpersonality will be helpful in the overallcase planning and formulation of youth
Howeve r in leading to sp ecificprogramme formulations for cognitive
intervention, there is further necessity to
specify the style and content of thinking
that a particular youth may present. Thef o l lo w ing tw o e xa m p le s o f a tti tu d einventories are commonly used to assess
thinking styles and content.
F. Criminal Sentiments Scale
Assessors will want to address generalissues of thinking style and content thatis consistent with a pro or antisocial
orientation. The d evelopment of the46

Criminal Sentiments Scale (Simourd,1997) is a good example of such ameasure that relates attitudes to issues
relevant to youth who may be involved
with the criminal justice system.
G. Beliefs and Attitude Scale
The beliefs and attitudes scale wasdeveloped by Butler and Leschied. Whiles im il a r to th e C S S , t h e B A S h a s avocabulary geared to youth withquestions that are pertinent to issues
that relate to the major attitude
predicators of risk including tolerance
toward law violation, attitudes towardauthority and help seeking behaviour.
II. GENERAL TREATMENT ISSUESREGARDING EFFECTIVE
CORRECTIONAL INTERVENTION
WITH YOUNG OFFENDERS
Decisions with respect to CBT will bemade in the general context ofappropriate correctional interventions
that may include a comm unity or
residential context, family or individualintervention. The following se ctions
summarize the general context in which
CBT may be offered.
A. Overview of the Treatment
Literature
Similar to the assessment literature,
increasing knowledge with respect toyoung offender management andtreatment has also been witnessed overthe past decade. Progress in this area has
capitalized not only on the specific effectsof young offender programmes, but fromthe general knowledge base regardingchild and adolescent intervention. Kazdin
and Weisz (1998) recently noted in theirre view of child and ado lescentinterventions, that expressions such as
knowle dge-based , data-driv en an dempirically- supported now routinely
appear in selections made regarding

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
trea tm ent options for sp ecific clie nt
g r o up s. K no w le d ge w it h r e s p e c t t o
successful progra mm es for co nductdisordered and anti-social youth has
progressed not only in the description of
successful components of intervention (i.e.
cognitive-behavioral) but also in themethod of service delivery (custody versus
community). Meta-analysis is the term
used to report quantitative summaries ofthe literature. It represents a significant
advancement over earlier qualitative
reviews (Wells,1 991 ). M eta-a na lysis
s ta tis ti ca lly c o m p ar e s th e ty p e s o ftreatments that are offered, to whom they
are directed and with what outcomes. The
meaningfulness of meta-analysis is only
limited by the number and quality of thestudies that are included in the review.
F o r t un a te l y, a d e q ua te q u a l it y a n dquantity of studies now exist to makeinterpretations of the tre atm ent
literature in youth justice withconfidence, although Losel (1997) has
offered up some reservations with respect
to limiting the generalizeability of suchfindings. The limitations along with the
major outcomes will be summarized in
the following section.
1. Major Findings from the Metaanalysis
M ark Li psey’s reporti ng of tw oseparate analyses (Lipsey, 1992; Lipsey &Wilson, 1997) suggested that the overall
e f f e c t s i z e l in k i n g t r e a t m e n t w i t h
reductions in re-offending lie between 2040 per cent as contrasted with notreatment comparison groups, and only
slightly less when compared to groups
receiving some type of ‘usual service’. As
stated in the Andrews, Leschied and
Hoge (1992) review, “Thanks to the metaanalyses, the evidence favouring
treatment services is now undeniable.”(p.148) Stronger effect sizes were found inth e L ip se y s tud ie s in th e f o llo w ing
va ria b les; higher risk ca ses, longe r

duration of treatment and behavioraloriented multimodal treatment with astronger emphasis on ‘sociological’ thanpsych ologica l o rientation of se rvice
delivery.
E f f e c t s i z e s a c c o u n ti n g f o r t o t a lprogramm e outcome across bothins titu tio n a l an d no n- i nst itu tio na lprogrammes suggested that the threefactors comprising the highest ranking
wer e; inter pe rson al skills training,
individual counselling and behavioral
programmes. The second grouping oflesser, yet significant contribution were
the two programme factors consisting ofmultimodal services and restitution foryouths on probation.
2. Institutional Versus NonInstitutional Placement for
Treatment
Lipsey and Wilson’s (1997) subsequentr e v ie w d is t in g u is h e d p l a c e m e n t o ftreatment, residential versus community,
in diff ere ntiating characteristics ofeffective programmes. This is a criticaldifferentiation since much of the debate
regarding effective youth justice policies
centres on the importance ofincarceration as a relevant factor incommunity safety. Lipsey and Wilson
noted in their analysis that different
co nt rib utio n s a r e m a d e f o r va rio u scomponents of service as a function of theplacement for treatment. Table 2
summarizes factors relevant for effective
programmes in institutional and noninstitutional placements.

47

RESOURCE MATERIAL SERIES No. 59
Table 2
Programme Factors Contributing to
Effectiveness for Institutionalized
and Non-Institutionalized Young
OffendersInstitutional-Based Components
Interpersonal Skills
Teaching Family Model
Multiple Services
Behavioural Programmes
Individual/Group Programmes
Non-Institutional-BasedComponents
Interpersonal Skills
Individual/Group Programmes
Multiple Services
Restitution/Probation
Employment/Academic Programmes
III. GENERAL TREATMENT
APPROACHESTh e m e ta- a na lyse s hav e d ir ec te dattention to the importance ofinterventions that look at the multidetermined nature of youthful chronic
offending. Two general principles apply.
T h e f i r s t is t h a t m u c h o f y o u t h f u loffending is accounted for by the context
in which the youth experiences systems ofinfluence, the primary ones being family,
p eers and schoo l ( Hengge ler, 1 9 89 ).
Systemically-based interventions havetherefore taken on new meaning as theprediction literatu re contin ues toreinforce the importance of seeing youths
in context and treating them in theirn a t u r a l e n v ir o nm e n t s . T h e s e c o n dprinciple, again taken from the metaanalysis on prediction, reinforces theimportance of cognitions as appropriate
ta rge ts fo r interve ntion. Co gnitive behaviourally oriented interventions
h a v e s ho w n t h e m se l ve s to b e m o r e
eff ective
thantraditional
psychotherapeuticormedical48

in t e r v e n t i o n s ( G e n d r e a u, 1 9 9 8 ) . A
number of cognitive-behaviouralinterventions sensitive to client need andthe nature o f of f ending h av e be e ndeve loped. These two themes ofintervention will be discussed along withpromising approaches with youths of
pa r ticula r co nce rn, th ose b e ing se x
offender, substance abusing and violent
youths.
A. Systemically-oriented
Interventions
Both of the meta-analyses reported byAndrews (1998) and Lipsey and Wilson,(1997) suggested that effect sizes linked
to more effective outcomes werecharacteristic of programmes delivered in
the community as contrasted to thosedelivered in residence. Heneggeler (1989)
suggests in part this is accounted for by
the type and qua lity of intera ctions
adolescents experience with the social
influences that surround them. To beeffective, programmes need to be in aposition to influence those social factorsthat may in turn be interacting with aparticular youth’s competencies (e.g.
p r o b l e m - s o l vi ng s k il ls , b e li e f s a n d
attitudes). Hence, particular attention is
now being paid to interventions that
influence the systems that are consistent
with the major predictors of delinquency
risk, namely, families, peers and schools.
This section will focus on multi-systemic
therapy, an intervention withconsiderable empirical support in
reducing reoffending rates with high risk
youth.
Scott Henggeler and his colleagues at
the Family Services Research Centre at
the Medical University of South Carolina
can be credited with developing what isbeing consistently identified as one of themore promising approaches to effective
service with high risk youth. Multisystemic Therapy (MST) refers to the118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
consistent application of principles thatr ef le ct w h a t is k no w n in t he y ou ng
offender literature. While some reviewers
may suggest that MST does not represent‘anything new under the sun’, it is in themethod of service delivery that MST has
shown itself to be effective with high risk
youth. Leschied and Cuningham (1999)
summarize MST as “... a home-based,family-based,
present-oriented
therapeutic intervention using family
strengths to attenuate risk factors andimprove family relations, peer relations
and school influence”. Consistent withthe risk principle of case classification,
MST attempts to influence the major
criminogenic risk factors through theapplication of appropriate strategies in a
multi-determined, multi-modal fashion.

Behavior in Children and Adolescents by
Henggeler and his colleagues (1998).
While MST reflects interventions thathave shown themselves to be effective, it
is in the method of service delivery withina specified set of principles that MST
distinguishes itself. The nine principles
against which MST adherence ismeasured consist of the following:•••
In addition to reflecting the knowledgebase in the offender literature, MST has
been evaluated with a series ofrandomiz ed clinical tria ls tha t haveincluded appropriate follow-up periods.
Cost-savings and service utilization rates
have also served as part of the evaluation
process. In one randomized evaluation
study, Borduin, Mann, Cone, Henggeler,
F u c c i , B l a s k e a n d W i ll ia m s ( 1 9 9 5 )reported after a four year follow-up, MST
completers reflected a 22% recidivism
rate, compared to the MST nonc om p l et e rs w h o de m o nst ra t e d 4 7 % ,completers from individual counselling
reported a 71% and treatment refusers
re porte d an 88% r eo ffending r ate .
Recently the State of Washington’s (1998)
review of y ou n g offen der s ervi ces
suggested that MST was not only more
effective in reducing reoffending rates,
but also distinguished itself in being most
cost effective when compared to otherinterventions which included boot camps
and generalized prevention strategies. An
overall review of the MST approach canb e f o u nd in th e r e c e nt ly p u bl is he d
M ul tisystemic Therapy of A ntiso cia l

•
•

•
•
•

•

The primary purpose of assessment is
to understand the “fit” between theidentified problems and their broader
context.
Therapeutic
contacts
shouldemphasize the positive and should
use systemic strengths as levers forchange.
Interventions should be designed topromote responsible behaviours anddecrease irresponsible behaviour
among family members.
Interventions should be presentfocused and action-oriented, targeting
specific and well-defined problems.
Interventions should target sequencesof b eha viou rs w ithin o r b etw e enmultiple systems that maintain theidentified problems.
Interventions
shouldbedevelopmentally appropriate and fit
the developmental needs of the youth.
Interventions should be designed tore quire da ily or w ee kly ef fort byfamily members.
Intervention efficacy is evaluatedcontinuously
frommultipleperspectives with providers assuming
accountability for overcoming barriers
to successful outcomes.
Interventions should be designed topromote treatment generalizations
and long-term maintenance oftherapeutic change by empowering
care givers to address familym em b er s’ ne e d s acr o ss m ul tip lesystemic contexts.

49

RESOURCE MATERIAL SERIES No. 59
B. Cognitive-BehaviouralInterventions
C o gn itiv e- b eh a v io ur a l tr ea tm e nt
(CBT) with young offenders has received
c onsid erable attention . T his ca n be
attributed to at least three influences:•••

the general literature regarding
effective interventions with children
and adolescents has been supportiveof CBT;risk factors regarding attitudes,
beliefs and values have sho wn
themselves to be particularly strongly
related to anti-social behaviour, andrecent meta-analyses have shown
CBT to be the treatment of choice
related to ef fectiveness over a nd
above the traditional influences ofpsychodynam ic, medical andbehavioural interventions.

C B T r e f e rs to in te r v e nt io n s th atconnect thoughts to behaviour. Hollin(19 90) describes it this way; “... The
cognitive-behavioural
position
acknowledges the impo rtance ofenvironmental influences while seeking
to incorporate the role of cognitions inunderstanding behaviour. Cognitions aregive n a m ed ia t io n rol e b e t w ee n t heoutside world an d overt behavior;cognitions are seen as determining whatenvironmental influences are attended to,
how they are perceived, and whether theymight affect future behavior”.
Interest in CBT has been based not
o n ly o n d i sa p p o i nt in g r e su lts f r o m
medically-based interventions (lack ofem pirical supp ort generally) andbehaviourally-based interventions (lackof support for sustainable gains andgeneralization) but as well on the general
theoretical assumptions about the socialp s yc ho l og i ca l u nd e rsta n d ing o f th e
etiological research on the development ofdelinquency. This body of theoretical

50

work suggests that the interaction of theindividual with systems that can
influe nce a ttitude s a nd su b seq ue nt
behaviour may improve the explanatory
value of the studies on prediction andassessment. Hence, the importance ofunderstanding how children/adolescents
mediate their experience may not only
assist in explaining the behaviour, but
may also contribute meaningfully in how
to alter behavioura l outcom es. Suchoutcomes can encourage youths to shift
their thinking away from attitudes that
support antisocial behaviour and towards
the development of thinking styles andco ntent that promote pro-social
behaviour. Finch, Nelson and Ott (1993)
su gg e s t th a t th e ge n e r a l e x p a n d e dinfluence of CBT in the child/adolescent
literature can be attributed to factors
such as:••••Increasing evidence that thoughtprocesses influence behaviour.
Traditional
stimulus-response
explanations cannot account for all
outcomesThought processes can account for
behavioural change
Operant
approaches
have
notprovided convincing evidence that S-R
theories
canaccountforgeneralization and maintenance.

Andrews et.al. discuss the important
aspect of clinical relevance in decision making when im portant casemanagement decisions arise. Clinically
relevant decisions can be considered as
those that link the decision to correctlyprioritize or target certain behaviours/
systems for change with the particularrisk profile of the individual. Given theimportance placed on attitudes from theprediction literature with young
offenders, targeting cognitions makes
considerable sense as an important focus
for service providers.

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Not only has CBT made inroads in the
promotion of effective intervention withc hildr en /ad ole sce nts ge ne ra lly, but
numerous programmes now exist to train
workers in the youth corrections field in
both residential and community contexts.
Exam ples include: the Choices
P ro gra m m e d eve lo pe d by E lizabe th
Fabiano and Robert Ross that targets
general offending patterns: Aggression
R epla ce ment Tra ining develop ed b y
A rno ld Go ldstein (G o ld stein, Glick ,Reiner, Zimmerman and Coultry, 1987)
that combines psychoeducational
intervention, skill streaming and moral
education to reduce aggression in highrisk youth; and sex offender treatment
controlling inappropriate arousal throughcognitive restructuring, a programmesummarized in the work of Ryan and
La ne (1 99 1 ). C BT int ervent i ons a retypically delivered as part of an overall
strategy that frequently also includes
systems involvement through family
therapy and can be delivered either while
a you th is in the community or in
residential care.
1. Specific Concepts in CBT1
The specific aspects of CBT include aknowledge of various concepts generally
attributed to social learning theory (SLT).
The following section provides definitionsof the most relevant concepts of SLT that
relate to CBT. Following this outline,
specific examples of CBT in relation toyoung offender intervention are offered.

(i)

Fundamentals of Social Learning
TheorySocial learning theory, a theoreticalunderstanding of behaviour
popularize d thro ugh re sea rch byAlbert Bandura in the late 1950’s andearly 1960’s is a way to describe themeans by which individuals developb eh a vio ur a s a f u nc t i o n of t he irinteraction with the social influencesthat they encounter. As a result,attitud es a re consid ered lea rned
behaviours much the same way as
behaviours are considered the productof t he r e p e a te d e xp er ie n ce w ith
reinforces. In this context SLT
considers attitudes to be:•

relatively consistent ways of reacting
to a variety of contexts
the product of experience withsocializing agents (e.g. parents, peers)•(ii) Inter-relatedness of Thoughts,
Feelings And Behaviour
Not only are cognitions andbehaviours assumed to be related orli nk ed i n a m ea ni ngf ul w a y, bu t
feelings can also mediate thebidirectional effect of thoughts andbehaviour. This assumption includes:
•
•
•

1

This section is based largely on the work
completed by the author and Dr. Linda Baker ofth e C e nt r e f o r R e s e ar c h fo r Ch i l dr e n a nd
Families in the Justice System of the Family
Court Clinic. The financial support of the Ontario
Ministry of Community and Social Services isonce again gratefully acknowledged.

An increased awareness of the link
between thoughts, cognitions andbehaviour
Rewards for linking attitudes withbehaviours that are pro-social
The increasing ability to linkthoughts/attitudes and behaviour

Specific examples of applying CBTprinciples in programme development
include, social skills training, reduced
aggression and programmes targeting
sexually assaultive adolescents.
Programmes have also been found to beeffective both within the community as
well as in residential settings.

51

RESOURCE MATERIAL SERIES No. 59
REFERENCES
Andrews, D.A. & Bonta, J. (1998) The
psychology of criminal conduct. Second
Edition. Andersen Publishing,
Cincinnati, OH.
Andrews, D.A., Bonta, J. & Hoge, R.D.
( 1 9 9 0 ) . C la s si f i c a ti o n f o r e f f e c ti v erehabilitation: Rediscovering psychology,
Criminal Justice and Behavior, 17, 19-52.
Andrews, D.A., Leschied, A.W. & Hoge,
R.D. (1992). Rev iew of th e profile,classification and treatment literature
with young o ffenders: A soci alp sycholo gi cal app roach. M inistry o fCommunity and Social Services. Toronto,
ON.
Austin, G.A., Jaffe, P.G., Leschied, A.W.,
S m i l e y, C . & S a s , L . ( 1 9 8 6 ). F a cto r
structure and construct validity of the
Basic Personality Inventory with young
offenders. Canadian Jo urnal of
Behavioural Science, 18, 238-247.
Andrews, D.A. Effective community-based
treatment for offenders. Beyond prisonsconference. (1998). Proceedings. Queen’s
University and Correctional Services
Canada, Kingston, Ontario.
Borduin, C.M., Mann, B.J., Cone, L.T.,
Henggeler, S.W., Fucci, B.R., Blaske,
D.M. and William s, R.A. (1995).
M u ltis ystem ic tre a tme nt of ser io us
juvenile offenders: Long term preventionof criminality and violence. Journal of
C onsulting and C linical Psychology,
1995, 623, 569-578.
Finch, A.J., Nelson, W.M. & Ott, E.S.
( e d s. ) ( 1 9 9 3 ) . C o gn i t i v e - b e h a v i o r a l
procedures with children and adolescents:
A p ractica l guide. A llyn and Ba con.
Boston, MA.

52

Gendreau, P. (1998). Rational policies forreforming offenders. Presentation to theInternational Community Corrections
Association, Arlington, VA.
Hare, R. D. (1991). The Hare Psychopathy
Checklist. MultiHealth Systems, Toronto,
ON.
Henggeler, S.W. (1989). Delinquency inadolescence. Sage Press, Newbury Park,CA.
Heng g e le r, S .W ., S cho enw a ld , S .K .,Bourduin, C.M ., Row la nd, M.D . andCunningham, P.B.(1998). Multisystemict re a tm en t o f a n ti s o ci a l b e h a vi o r i nchildren and adolescents. The Guildford
Press, New York, NY.
Hoge, R.D. & A nd re ws, D.A. (1 99 6).
Assessing the youthful offender: Issues
and technique. Plenum Press: New York,NY.
Hoge, R.D., Andrews, D.A. & Leschied,
A.W. (1995). An investigation of factors
associated with probation and custody
dispositions in a sample of juveniles.
Journal of Clinical Child Psychology, 24,
279-286.
Hoge, R.D. & Andrews, D.A. (1994). The
Youth Level of Service Inventory. Carleton
University, Ottawa, ON.
Hoge, R.D., Andrews, D.A. & Leschied,
A.W. (1995). The Risk/Need Inventory.
The Ministry of Community and Social
Services, Toronto, ON.
Hollin, C.R. (1990). Cognitive-behavioral
in ter ven ti on s w it h y o ung of f end ers.
Pergamon Press.Oxford, UK.
Jackson, D. (1989). The Basic Personality
Inventory Manual. London, ON. Research
Psychologist Press.

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K a z d i n, A . E . & W e i sz , J .R . ( 1 9 9 8 ) .
Identifying and developing empiricallysupp orted child and adolescenttreatments. Journal of Consulting andClinical Psychology, 66,1, 19-36

Simourd, D., Hoge, R.D., Andrews, D.A.
& Leschied, A.W. (1994). An empiricallybased typology of youthful offenders.
Canadian Journal of Criminology, 36,
447-461.

Leschied, A.W. and Cunningham, A.
(1998a). Clinical trials of multisystemic
therapy with high risk phase I young
offenders, 1997 to 2001, Year end report
1997-1998. The Family Court Clinic,
London, Ontario.

Simourd, D., The criminal sentiments
scale-modified and pride in delinquency
sca le: P syc ho m e tri c p ro p e rti es a n d
construct validity of two measures ofcriminal attitudes. Criminal Justice andBehavior, 24, 52-70.

Leschied, A.W. and Cunningham, A.
(1999). Clinical trials of multi-systemic
therapy in Ontario, 1997-2001:
Evaluation update. Family Court Clinic,
London, Ontario.

Washington State Social Policy Centre. A
cost-effectiveness review of major young
offender interventions. Seattle WA.

Lipsey, M.W. ( 199 2). Juvenile
delinquency treatment: A meta-analytic
inquiry into the variability of effects. In
T.D. Cook, H. Coopwer, D.S. Corday,
Hartman, L.V.

Wells, L.E. (1991). The utility of metaanalysis in criminal justice research.
Pa p e r pr es en ted a t th e A ca d e my o f
Crim inal Justice Sciences Meetings,
Nashville, TN.

He dges, R.J . L ight, T. A. Louis & F.
M osteller (eds.) Meta-analysis: A
casebook. Russell Sage Foundation, New
York, NY.
L ips ey, M. & Wilson, D.B. (1997).
Effective intervention for serious juvenile
offenders: A synthesis of research. Russell
Sage Foundation. New York, NY.
Losel, F. (1997). The efficacy ofcorrectional treatment: A review andsynthesis of meta-analytic evaluations. In
J. McGuire (ed.) What works: Reducing
reoffending guidelines from research andpractice. John Wiley and Sons.
Chichester, UK.
Ryan, G.D. & Lane, S.L. (1991). Juvenile
sexual offending: Causes, consequences,and correcti on. Lex in g ton Books ,Lexington, MA.

53

MULTISYSTEMIC THERAPY: COMMUNITY-BASEDTREATMENT FOR HIGH RISK YOUNG OFFENDERS
Rationale and Overview from the Randomized Clinical
Trials in Canada
Alan W. Leschied, Ph.D. C. Psych.*
ACKNOWLEDGEMENTThe M ST clinical trials in Canada
represent the effo rts of manyorganizations and individuals. Foremost I
want to acknowledge Alison Cunningham
who served as the research director for
the f our yea rs. The N ation al C rim ePrevention Centre supported ther e s e a r c h e f f o r t, w h i l e t h e O n t a r i o
M i ni st r y o f C o m m un i ty a nd S o ci a l
S e r v ic e s f u n d e d th e t h e r a p i s t a n d
supervisor training. MST teams workedo u t o f th e f o l lo w in g o r g a n iz a ti o ns :Craigwood Y outh S ervices (London);
Associated Youth Services (Mississauga);
Eastern Ontario Young Offender Services(Ottawa); Kinark Youth Services and
New Path (Orillia and Barrie). Scott
Henggeler and his collea gues at the
Family Services Research Centre as wella s the consultants from MS T Inc. ofC harleston, South Carolina werei nv a l ua b le . W e w a n t t o e xt e nd o u rappreciation to the many community
organizations—probation, children’s aid
socie ties, schools, children’s me ntal
health organizations as well as youth
court judges—who supported this workover the past four years. Lastly, we want
to extend our appreciation to the youngpe ople and their families who
participated in these trials. We trust thatthe results of this effort will further theneeds of families like you well into the
future.
* Professor, Faculty of Education, University ofWestern Ontario, London Ontario, CANADA

54

I. THE SYSTEM OF YOUTH JUSTICEIN CANADA
Administration of youth and adultjustice in Canada has followed the path of
most countries in emphasising the use ofinca rc era tio n to an e ver -inc re as in g
extent. Concerns have been expressed not
only for the cost but also the questionableeffectiveness of imprisoning a
proportionately large num ber ofof fend ers. T he C om missio ner o f theCorrectional Services of Canada, in thespring of 1998, convened a worldconf ere nce studying the issu e. T his
followed a meeting of senior Canadiangovernment officials 18 months earlier
w ho, up on review ing the incre asing
reliance of custody in the context of otherservice and demogra phic trends a ndcosts, concluded that the country could
not support these trends either
financially or in the spirit of effective
service delivery. This observation is noless true in the youth justice system
A. Policy Implications of the Trends
in Young Offender Law
The challenge for policy advocates andservice providers has been to achieve abalance between the desirability of thelower costs associated with alternatives
to custody while being mindful of thecommunity’s demand for safety and thehigh profile nature of criminal justiceissues. While these challenges may seem
demanding and complex, criminal justiceprofessionals are fortunate in having an
extensive literature on which to draw in118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
providing policy direction for thedevelopm ent of comm unity-base dintermediate sanctions that are mindfulof both goals of cost-effectiveness andcommunity safety. There is som e
indication of the government’s responseto this issue in proposals for reform of theYoung Offenders Act and the associatedprocesses for youth justice (Department
of J ustice, 19 98). This review of theCanadian situation focuses on levels ofcustody use and factors that influence theu se o f c u st o d y i n t he y o ut h j u st ic esystem. Multisystemic Therapy is one
examp le of an evidenced-base dintervention that can guide practice ins e r v i c e s e l e c ti o n b y a p p r o p r i a t e l ytargeting those most likely to be
consumers of the most costly andintrusive services.
1. Juvenile Justice Innovation
The guiding philosophy to designing ayouth justice system is important toconsid er appreciating on-going
dissatisfaction with what is perceived bymany in the public, as a ‘soft’ on crimea pproa ch to young peop le (B ala a nd
Corrado, 1985). Contemporaneous withother Commonwealth jurisdictions andthe United States, Canada created aseparate system of youth justice with theenactment of the Juvenile DelinquentsAct (JDA) in 1908. It took many years for
the JDA to be used outside of a few urban
centres (Hatch and Griffiths, 1991) but it
gradually took hold. The JDA dictatedthat young people should be responded to
not a s crimina l s b ut ra t he r as ‘mi s guided’ children in need of ‘guidance andassistance’ requiring the judge to take therole of a kindly parent in re-directing the
behaviour of errant youth.
(i)

Reform in the 1960s to the 1980s
In the early 1960s, it was recognisedthat reform of the juvenile system
was necessary. Three major

influences can be identified a s
fuelling the debates that spanned two
decades and culminated in the 1984
proclamation of the YOA.
The first was the growing recognition
th a t y o u n g p e o p le n e e d e d t o b e
af ford ed protection unde r law toensure their rights were not being
violated at any stage of the
pro ce ed ings f ro m q ue stio ning a t
arrest through to sentencing (Bala,
1998). This concern grew from theo b s e r v a t io n t h a t t h e f l e x i b il i ty
afforded by the JDA w as being
misused to justify more intrusive
punishments than an adult would
garner for the same behaviour.
Second, there was increasing
scepticism about the effects of social
re-engineering to reduce conditions
that were thought to influence themisbehaviour of some young people( M a r t i ns o n, 1 9 7 4 , L e s c h ie d a n d
Gendreau, 1986). Simply put, there
was essentially no empirical evidence
that the efforts of the juvenile court
had been followed by anything otherthan steady increases in youth crime.
Third, there was recognition that theoffence of ‘delinquency” was too broad,encompassing, as was often observed,
every act from spitting on the
sidewalk to murder. It was felt that
violations of the criminal law requireda different response from actions andsituation that, while ‘disturbing’ tom a ny , w e r e n o t c rim i na l . T h e se
behaviours, called status offences,included (dep ending upo n thepr o vin ce ) in co r rig ibilit y, s e xu al
im m o r a l i ty , r u n n in g a w a y , a n dtruancy.

55

RESOURCE MATERIAL SERIES No. 59(ii) Basic Tenets of Young Offender Law
RevisionsThree prevailing principles can beseen as guiding and finallyinfluencing the YOA. These included:•••

Protection under law for therights of youth in insuring accessto legal counsel;
Makingaccountability
forbehaviour a guiding principal for
decision making, andAttempting to strike a balance
between the need to make young
people acco untable fo r their
behaviour while coincidentallyproviding appropriate guidanceand direction.

Data from the mid-1980s revealed theeffects on incarceration of the reforms
i n t h e Y O A . I n s e v e r a l st u d i e s ,placem ent in custody in O ntario,
Canada’s most populated province,
showed signs of doubling over rates oftraining school committals under theJDA (Leschied and Jaffe, 1986; 1991
Despite reporting of the early effects
o f YO A re f o r m , p u blic atti tud e scontinued to hold that the yo uthjustice system, similar to the adultsystem, was soft on crime and moreemphasis was needed to be make thep unishm ent fit the crime In thiss p i r i t , a t l e a s t f o u r s ig n i f i c a n trevisions we re ma de at different
intervals that reflected publicdemand for a tougher law (see Bala,
1998). Data on trends in sentencing
under the YOA supported the belief
by many justice professionals that theuse of custody had become a ‘runaway
train’ in the justice syste m(Archambault, 1991).

(iii) Lack of Custody Alternatives
Sentencing judges in the youth courts
have few disposition alternatives thatcan be resorted to with confidence
when an offender poses a risk to thecommunity. This, along with the redirected emphasis of much of thehuman and financial resources
comm itted to the young off endersystem toward s custody, has
restricted the development ofintermediate c ommunity -basedalternatives to the court.
The 1996 International Crime
Victimization Survey f ound that
Canada had levels of crime close to
the a vera ge o f ten other westernindustrialized countries, with 25% of
respondents reporting a victimizationin the previous year from among aselected list of crime s (B esse re r,1998). Compared with a larger list of
34 c ountries, C a na da wa s in thebottom third. Other 19 97 figurespertaining to young offenders, those
who were at least 12 but under 18
years of age when the offence wascommitted, are:
•
•

•

•

•

56

15% of all people charged withviolent offences were under 18
20% of young offenders charged
w i t h a c ri m i n a l o f f e n ce w e recharged with a violent crime and
53% were charged with a property
offenceCompared with other forms ofviolent crime, robbery is more
likely to involve young people:
almost 40% of persons charged
with robbery were youths
Over the past decade, the rate offemal e you ths c har ged wit hviolent crimes has increased twice
as fast as for male youths
54 youths were charged withhomicide in 1997, five more than

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
in 1996 and slightly above thedecade average of 49 per year
Such declines are reflected in theworkload of the nation’s youth courts.
The rate at which young people havebeen appearing in court has fallen forfive years, most especially true forproperty offences where the numberof youth court cases now correspondwith slightly more than 2% of the
youth population, a drop of 20.6%
over four years (Statistics Canada,
1998). Declines are mostly confined toproperty offences because rates forviolent crim es were basicallyu n ch a n g e d . O ve r a ll, t h e ra te o fyouths appearing in court per 10,000
youths dropped 8.5% between fiscal
years 1992-93 and 1996-97. Using
rates is important because post-war
demographics are such that the age
distribution of the Canadian
population varies over time, mostrecently with the maturing of the socalled echo boom (born 1980 to 1995),
the children of the enormous ‘baby
boom’ cohort born between 1945 and1960 are entering the crime prone age(C orrectiona l S ervice of C a na da ,1998).
Half of youth court cases involve
cr im es a g a inst p ro pe rt y ( m o stlyminor thefts and burglaries) while
only one in f ive ca ses involve a ninterpersonal offence such as assault
or robbery. A significant proportion ofo ff e nce s in volve what ar e ca lle dadministration of justice charges,
where a youth has not abided by acondition of release or sentence. The
five most common offences (minor
theft, burglary, failure to comply witha court disposition, minor assault,
and other non-compliance offencessuch as failure to appear in court)
together comprise 60% of all cases.

(iv) Exploring the Range of Dispositions
For youths, the sentencing options(called dispositions) are listed in the
Young Off ende rs Act . O p tions inessence include custody (open, closed,or b oth), com munity sup ervision(probation, community service order)
or measures w ith no correctiona lintervention (fine , discharge,
compensation orders). Orders forcommunity services and restitution
are often em b edd ed in pro ba tionorders. Non- com pliance would
therefore comprise the new offence of
breach of probation making themmore easily enforced than if theystood alone as dispositions.
While a key intention of the YOA wasto extend due process protections toyouths as they were processed by the
courts, vestiges of the former welfarebased juvenile system remain in fourareas:••••

Caps on maximum sentences significantly lower than for adults;
Key emphasis on probation as acorrectional measure;
Limitations on the publication of
the names of offenders; Record
destruction requirements, andSentencing judges are clearlyencouraged to consider individualized sanctions rather than attend
p u re ly t o t h e s e v e r it y o f th e
offence.

Nationally, probation is the mostserious disposition in 51% of casesa nd cu s t o d y i n 3 4 % , f o l l o w e d i nfrequency by community service (6%),
fine (5%), and absolute discharge(2%). Since these data were collected,
conditional discharge has also becomea sentencing option. Other options,which comprise 2% of the mostserious dispositions, include

57

RESOURCE MATERIAL SERIES No. 59
co mp ensatio n to victim, seizur e,
f orf eiture, essays, a polo gie s a ndc o u n s e ll in g p r o g r a m m e s . T h e s e
f i gu r e s r e p r e se n t o n ly th e m o stserious measure ordered even though,in many cases, dispositional options
are combined. For example, ap ro b a t i on t e rm ma y f ol l o w a ft e r
release from custody or victim
compensation may be a condition ofprobation. There is some variation inthese figures depending on the mostserious offence at conviction, as can beseen in Table 1.
Community-based, or non-custodial,dispositions comprise two thirds ofthose handed down by youth courts,
with probation being the mostfrequently imposed. Terms ofp robatio n ca n also be or de red tofollow release from custody.
P r o b a t i o n e r s a r e su p e r v i se d b yprovincial probation officers for terms
that can be as long as two years, as
determined by the judge. In 1996-97,
o nl y 2 2 % w e re fo r m o re t ha n 1 2
months (Statistics Canada, 1998).
Probation as a stand-alone disposition
was most common in cases involving
minor assault, motor vehicle theft,
and trafficking in drugs. Standard
c o n d i t io n s o f p r o b a ti o n in c lu d ekeeping the peace and being of good
behaviour. Optional conditions can
include attending school, seeking andmaintaining employment, or living at
ho m e or with an adult the co urt
deems appropriate.
B. Utilizing Custody in Youth
Justice
Custodial dispositions have resulted in
34% of cases that ended in conviction(Statistics Canada, 1998). A custody
disposition is most likely to be orderedwhen a young offender has violated ano rd e r o f th e c o u r t , s uc h a s w h e n a

58

co ndition o f a probation order isbreached. Custody was the most common
disposition for being unlawfully at large(89%), escape fr om custody (88%),
manslaughter (87%), aggravated assault(79%) and robbery (57%).
The maximum len gth of a you th
custody sentence is typically two years
but, after some public outcry,
amendments to the Young Offenders Act
have permitted longer sentences in somecases such as murder. However, custodysentences are typically short. In 1996/97,
29% were for one month or less and 46%
from one to three months. Moreover,there is some evidence to indicate thatt h e le n g t h o f c u s t o d y s e n te n c e s i sshortening (Statistics Canada, 1998).
Cases with sentence lengths of threemonths or less now comprise 75% of all
custodial sentences, up from 71% in 1992/
9 3 . S u c h f ig u re s a re m a t c he d w it hdecreases in the longer sentences. This
trend is observed for both open and closed
custody sentences. It is important to note,however, that youth custody sentences
are not subje ct to rem ission, either
statutory or earned. Early release from acustody term is possible under somecircumstances by applying to a judge for areview of the sentence.
Young offenders sentenced to custody
will generally serve their terms in a standalone facility for youths, although there
are a few places where adults and youth
are co-located with strict separation
betw een the two. All young offenderfacilities a re opera ted by provincia lgovernments. The Young Offenders Act
differentiates between open and closed
custod y but ea ch province is free tooperationalize those concepts. At thediscretion of the sentencing judge, theterm can be served in a closed custodyfacility, an open custody facility, or a
specified combination of both. About half

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSo f y o ut hs se n te n c e d to c us to d y a r e
sentenced to begin the term in a closed
facility. An unknown proportion of themwill graduate to an open facility at a set
p o in t i n th e s e n te nc e , t o f a c il it a t e
reintegration into the community. The
other half serve their entire sentences inan open facility.

•

1. General Explanations in the Rise in
Custody/Imprisonment Rates
Maur (1998) of the Sentencing Projectin Wa shington, D.C., has linked theincreased use of imprisonment in North
America to four distinct trends:

Linking many of these factors has also
been the shift in the fundamental
premise in managing youth that are in
conflict with their communities.

•
•
•
•

The shift from offender-based tooffence-based sentencing;
Decreased emphasis on rehabilitation;
Shift of resources to institutions; and,
Limited consideration for non-custodial sentencing options.

O ther explanations for the rate ofincrease include the proliferation of highmand atory minimum sentences(particularly for drug offences), threestrikes laws, and ‘truth in sentencing’laws, that typically require an offender toserve at least 85% of a sentence before
conditional release (Maur, 1998). Indeed,
the number of violent offenders in thefederal system is small and dropping,
being supplanted by those convicted ofdrug, weapons and immigration offences(Gilliard and Beck, 1998).
2. Specific Factors Influencing Custody
Rates for Youth in Canada
A combination of factors can provide
understanding of the rapid increase in
the rate of increased use of custody in
Canadian youth justice. These would
include:•Public attitudes toward community
safety•••(i)Federal-provincial
costsharingarrangements
Rise in the importance of accountability
Shift in the mandate for the probation
service, andThe lack of alternatives made available to the courts.

Public Attitudes Toward Community
SafetyRecent evidence reported by Baronand Hartnagel (1996) suggests thatthe public’s fear of crime, conservativevalues and victimization experience
are useful predictors of attitudes in
sup port of the use of custod y foryoung
o ffenders.
Canadian
respondents, along with those fromthe United Kingdom and the UnitedStates, overwhelmingly choose
imprisonm ent as the mostappropriate sentence for a burglar
convicted for the second time when
asked as part of the International
Crime Victimiz ation Survey(Besserer, 1 998 ). Legisla tors areclearly aware of these public attitudes(Department of Justice, 1998;
National Crime Prevention Centre,
1998).

(ii) Shifts in the Importance of
Accountability
Yo u th j us tic e a d m i nis tr a ti o n in
Ca nad a dra ma t ica l ly cha nged inorientation with the proclamation of
the Young Offenders Act (YOA) in
1984.
While
changes
in
implementation over the years hadvaried the administration of youth
justice, the original legislation of
1908, named the Juvenile Delinquents59

RESOURCE MATERIAL SERIES No. 59
Act, governed justice for young people
without major fundamental change
for almost three-quarters of a century.
Critics of the YOA suggested that thisnew legislation heralded anincreasing emphasis on incarcerationof youth (Leschied and Gendreau,
19 86). Growing concern b y policy
makers for the ‘drain’ on financial andh um a n r e so ur ce s to sup p o rt th e
expanding use of custody is but one
major contributor to the re-newed
emp hasis on comm unity-based
interventions.
C. Responses to the Over-relianceon Youth Custody
The irony of the emphasis placed on
custody is this: these ‘deep-end’ services
are the most costly, but nowhere in therelatively meagre research on the effects
of institutionalisation is there empiricalsupport that custody is an effective way
to reduce youth crime and increase public
safety (Henggeler, Schoenwald, Borduin,
Rowland and Cunningham, 1998).
Canada is not experiencing the rapid
construction of prisons evident in her
close neighbour the United States, but
the rate at which incarceration is used ishigher than many other Western nations(Maur, 19 98; Correctional Service ofCanada, 1997).
While the general public seems to
support more of the ‘get-tough’ approach,both levels of government in Canada(federal and provincial) appear to beinterested in reducing the use of custody,
in part because of the enormous cost andthe drain it makes on funds available forcomm unity-based resources. The
Standing Committee on Justice and Legal
Affairs(1997),agroupofParliamentarians charged with reviewing
the implementation of the YOA, held
hearings in 23 sites across the country.
One of their conclusions was that:60“C a na da use s i m p ri son me nt i n
response to youth crime more thanmany other countries. The bulk offinancial resources devoted to youth
i n co nf li ct w it h t he la w i n t his
country have gone to b ui ld a nd
operate custodial facilities... This
over reliance on the formal justicesystem a nd im prisonment is a nenormous drain on public dollars,
introduces minor offenders to more
serious, persistent offenders,stigmatizes offenders and reinforces
criminal identity in a deviant
subculture. Moreover it fails to deter
youth crime”. (p. 35)
There is little doubt that community
safety in the short term is enhanced bycustody as it is used. Nationally, moreyouthsareincarcerated
for
administration of justice offences (themost serious offences in 36% of cases
where custody is a disposition) than forin te r p e rs o na l o f f en c e s ( 1 7 %) . S u c hoffences include failure to comply with adisposition (mostly breaching conditionsof probation), failure to appear in court,
escaping custody and being unlawfully atlarge (Statistics Canada, 1998).
Numerous approaches are currently
underway to bring youth justiceadministration in Canada m ore intobalance. These attempts draw o n
rest orativ e j ust ice prin cipals a ndcommunity driven responses addressing
the causes of youth crime a s well a s
victim involvement in providing more‘satisfying justice’ experiences for allconcerned parties.
1. Attempts at Providing Alternative
Measures, Intermediate Sanctions
and Custody Alternatives
The Y OA also reflects the need toprovide the least intrusive intervention
possible at various stages in the

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
proceedings. This recognition is reflected
i n t he m a nd a t ed us e o f a l t e rn a t i v emeasures and community service orders.
Reflected in these measures are services
targeting offenders who commit acts of aminor nature; the imposition of probation
for community monitoring of compliancewith the terms spelled out by a judge; andbail supervision for youths who would
otherwise be held in a detention centre
for the duration of the court proceedings.
Y e t , a s B a l a ( 1 9 9 8 ) ha s s u gg e st e d ,legislation alone is not a solution incurtailing the use of custody. Probation
continues to be the disposition of choicewith judges making orders to a greater
extent than competing choices. However,
it is in the proportion of custody orders
relative to the overall number of youths
being pro cessed through the justicesystem that is both driving the high costof ‘deep end’ services and restricting thedevelopment of suitable alternatives. For
example, the cost of a single custody bed
is two and a half times the average yearlysalary of a probation officer.
2. Increasing the use of Community
Alternatives
Currently in Canada, there is interestin developing alternatives to the formal
justice system and to increase the rangeof choices for high-risk young offenders at
the disposition stage when custody would
be the obvious next step in legal
processing. Borrowing primarily fromdevelopments in Australia, New Zealand,and practices known to Canada’s First
Nations People, alternatives to formal
court processing have been given impetus
in recent proposals for juvenile justicereform (see, for example, Department ofJustice, 1998). Examples of such court
diversion programmes include; police
cautioning, family group conferencing
and circle sentencing. Proposals such asthese are targeting youth with minor
offences to capitalise on the naturally

occurring strengths in a community ofcommitted volunteers. Additionally, these
proposals support police discretion in
avoiding the use of court for youth thatare generally considered as low risk forsubsequent offending. In many cases
where such diversion programmes areapplied, no formal charge is laid.
•••

SECTION SUMMARY
Rates of custody in nine of ten
provinces approximate 34% of youth
court dispositions
75% of federal to provincial young
offender cost sharing funds custodyfacilities
Recent amendments to the YOA havefocused on incre asing severity ofsa nctions fo r yo uth with seriou s
offences while encouraging the use ofcommunity-based alternatives
II. EMPIRICAL SUPPORT FOR
IMPROVING YOUNG OFFENDEROUTCOMES

A. Revisions to the Young Offender’sAct
In the winter of 2001, Canada once
aga in ha s re view ed le gisla tio n tha t
governs the implementation of youngo f f e n d e r p r o gr a m m e s a n d p o l ic ie s.
Following at least three years of on-going
consultation, the revised policy may
further the schizophrenic nature of thislaw in combining toughness withtreatment. Several commentators havealready echoed the feelings of then Judge
George Thomson in 1982 who noted thatthe original YOA was attempting to be allthings to all people. In the revised Act,now called The Youth Criminal Justice
Act (YCJA), there is a lowering of theminimum age of the reverse onus
pro vision to fourteen for youth withserious offenses, and a broadening of thebasis on which youths can be transferred

61

RESOURCE MATERIAL SERIES No. 59
to adult court. Coinciding with the “gettough” aspects of the new Act, is thecontinuing expression of support forrehabilitation as a principal that should
guide much of the Act’s implementation.
For example, there is an emphasis given
to restorative justice principals that seekt o su p p o r t c o m m u n i ti e s i n f in d in galternatives to the traditional forum of
the court. Additionally, the revisions also
support the development of community
alternatives for moderate and certain
h ig he r r isk y o ut h in a n a tt e m p t t od e c r e a s e t h is c o u n t r y ’ s in c r e a si n greliance on custody. During the years
1986-96, 27 per cent more youths werecharged following police apprehension
when compared to the years 1980-83.
T here is little d oub t, tha t a s pub lic
opinion continues to demand a tougher
Act, and as increasing numbers of youths
find themselves in the court system,
increasing creativity w ill need to b eb r o ug h t t o a d d r e s s t h e d il e m m a o fbalancingaccountability
witheffectiveness in youth justice.
1. Treatment Directions from Policy
Revisions
Legal revisions to the YOA, as this isbeing written, are now entering firstr e a d in g in t he H o us e o f C o m m o ns .
C h a n g e s m a y c o n t i n u e to b e m a d ethrough to passage of the Bill. Major
emphasis from this renewal includes (formore detail see Youth Justice Renewal
Initiative—www.Canada.justice.gc.ca/
en/news/nr/2001/doc):
•

•

62

Increase in the use of measuresoutside the formal court process thatcan often be m ore effective in
addressing some types of youth crime
Establishment of a more targeted
approach to the use of custody foryoung people••

Improvement in the system’s ability
to rehabilitate and reintegrate young
offenders
Increases in the use of communitybased alternatives

What seems clear how ever, is thatemphasis on residential custod yprogramm es will continue to beemphasised as sentences are lengthened
but the use of custody will be targeted atth e more u ppe r end of v iolent an dpersistent young offenders. Community
alternatives will be sought, not onlyc o n si st e n t w it h r e st o r a t iv e j u st ic e
principals, but as a true alternative forthe use of custody for certain moderate
and high risk youth. In addition, andw h a t c o u ld t u r n o u t to b e n o t o n l ycontroversial but also a true test forassessors in youth justice, is thediscretion given to non-judicial justiceprofessionals in making judgem ents
regarding placement decisions—use andlevel of custody—as well as an increasing
reliance on early release decisions fromc u s t o d y t o c o m m u n it y s u p e r v is i o nthrough probation.
2. Accumulating Evidence forAssessment and Treatment in Youth
JusticeT h e r e is a go o d d e a l o f r e s e a r c hsupport for som e of these federal
initiatives in Canadian youth justicer e f o r m . F o r e xa m p l e , in a r e c e n tl ypublished summary of the accumulationof evidence on assessment and treatment
with yo ung of fe nde rs, Le sch ie d a nd
Cunningham (1 999) noted that more
articles have been published regarding
young offender assessment andtreatment in the past ten years (198819 98 ) than w ere documented on the
major literature data bases than during
all of the years prior to 1988. What thisp oints to , is not o nly an incr ea sin g
em pirica l ba sis f or d ecision ma king

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
regarding place ment and trea tment
targets, but as well an indication of thevast knowledge base which practitioners
can draw, in designing assessment andtreatment strategies.
B. General Principals from theYoung Offender Treatment andAssessment Literature
There
is
now
considerable
d isse minatio n o f th e m eta-a nalyses
regarding the prediction, assessment andtreatment literature in youth corrections(see for example Andrews, Leschied and
Hoge, 1994; Loeber and Farrington, 1998;
Lipsey and Wilson, 1998; Losel, 1997).
Some of the maj or prin ciples that
continue to be reinforced in the reportingof the literature suggest the following:
•

•
•
•
•

•

Delivery of a human service within
the court sanction contrib ute thegreatest in explaining reductions in
re-convictions
Sanctions or punishments alone aren o t a s s o c ia te d w i th m e a n i n gf u l
reductions in recidivism
High risk offenders benefit most fromgreater intensity of service
Certain interventions are associatedwith greater reductions in offending
Clinically relevant targeting ofinte rventions is essential toincreasing the likelihood of effective
outcomes
Community-based interventions aresuperior in their ability to reduce
offending that residentially-based
interventions

literature in addressing the challenge ofproviding an effective intervention forhigh risk youth within the youth justicesystem.
C. Developing Intensive
Community-Based Services forHigher Risk YouthWhi le con s idera ble emph as is i s
c u r r e n t ly b e in g g i v e n t o f r o n t e n dservices targeting lower risk offenders(e.g. diversion, community/family groupconferencing), there is also support fordeveloping services addressing the needsof higher risk cases who would otherwise
be heading towards a custody disposition.
J u s t if ic a ti o n f o r c o m m u n i ty - b a s e dservices must first have, as its yardstick,
the ability to deliver cost-effective service
that does not compromise thecommunity’s safety. A key intention of
the Department of Justice (1998) with its
proposed framework for youth justicereform is to lower the rates of custodyordered in Canadian youth courts. Thiscannot be a ccomplished through law
reform alone. Members of the public ingeneral, and sentencing judges
specifically, must be convinced of several
things.
•••There is now a body of literature that isstrong enough to suggest that evidencebased interventions should provide theba sis for deciding on programm es ofchoice for child and family interventions.
The following section regarding
Multisystemic Therapy provides just sucha context in drawing on the research

Incapacitation through custody may
protect the public in the short term
but not in the long term.
There are viable community-basedalternatives to custody that can bothprotect the public in the short term
and reduce recidivism in the longterm.
The expensive option of custody will
not ‘purchase’ as much reduction in
offending as these other non-custodial
sentencing options.

Providing empirical evidence of thesethree factors was one of the principle
in t e n t s o f s e le c t in g M u l t is y s t e m ic
Therapy (MST). The following review of63

RESOURCE MATERIAL SERIES No. 59
effective service outlines the choice of
MST as a viable alternative to custody forh i g h - r i sk y o u n g o f f e n d e r s a n d t h eimplementation of the clinical trial of
MST in four Ontario communities.

•••

D. Systemic and Programmatic
Requirements for the Choice of a
Community-Based Option forHigh Risk YouthLesson s learned from the met aanalysis on systemic variables in effective
p r o gr a m m ing f or yo ut h co r re c tio ns
suggest that:•••

Lower risk cases can be safely
assigned to less intensive services
Higher risk cases are more effectively
dealt with in more intensive services
The differential assignment of youth
according to risk is critical in thea p pro p riate d eliver y o f ef fe ctive
service

Accordingly, a spectrum of services toaddress youths at all levels of risk andneed would be a desirable characteristicof any youth correctional system.

A review of literature for effective
service in youth justice served as the
beginning point in developing the MST
clinical trial in Ontario. The search for analternative to custody for high-risk youth
began with the understanding that any
service model considered had to matchthe eight integrity issues summarized byAndrews et al. (1990). According to theseauthors, a coherent and em pirica lly
defensible model:••••

1. Effective Programmatic
Requirements
Researchers have also addressed theprogrammatic components of correctional
interventions for youth by identifying thecontent and quality of e ffective
programmes. The components of effective
programmes are assessed in relation to
the ir ability to mea ningfully reduce
recidivism within the targeted group.
Programmes assessed as effective wereconsidered as those that:
•
•
•

64

systematically assess risk in clients,
use the risk principle of caseclassification,
adopt programme orientations known
to be effective,

employ well educated and welltrained staff,
monitor programme integrity andadherence to the intervention model
used,
and rigorously evaluate the extent towhich programme goals are met

•
•

•

•

empirically links interventions withdesired outcomes;
assesses risk and need levels ofclients and targets them forintervention;
has a detailed programme manualoutlining the discreet steps involvedin the intervention;
ensuresthat
therapists
havestructured and formal training in
relevant theory and practice;ensuresthat
therapists
aresupervised in a meaningful manner;
assesses the therapeutic process asdelivered to monitor the adherence to
key principles and the employment oftechniques claimed to be employed;
conducts assessments of intermediatechanges in values, skills or
circumstances of clients tha t arepresumed to relate to de sired
outcome(s); andassociates level and intensity ofintervention to risk, need andresponsivity.

T he M S T a pp ro ac h r ep re sente d acommunity-based option that parallels

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
many of these characteristics and forthese reasons was chosen for the current
clinic al trial. The f o llo w ing sec tio nprovides a detailed overview of MST.
III. The Multisystemic Therapy
Approach
M ST w as developed by the Family
Services Research Centre at the Medical
University of South Carolina. It had been
become apparent to these researchers,
that mental health services for serious
young offenders were minimally effectiveat best, extremely expensive and notaccountable for outcomes. They reviewed
the research literature and looked forinterventions with documented success inshaping good outcomes for anti-social
youth. They also noted whichinterventions, some quite popular, had noe m p ir i c a l su p p o r t . T h i s p r o c e s s o f
discarding ineffective techniques while
gleaning those most effective means that
MST is more an amalgam of bestpractices than a brand new method.
A. A Social Ecological
Understanding of Behaviour
MST adopts a social-ecologicalapproach to understanding anti-social
behaviour. The underlying premise of
MST is that criminal conduct is multicausal; therefore, effective interventions
should recognize this fact and address themultiple sources of criminogenic
influence. These sources are found not
only in the youth (values and attitudes,social skills, organic factors, etc.) but inthe youth’s social ecology: the family,
school, peer group and neighbourhood.
The needs of youths are understood byassessing the ‘fit’ between them and their
immediate social context, a relationshipwhich is seen as adaptive or functional aswell as bidirectional. Treating youths in
isolation of these other systems meansthat any gains are quickly eroded upon

return to the family, school orneighbourhood. In fact, it is a key premiseof MST that community-based treatment
inf o r m e d by a n un d e rs tan d in g o f ayouth’s ecology will be more effective thancostlier residential treatment. This iseven true when selection of MST
candidates is made who are bound forr e s i d e n t i a l tr e a t m e n t o r c u s to d i a lplacements because of the seriousness of
their conduct or emotional problems.
1. Assessing the “Fit” of Targeted
Behaviours
The M S T p roce ss be gins with theidentification of the problem behaviours,a task, which involves the whole family.
I n o th e r w o r d s , p a r e nt s a re k e y in
identifying treatment targets. Examplesof these behaviours include noncompliance with family rules, failure toattend school, failu re to complete
schoolwork, substance use, disrespect toauthority figures, and assaultive
behaviour. W hile the focus ofintervention is on the elimination ofproblem behaviours, this is accomplishedin great m easure by building onstrengths. So the assessment process also
involves identifying the strengths in the
youth and his or her family, which canin c lu d e at h le t ic ab ili ty , a t r us ti ng
relationship with an extended family
member or teacher, warmth and love
among family members, or a hobby.
The next step is an assessment of thefactors in the youth’s ecology, w hichsupport the continuation of the problem
behaviours and the factors that operate
as obstacles to their elimination. These
factors may be found in any sphere of the
youth’s ecology or the linkages among
them. Hence, therapists go to the school,spend time with the peer group, or speakwith members of the extended family.
Examples of these contributing factors
might include; poor discipline skills on

65

RESOURCE MATERIAL SERIES No. 59
the pa rt of the pa rents or tea chers,
marital discord, parental substance use,lack of supervision, peer reinforcement ofp rob lem b ehaviours, neighb ourhoo dc ultu re w hic h co nd o ne s vio le nc e o r
e n c o u r a g e s a n t i- s o c ia l v a l u e s , l o w
commitment to education, chaotic schoole nvir onm e nt, p oo r p ar en t-to - scho olcommunication, or financial stresses
experienced by the family.
By identifying the fit betw een thep r ob le m s a nd the b ro a d e r syste m ic
context, MST workers are defining bothth e tar ge ts of inte rv en tion an d th e
ind ica tor s of w he the r the m ea suresu n d e r t a k e n h a ve b e e n e f f e c ti v e . A
therapeutic strategy should produce
observable results in the problem
behaviour or else the strategy is revised.
In other words, positive changes in the
behaviour (e.g., school attendance) isused as indication that the intervention(e.g., parent contacting the school daily)
is on the right track. Failure to achieve
positive changes requires a reassessmentof the fit and plainly indicates the need totry a new approach. The MST service
providers are ultimately accountable forovercoming barriers to change. Blaming
language such as sabotage, resistance,
an d intractable problems, are n ot
permitted. In fact, diagnostic labels of
any type are discouraged in favour of aperspective that focuses on challenges
and strengths.
2. The Nature of Intervention
MST is designed to be an intense but
short-term involvement that can result in
the generalization of treatment gains
over the long-term. The frequency andduration of contacts will decrease overtime, being intense in the beginning but
lessening as improvements are observed.
No social service intervention can lastforever, s o the ultimate goal is toempower the family or extended social

66

support system to continue w ith thestrategies and interventions which weresuccessful. An important goal in thisprocess is to foster in the parents oranother caregiver the ability to be good
advocates for their children andthemselves with social service agencies
and to seek out supportive services andnetworks when they are required. In
other words, parents are encouraged todevelop the requisite skills to solve theirow n problems rather than rely on
professionals.
MST is a highly individualized, flexible
intervention ta ilored to ea ch uniq ue
situation. In other words, there is no one
recipe for success. Instead, there are nine
principles that guide intervention:
THE NINE MST PRINCIPLES
1. Theprimary
purposeof
assessment is to understand the‘fit’ between the identified
pro blems an d th eir bro ader
context
2. Therapeutic
contacts
shouldemphasize the positive andshould use systemic strengths aslevers for change.
3. Interventions should be designed
to promote responsible behaviourand decrease irresponsible
behaviour
am ongfamilymembers.
4. Interventions should be presentfocussed and action-oriented, targeting specific and well-definedproblems.
5. Interventions
shouldtargetsequences of behaviour within or
between multiple systems thatmaintain the identified problems.
6. Interventions should be developmentally appropriate and fit thedeve lo pmenta l needs of the
youth.

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
7. Interventions should be designed
to require daily or weekly effort
by family members.
8. Intervention efficacy is evaluatedcontinuously from multiple
perspectives with prov iders
assuming a ccountability forovercoming barriers to successful
outcomes.
9. Interventions should be designed
topromotetreatmentge ne raliza tion and long- te rm
maintenance of therapeuticchange by empowering caregivers to address family members
needs across multiple systemic
contexts.
The MST-specific training augments
the education and experience therapists
bring from their chosen fields (usuallysocial work or psychology).
3. Research Evidence
Several randomized and quasiexperimental studies of MST have beenco nducted in the U nite d S ta te s a ndothers are now under way (See Borduin,
1995; Henggeler et al., 1996; Henggeler,
1997; Henggeler et al., 1998). MST has
been demonstrated to reduce rates ofcriminal activity (officially recorded andself-reported), institutionalization, anddrug abuse. MST intervention is also
successful at engaging and retaining
families in treatment and encouraging
completion of substance abuseprogramming. It can result in
improvements in family functioning andcohesion. These results are notable in afield where successes are few and far
b e t w e e n b u t e sp e cia l l y r em a rk a b l e
because MST has been effective in innercity urba n area s, a mong youth withserious criminal records, youth identified
a s high risk to reo ffend, a nd a mong
economically marginal families and thosew ith l on g h isto r ie s o f u ns uc ce s sf ulinterventions.

An American study by the Washington
State Institute for Public Policy (1998)
rated MST as the most effective and cost
efficient of the 16 programmes analysed.
Each programme followed youths until
the age of 25. None eliminated offending
but 15 of the 16 documented lower rates
of recidivism am ong programme
pa rticip a nts c om p a red w ith co ntro l
youth. After subtracting the cost of the
MS T interve ntion itself , MS T saved
taxpayers on average $7,881 (U.S.) pery o u t h f o r s e r vi c e s a s s o c ia t e d w i thcrim inal
behaviour,suchasincarceration. The cost of theintervention was recouped after two
years. In addition, the reduction in crime
was associated with $13,982 in savings topotential victims of crime. Five of the
programmes reviewed did not reduce
crime enough to pay for themselves andnone generated the level of savings linked
to the MST intervention.
•

•

•
•

•

SECTION SUMMARY
A considerable body of empirically
based support now exists to identify
programmes that can influence young
offender outcomes
Effective
programmesarecharacterized by clearly articulated
components, assessment strategies,
and service delivery options
Community-based services reflecting
ecological integrity promote mostimproved outcomes
Multisystemic Therapy has shown
itself through randomized trials to be
an e f fe ctive me a ns o f d elive ring
service to high risk youth
There now exists a training method totest multisystemic therapy inrelatively large scale clinical trials

B. The Ontario Implementation of
MST
MST has been implemented in fourcommunities in Ontario, with the co-

67

RESOURCE MATERIAL SERIES No. 59
operation of nine community agencies.
The London Family Court Clinic
coordinated the research in association
with MST Services Inc. of Charleston,South Carolina. The study began in Aprilof 1997 and concluded in January of 2001.
MST Services Inc. has provided initialand on-going training to MST workers
and clinical supervisors.
The review by the Washington State
Institute for Public Policy (1998)
concluded with the observation that mostprogrammes designed to reduce crime arenever evaluated. As the Institute (1998:
2) stated: “Some interventions may be
w orking and we don’t know it, whileothers may not be effective yet absorb
scarce tax dollars that could better be
directed toward effective programmes”.
In
contrast,theOntario
implementation of MST followed not only
the programm e integrity issues a nd
knowledge transfer challenges of
implementing a complex and rigorous setof programme goals, but also invested
heavily in evaluation. An experimental
de sign was used , with rando massignment of qualifying cases to either
the MST condition or to other services
available in the local area. To qualify for
the MST trial, referred youth must haveb een rated as ha ving at least a highmoderate to very high chance to offend in
the future, a designation made in part on
the basis of outcome from the Risk/Need
A s ses sm en t pr ot oc ol, p a s t c rim ina lconduct and in consultation with thefamily and community service providers.
A battery of psychological tests wasadministered at intake before the random
assignment was conducted. Parents andteachers completed standardized forms.
T ho se fam ilies not a ssigned to M S T
carried on with the treatment plan thatwould have been devised were there no
MST. Many of the youths in both groups

68

were on probation a t the time of thereferral.
The psychological tests were
readministered at discharge from MST
or, in the case of the control group, after
five months. Intermediate target areas(i.e ., a rea s k now n e mp irica lly to b e
related to offending rates among youth)w e re a sse sse d a lo ng w ith o utco m e s
related to re-offending rates (number andseverity), service utilization rates andcost effectiveness. The youths in both
tr ea tm e nt an d co nt ro l gr o up s w e retracked until 2001. Adherence to the MST
model was also measured (see Henggeler
et al., 1997). The overall goal was todetermine if MST can be an effective
alternative to custody by controlling risk
to the community in the short-term as
effectively as other penal sentences,
reducing the recidivism of high-risk youth
up to three years after discharge from
MST, and reduce that rate at which MST
recipients are placed outside the home inpenal, child protection and therapeutic
settings. Among the hypotheses were:
•

•
•
•
•

Recipients of MST will be less likely
to commit criminal offences during
th e f o ll o w - u p p e r io d t h a n a re acontrol group of youths who did notreceive MST
Those who drop out of MST will be
more likely to offend than those whocomplete MST
Recipients of MST who offend will doso after a longer offence-free period
than youths from the control group
Recipients of MST who offend willcommit less serious offences thanthose who did not receive MST
Recipients of MST who do offend will
spend less time in custody than those
who did not receive MST

The study has high ecological validity
in that the youths were identified by

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
referral sources as being those youths in
the local area that presented the greatest
challenge to current services. Unlike
many programmes, MST does not screenout treatment-resistant youth or thosewith serious criminal histories, with the
exception of sex offenses.
The
metho dology
employe daccommo dates
threedifferent
information needs. First, the evaluation
charts outcom es. Put simply, anevaluation should be able to document
the degree of success in achieving statedgoals. The benefits of outcome evaluationi n c lu d e a c c o u n ta b i l i t y t o f u n d e r s ,consumers and the public. Thisin fo rm atio n also c on tribute s to th eknowledge base in the area of prevention.
Outcomes need to be comprehensive andlong lasting. That is, the benefits of the
programme should not only be observedin the short term but also sustainable
over time. Another goal of MST is todecrease the services utilized by suchy o u t h s . I t is h e r e t h a t p r o g r a m m eoutcomes can be related to costeffectiveness and service utilization rates.
S eco nd, the e valuation mo nitore dprogramme delivery to ensure treatment
fidelity, a process evaluation. Integrity is
crucial to any test of a programme; to beable to unambiguously relate outcomes tothe programme as defined. It is also
important to be attentive to thep o s si b i lit y o f p ro g r a m m e d r if t a n dintervene when it is observed. Especiallywith a best practice model compiled fromthe literature, as with MST, drifting fromthat practice may dilute the success of the
programme overall.

use with any defined group. Comparative
inform ation is be st gathered by
implementing the same programme inseveral areas. All programmes, eventh ose wi th d em ons trated pos iti ve
outcomes, do not work equally well in allcommunities. The four participating sites
vary in terms of population size a nd
density, urbanism, ethno-cultural profile,proxim ity to m ajor centres, andsophistication of social service
infrastructure.
SUMMARY
In the context of Canadian juvenile
justice reform, co mmunity-basedalternatives for high-risk young offenders
using MST would be most consistent withthe goals of cost-efficient and effectives e r v ic e a n d i s c o n s i s t e n t w i t h t h e
principles of the administration of justice
to youth. These are policy and legislative
goals spelled out by both the provincial
and federal governments. The major
challenge for service providers and policy
advocates is to view the use ofintermediate sanctions in youth justiceprocessing as being more concerned withcom munity- safety than vested inpunishment, consistent with theun de r lyin g p ri nci p les of th e Y o ung
Offenders Act. With these goals in mind,t h e m o m e n t u m o f d e b a t e in y o u n g
offender services indicates three major
conclusions:•••Third, the design accommodated then e e d f o r c o m p a r a t i v e i n f o r m a t io n ,specifically the portability ortransferability of the programm ecomponents to any community and for

Positive outcomes are best achievedby targeting the needs of high-riskyouth,
Community safety is promoted byaddressing the problems of youth intheir natural environments, andEffectiveness is best achieved using
services with clear track records ofpositive outcomes as identified in
rigorous outcome evaluations.

69

RESOURCE MATERIAL SERIES No. 59
Hence, it follows that the MST
implementation project in Ontario could
herald a revised look at the mission toeffectively service youths at risk andcommunities in need while stemming thetrend tow ards continued relia nce on
custody.
••••

SECTION SUMARY
Ontario’s randomized clinical trial
included four geograp hic sites
involving nine separate agencies
MST Inc. trained and licensed each of
the four sites during the course of
implementation
Evaluation
includedvariablesreflecting both process and outcome
evaluation
Cost
effectivenessandserviceu tilization rat es w ere factored
separately to evaluate outcomes fromintervention
BIBLIOGRAPHY

Andrews, D.A., A.W. Leschied and R.D.
Hoge. A review of the profile, prediction
and treatment literature with young
off enders: A social psychologicalapproach, Toronto: Ministry ofCommunity and Social Services, 1992.
Andrews, D.A., I. Zinger, R.D. Hoge, J.
Bonta, P. Gendreau, and F. Cullen. Does
correctional treatment work? A clinically
relevant and psychologically informed
meta-analysis. Criminology, 28, pp. 369404, 1990.
A r ch a m b a ul t , O . Pr o log ue . I n A .W .
Leschied, P.G. Jaffe, and W. Willis (Eds.),
The Young Offenders Act: A Revolution in
Canadian Juvenile Justice, Toronto: The
University of Toronto Press, pp. ix-xii,
1991.
Bala, N. Young Offenders Law, Concord,
Ontario: Irwin Law, 1998.

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Baron, S.W. and T.F. Hartnagel. Lock ’em
up: Attitudes toward punishing juvenile
offenders. Canadian Journal of
Criminology, 38, pp. 191-212, 1998.
Besserer, S. Criminal Victimization: An
International Perspective, Results of theI n te r na ti o n a l C ri m e V i ct im iz a t io n
Survey. Juristat: Canadian Centre for
Justice Statistics, 6, 1998.
Borduin, C.M., B.J. Mann, L.T. Cone,
S.W. Henggeler, B.R. Fucci, D.M. Blaske
and R.A. W illiams. Multisy stemictreatment of serious juvenile offenders:Long-term prevention of criminality andviole nce. Journal of Co nsulting andClinical Psychology, 63, pp. 569-578,
1995.
C a r ri e r e , D . A d u lt C r i m i na l C o u r t
Statistics, 1996-97. Juristat: CanadianCentre for Justice Statistics, 7, 1998.
Corre ctional Service of C anada.
Dominant Environmental Issues, Ottawa:
Correctional Service of Canada. 1998.
Correctional Service of Canada. Basic
Facts About Corrections in Canada, 1997
Edition, Ottawa: Correctional Service ofCanada, 1997.
Department of Justice Canada. A
Strategy for the Renewal of Youth Justice,
Ottawa: Department of Justice Canada,
1998.
Doob, A. Review of Dispositions for YOA
Review. Ottawa: Department of Justice
Canada, 1997.
Gilliard, D.K. and A.J. Beck. Bulletin:
Prisoners i n 19 97, Washington, D C:
Bureau of Justice Statistics, Office ofJustice Programmes, Depa rtment ofJustice, 1998.

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Hatch, A.J. and C.T. Griffiths. Child
Saving Postponed: The Impact of theJuvenile De linquents Act on theProcessing of Young Offend ers inVancouver. In R. Smandych, G. Dodds
and A. Esau (eds.), Dimens ions ofC hildhood: Essay s on the History o f
C hildren a nd Youth in Canada.
Winnipeg: Legal Resea rch Institute,
University of Manitiba, pp. 233-266,
1991.

Washington State Social Policy Centre.
Cost-effective
young
of fenderinterventions. Seattle WA.

Lipsey, M.W. and Wilson, D.B. (1998).
E f f e c t iv e in t e r ve nt io n s f o r s e r io u s
juv enile offen ders: A syntheses ofresearch. In R . Loeber and D.P.
Farrington (eds.) Serious and violent
offenders: Risk factors and successfulinterventions. Thousand Oaks, CA. Sage
Publ. pps. 313-366.
R. Loeber and D.P. Farrington (Eds.)
Serious and violent offenders: Risk factors
and successful interventions. Thousand
Oaks, CA. Sage Publ.
Losel, F. (19 98) . Trea tment a ndmana gement of psychopaths. In D.J.
C o o ke , A . Fo rt h & R . B . Ha re ( e d s. )P sy cho pa t hy: T heo ry , Res ea rch a nd
Implications for Society. The Hague:
Kluwer Academic Publishers, pps. 303354.
M a r ti n s o n , R . ( 1 9 7 9 ) . W h a t w o r ks :Q uestions and answ ers about prison
reform. The Public Interest, 35, 22-54.
Maur, M. (1998). The sentencing project.
Beyond Prisons Conference. Correctional
Services Canada and Queen’s University,
Kingston, ON.
Statistics Canada. Juristat: Youth Crime
Trends. (1998). The Queen’s Printier,
Ottawa, ON.

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Appendix A
CLINICAL TRIALS OF MULTISYSTEMIC THERAPY WITH
HIGH RISK YOUNG OFFENDERS, 1997 TO 2001
FREQUENTLY ASKED QUESTIONS
Coordinated by:• Centre for Children and Families in
the Justice System of the London
family Court Clinic
In Partnership With:• Associated Youth Services of Peel(Mississauga)• Craigwood Youth Services (London)• Crossroads
Children’sCentre(Nepean)• Eastern Ontario Young OffenderServices (Ottawa)• Kinark Child & Family Services(Barrie)• Madame Vanier Children’s Services(London)
• New
Path
Youth
&
FamilyC o u n se l li n g S e r v i c e s o f S im c o eCounty• William E. Hay Centre (Ottawa)
In Association with:• http://www.mstservices.com/,Charleston, South Carolina
Funded by:• Ministry of Community and Social
Services (Ontario)• Ministry of Correctional Services(Ontario)• National Crime Prevention Centre(Ottawa)
This document describes a four-year
study of the effectiveness ofMultisystemic Therapy (MST) in four
Ontario communities: Simcoe County,
London/ Middlesex, the Mississauga area72

(including Peel, Dufferin and Halton),a nd O t t a w a . M S T i s a h o m e- b a s e d,family-based,
present-oriented
therapeutic intervention using family
strengths to attenuate risk factors andimprove family relations, peer relations,and school performance among serious
young offenders. MST aims to reduce
crim inal o ff en ding by targ eting themultiple causes of anti-social behaviour
and empowering parents to maintain thegains made in treatment.
Follow-up studies of MST graduates in
the United States—over $10 million ofresearch—have documented re-arrest
rate s 2 5% to 70 % low er than am ong
co n t ro l y o u th s. T hi s i s f o ll o w e d b ysignificant cost savings in policing, court
and correctional budgets. For example,
American research has shown that MST
can reduce days in out-of-homeplacements by 47% to 64%. The U.S.
Office of Juve nile Justice andDelinquency Prevention asked the Centerfor the Study and Prevention of Violenceat the University of Colorado to identify
ten exemplary programmes to promote asmodels for communities to implement.
MST was one of the ten Blueprints forViolence Prevention.
MST is also useful in the treatment of
substance abusive youth. The National
Institute of Drug Abuse identified MST
as one of 12 scientifically based
approaches to drug addiction treatment
in a 1999 publication called Principles of118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Drug Addiction Treatment: A ResearchBased Guide.
As evidence mounted that the MST
approach is a cost-effective way to keep
serious young offenders out of custody
without putting the community at risk,
we asked: Will it work in Ontario? That is
the question behind this evaluation.
T he study bega n in April o f 19 97 ,following several months of site selection
and accr ed itation by M ultisystem ic
Therapy Services from South Carolina.
Four clinical supervisors and 13 workers
joined the MST project. The Ministry of
C omm unity and So cia l S ervices has
supported the implementation of MST for
four years to permit its evaluation foryouths aged 10 to 15. Beginning in Aprilof 2000, Phase II young offenders (aged
16 and 17) are also eligible for the clinical
trial, through the cooperation of the
Ministry of Correctional Services.

To answer the se questions, theresearch d esign involves random
assignment of referred cases so that halfof them receive MST and half of themcontinue on with their individual casemanagement plans. There will be somepre- and post-testing of the members ofboth gro ups. The se instruments areadministered at intake and a gain a tdischarge (or after five months in the caseof the control group). The youths in bothgroups will be tracked for up to three
years, to gauge their subsequent
offending and levels of service utilization.
Over the four years, we involved over
400 youths, 200 of who will receive MST.
The evaluation component is funded by
the Ministry of Community and Social
Services (Year 1) and Department ofJustice Canada (Years 2 to 4) through the
National Crime Prevention Centre in
Ottawa.
•The long-term goal of MST is to reduce
the future offending of those youths
judged by their probation officers or othercase managers as highly likely to reoffend. This in turn should be followed bylower rates of custody and incarceration.
No intervention has a 100% success rate.
I t is not realistic to e xpe ct all M S T
recipients to remain offence free. But wewant to answer these questions:

•
•
•
•
•
•
•
•

•

•
•
•

Are recipients of MST less likely tocommit future criminal offences thana similar group youth who do notreceive MST?
Do those who re-offend do so after alonger period than if they had notreceived MST?
Will the offences they do commit beless serious?
Will they spend less time in custodya s a gr o u p t h a n if th e y h a d n o t
received MST?

•
•
•
•
•
•

This document provides answers tothese frequently asked questions:
What is MST?
What do MST therapists do?
How do we know that MST works?
Isn’t MST too expensive a service?
Does MST work with older teens?
Where can I find more information
about MST?
Who can qualify for MST in the
Ontario clinical trials?
Are some youths not appropriate
referrals to MST?
How do I make a referral to MST?
Is MST available in other areas of
Ontario?
Why do you need a control group?
Isn’t random assignment of referrals
unethical?
How is “effectiveness” being measured?
When will the research findings beavailable?

73

RESOURCE MATERIAL SERIES No. 59•

Where can I get more information on
the research?

What Is MST?
MST was developed by the Family
Services Research Center at the Medical
University of South Carolina. It wasapparent that mental health services forserious young offenders were minimallyeffective at best, extremely expensive andno t a cco unta b le f o r o utcom es. T hey
reviewed the research literature andlooked for interventions with documented
success in shaping good outcomes foranti-social youth. They also noted whichinterventions, some quite popular, haveno empirical support. This process of
discarding ineffective techniques while
gleaning those most effective means that
MST is really more an amalgam of bestpractices than a brand new method.
MST ad opts a social-ecologicalapproach to under-standing anti-social
behaviour. The underlying premise of
MST is that criminal conduct is multicausal; therefore, effective interventions
would recognize this fact and address them ultiple sources of criminogenic
influence. These sources are found not
only in the youth (values and attitudes,social skills, biology, etc.) but in the
youth’s social ecology: the family, school,
peer group and neighbourhood.
It is a key premise of MST that
community-based treatment informed byan understanding of the youth’s ecology
w ill be mo r e e ff e ctive than co stlie r
residential treatment. This is true evenwhen you select as candidates for MST
those youths that are bound forr e s id e n t i a l t r e a t m e n t o r c u st o d i a lplacements because of the seriousness of
their conduct or emotional problems.
Research has shown that treating theyouth in isolation of the family, school,74

peer and neighbourhood systems meansthat any gains are quickly eroded upon
re turn to the family, school orneighbourhood. Custody stays could alsocounte r-p rod uctive b eca use a lrea d ytroubled youth are immersed in a peer
culture where anti-social values
predominate.
M ST uses the fa mily preserva tionmodel of service delivery in that it ishome-based, goal-oriented a nd timelimited. It is present-focused and seeks to
identify and extinguish behaviours thatare of concern not only to referring agents
but also to the family itself. In fact, theentire family is involved with MST, in
contrast to many intervention which
define the youth as the “identified client.”
M S T i n vo lv e m e nt w il l t y p ic a ll y b e
between four to six months.
Collaboration with comm unity
agencies is a crucial part of MST. The
school is a key player and workers may be
i n d a i l y c o n ta c t w i t h t e a c h e r s a n dadministrators. MST therapists also workin clo se p artne rship w ith p rob a tio no ff ic e rs tha t in m a ny c a se s a re thereferral source. There may be a need to
involve the youth in substance abuse
treatment or seek a psychiatricconsultation about a parent, for example.
While the initial MST involvement may
be intensive, perhaps daily, the ultimate
goal is to empower the family to takere sponsibility for making andmaintaining gains. An important part ofthis process is to foster in the parents theability to be good advocates for theirchildren and themselves with socia lservice agencies and to seek out their own
supports. In other words, parents areencouraged to develop the requisite skills
to solve their own problems rather thanrely on professionals. MST is a flexible
intervention ta ilored to ea ch uniq ue

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
situation. There is no one recipe forsuccess.
The MST-specific training augments
the education and experience therapists
bring from their chosen fields (usuallysocial work or psychology).
What Do MST Therapists Do?
MST therapists do the work in thefamily home rather than in the office andare available 24 hours a day if needed.
T he a v er a ge ca s e l o a d i s fo u r t o s i xfamilies. Especially in the beginning, theworker may be in the home every day. As
needed, they will spend time at school
and meet with the youth’s peer group andextended family. A key part of the processb e g ins w ith e n ga g ing the f a m ily , asignificant challenge in so me cases.
W orke rs a re clo sely supe rvised an dmonitored for adherence to the MS T
principles and receive weekly guidance
and feedback about their interventions
with the families on their caseloads.
T he M S T pro cess b egins w ith th e
identification of the problem behaviours,
a process that involves the whole family.
I n o t he r w o rd s, p a r e n ts a r e k e y in
identifying treatment targets. Examplesof these behaviours include noncompliance with family rules, failure toattend sch ool, failure to complete
schoolwork, substance use, disrespect toauthority figures, and assaultive
behaviour. While the focus is on
elimination of problem behaviours, this isaccomplished in gr eat measure bybuilding on strengths. The assessment
process a lso involves identifying thestrengths in the youth and his family,
which ca n include a hob b y, a thletic
ability, a trusting relationship with anextended family member or teacher,warmth and love among family members.

The next step is an assessment of thefactors in the youth’s ecology, w hichsupport the continuation of the problem
behaviours and the factors which operate
as obstacles to their elimination. These
factors may be found in any sphere of the
youth’s ecology: family, peers, school,
neighbourhood or the linkages among
them. Therefore, therapists are called
upon to find information from all of thesesources, by going to the school, spendingtime with the peer group, or speaking
with extended family mem bers.
Examples of these factors might include
poor discipline skills on the part of theparents or teachers, marital discord,parental substance use, poor supervision,
peer reinforcement of problem
behaviours, neighbourhood culture which
condones violence or encourages
antisocial values, low commitment toeducation, chaotic school environment,poor parent-to-school communication, or
financial stresses experienced by thefamily.
By identifying the “fit” between thepr o b lem s a n d th e b ro a d e r sys tem ic
context, MST workers are defining boththe t a rge ts o f inte r ve ntio n a nd theind ica to rs o f w he ther the m ea sure s
u n d e r t a k e n h a v e b e e n e f f e c t iv e . A
therapeutic stra tegy should produce
obs ervable resu lts in the problem
behaviour or else the strategy is revised.
In other words, positive changes in the
behaviour (e.g., school attendance) isused as indication that the intervention(e.g., parent contacting the school daily)
is on the right track. Failure to achieve
positive changes requires a reassessmentof the “fit” and plainly indicates the needto try a new approach. The MST service
providers are ultimately accountable forovercoming barriers to change. Blaming
language such as “sabotage,” “resistance,”
a nd “ i ntr a c ta b l e p r o b l e m s ” a r e n o tpermitted. In fact, diagnostic labels of75

RESOURCE MATERIAL SERIES No. 59
any type are discouraged in favour of aperspective that focuses on challenges
and strengths.
MST is designed to be an intense but
short-term involvement that can result in
the generalization of treatment gains
over the long-term. Ideally, the frequency
and duration of contacts will decreaseover time, being intense in the beginningb u t l e s s e n ing a s i m p r o ve m en t s a r eobserved. No social service intervention
can last forever, so the ultimate goal is toempower the family or other caregiver tocontinue with the strategies andinterventions that were successful. The
clearly articulated definition of successpermits objective definition of when thecase can be closed.
How Do We Know That MST Works?
Several randomized and quasiexperimental studies of MST have beenc o n d u ct e d in th e U n it e d S t a te s , inMissouri, South Carolina, and Texas, andothers are now under way. MST has been
demonstrated to reduce rates of criminal
activity (officially recorded and selfreported) and institutionalization. The
M S T ap pr oa c h is also succ es sfu l at
e n ga g in g a n d r e ta i nin g f a m il ie s intreatment and encouraging completion ofsubstance abuse programming. It can
result in im provements in fam ilyfunctioning and cohesion. These results
are notable in a field where successes aref e w a n d f a r b e t w e e n b ut e s pe c ia l l y
r e m a rk a b le b e c a u se M S T h a s b e e neffective in inner-city urban areas, among
youth w ith serious criminal records,
youth identified as high risk to re-offend,
a n d a m o n g e c o n o m i c a ll y m a r g in a lfamilies and those with long histories of
unsuccessful interventions. However, wecannot simply assume that the success in
the U.S. will automatically be replicatedin Ontario. That is why we areconducting a clinical trial, to determine if

76th e u se o f M S T w it h se r io us y o un goffenders will produce better outcomes
tha n the services a nd interventions
already available in this province.
Isn’t MST too Expensive a Service?
Everyone in the social services system
is having to do more with less. With anaverage worker/client ratio of 1:5, MST isindeed a cost-intensive service. A crucial
piece of the evaluation will be todetermin e c os t effec tiven es s: w ill
spending the money now save money
later? A 1998 study by the Washington
State Institute for Public Policy rated
MST as the most cost effective of the 16
programmes analysed. After subtracting
the cost of the MST intervention itself,
there was an average saving of $7,881(U.S.) per youth for services associatedwith criminal behaviour, such as
incarceration. In addition, the reduction
in crime was associated with $13,982 insavings to potential victims. The study iscalled Watching the Bottom Line.
Does MST Work With Older Teens?
With the addition of older adolescentsto the clinical trial in 2000, some haveasked if the MST approach is as effectivewith young offenders over 15. Reference
to the U . S. r e se arc h in d ica te s th at
successful outcomes are achieved andmaintained for youths of all demographic
categories, both males and females, andyouths of all ages.
Where Can I Find More Information
About MST?
The Family Services Research Centerhas published many scholarly articles
about MST research. See the end of thisdocument for a bibliography. Dr. Scott
He ngge le r ha s wr itte n a n e xcelle nt
summary called Treating Serious AntiSocial Behaviour in Youth: The MSTApproach that is available at the web siteof the National C riminal Justice118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Reference S ervice in text and A dob e
formats (see here). There is also a great
deal of information available at the website of MST Services Inc.
Who Can Qualify For MST In The
Ontario Clinical Trials?
MST is designed to fit into acommunity service-delivery spectrum at
the high end , where youths havedem onstrated severe anti-social
behaviour that has proved resistant toother interventions. To qualify for the
MST clinical trial, youths must have ahigh or very high risk of criminal
offending in the future. For the younger
youth, this determination is made with
the Risk/Need Assessment used by the
M in i st r y o f C o m m u n i ty a n d S o c i a l
Services. For youths referred through thePhase II young offender system, the Levelof Service Inventory is used. In mostcases, future risk is indicated by priorserious offending, which may or may nothave resulted in charges. Many youths
will have other presenting problems suchas sch oo l re f usal, subs tance abuse ,parent/child conflict or conduct disorders.
Are Some Youths Not Appropriate
Referrals To MST?
Y es . W e will no t scr ee n c a se s f o r
treatment amenability or exclude thosewith poor prognosis for success. However,there are two categories of exclusionary
criteria:
1. the situation of the youth isinconsistent with a family
preservation modality of treatment
2. the presenting issues of the youth are
not among those for which MST has
been empirically validated
Exclusion of the case means that theyouth does not qualify for MST (at leastat this point but potentially later if thesituation changes).

The first category of exclusionary
criteria requires consideration of thesefour factors:
1. Requisite Level of “Family” Involvement
MST being a family-based
intervention, a youth must have atleast one adult caregiver. This may be
a parent but could also be an older
sibling, grandparent, aunt, uncle orfriend of the family. A Crown ward ina s t a b l e f o s te r p la c e m e n t c o ul dqualify. However, a CAS client in a
new placement may not qualify, as
there is no way to determine if theplacement will break down. Typically,
yo u t hs in g r o u p h o m e s o r o th e r
r e s i d e n t ia l s e t t i n g s w i l l n o t b e
suitable MST candidates unless afamily reunification is imminent or asubstitute caregiver can be identified.
2. Current Family Therapy
If the family were already engaged
with a therapist and making gains,the intervention of a MST worker
would be neither needed nor
appropriate. Should the arrangement
break down, however, a referral could
be made.
3. Safety of Youth and Family
M S T u se s a f a m ily p r e se rva t ion
model but some families cannot bepreserved safely. When assessing theappropriateness of an MST referral,
safety concerns override all others,
whether that involves youths who are
at risk of abuse, at risk of suicide, orat risk of harming other members of
the family. MST is not a substitute for
CAS involvem ent, in-patient
hospitalization, or community safety
through custody/detention.

77

RESOURCE MATERIAL SERIES No. 59
4. Risk of Injury to Worker
C linical sup e rviso rs, p er hap s inc ons ultation with the police orprobation officers, have the discretion
to disqualify a case from the clinical
trial because of a risk of injury or
harm to the MST worker while in thefamily home. This situation is NOT
indicated merely by family violence orassault convictions.
The second category of exclusionary
criteria pertains to the types of caseswith which MST has been
demonstrated effective. It has beentested on youths with many
presenting problems, all of w hom
have one thing in common: criminal
behaviour.
B a se d up o n c le a r d ir ec tion f ro m
S o u th C a r o l in a , t w o g ro up s a r eineligible for MST at this point intime:
1. Sex Offenders
S e x o f f e n d e r s m us t b e e x cl ud e dbecause MST has not yet been
demonstrated as effective with thisgroup (although a project is under
way to adapt MST to this purpose).
2. Acute Psychosis
Youths who are acutely psychotic are
not candidates for the MST clinical
trial. However, a p sychiatricdiagnosis is not a disqualifying factor
in itself.
How Do I Make A Referral To MST?
The MST clinical trials wereconducted in four areas of Ontario
and the referral process is different in
each. Contact the Clinical Supervisor
in your area:
Is MST Available In Other Areas
Of Ontario?

78

Not at present. The Government of
Ontario is awaiting the results of theclinical trial before making decisions
about expansion.
Why Do You Need A Control Group?
The control group is absolutely crucial
to the study. Without it, we will neverknow if MST is more effective than
the services already available. We
need to determine whether changes
we see in the youths over time would
have occurred anyway or were theresult of other interventions such asprobation or conventional therapy. No
less important is the fact that MST isa relatively expensive intervention.
W i t h t h e c o n tr o l g r o u p , w e c a n
document if spending this money now
will save money that would otherwise
be spent later, on custody and prison
stays. This is how it works. Random
assignment is used to crea te twogroups of equal size that are identical,
especially in terms of thecharacteristics which might impact
future offending (criminal history,etc.). One group continues to receive
the services available to them in their
com munities. The o the r rece ive s
MST. After some time has passed, we
examine the members of these twogroups to see how they have changed
as a group. More importantly, we
examine how the two groups compare
to each other. In the aggregate, they
were the same when we started. The
only differe nce is that one half
received MST. Therefo re, any
dif ferences b etwe en the m ca n belinked unambiguously to the MST
intervention. In short, the control
group helps us rule out other possible
explanations for observed changes(e.g., they grew out of the behaviour,o nl y tr e a t m e n t- a m e n a b le yo u t hreceived MST, etc.). It also allows abasis of understanding what probably

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
would have happened to these youths
if they had not had MST.
Isn’t Random Assignm ent Of
Referrals Unethical?
No.
Most
peoplehave
anunderstandable discomfort with thisprocess. It feels like denial of service to adeserving and probably needy family.
However, no fewer youths are receiving
MST because of the random assignment.
There are a set number of MST
placements and eliminating the control
gr ou p wo uld n ot cha n ge tha t. M or e
importantly, all the families provide
informed con-sent. It is explained tothem, verbally and in writing that they
have a 50/50 chance of being assigned to
MST. The assignment is done using atechnique much like flipping a coin. No
one can control w hich case goes into
which group so the process is completely
fair. Everyone has an equal chance. And
they are free to decline involvement andcontinue to receive the services available
to them in their home community. The
vast ma jority of qualifying fa m ilies
consent to participate. Further, there isno negative consequence for not getting
MST. They are not denied service. In
other words, they do not get a placebo.
The youths and their families continue toreceive the services defined in their casemanagement plans and available in theircommunities. We are not comparing theefficacy of MST to doing nothing, we arecomparing the efficacy of MST to thewhat we do now to see if it helps us shapeb e t t er ou t - co m e s t h a n w h a t w e a r e
already doing.
H ow Is “Effectiveness” Be ing
Measured?
We hypothesize that the MST groupwill show both greater improvements inth e s hort -t er m and lower r ates ofoffending in the long term compared withthe control group. In the short term, pre-and p ost-testing of b oth groups w ill
examine changes in internalizing andexternalizing symptomatology, social
sk ills, an ti- so cial att itud e s, f a m ilyfunctioning and parental supervision. As
noted above, we will examine both preand post changes as well as differences
between the MST and control groups at
the time of post-testing. In the long-term,a g a i n u s i n g t h e c o nt r o l g r o up a s acomparison, we will look for differences inoffending for up to three years after the
MST intervention including issues suchas patterns of offence seriousness andoffence frequency, time until re-arrest,
and time spent in both youth custody,
residential placements and adult penal
institutions.
When Will The Research Findings Be
Available?
This study will conclude in March of
2001 and a final report will be prepared
for the fall of that year. Annual update
reports are prepared for the funding
agencies ea ch yea r in M a rch. These
reports are posted on the web site of theCentre for Children and Families in the
Justice System of the London Family
Court Clinic. An interim report from
September of 1999 is now available.
Where Can I Get More Information
On The Research?
For more information you can contact:
A la n W . L esc hie d, P h. D ., P ri nc ip a l
Investigator
Division of Educational Psychology,
Fa culty of E duc ation, Unive rsity ofWestern Ontario
1137 Western Rd.
LONDON ON N6G 1G7(519) 661-2111 ext. 88628
FAX: (519) 661-3833
leschied@julian.uwo.ca
or79

RESOURCE MATERIAL SERIES No. 59
Alison Cunningham, M.A.(Crim.),
Director of Research & PlanningCentre for Children & Families in the
Justice System
London Family Court Clinic
200–254 Pall Mall St.
LONDON ON N6A 5P6(519) 679-7250 ext. 119
FAX: (519) 675-7772
alison@lfcc.on.ca
MST BIBLIOGRAPHY
Canadian Publications
Leschied, A.W. and Cunningham, A.
(1998). Alternatives to Custody for HighRisk Young Offenders: Application of the
M ultisystem ic A pproa ch in Ca nada .
European Journal on Criminal Policy
and Research, 6: 545-560.
Leschied, A.W. and Cunningham, A.
(1999). Clinical Trials of Multisystemic
T h e ra p y in O n ta r io : R a t io na le a n dCurrent Status of a Community-Based
Alternative for High-Risk Young
Offenders. Forum on C orrections
Research, 11(2): 25-29.
Leschied, A.W. and Cunningham, A. (inpress). A Review of the Use of Custody in
Canada’s Young Offender System and theD evelopment of a Community-Based
Programme for High-Risk Young
Offenders. In A.M. van Kalmthout, H-J.
A lb r e c h t a n d J . J u n g e r - T a s ( e d s . ) ,Community Sanctions, Measures andExecution Modalities in Europe, the USA
and Canada. Kluwer Publishing,Dordrecht, The Netherlands.
Leschied, A.W. and Cunningham, A.
(2001). Empirical and Applied Criminal
Justice Research, 1, 1, 1-24.
American Publications
Borduin, C.M. (1994). Innovative modelsof treatment and service delivery in the80

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D.M. & Stein, R. (1990). Multisystemictreatment of adolescent sexual offenders.
Inte rnational Jour nal of Offe nder
Therapy and Comparative Criminology,
34: 105-113.
Borduin, C.M., Mann, B.J., Cone, L.T.,
Henggeler, S.W., Fucci, B.R., Blaske,
D.M. & Williams, R.A. (1995).
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J.P. (1987). A comparison ofm u l t i s y st e m i c t h e r a p y a n d p a r e n t
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Henggeler, S.W. (1997, May). Treating
serious antisocial behavior in youth: The
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Henggeler, S.W. & Borduin, C.M. (1995).
M ulti-systemic treatment of serious
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G.B., Mann, B.J., Smith, L., Hall, J.A.,
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S ou th C a r ol ina H ea l th a nd H um a nServices Finance Commission.

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incarceration, inpatient, and residential

82

Tolan, P.H., Guerra, N.G. & Kendall, P.C.
( 1 9 9 5 ) . A d e v e l o p m e n t a l - ec o lo g i c a lperspective on antisocial behavior inchild ren and a do lescents: T ow a rd aunified risk and intervention framework.
Jo urna l o f C o nsul t in g a nd C l ini ca l
Psychology, 63, 579-584.

WHAT WORKS WITH YOUNG OFFENDERS:
SUMMARIZING THE LITERATURE
Alan W. Leschied, Ph.D. C. Psych.*
I. ACCUMULATING EVIDENCE FORASSESSMENT AND
REHABILITATION IN THE YOUNG
OFFENDER FIELD
In a recently published summary of theaccumulation of evidence on assessment
and treatment in the young offender area,
Leschied and Cunningham (1999) notedthat more articles have been publishedregarding young offender assessment andtreatment in the past ten years (19881998) than were documented on major
literature data bases during the years
prior to 1988. What this points to, is not
only an increasing empirical basis for
decision making regarding placement andt r e a t m e n t t a r g e ts , b u t a s w e ll , a n
indication of the vast knowledge basewhich practitioners need to be aware of,in designing assessment and treatment
strategies.
A. General Principals from theAssessment Literature
T he fo llo w ing se ctio ns will de tailfindings related to the specifics of young
offender assessment that include general
as well as specific issues of assessmenta nd classification. The status of thegeneral literature with youth, similar towhat Andrews (1990) suggests with the
major predictors for adults at risk, is now
relatively apparent and continues toreinforce findings reported in recent
cross-sectional and longitudinal studies
by Farrington and Loeber (1999). This
trend suggests that there is a move away
* Professor, Faculty of Education, University ofWestern Ontario, London Ontario, CANADA

from the findings of general personality
theory that may have driven much of theresearch evidence through to the early
1980’s (e.g. such as Megargee’s MMPI
classification system) to a more risk
specific means of offender classification.
Further, specific assessment strategies
have now been develop ed andimplemented for specific purposes ofyoung of fe nde r m a na gem en t. Th ese
include offence-specific assessments
ranging from the assessment ofadolescent male sex offenders to the
management of youth in various security
levels in detention facilities. Presentationof these assessment strategies will bepresented.
B. General Principals from theTreatment Literature
Similar to the assessment literature,
increasing knowledge with respect toyou ng offender managemen t andtreatment has also been witnessed overthe past decade. Progress in this area has
capitalized not only on the specific effectsof young offender programmes, but fromthe general knowledge base regardingchild and adolescent intervention as well.
Kazdin and Weisz (1998) noted in theirreview of child and adolescentinterventions, that expressions such as
kn owledge-base d, data-driv en andempirically-supported now routinely
appear in selections made regarding
treatment op tions for specific client
gr o u p s . K n o w le d g e w ith r e sp e c t tosucce ssful p ro gram me s f or co nd uctdisordered and anti-social youth has
progressed not only in the description of
successful components of intervention (i.e.

83

RESOURCE MATERIAL SERIES No. 59
cognitive-behavioral) but also in themethod of service delivery (custody versus
community). Descriptions of promisingprogrammes are presented that can guide
general decisions with respect to youth
management. Specific service components
are also detailed that can help guideplacement decisions in regard to thecontext in which more su ccessfulprogrammes can be offered.
1. Developing Intensive CommunityBased Services for Higher Risk Youth
While considerable emphasis is being
given to ‘front-end’ services primarily
targeting lower risk offenders, there isa lso supp ort for developing se rvices
addressing the needs of higher risk cases
who would otherwise be heading towards
a custody disposition. Justification forcommunity-based services must first
have, a s its yardstick, the ab ility todeliver cost-effective service that does notcompromise the community’s safety. A
key intention of the Canadian
Department of Justice (1998), with its
proposed framework for youth justicereform, is to lower the rates of custodyordered in Canadian youth courts. Thiscannot b e accomplished through law
reform alone. Members of the public ingeneral, and sentencing judges
specifically, must be convinced of several
things. First, incapacitation throughcustody may protect the public in the
short term but evidence does not support
reductions in offending throughincapacitation in the long term (Andrews,
et.al., 1990). Second, there are viablecommunity-based alternatives to custodythat can both protect the public in the
short term and reduce recidivism in thelong term. Third, the expensive option ofcustody w ill not ‘p urcha se’ a s much
reduction in offending as these other noncustodial sentencing options. This review
will outline the choice of interventions
such as Multisystemic Therapy (MST) as

84

a viable alternative to custody for highrisk young offenders.
2. Systemic and Programmatic
Requirements for Effective Service(i) Summary from the Meta-Analyses
Meta-analysis is the term used toreport quantitative summaries of theliterature. It represents a significant
advancement over earlier qualitative
reviews (Wells,1991). Meta-analysis
statistically compares the types oftreatments that are offered, to whomthey a re d irecte d an d w ith w ha t
outcomes. The meaningfulness of metaanalysis is only limited by the number
and quality of the studies that areincluded in the review. Fortunately,
adequate quality a nd quantity ofst u d ie s n o w e xi st to m a k e
inte rpre tation s of the tre a tm e nt
li te r a tu r e i n y o u t h j u s ti ce wi th
confidence, although Losel (1997) has
offered up some reservations withrespect to limiting the generalizeabilityof such findings. The limitations alongwith th e m aj or o utco m es will besummarized in the following section.
(ii) Major Outcomes from the MetaAnalysis
Meta-analytic reviews of the outcome
literature support the desirability of
p r o v i d i n g p r o gr a m m e s t h a t a r e
relate d to the causes of crime(Andrew s et al., 1990; Lipsey andWilson, 1998; Gendreau and Goggin,
1996).
Sanctionsprovided
independentof appropriate
rehabilitative efforts have failed todemonstrate significant reductions inoffending. These reviews have givenrise to a clearer understanding of boththe systemic requirements for thedelivery of effective service as well as
the programmatic requirements toprovide meaningful reductions inyouth recidivism.

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Andrews et al. (1990) identified theimportance of matching the intensityof service to the relative risk and needof individual offenders. The Risk
Principle of Case Classification, auseful m eans to alloca te service,suggests that intensive services are
more meaningfully delivered to highrisk youth, while low-risk youth can besafe ly assigne d to less intensive
services such as community service,f in e s , r e st i t u t io n a n d lo w - l e v e lcommunity monitoring. Inappropriate
matching of service to risk level will,
accordingly, be seen as an ineffective,
non-productive use of services that canfurther the criminogenic risk of someyouths (Andrews et al., 1990). There ise vi d e nc e t o s ug ge s t th a t, in th e
pro vince of Onta rio for exam ple,sentencing judges are inclined to placein custody a disproportionate numberof youths who would be assessed as
low risk for further offending (Hoge,
Andrews and L es chied, 1995).
D ifferential association theorists
would warn that placing low -risk
offenders with high-risk offenders
could well adversely affect their risk
for reoffending.
Lessons learned, therefore, from themeta-analysis on systemic variables
in effective programming for youth
corrections suggest that:•••

Lower risk cases can be safely
assigned to less intensive services
Higher risk cases are more
effectively dealt w ith in m ore
intensive services
The differential assignment ofyouth according to risk is criticalcharacteristic of any youth correctional
system.
(iii) Findings on Programme Componentsof Effective Service
Research has also add resse d theprogrammatic components ofcorrectional interventions for youth
by identifying the content and qualityof e ffective programm es (for a
detailed review see Andrews,
Leschied and Ho ge, 1992).
Components of effective programmesar e assesse d in r elation to theirability to meaningfully reduce
recidivism within the targeted group.
Programmes assessed as effective
tend to be those that systematicallyassess risk in clients, use the risk
principle of case classification, adopt
programme orientations known to beeffective, employ well educated andwell trained staff , monitor
programme integrity and adherence
to the intervention model used, andrigorously evaluate the extent towhich p ro gra mm e goals a re m et.
Cognitive-behavioural interventions
are often identified as having thegreatest p rom ise in reducing
recidivism when compared with otherpr o gr a m m ing o r ie nta t io ns ( e .g .,V en na r d, S ug g a nd He d d er m a n,1997).
Discussion therefore in identifying
appropriate young offender service
nee d s to b e mind f ul of th e eigh t
in te g r it y i ss u e s su m m ar iz e d byAndrews et al. (1990). According tothese authors, a coherent andempirically defensible model:•

Accordingly, a spectrum of services toaddress youths at all levels of risk andn e e d w o u l d b e a v e r y d e s ir a b l e•empirically links interventions
with desired outcomes;
assesses risk and need levels ofc l i e n t s a n d t a r g e t s th e m f o rintervention;

85

RESOURCE MATERIAL SERIES No. 59
•
•
•
•

•

•

has a detailed programme manualout linin g th e discreet st eps
involved in the intervention;
ensures that therapists havestructured and formal training in
relevant theory and practice;ensures that therapists aresupervise d in a meaningfulmanner;assesses the therapeutic process
as delivered to monitor theadherence to key principles andthe employment of techniques
claimed to be employed;
conducts
assessmentsofintermediate changes in values,
skills or circumstances of clientsthat are presumed to relate todesired outcome(s); and,associates the level and intensityof intervention to risk, need andresponsivity.

3. Institutional Versus NonInstitutional Placement for
Treatment
Lipsey and Wilson’s (199 7) review
distinguished placement of treatment,
residential versus community, indifferentiating characteristics of effective
programmes. This is a criticaldifferentiation since much of the debate
regarding effective youth justice policies
centre on the importance of incarceration
as a relevant factor in community safety.
Lipsey and Wilson noted in their analysis
that different contributions are made forv a r io us c o m p o n en ts o f se r vi ce a s afunction of the placement for treatment.
Table 1 summarizes factors relevant foreffective programmes in institutional andnon-institutional placements.

86

Table 1
Programme Factors Contributing to
Effectiveness for Institutionalized
and Non- Institutionalized Young
OffendersInstitutional-Based Components
Interpersonal Skills
Teaching Family Model
Multiple Services
Behavioural Programmes
Individual/Group Programmes
Non-Institutional-BasedComponents
Interpersonal Skills
Individual/ Group Programmes
Multiple Services
Restitution/Probation
Employment/Academic Programmes
E f f e c t s i z e s a c c o u n t in g f o r t o t a lprogramm e outcom e across bothins tit uti on a l an d no n -i ns titu tio n a lprogrammes suggested that the threefactors comprising the highest ranking
wer e; inter pe rso nal skills training,
individual counselling and behavioral
programmes. The second grouping oflesser, yet significant contribution were
the two programme factors consisting ofmultimodal services and restitution foryouths on probation.
The work of D on And rew s a nd hiscolleagues (Andrews, Zinger, Hoge, Bonta,
Gendreau and Cullen, 1990); Andrews,
Leschied and Hoge, 1992) were consistent
with the findings of Lipsey. However
Andrews’ work provides more specificity inregards to appropria te ta rgeting forintervention - known as the risk principle and increasing sophistication regarding
style and type of intervention, namely theimp ortance of cognitive-behaviouraloriented interventions. On a broader level,
Andrews’ work outlined characteristics ofpromising programmes as including:118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
•
•
•
•
•

Employment of systematic assessment that emphasizes factors relevant to criminality
Possess therapeutic integrity
Attend to relapse prevention
Target appropriately
Employ appropriate styles of service

With the number and consistency ofanalyses pointing to factors that relate toeffective strategies for reducing youthful
offending, considerable attention is now
being directed at developing efforts that
effectively disseminate and sustain thecomponents of effective programmes. The
following section draws on findings thatare being reported in the forthcoming
book edited by Gary Bernfeld, David
Farrington and Alan Leschied throughJohn Wiley Press entitled, “Implementing
Effective Correctional Programmes”.
II. OVERVIEW OF MAJOR
FINDINGS FROM THE METAANALYSIS
In the mid and latter 1970’s, reviews of
the programme literature in corrections
contributed to an extraordinary
discussion that became the touch stone toa generation of corrections professionals.
The nothing works debate as it is been
popularly know n, not only became amatter for social scientists to consider,
but also played into the hands of policym a ke r s a nd p o l i t i c i a n s i n cr i m i n a ljustice. Depending upon their particularpolitical leaning, decision makers used
the results of such reviews to either
proclaim the failure of rehabilitation,
thereby perhaps unwittingly heralding
the expanded use of get tough measures,or used them to develop the grow ing
science of prediction and treatment in thecorrections field. Followers of the debate
will now be familiar with the names ofRobert Martinson (1976) in the U.S. andin Canada, Jalal Shamsie (1979) whoseti tl e s o f q u a li ta ti ve re vi e w s o f th eliterature so provocatively proclaimed
that “Nothing Worked” and that “Our
Treatments Do Not Work: Where do We
Go From Here”. And with eachprovocation, there was a Paul Gendreau,
Robert Ross (1979) or Ted Palmer (1996)
w h o s ug ge s te d th a t a m o r e c a r e f u lreading of the outcome literature would
provide “Bibliotherapy for Cynics”.
Two decades have now passed, andwith more sophistication in providing
quantitative reviews of the prediction andoutcome literature, meta-analyses havea s s is te d i n d e v e l o p i ng a s c i e n c e o fcriminal conduct. Such a science draws
not only on linking factors that help in
the understanding of criminogenic risk
levels of certain individuals - nature andstrength - but also on the literature
rega rd ing tr ea tm ents or system s o fservice delivery that can promote
effective outcomes in correction alpractice. The following section highlights
some of the major findings from the metaanalyses that relates to implementation.
A. Contributions from the MetaAnalyses
There have bee n a number ofcontributions to the meta-analysis oncorrections treatment. Perhaps the mostwell-known are those authored by Don
Andrews and his colleagues (1990) and by
Mark Lipsey (Lipsey and Wilson, 1993;
Lipsey 1995). Technical understanding of
the approach taken by these authors will
not be provided here. Suffice to say thatthe qua lity and nature of the me ta analyses that are reported reflect thequality and number of the studies in thefield. Hence, the nature and quality ofknowledge could not have been achieved
and reported on by Andrews and Lipsey
were it not for the efforts of so many who
contributed to that knowledge base.

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RESOURCE MATERIAL SERIES No. 59
B. Major Assessment Issues in
Implementation
Both cross-sectional and longitudinalstudies have identified factors that link
past or current conditions withindividuals that place them at increasingr is k f o r c ri m in o g e n ic in vo l ve m e n t.
Andrews and Bonta (1998) suggest thatthese studies support a socia lpsychological understandi ng of
criminogenic risk. That is, individuals
m ay cognitively process certain
conditions in their environment thatd e ve lop or r ew a rd c er ta in style s o rcontent of thinking that are reflected ina nti- socia l b ehaviour. Those syste mvariables that influence risk to a greater
extent include the following:•••families of origin,peer associates, andschool or working conditions.

Data has also sup p o rte d the lin kb e t w e en a nt i - s o ci a l b e ha vio ur w i t h
substance use in the understanding ofcrime cycles (Huizinga , M enard andElliott, 1989). Measures of those factorsthat contribute most significantly ands e e m t o b e a t t r a c t i n g th e g r e a te st
attention in the literature include multifactored indicators as measured by theLevel of Service Inventory (Andrews andBonta, 1999), the Risk - Need Inventory(Hoge, Leschied and Andrews,
1996),criminal sentiments (Simourd,1999) and psychopathy (Hare, 1991).
C. Assessing for Criminogenic Risk
Accurate and relevant assessment ofcriminogenic risk is tied to the major
outcomes from the meta-a na lysis on
effective treatment. While Lipsey has
identified the major general contributors
to successful correctional programmes,
Andrews, et.al.’s principle contribution
rests in the refining of understanding
r ega rd ing the ap pr op riate ta rget of88

intervention. While Lipsey’s results wereencouraging regarding the average effectsizes supporting reductions of 10-30 per
cent in re-offending within particular
types of programming (i.e. behavioral overpsychodynamic), Andrews’ findings thatcertain programme components targetedto specific criminogenic risk factors referred to as clinical relevance - could
improve outcomes by an even greater
extent. Hence, Andrews articulated therisk principle of case classification as a
critical component of effective service
thereby linking assessment with serviced e live r y in t he o ve ra ll a p p ro a ch t oeffective correctional treatment. Thesefin ding s therefore su ggest thatassessment of appropriate risk relevant toc ri m i na l j u st ic e in v o lv e m e nt ar e a
ne c es sa r y a nd f un d a m e nt a l p a r t o f
successful programme implementation.
The following section will begin to address
the structural models of conceptualizing
im plem enta tion issue s b ased on theempirical findings from the meta-analysis.
III. PROGRAMMEIMPLEMENTATION AS A SCIENCEIN ITS OWN RIGHT
A. Dissemination of Effective
Programme Strategies:

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Technology Transfer in the
Human Service Field1
The transfer of knowledge in the social
a n d h um a n se r vic es f ro m w h a t ha slargely been an academic-base dknowledge to app lied settings is
cha llenging not only to correctional
professionals, but to practitioners in avariety of human service settings. The
literature chronicles numerous examples
of programmes that were either wellconceived and poorly implemented or wellim plem ented but po orly sustaine d(Bauman, Stein and Ireys, 1 991). O fcourse, there is also the suspicion thatthe fa ilure to im plem e nt or sustainc or re ctio na l pr og ra m m es tha t ha v edemonstrated effectiveness in research
may be tied to the more insidious, cynicalintentions of some policy and programme‘experts’. This has more to do with theunwillingness of such administrators todisavow the knowledge base in a given
area and indeed purposefully undermine
the integrity of that knowledge. Andrews
and Bonta (1998) refer to this intentional
undermining as knowledge destruction.
Techniques of knowledge destruction arecharacterized by the seeming
sophisticatio n of a rgum ent in using
scientific principles to negate scientificfact. Erstwhile, the use o f suchtechniques belays the negative beliefs
a n d a tt i t u d e s o n t h e p a r t o f t h e s ecommentators. A careful reading of what
1

The author is grateful for the guidance indeveloping these ideas on dissemination from Dr.
Gary Bernfeld of St.Lawrence College, Kingston
Ontario. The forthcoming book by Bernfeld,
F a r r i n g t o n a n d L e s c h i e d (E d s . ) i n c l u d e s
con tribu ti ons from some of the leadin gr es e a r ch e r s i n th e a r e a o f p rog ra m m eimplementation and dissemination. In addition,
readers may find the forthcoming Compendiumson effective correctional practice, volumes 1, 2
and 3 produced through Correctional Services
Canada (Larry Motiuk, Ed.) of interest.

is known about successful programmes is
p a ra m ou nt t o s uc ce ss f ull y p la n ne dprogramme implementation.
In an excellent review of the lessons
learned from the literature on successfulprogramme implementation, Lisbeth
Shore (1991) noted that theimplementat ion of prog ram mes i s“shaped by powerful forces” that are noteasily modified even by “new knowledge”.
Ind ee d , S ho re’ s sum m ar y of f a ctor snecessary in successful implementation
include the necessity of a climate that is“created by skilled, com mitted
professionals respectful and trusting of
the clients they serve .....regardless of theprecepts, demands and boundaries set byprofessionalism and bureaucracies” (p.
258). The necessity of providing caring
programmes, that are coherent and easy
to use, providing continuity andcircumventing the traditions of limiting
professional and bureaucratic limitations
were absolutely the prerogative of such
effective programmes. Paul Gendreau(1996) of course would add that a seniora d vo ca te in a n o rg a niz a tio n w ho i swilling to champion the cause of such a
programme is an essential ingredient as
well.
‘Powerful forces’ as Shore calls them
are certainly at work in the corrections
fields w he n it comes to tra nsferringknowledge to practice on a broad scale.
Political beliefs th at h ave sh aped
correctional practice have in many cases
been antagonistic to the lessons learned
from the literature on effective
corrections. Deterrence, sanctions andpunishment-based correctional practices
and policies have been pre-eminent in thelast two decades. This is despite what
Palmer (1996) amongst others indicateshas been a failure of such programmes todemonstrate reductions in offending. Yet,juxtaposed to this em phasis on

89

RESOURCE MATERIAL SERIES No. 59
punishment reflected in correctional
policy has been the extraordinary growthin knowledge in the area of effective
treatment. The following sections identify
the necessary steps in taking evidencebased practice into applied settings.
B. The Necessity of a KnowledgeBased Approach
Cu llen , et.al.(1 998 ) cite d ata
suggesting that there continues to bem a n y b o th w it h in a n d w it h o u t t h ecorrections profession who have failed tore cogniz e the grow ing litera ture on
effective treatment with offender
populations. Despite this disappointing
lack of awareness, the literature
continues to grow, documenting not only
progress in regards to the accumulationof evidence of effective interventions, butalso the summaries from numerous metaanalyses that now speak to the patternsof effectiveness being documented acrossstud ies. N ume ro us re search ers andpractitioners now speak about the needfor examining ‘technology transfer’; theapplication of what research hassuggested can be effective and translatingthat knowledge into routine correctional
practice. This chapter will highlight thefa ctors related to implementation ofprogrammes that attempt to comply withthe principles of effective service. Though
few in number, there are now studies thatreport on evaluations that monitor the
implementation of programmes at boththe practitioner level - referred to astreatment adherence - and the broader
programme, service and system level referred to as programme compliance.
Coupled with the move to monitor andm e a s ur e a d h e re nc e , is th e g ro w ing
emphasis on dissemination of information
regarding effective programmes. Training
is p ivo tal, com bining both thecommunication of programme findings
a long with the kinds of support and90

co nsultation re quire d to insu re theeffective replication of those programmes.
S o m e o f t h e m o r e w e l l- a r ti c u l a t e dinterventions such as Multisystemic
Therapy (Heng geler, Sch oen wald,
Bourduin, Rowland and Cunningham,
1998) and the Teaching-Family Model(1990) are currently developing, alongwith field input and support, detailed
practitioner and supervisor manuals thatca n a ssist successful dissemination,although it must be acknowledged thatsuch higher level dissemination efforts
that are also being evaluated are still
relatively rare in the human services andc o r r e c t io n s f ie l d s . T h e r e a r e si g n s
ho weve r that this situation m a y bechanging. Fixsen, Blase, Timbers andWolf (1990) have reported on a fifteen
y e a r f o l l o w - u p o f a n e v a l u a t io n o f
p ro gr a m m e d iss em in a tio n w it h the
Teaching-Family Model. This analysis
includes an examination of the challenge
in developing a means of transferringknowledge to practitioners.
C. General Considerations for
Successful Implementation
As with any change strategy in humanservice, the complexities of factors thatneed to be addressed in promoting a shift
in correction al practice may seem
daunting if not absolutely overwhelming
to an initiator of programme change.
Ellickson and Petersilia (1983) identified
six principle organizational considerations
that were necessary in initiating
pr og ramme
implementationincorrections. They included:
•
•
•
•
•
•

Sincere motivation at implementation
Support at the top of leadership andea ch gr oup w ho se c oop er ation isrequired for implementation and use
Staff competence
A cost-benefit surplus
Clarity of goals and procedures
Clear lines of authority

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
I n ad dition, program me shifts f or
implementation in corrections requires
the support of both legal and non-legal
stakeholders in the community. Whatm a y m a ke sen se f ro m a p rogra m m eperspective may be seen by the courts as
in conf lict w ith the rule of la w . F or
example, if justice is seen as too
individualized i.e. sanctions are not seen
as proportionate given the nature of theoffending, the rule of law m ay beperceived as under-mined because of theinequity of the severity and nature of the
sanction. Clarity in the purpose and roleo f the co urts a nd othe r la w - re la te dforums need to be seen as complementary
to the role and purpose of correctional
programmes.

of even successful programmes. While theg e n e r a l o u t c o m e l it e r a t u r e i s n o wreporting reductions in offending ranging
from 20 to 40 per cent (Andrews et. al.
(1990); Lipsey and Wilson, 1998) there
are some areas of correctional practicewhere data has not supported claims ofeffectiveness. One such area is related tooutcomes with psychopathic individuals.

D. Contextual Issues in Successful
Implementation
Experience in North America over the
past two decades has reflected the trend
towards incarceration as the correctional
policy of choice. Trends in the support forincarceration coupled with the legacy ofthe nothing w orks conclusions ofreviewers of correctional programmes inth e early and mid 1 970’s , crea ted
considerable challenge to implement
programmes that were not predicatedsimply on adding to the incarceration
rate. In many respects, findings fromprogramme reviews suggesting that thecommunity was the preferred context inwhich to deliver effective programmes
flew in the face of the get tough school ofcorrections policy. Hence, development oft re n d s su ch a s in te n siv e p ro b a tio nsupervision programmes, even thoughevidence suggested their abilities toinfluence offending rates, were toughsells. There are two important factors to
be considered. The first is to have anawareness of the extant literature on
effective practice; to be aware of what is
p o ss i b l e i n d e l iv e r i n g a s u c c e ss f u lprogramme, and to not oversell the effects“Unless a community recognizes or
accepts the premise that a change incorrections is needed, is affordable,
and does n ot c onflict with its
sentiments
rega rdingjustpunishment, an innovative project
has little hope of surviving muchless succeeding”.

The second critical consideration inpromoting programme implementation isknowledge of the willingness, level of
acceptance of policy makers, correctional
prof essionals and the im mediate
community to accept a shift in policy.
Petersilia as cited in Harris and Smith(1996) suggests,

While there seems some minor
variations in interpretation of the effectsof the immed iate context to sup port
implementation of programmes, as a
general statement, community contexts
se em mo re a ble to suppo rt eff ective
outcomes when compared to programmesdelivered in resid ential contexts(Andrews and Bonta, 1998). Henggeler
and his colleagues argue that treatinghigh risk youth in the community is amore ecologically valid approach to bothassessing and treating high risk youth
since it allows for an increased
opportunity to work directly with thesystems that are both influencing andbeing influenced by the behaviour of theirfamilies and peers. Hoge, Leschied andAndrews (1993) in a stud y on thecom ponents in young off ender91

RESOURCE MATERIAL SERIES No. 59
programmes found that factors inagreement with items related to effective
correctional practice were more likely tobe identified in community programmes
than in residential programmes.
E. Empirical Findings Related to
Implementation: Treatment
Adherence and Programme
Compliance
The evolution of research developmentin the corrections field has only recently
emphasized the importance of providing
outcome evalua tion a s a standard inservice delivery. It may come as a surprise
to some that, as reported in Andrews et.
al., prog rammes that were bein gevaluated by those charged with theirimpleme ntation
were
actually
characterized in their outcomes as more
effective than those that were not being as
closely monitored. Hence it would seemthat evaluation could also be characterized
as a factor in successful implementation.
Monitoringfor
pr ogr amme
implementation however has not met withthe sam e level of developm ent. Thissection will highlight two examples of
implementation evaluation which serve toassist in understanding programmes thatare relatively successful in identifying
effective implementation strategies.
1. Treatment Adherence
For any experienced corrections
professional, it will come as no surprisethat implementation, while critical, isonly a part of any success story. The real
challenge arises in trying to, 1)
implement a programme consistent withthe components reflecting an effective
stra te gy- re fe rre d to as pr ogra m m e
integrity and, 2) support those factorsthat can sustain a programme after it has
shown itself to be effective.
What are those factors that influencesustainability a nd help programmes

92

remain true to those factors critical tosuccessful?
M ulti-System ic Therap y: Scott
Hengge ler a nd his a ss ocia t es at the
Medical University of South Carolina
have turned their attention not only toprogramme contents that are effectivewith high risk youth, but also to thosefactors that can sustain an effective
programme over the longer term.
A brief overview of MST suggests thata therapeutic focus on certain systemic
factors within the lives of highly
c o nf li ct e d y o u th , ( i . e . th a t s ha r e apresent, solution, strength-based focus)
wi ll be rew arded wit h s ign ifican t
reductions in youth criminal activity.
Results from Henggeler, Melton,
Brondino, Scherer and Hanley (1997)
suggested that while some treatment
gains were sustained in some youths,
others were not. Further analysis by theauth o rs su gge ste d that p r og ra m m esustainability was tied to the presence of
ce rtaintherapist/programmecharacteristics that in turn characterized
specific components of the MST model.
The conclusion of this study suggested
that to achieve sustainability of positive
outcomes from intervention, adequate
and on-going training and consultation
was necessary. Further, these authorsde ve lo p ed the T he ra pist A dhe re nce
Measure (TAM) which consists of 26
items that ask family members to rate
the ir the rap ist on item s that w ould
reflect consistency of the intervention
with the principles of MST. Computers c o r in g w i t h t he T A M a l l o w s f o r arelatively short turn around time toprovide a quantified summary to thetherapist and their supervisor regarding
how consistent the intervention w asprovided on a case by case basis. Datasuggests that therapist adherence ispositively correlated with client118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
outcomes. The development of similar
adherence measures particular to a given
intervention is possible given clearly
identified and well articulated aspects of
the nature of the intervention and type ofservice delivery.
2. Programme ComplianceW h il e s t u d i e s su c h a s w it h M S T
examine treatment adherence at thetherapist level, another line ofinvestigation recommends evaluating a
programme’s ability to comply with preset conditions that evidence has suggested
are consistent with overall components ofeffective programmes.
The Correctional Programme
Assessmen t In ven tor y: T he CP AI(Gendreau and Andrews, 1996) is aninventory developed out of the metaanalysis literature on effective
programmes. It consists of seventy-fiveitems covering six components critical tothe understanding of what constitutes aneffective programme, along with two areasthat are considered integral to effective
p r o g r a m m e s , n a m e ly e m p h a s i s o nevaluation and ethical considerations. The
c o m p o n e n ts c o n s is t o f : p r o g r a m m e
im p le m e n ta ti o n, c l ie n t p r e - s e rv i ce
assessment, programme characteristics,
staff characteristics, evaluation and other(i.e. ethical consideration). All of thecomponents and the questions asked ofprogrammes consist of factors influenced
by the reviews of the effective corrections
literature. Table 2 summarizes the six
components of the CPAI.

Table 2
Summary of the CPAI Components
Scale

Scale Description

1. Programme Implementation

Surveys the conditions under which the programme
was introduced

2. Preservice Assessment

Surveys applications of the principle of risk, need
and responsivity

3. Programme Characteristics

Assesses targeting of criminogenic factors and theuse of cognitive behavioural techniques

4. Therapeutic Integrity

Surveys service delivery, emphasising intensity andmatching conditions

5. Relapse Prevention

Surveys extent to which programmes focus on postrelease programmes

6. Staff Characteristics

Surveys staff and training issues

7. Evaluation

Examines the extent to which the system emphasizes/encourages research and evaluation activities

8. Other

Assesses emphasis on ethical concerns and securityof programme funding

In a relatively large scale review ofy o u ng o f f e n d e r p ro g r a m m e s in o n ejurisdiction, Hoge, Leschied and Andrews(1993) r eview ed o ver o ne hundre dprogrammes measured on the extent andnature of their components on the CPAI.
The results of this study were telling.
Data reflected the range of programmecomponents that were available. Table 2
summarizes the scale scores of the CPAI

93

RESOURCE MATERIAL SERIES No. 59
a s a f u nc tio n o f t he lo c a ti o n o f th e
programmes (i.e. custody, probation)
Scores on the important scales from the
CPAI tended to be in the community(characterized as Community Support
Te ams) opp ose d to custody. Further
analysis using a measure such as the
CPAI can identify training a nd staff
needs, movement of service fro mresidential to community and approaches
in capitalizing on the strengths of certain
programmes. While the authors would
defer that measures such as the CPAI
should not be held as a ‘gold standard’,n o n e th e le ss , su ch a m e a su re h o ld s
promise in assessing programmes on abroad scale.
F. Issues in Dissemination andTraining
As program mes generally, andcorrectional programmes in particularmove to higher levels of accountability,
the mo vem ent toward s standa rd s o fpractice and compliance reviews will be
encoura ged. Indeed, in the next tw oyears, Correctional Services Canada withthe support of the Home Office in the
United Kingdom will be moving towards
adopting a set of standards to guide thecontent and delivery of programmes. The
increasing challenge therefore will be tomove the developing knowledge to thefield in order to implement effective
correctional practices.
Access to that knowledge is an ongoing challenge, both to those who arepartners in developing it, and also to
those practitioners who are trying toaccess it. The tradition of developing
knowledge, only to have it published inrelatively obscure academic journals readby few will, arguably, not move the field
dramatically in developing innovative
stra tegies. I nde ed, this tradition o f
distancing knowledge from the field inviewing publication as the end of94

knowledge development rather than the
beginning, may be an answer to Cullenet.al.’s query as to why so many in thecorrection’s field lack familiarity withk n o w l e d g e i n th e a r e a o f e f f e c ti v e
co rrections. A major challenge incorrections therefore will be to look to
innovative ways to communicate what is
known in order to support change at thepolicy and practitioner level. Increasing
the availability of knowledge is perhaps
the single largest challenge in this area.
Four innovations in communication incorrections are worth note as examples.
1. RCJNet is a list serve website thatcom municatestonumerousc o r re c ti o n s p r o c e s si o n a l s a b o u tknowledge in the corrections field.
Currently managed by Irving Kulik of
CSC, the service provides website
links, summaries of recent justice
documents, or summaries of researchthat may be of interest. Using latest
te c h no l o gy , R C J N e t s e r ve s as aclearinghouse for current corrections
information. The Office of Juvenile
Justice and Delinquency Prevention(O JJ D P) out of W ashington D .C.
serves a similar purpose in the U.S. inmaking current documents available
on line for wide spread dissemination.
2. The National Institute of Justice(NIJ) has initiated a distancee d uc a tio n p r o gr a m m e p ro v id in glearning opportunities to correctional
professionals through a system ofcentres connected through satellitelink ed co mm unica tions syste ms.
Fr om a single so urc e , unlim ite dnumbers of practitioners and policy
makers across a limitless geographic
area can interact with the leaders in
the field in hearing of new
programme or policy ideas.
3. The London Family Court Clinic,
along with Multi-Systemic Therapy
Services Incorporated in Charleston,

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSSouth Carolina has developed aninteractive website that links MST
team s a cro ss North Ame rica a nd
Europe. Practitioners using MST areable to communicate with one anotherwith respect to promising therapeutic
approaches or clinical issues that may
arise in the course of service delivery.
Recently, the development of an MST
clinical team in Norway was able tolink to the Ontario teams. Collegial
supervision takes on new meaning inthis era of expanding technology!
4. The Toronto-Based Institute for AntiS ocia l and Violent Yo uth (I AV Y )directed by Jalal Shamsie has, forclose to twenty-five years, provided an
extracting and commentary service on
articles of particular interest to theyoung offender field. Such services
help to focus and sum marize
information of particular currency
and relevance to the f ield byreviewing articles from major
journals.
G. Summary and Conclusion
Implementation of programmes in aspolitically-charged context as corrections
finds itself is a challenging prospect.
What corrections professionals havegoing for them however is a knowledge
base that supports certain programmes
and policies over others with the goal
towards increasing community safety andlessening human misery. This chapter
ha s highlighte d the ma jor issues in
implementation as being:•

An acknowledgement of the literatureon what works for eff ective
corrections and policy practices. This
litera ture highlights a ppropriate
assessment strategies that increase
the potential for interventions to beclinically relevant to factors that
influence criminogenic risk.

•

•

•

Identification of contextual factorsthat can influence the probability thatpr ogr amm e in nov atio n will be
successfully introduced. These factors
in c l u d e l e a d e r s h i p s u p p o r t f o r
implementation, staff competence andgoa l cla rifi ca ti on for the rea sonsbehind implementation. It is suggested
that a multi-level systems analysis isnecessary to fully comprehend thecomplexities of systems change. The
four levels of analysis should include
an understanding of the needs of thecl ie n t , p r o gr a m m e , a g e n cy , a ndsociety.
Specific contextual factors influence
successful implementation. Current
knowledge suggests that different
factors influence successful communityb a s e d i m p l e m e n ta ti o n v e r s us
residential-based implementation.
Measures have been developed tomo nitor the d egr ee of suc cess inprogramme implementation. These
include measures for both treatment
adherence and programme compliance.
Finally, training and dissemination is
now considered the greatest challenge
f a c i ng i m p l e m e n t a t io n i n t h ecorrections field. The nothing works
debate is now recognized as serving animportant purpose in focussing efforts
in developing the current extent of
kno w le d ge o n ef f e ctive p r a ctice .
However, as many have cited, thenothing works debate is now over.
Arguably what could shape the next
generation of corrections professionals
is the challenge of communicating theknowledge on effective strategies top r a c t it io n e r s . U si n g c u r re nt
technology, clearinghouse extracting
services, the internet and interactive
communication technology are all
examples of methods in communicatingthat knowledge to those who makede cisions b oth fo r p o licy a nd f orpractice.

95

RESOURCE MATERIAL SERIES No. 59
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Andrews, D.A., A.W. Leschied and R.D.
Hoge. A review of the profile, prediction
and treatment literature with young
off enders: A social psychologicalapproach, Toronto: Ministry ofCommunity and Social Services, 1992.
Andrews, D.A., Zinger, I., Hoge, R.D.,
Bonta, J., G endreau, P. & Cullen, F.
( 19 9 0) . D oes corre ctiona l trea tment
work? A clinically-relevant andpsychologically-informed metanalysis.
Criminology, 28, 369-404.
Andrews, D.A. and Bonta, J.(1998). The
psychology of criminal conduct. (Second
Edition) Anderson Publishing,
Cincinnati, OH.
Bauman, L.J., Bauman, Stein, R.E.K. &Reys, H.T. (1991). Reinventing fidelity:
The transfer of social technology among
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Cullen, F.T., Wright, J.P., Brown, S.,
M o o n , M . M . , B l a n k e n sh i p , M . B . &Applegate, B.K. (1998). Attitudes toward
prevention. Crime and Delinquency, 2,
187-204.
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Strategy for the Renewal of Youth Justice,
Ottawa: Department of Justice Canada,
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E ll i ckson, P. & Pe te rsi l ia , J .(1 98 3 ).
Im plem enting new idea s in criminal
justice. S anta Monica CA: The Rand
Corporation.
Fixsen, D.L., Olivier, K.A., & Blase, D.A.
( 19 9 0 ). H om e-b a s ed, fa m il y centre d
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Gendreau, P. and Andrews, D.A. (1996).
Correctional Programme Assessment
Inventory. University of New Brunswick,
St. John NB.
Gendreau, P. and C. Goggin. Correctional
Treatment: Accomplishments andRealities. In P. VanVoorhis, M. Braswelland D. Lester (Eds.), Correc tionalCounselling, 3rd Edition, Cincinnati, OH:
Anderson Publishing Co., pp. 271-280,
1997.
Gendreau, P. a nd Ross, R.R. (19 79).
Effective correctional treatment:
Bibliotherap y f or cynics. C rime andDelinquency, 21, 463-489.
Hare, R. (1991). The Hare Psychopathy
Checklist-Revised. Toronto, ON. Multi
Health Systems.
Harris, P. & Smith, S. (1996). Developing
co mmunity
corrections:An
Implementation perspective. In A.T.
Harland (ed .) Choo sing correcti onal
options that work: Defining the demandand evaluating the supply. Thousand
Oaks, CA. Sage Publ. Pps. 183-222.
Heng g eler, S ., S choenwa ld, S.K .,Bou rduin, C.M., Rowlan d, M.D. &Cunningham, P.B. (1998) Multisystemictreatm ent of antisocial behaviour i nchildren and adolescents. The Guildford
Press, New York, NY.
Henggeler, S.W., Melton, G.B., Brondino,
M .J . , S ch er e r, D . G . & H a n l e y, J . H.
(1 9 9 7 ). M ul t i s yste m ic t he ra py w i t hviolent and chronic juvenile offenders andtheir families: The role of treatment
fidelity and successful dissemination.
Jo urna l o f C o nsul t in g a nd C l ini ca l
Psychology, 5, 821-833.
Hoge, R.D., Leschied, A.W. & Andrews,
D.A. (1993). An investigation of young

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Ontario: A report of the repeat offender
project. M inistry of Comm unity a nd
Social Services, Toronto, ON.
Hoge, R.D., Andrews, D.A. & Leschied,
A.W. (1995). The Risk/Need Inventory.
The Ministry of Community and Social
Services, Toronto, ON.
Huizinga, D.H., Menard, S. & Elliott,
D.S. (1989). Delinquency and drug use:
Temporal and developmental patterns.
Justice Quarterly, 6,3, 419-455.
K a z d i n, A . E . & W e i sz , J .R . ( 1 9 9 8 ) .
Identifying and developing empiricallysupp orted child and adolescenttreatments. Journal of Consulting andClinical Psychology, 66,1, 19-36
Leschied, A. W., & Gendreau, P. (1986).
The declining role of rehabilitation in
Canadian juvenile justice: Implications ofunderlying theory in the Young Offenders
Act. Canadian Journal of Criminology, 28,
315-322. Also in T. O’Reilly-Fleming & B.
Clark (Eds.) (1993 ), Youth injustice:
Canadian perspectives (pp. 39-47). Toronto,
ON: Canadian Scholars’ Press Inc.
Leschied, A. W., & Jaffe, P. G. (1986).
Implications of the consent to treatment
section of the Young Offenders Act: A
case study. Canadian Psychology, 27,
312-313.
Leschied, A. W., & Gendreau, P. (1986).
The declining role of rehabilitation in
Canadian juvenile justice: Implications ofunderlying theory in the Young Offenders
Act. Canadian Journal of Criminology,
28, 315-322. Also in T. O’Reilly-Fleming& B. Clark (Eds.) (1993), Youth injustice:C a na di a n p e r s p e ct i v e s ( p p . 3 9 - 4 7 ) .
Toronto, ON: Canadian Scholars’ Press
Inc.

Leschied, A.W. a nd Cunningha m, A.
(1999) Clinical trials of Multisystemicth e r a p y in O n t a r io : R a t io n a l e a n dcurrent status of a community-basedalternative for high risk young offenders.
Forum on Corrections Research, 11, 2530.
Lipsey, M. (1995). What do we learn from
400 research studies on the effectivenessof treatment with juvenile delinquents. In
J. MacGuire (ed.) What Works: Reducing
Offending. John and Wiley and Sons,
Chichester, UK. pps. 63-78.
Lipsey, M.W. and Wilson, D.B. (1998).
E f f e ct iv e i n te r v e n ti o n s f o r se r i o u s
j u v e n i le o f f e n d e r s : A s y n t h e s e s o f
research. In R. Loeber and D.P.
Farrington (eds.) Serious and violent
offenders: Risk factors and successfulinterventions. Thousand Oaks, CA. Sage
Publ. pps. 313-366.
Losel, F. (1998). Treatm ent andmanagement of psychopaths. In D .J.
C oo k e , A . F or th & R .B . H a re ( ed s. )Psy ch op a thy : The ory , R esea rc h a nd
Implications for Society. The Hague:
Kluwer Academic Publishers, pps. 303354.
M a r ti ns o n, R . ( 1 9 7 9 ) . W ha t w o r k s :Questions and answers about prison
reform. The Public Interest, 35, 22-54.
P a l m e r , T . 1 9 9 6 ) . P r o gr a m m a t ic a n d
Nonprogrammatic aspects of successful
implementation. In A.T. Harland (ed.)
Choosing correctional options that work:
Defining the demand and evaluating the
supply. Sage Publications, Thousand
Oaks, CA. pps. 131-182.
Shamsie, J. (1979). Our treatments do notwork, where do we go from here?
Canadian Journal of Psychiatry.

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S hore, L.B . (1 991 ). S uccess ful
programmes: From moving models tomoving mountains. Presented to the“Empowering Families” Conference. St.
Louis, Missouri. December, 7.
Simourd, D. & Van de Ven, J. (1999).
Ass essment of crimin al attitudes:
Criterion-related validity of the criminal
sentiments scale-modified and pride in
delinquency scale. Criminal Justice andBehaviour, 1, 90-106.
Wells, L.E. (1991). The utility of metaanalysis in criminal justice research.
P a p er p re se nte d a t the A ca d em y o f
Criminal Justice Sciences M eetings,
Nashville, TN.

98

CHALLENGES TO JUVENILE TREATMENT IN NEW ZEALAND
Pamela Phillips*
I. INTRODUCTION
This paper examines the challenges of
the Children, Young Persons and Their
Families Act 1989.
II. THE CHILDREN, YOUNGPERSONS AND THEIR FAMILIESACT 1989
A. Introduction
The New Zealand Children, Young
Persons and Their Families Act of 1989
( C Y P & F A c t) c a m e in t o e f f e c t o n 1
November 1989. The legislation
introduced new principles and proceduresfor dealing with young people who had
committed offences, and provided forjurisdiction al s eparation bet weenchildren and young people in need of careand protection and those who had
committed offences. The legislation in
effect moved practice from a ‘welfare’a p p ro a c h to y o u n g p e o p l e w ho ha doffended towards a ‘justice’ approach.
B. Theoretical BaseAt the tim e of d eve lopm ent of thelegislation in New Zealand much of thedebate about the most appropriate way of
dealing with young people who offended
centred on two models - the welfare modeland the justice model.
The table below represents acomparison between the two models.

Welfare (needs)

Justice (deeds)

1. How offending is viewed (causes of crime).
Offending is due to criminal individual
pathology, family breakdown or community disruption.

The process of growing up is characterised by testing boundaries and trying
new things out. Therefore behaviour
that can be classed as criminal is a normal part of growing up. Some individuals become serious offenders.

2. Intervention.
The causes of the offending should befound and dealt with. The ‘needs’ of thechild or young person should be focusedon rather than the offence.

Intervention should be offence or ‘deeds’
related.

* Coordinator Community Conferencing,
Queensland, Australia(New Zealand)

99

RESOURCE MATERIAL SERIES No. 59
Welfare (needs)

Justice (deeds)

3. Child’s or young persons involvement.
Programmes should focus on the needsof the individual.

A child or young person has rights thatshould be protected. They should beheld accountable for their actions,although age is recognised as a factor
when determining the appropriate sanction.

4. Family/whanau involvement.
Family are seen as part of the problem,or as being unable to provide adequate
care and control of their child or young
person.

Family seen as part of the solution andentitled to be primary players in thedecision making process.

5. Victim involvement.
Victims have no right to be involved in
the outcome. They are seldom seen as
helpful.

Victims have a valid and legitimate
entitlement to participate in the processof holding the young person accountable
for their offending.

6. Criminal justice system.
The criminal justice system is used toaccess welfare resources for the child or
young person and their family.

Intervention by way of the criminal justice system should be delayed as long as
possible. Such interventions tend toachieve outcomes that are unlikely tohave a positive effect on the offending
behaviour.

C. Social BackgroundA number of issues emerged at thesame time and shaped the legislation.
These issues included:

little value in Maori customs, values andbeliefs.

1. Growing Dissatisfaction among
Practitioners
The apparent lack of effectivenesswhen working with young offenders was
resulting in a growing dissatisfaction
among practitioners in the youth justicefield and this was reflected in the wider
community.
2. Self-determination for Maoris
Mao ri were making new andde termined e fforts to secure self
determination in a mono-cultural legal
systemwhichdemonstrably
discriminated against Maori and places
100

3. Rejection of Paternalism of the Stateand its Agents
Concern was being expressed in thewider community about the needs toredress the imbalance between the powerof the state and its agents and that ofindividuals and families involved in thecriminal justice system.
4. Lack of Impact on Levels of Offending
Costly therapeutic programmes were
emerging as part of the problem andacknowledged as having no impact on thelevels of offending. Pressure was forming
to free up resources for other uses and toseek more positive outcomes for young
people.

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
5. Due Process for Young People
Concerns were also emerging in
relation to the process of dealing withyoung people who had committed offences
and the sentence outcomes that they werereceiving. Courts were dismissing cases
where the police had failed to observe
procedural safeguards in the questioning
and arrest of young people and increasing
numbers of young people were being sent
to adult courts for sentence.
D. The Reform Process
In 1984 the Government of the day
determined that problems with the careand protection provisions could not be
remedied by legislative amendment andordered a full review of the Children andYoung Persons Act of 1974.
Much of the attention focused on thecare and protection provisions of the Act.
The reforms under w ay in the youth
justice provisions elicited little debate.
Either the youth justice reforms were
swamped by the debates relating to thecare and protection reforms or they heldwidespread acceptance.
E. Feature of the Law
1. Principles
The youth justice provisions of the Act
have their own set of principles distinct
from the provisions relating to the carea nd protection p ro visions. All thoseworking under the Act must apply theseprinciples.
The principles are summarised in thepaper “Restorative Justice Initiatives in
New Zealand.” A further principle thatapplies is that:•

The vulnerability of young people
entitles them to special protection
during any investigation in relation to
the commission of an offence.

2. Age of criminal responsibilityChild under 10 years: No child under
the age of 10 years can be charged with
an offence—no criminal responsibility.
Child offenders aged between 10 and
13 years can be charged with murder ormanslaughter. The prosecution must
prove that the child knew that the act oromission was wrong and contrary to law.
In these cases a preliminary hearing isheld in the Youth Court and, if a prima
facie ca se is esta blished, the case istransferred to the High Court for hearing,and sentencing if found guilty.
For other offences child offenders canbe referred for a Family Group
Conference if the police believe they are
in need of care and protection because of
their offending, and the public interest
requires such action. Any court action isin the Family Court.
Young offender is aged between 14 and16 years is dealt with in the Youth Court,
or can be convicted and transferred to theDistrict Court for sentence.
3. Limitations on Arrest and Procedural
Safeguards During Investigations
The law limits the powers of police toarrest in preference to proceeding by wayof summons. New procedures governed
police actions when questioning a young
person suspected of having committed an
offence and established the rights ofchildren and young people to consult withother. For example no statement made bya child or young person is admissible
unless it was made in the presence of atrusted or neutral.
4. New diversion process and the FamilyGroup Conference
T h e r e w e r e t w o m a j o r d e f e c t s indiversionary mechanisms previously
adopted by New Zealand. Firstly, they101

RESOURCE MATERIAL SERIES No. 59
had been constructed around panels ofprofessionals and co-opted community
members and functioned as quasi-judicial
bodies, and secondly they were bypassed
when police exercised their powers ofarrest.
The policy imperative was to find asolution that was not bypassed by arrest,
was not susceptible to net widening, andwhich eliminated the quasi-judicial panel
approach. The result was thede velop ment of the fam ily groupconference, convened and facilitated by a
new statutory official, known a s theYouth Justice Coordinator.
The restoration of harm ony is
fu ndamen tal to th e Family Grou p
Conference. From the outset, thepresence of harmony will maximise thepotential for relationships between all
p articipa nts to m ove a w ay fro m theadversarial and confrontational
atmosphere common to the criminal court
and set the scene fo r a ne gotiate doutcome.

c.

d. Status of Family Group Conference
The family group conference has astatus in any proceedings and has theright to make representations.
e. Hearings in the Youth Court
All hearings of the Youth Court are to
be held separately from other Courts.
The C ourt schedules hea rings toensure that waiting times are
m i n i m i s e d a n d c o n g r e g a t io n i ncommon waiting areas are kept to aminimum.
6. Court Orders
A n e w ta r i f f o f c o u r t o r d e r s w a s
established. Major changes occurred at
the top of the tariff with the introduction
or lim ita tions be ing impo se d o n thefollowing orders:•

5. The Youth Court.
A new Youth Court was established asa subsidiary of the District Court. The
key features of this are:•a. Designated JudgeNo judge may be designated a Youth
Court judge unless they are suitableb y w a y o f t r a i n in g, e x p e r i e n c e ,personality and understanding of thesig nifican ce and impor tanc e ofdifferent cultural perspectives andvalues.

•b. Legal representation
All young persons must be legally
represented , with the Court
appointing a youth advocate where nop riva te arra ngem ents ha ve be en
made.

102

Lay advocates
Courts may, in addition, appoint lay
advocates to ensure the Court is madeaware of all relevant cultural matters.

••

Community work order—not morethan 200 hours.
Supervision order—no longer than 6months.
Supervision with activity order—3
months, can be followed by asupervision order for 3 months.
Supervision with Residence order—3
mont hs , mu st b e fol lowed by asupervision order for up to threemonths.
Transfer to District Court—only if
nature of offence and circumstances ofthe offender requires this.

F. Flow chart of the Youth Justice
SystemA f lo w chart of the Youth Justicesystem is attached as appendix 1.

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
III. TEN YEARS ON
The youth justice system has now beena feature of the New Zealand system forten years.
Goal
Diversion:
Keeping young people out of courts andout of custody

Accountability:
Young people taking responsibility for
their offending and putting right theharm they have done to others
Enhancing well-being and strengthening families:
Families receiving services that will
strengthen them to respond to theirfamilies needs.
Due process:Ensuring that young peoples rights areprotected.

Family participation:
Involving families and young people inmaking decisions for themselves andtaking charge of their lives.

The following table demonstrates theresults against the goals of the youth
justice system.

ResultCourt appearances pre 1988: 10,000 13,000
Court appearances post 1989: 2,500 3,000
Residential beds pre 1988: 250
Current residential beds: 75
FGC’s per year: 5,700 - 6,500
95% of young people were held accountable for their offending.

Appropriate programmes not always
available. Families felt they wanted
more support.
Proper procedures not always followedby police in relation to questioning of
the young person. At times young people
felt pressured to admit an offence.
Families participated fully, however
only one third of the young people felt
involved in the process.

Victim involvement:
Involving victims in decisions about
what should happen to ‘put right thewrong’ and ‘restore harmony’.

41% of victims attended their conference.

Consensus decision making:
Reaching agreement between the conference participants on what should
happen.

95% of conferences reached agreement
about what should happen.

Cultural appropriateness:
Providing for different ways of resolving
matters and obtaining services, depending on the culture of the young person
and their family.

At times the processes were quite foreign to participants particularly families from the Pacific Islands.

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RESOURCE MATERIAL SERIES No. 59
IV. CONCLUSIONThe Children, Y oung Persons a nd
Their Families Act 1989, changed the faceof Youth Justice in New Zealand. Thereh a ve be en tre m en do us suc ce sse s in
reducing the numbers of young people inresidential care and appearing before the
Courts. Victims have been for the first
tim e involved in decision-m aking in
relation to the offence committed againstthem.
In recent years the body of research on
risk and protection factors andinterventions known to work with young
offenders has been growing. The
Department of Child, Youth and Family
Services has recently been incorporated
into a strategy aimed at the most highrisk recidivist offenders—it is hoped that
this strategy has a similar success to theintroduction of the Act.

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118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Appendix 1
Flow Chart Indicating Pathways Through the System
YOUNG PERSON DETECTED
FOR ALLEGED OFFENDING

No action; warning; orother informal police action

Arrest

No Charge

Referral to YouthAid Section

Police warning or
warning andinformal sanction

ChargeDiscussion with
Youth JusticeCo-ordinator

YOUTH COURT

FGC

Guilt denied

Released, atlarge or on bailNo denial

Remandedin custody

Remandedin custody

FGC recommends tocourt regarding
placement

Defendedhearing

Acquitted

No denial

Released, atlarge or on bailDenialRefer back toYouth Aid

FGC recommends tocourt regarding
placement

Proved

FGC makes
recommendations
and prepares plans

FGC makes
recommendations
and prepares plans

Youth Court
Disposition

Withdrawn ordischarged

Court
orders

Implementationof FGC decision

Summons toYouth Court

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RESTORATIVE JUSTICE INITIATIVES IN NEW ZEALAND
Pamela Phillips*
I. THE FAMILY GROUPCONFERENCE
T he Y o u th J us tic e F a m il y G ro u p
Conference (FGC) is a statutory decisionmaking process involving, among others,
the young offender (alleged or proved),members of their family/whanau, and thevictim of the offence and their supporters.
It is a forum to determine whether thechild or young person committed thealleged offence, and, where the offence isadmitted, to develop a plan that ensures:•

The child or young person is held
accountable and encouraged to accept
responsibility for their offending.
The interests of the victim are taken
into account.
Any measures taken for dealing withthe offending, strengthen the family/
whanau and family group, and foster
their ability to develop their own
means of dealing with offending by
their child or young person.
The principles of the Children, YoungP e r s o n s a n d t h e i r F a m il ie s A c t(CYP&F Act—here after referred toas the Act) are followed.

•••

For the FGC to be valid it must be
convened in accordance with thelegislation. To enable participants to
speak freely and without fear that things
they say may be used against them or
published, the use of information shared
during the conference cannot be used in
the courts, or be published.
* Coordinator Community Conferencing,
Queensland, Australia(New Zealand)

106

II. PRINCIPLES
The principles that govern the FGC are
set out in the Act. Summarised theseprinciples state:a. Unless the public interest requires
otherwise, proceedings should not be
instituted against a child or youngpe rson if the re is an alter nativemeans of dealing with the matter.
b. Proceedings should not be institutedsolely to provide assistance or services
needed to advance the welfare of theyoung person or their family group.
c. Measures taken should be designed tostrengthen families and foster theirow n m ea ns of de a ling w ith the ir
offending young.
d. Young offenders should be kept in thecommunity where practicable andconsonant with the need to ensure
public safety.
e. Age of itself is a mitigation factor inde te rm in ing whe the r a sanc tio nshould be imposed and the nature ofany sanction.
f. Sanctions should take the form most
likely to maintain and promote thedevelopment of the offender within
their family group, and be the least
restrictive form appropriate.
g. Any measures taken should haveregard to the interests of victims.
III. TYPES OF REFERRALS
There are a number of different typesof referrals for a FGC. These are:

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
A. Child Offender (10 – 13 years
inclusive)with the m a tter , an d if so, to m a ke
decisions, recommendations and plans.

1. Grounds
W he n a p o lic e o ff ice r ha s se rio us
concerns for a child’s well being, becauseof their offending and the police officer
believes that a declaration that the childis in n ee d of ca r e a nd p ro te ctio n isrequired in the public interest.

4. Time limits
Must be convened within 21 days andcom ple te d within one m onth unle ss
special reasons exist.

2. Referred by
Police, after consultation with a Youth
Justice Coordinator.

1. Grounds
A young p erson a ppea rs in Court,
denies the charge and the Court makes
an order placing them in the custody of
the Director-General.

3. Function
To consider whether the child is inneed of care and protection because ofth eir offending and if so, to mak e
decisions, recommendations and plans.
4. Time limits
Must be convened within 21 days andco mp leted within o ne m o nth unlessspecial reasons exist.
B. Young person (14 – 16 years
inclusive), Alleged to Have
Committed an Offence
1. Grounds
The police allege that a young person
has committed an offence. They have notbeen arrested and the police believe thatthe public interest requires proceedings
to be instituted. This type of referral is
known as an ‘intention to charge’ referral.
2. Referred by
Police, after consultation with a Youth
Justice Coordinator.
3. Function
To consider whether the young person
the young person admits the offence,
whether they should be prosecuted orwhether there is another way of dealing

C. Young Person in Custody on
Denial of Offence

2. Referred by
Court directs Youth Justice
Coordinator to convene an FGC.
3. Function
To ma k e re co m m end a tio ns to the
Court about the custody of the young
person pending determination of thecharge.
4. Time limits
Must be convened within 7 days andcompleted within 7 days unless special
reasons exist.
D. Young Person Appears in Court—
Offence Not Denied
1. Grounds
The young person appears in court
either following arrest or on a summons,and does ‘not deny’ the charge.
2. Referred by
Court directs a Youth Justice
Coordinator to convene an FGC.
3. Function
To consider whether the young person
admits the offence and w hether theyshould be dealt with by Court or whether

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RESOURCE MATERIAL SERIES No. 59
there is another way to deal with them atter.
Toma kedecisions,recommendations and plans.
4. Time limits
If the young person is in custody —must be convened w ithin 7 days andcompleted within 7 days, unless special
reasons exist.
If the young person is not in custody —must be convened within 14 days andcompleted within 7 days, unless special
reasons exist.

•
•
•
•
•
•
•

E. Charge Against a Young Person
has been Proved
1. Grounds
A young pe rson ap pea rs in C ourt,
denies the charge and the Court find thecharge has been proven.
2. Referred by
Court directs Youth Justice
Coordinator to convene an FGC.
3. Function
To consider how the young person
should be dealt with for the offence andmake decisions, recommendations andplans.
4. Time limits
Must be convened within 14 days andcompleted within 7 days unless special
reasons exist.
IV. PERSONS ENTITLED TO
ATTEND THE FGC
The Act sets out the people who areentitled to attend the FGC. These are:
•
•

108

the child or young person.
every person who is:- a parent- a guardiana person having care of the childor young person.
members of the child or young
person’s family/whanau or extended
family group.
a Youth Justice Coordinator.
a police officer.
any victims and support persons, ortheir representative.
Youth Advocate.
persons representing organisations
when the child or young person is
subject to Court orders.
any other person the family/whanau
or family group of the child or young
person wishes to be present.

Exclusion of entitled persons is not
permitted.
V. PREPARING FOR THE FGC
W hen conve nin g the FG C the A ct
requires the Youth Justice Coordinator
to:
•
•
•

Consult with the young person, theirfamily, the police and victim to set thetime, date and place of the FGC.
Obtain the views of those unable toattend.
Ensure all relevant information andadvise is available to the FGC.

A. Best Practice in FGC Preparation
Thorough preparation is the key to a
successful FGC. Necessary preparation
includ es identif ying the entitledmemb ers, fully info rm ing the young
person, their family and the victim, of
their rights and obligations, theimportance of their role in the conference,
and about the FGC process itself. It isalso an opportunity for the participants tobuild their trust in the coordinator — thecoordinator must be perceived as fair,non-judgemental and sensitive to theparticipants concerns.

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
1. Interviewing the young person
F ace-to-fa ce me etings are usuallyconducted with the young person in thepresence of their parents or caregivers. It
is often necessary to speak to the young
person alone. This is especially importantw h e r e th e r e i s s ig n i f ic a n t c o n f li c t
b etw een the young person a nd theirparents, or if the offence was committed
by the yo ung pe rson against theirparents.
As well as providing information to theyoung person and their parents, theopportunity is used to identify otherfamily members and significant people inthe young persons life.
2. Interviewing the young person’sfamilyFace-to-face meetings achieve the best
results in terms of attendance of thewider family group, however distancesometimes prev ents this. In thesecircumstances contact is made via phone
in preference to correspondence.
Often the parents of the young person
will take responsibility to contact othermembers of the family and discuss theforthcoming conference with them. When
this happens the parents give the contact
details of these family members to thecoordinator who follows up with a written
invitation for them to attend theconference.
3. Interviewing the victim and theirsupporters
T he c oo rd ina to r is o fte n the f irst
‘official’ other than the investigating
police officer, to talk to the victim since
the offence. It is therefore important thatthe coordinator meets face-to-face withthem and any supporters they wish tobring to their conference. This meetingprovides the opportunity for the victim to
discuss the offence and its impact. In

addition the coordinator will explain theconference process and assist the victim
to consider realistic outcomes.
B. Setting the Time, Date and Placefor the FGC
The FGC should be arranged for a timeand date that suits the young person,
their family, the victim and the attending
police officer. This usually means outsidecore school and working hours. Police
stations and Courts are not suitableve nu e s f o r a n F G C . F o r r e a s o n s o f
personal safety or comfort, victims may
be more likely to attend an FGC if it isheld at a neutral venue.
VI. HOLDING THE FGC
A. Opening the Conference
T h e o p e n in g o f t he co nf e re n c e i susually determined by cultural protocol.
For example if the conference is on a
Marae a formal welcome will be made to
the conference participants. However, it
is important that the coordinator ensuresthat introductions a re ma de so tha t
everyone is aware of each other’s name,their relationships to the offence, and the
young person or victim.
Coordinators also take the opportunity
to reinforce information given at theconference
preparation
stage.
Particularly:••••

The process that the conference will
follow.
The principles of the Act that govern
the conference.
The confidential nature of theconference proceedings.
That the coordinators role will be tofacilitate the process to enable theconference to come to an agreementa b o u t w h a t sh o u ld h a p p e n a s aconsequence of the offence.

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RESOURCE MATERIAL SERIES No. 59
B. Determining whether the Young
Person Admits the Offence
The usual practice is for thecoordinator to ask the police officer tobegin by reading out the offence and thesummary of facts. The coordinator willthen ask the young person whether they
admit the offence as the police officer has
outlined. If the young person does not
admit the offence the conference is closed
and the matter is referred back to thepolice, or the court, for their decision ona ny sub seq uent action. I f the young
person admits the offence the conference
proceeds.
C. Information Sharing/Story
Telling
In this stage of the conference eachparticipant will tell his or her story. The
purpose of this is to elicit the facts of theof fence and the impa ct of the young
persons actions on all participants. Each
person is given the opportunity to speak
without interruption.
1. The young persons story
It is important that the young person
begins by telling their story. In this way
they begin ‘admitting’ what they did infront of the victims and their own family.
If others start by telling what happened
the young person is likely to become
defensive and deny points of detail. The
young person may leave out details ino r d e r t o m in i m i s e w h a t h a p p e n e d .
Victims and co offenders usually correct
any inaccuracies. The conference should
not move beyond the young persons story
until they have touched on:
•
•
•
•

110

What happened on the day/night ofthe offence.
What they were thinking about.
Who has been affected by what
happened.
In what way people have been
affected.

Q u es tion s ma y b e ne e de d to he lp
prompt the young person to express what
has happened, e.g. “What had you been
doing?”, “What time was it?”, “What was
it liked to be picked up by the police?”.
Failure of the young person to provide
basic acknowled gement of what
happened and the harm caused is likely
to result in increasing the victim’s senseof indignation.
T h e u s e o f o p e n q u e s ti o n s, b a s ic
listening skills, and a limited amount ofparaphrasing and summarising can be
helpful in assisting the young person.
Silence can also be used.
Initially, when young offenders are
asked “Who was affected by you actions?”
they may not immediately acknowledge
the impact on all those who were affected.
The young person should be encouraged
to acknowledge the harm caused to thevictim, themselves and their family. The
impact of this harm will be reinforced as
the conference proceeds.
2. The victims story
O nce the young person has m oved
towards some form of acknowledgementof the impact of their offending (tacit as it
may be) it is appropriate to invite thevictim to speak.
Normally victims do not require thesame level of prompting as the young
offender. The purpose of this stage is not
for the victim to abuse or castigate theyoung person. If the young person has
already begun to accept some level of
responsibility for their actions, displays ofmoral indignation from the victim areless likely.
It is important that the victim andtheir supporters focus on the specificincident and how they were affected.
Generalisations a re not helpful and118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
q ui ck l y r e su lt in th e y o un g p e rs o n‘turning off’. Such generalisations can
include the victim blaming the young
person for other occasions when they
were victimised or blaming the young
person for all ‘youth crime’. When thishappens the coordinators refocus thed iscussion to the spe cific of fe nce inquestion.
After the victim has had the
oppo rtunity to tell their story,
coordinators usually ask them if there are
any questions relating to the facts of theoffence that they would like to ask theyoung person.
3. Victim support group
The victim supporters are next invited
to talk ab out w hat happened, how it
affected them and their friend or family
member who was victimised.
4. Young person’s family
After the victim’s support group has
spoken the family of the young person is
given the opportunity to talk about how
the offence has affected them and what
action they have taken in respect of theyoung person as a result of the offence.
Each family member should be given theopportunity to speak.
Once all participants have had theo p p o r tu n it y t o t e l l t h e i r s t o r y th ecoordinator will give the views of person
who were entitled but unable to attend,a nd a ny o ther i nf orm a t i on t ha t t h e
conference may need to reach an
agreement.
At this stage of the conference it isnormal for the discussion to become more
free flowing. Coordinators suggest thatthe general rule of thumb is — the lessint erven tion th e bett er. However,discussion should continue to focus on theincident and its affects. Some diversions

are a danger at this point. For example,
exchanges between the victim and theyo ung p ersons fa mily m ight beco me
aggressive and unhelpful: “If you had
control of your kids this wouldn’t have
happened”. If this is allowed to continue
the young person will become a detachedspectator of other peoples conflict, insteadof being encouraged to acce pt
responsibility for his/her own actions.
After everyone has had the opportunity
to discuss the offence and its impact thediscussion shifts from the past to thepresent. The object of this phase is tomark the changed perception of bothoffender and victim about the offence andeach other. It is usual at this phase to bemarked by family private deliberation
time. All other members of the conferencea re e xc lud e d f ro m th is ti m e u nle s s
specifically invited by the family. It is
common for the family to consider what
they have heard and what is needed torestore harmony with the victim andwithin their family.
D. Decisions, Recommendations and
Plans
When the family has completed there
private deliberations the conference getsback together. The focus at this stage isclearly on the future. The purpose is todevelop a fair and workable plan thatmeets participant’s needs for repairing
the harm done b y the young persons
actions. (It is more appropriate to frame
this stage in terms of working out how
the young p erson can m a ke am end s
rather than in terms of setting
punishment.)
To introduce this phrase the victim
may be asked a general question such as:“Having heard everything what would
you like to come out of today?”111

RESOURCE MATERIAL SERIES No. 59
It is important that the victim and the
young person and their family negotiate
the outcome plan for themselves. The
police officer and lawyer (if they attend),
can provide feedback on whether or not
the decisions are in keeping with theprinciples and legal requirement of theAct.
The coordinator should also test thep r o p o s e d p l a n f o r w o r k a b i l i ty a n dfairness. The discussion must include
monitorin g of the agreemen t. Th e
agreement should be monitored by thepa rties, (fa mily and victim), but thevictim may not wish to have a role in this.
The coordinator records the conference
in detail, specifying exactly what has
be e n agr ee d , ro le s re sp on sibilitie s,
timeframes and action to be taken if theyoung person cannot, or does notcomplete the agreement.
All conference participants sign theagreement.
VII. POST FGC
After the conference the coordinator
distributes a copy of the agreement to all
the conference participants. A copy of theagreement is also sent to the police or
court, depending on which agent referred
the matter to the conference.
The persons identified in the plan
monitors it to ensure that the young
person complies with what was agreed,
and notifies the coordinator when thematter is completed. The coordinator willt he n fo rm a l ly a dv is e a l l c onf e renc e
participants and the referring agent —either the court or police.

112

DIRECTIONS OF JUVENILE JUSTICE REFORMS IN
SINGAPORE
Chomil Kamal *I. INTRODUCTION
A. Children and Young Persons Act
Chapter 38
The Children and Young Persons Act(CYPA) Chapter 38 is the key legislation
governing the administration of juvenile
justice in Singapore. Though enacted as
early as 23 September 1946, the spirit,
intents and purposes of the CYPA remain
progressive and very much relevant inour present Singapore society. Welfare of
the juvenile is a guiding principle of thisAct. Juveniles in conflict with the law are
not e xcused of responsibility or
accountability for their misconduct. The
Act determines the jurisdiction of theJuvenile Court for persons aged 7 tounder 16 year olds and spells out clear
principles for care and protection orders,fit person orders, social w ork an dsupervised treatment, approved homeand young offender in custody. The CYPA
balances parental authority and State
intervention.
As a nation, Singapore’s response to
youth offending has been to pursue a finee q u i li b r iu m in th e m a n a g e m e n t o fjuvenile offenders such that the justiceand restorative models are not opposing
paradigms but that they actually
co m plim ent ea ch othe r a s mu tu ally
sup po rtive e lem ents o f the ju venile
ju stice system. The Govern men t’s
endorsement of the recommendations of
the Inter-Ministry Com mittee on* Deputy Director/Chief Probation Officer,
Ministry of Community Development and Sports,
Singapore

Dysfunctional Families, Juvenile
Delinq uency and Drug Ab use (199 5)
which was chaired by the Minister forCommunity Development, signaled an
intensified effort to put in place a series of
initiatives to combat juvenile delinquency
in a systematic and coordinated manner.
Among other things, it led to the setting
up o f a n I nter- M inistry a nd Age ncy
Committee in that same year. The InterMinistry Committee on Juvenile
Delinquency (IMJD) which has now been
expanded and re-named Inter-Ministry
Committee on Youth Crime (IMYC), wastasked to stimulate and coordinate efforts
to keep youths from crime and promote
their effective rehabilitation. The IMYC
takes a proactive stance towards dealing
with concerns over world-wide
phenomenon of rising juvenile
delinquency. Several studies on our youth
were do ne and what ensued werenumerous direct and beneficial
programmes for targeted groups of youth
at risk as well as youth in conflict withthe law. 1995 also marked the Singapore
Judiciary’s introduction of the restorative
justice model for disposition of juvenile
cases. No amendment was necessary as
in essence, the CYPA is firmly groundedon the philosophy of rehabilitation andreintegration o f children a nd young
persons.
Section 28 of the CYPA thus became avital consideration in the assessment of
every juvenile brought before the Court:“Every court in dealing with a childor young person who is b rought
before it, either as being in need of113

RESOURCE MATERIAL SERIES No. 59
care or protection, or as an offenderor otherwise, shall have regard to
the welfare of the child or young
person and shall in a proper casetake steps for removing him fromundesirable surroundings’ and for
securing that proper provision ismade for his education andtraining”.
B. Children and Young Persons(Amendment) Act of 2001
The CYPA has just been amended togive the Juvenile Court a wider range ofn o n - cu st o d ia l o p ti o ns a n d e nh a n c ecommunity orders to meet the varied
rehabilitative needs pre-delinquents andyoung offenders.
The a m endm ent o f the CY PA w illincrea se the momentum for juvenile
justice reforms in Singapore. We willpress on with the stance we have beent aking a nd con tin ue to refin e ourrestorative approach to dealing withjuvenile offenders. In his keynote address
before an international audience at theYouth Justice 2000 Conference (13–15
S eptember 2000 in Singapore) coconvened by the Ministry of Community
Development and Spo rts and theSubordinate Courts of Singapore, theHonourable the Chief Justice commented:“The values and philosophy
expressed in these conventions, likethe UN Gu idelin es for th ePrevention of Juvenile Delinquency(which are known as the Riyadh
Guidelines), the UN Rules for The
Protection of Juveniles Deprived of
Their Liberty, the UN Standard
Minimum
Rules
for
th e
Administration of Juvenile Justice(commonly known as the Beijing
Rules), the International Convention
on the Rights of The Child, havealready transformed practice and114

procedures in some pa rts of theworld. Their promotion of diversion
and restorative measures, as well as
the ir insiste nce on rights an dsafeguards, signals a new approachto the treatment of young people thathas been increasingly influential.
We have kept faith with thesei n t e rn a t i o n a l s t a n da rd s . O n 7
Septemb er 2 000, Singapore w asamong the first countries in theworld to sign the Optional Protocol
to the Convention on the Rights of
the Child”.
Expectedly, juvenile justice reforms
that have taken place have increasingly
centred around:a. maximising diversion from the court
system;b. minimising penetration into thesystem;c. proactively
addressing
offendingbehaviour; andd. engendering public support andconfidence.
C. Probation of Offenders Act
The Probation of Offenders Act
Chapter 252 requires the Courts to take
into account all the circumstances of thecase, including the nature of the offence
and the character of the offender. Yet thele gis lati on is c le a r in tha t wh ile itreco gnises yo ung o ff end er s ca n a nd
sho uld be re habilitat ed , it is ne ver
granted as a right. Restorative justice isp r e d i c a t e d o n h e lp in g th e j u ve n i leoffender to gain full cognisance of his/her
offending and its impact on self, family,
others and society in general. It seeks todeal with underlying causes of offending
and to integrate offenders and theirfamilies into society by involving all
significant parties in the offence and thelife of the juvenile offender.

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The amended CYPA, together with theProbation of Offenders Act provides for:a. a continuum of graduated yet flexible
sanctions to correspond to the needsof each juv enile offen der whileproviding for community safety;
b. immediate and therapeutic intervention at the first sign of delinquent
behaviour;c. ownership and accountability of thefamily of the juvenile in the
rehabilitation process.
Against the backdrop of what has beensaid, it may be useful to give an overview
of how juvenile offenders are managed.
II. OVERVIEW OF THE
MANAGEMENT OF JUVENILE
OFFENDERS IN SINGAPORE
A juvenile is defined as a person who is
between the age of 7 years and below 16
years and by this legal definition, falls
under the jurisdiction of the Juvenile
Court. The management and treatment of
juv enile offenders in Singapore isgrounded on the belief that every juvenile
has the capacity to change and that ourultimate goal is the rehabilitation andreintegration of each juvenile in conflictwith the law.
III. TREATMENT OF JUVENILE
OFFENDERS
A. Pre-Court Diversionary Measures
When a juvenile offender is arrested
f or an offe nce , b eside s cha rging theoffender, the police may opt for any one of
the following measures:
a. Release the juvenile with a warning
to both the juvenile and the parents
or guardians;

b. Release the juvenile with a warning
to both the juvenile and the parents
or guardia ns and refer them to asocial service agency for assistanceand counselling;c. On the advice of the AttorneyGen er al, th e Po lice m a y ask thejuvenile to participate in a 6-monthcounselling and rehabilitation
programme known as the Guidance
Programme (GP).
B. Juvenile Court Measures
When a juvenile is brought before theJ u v e n i le C o u r t , th e C o u r t in m o s t
instances would require a pre-sentence
report for the purpose of determining themost appropriate order. Depending on thegravity of the offence and merits of eachcase, the Juvenile Court may consider
one or more of the following options:a. Discharge the case conditionally or
unconditionally;b. Place a bond on the parent/guardian
to ensure proper care and supervisionof the juvenile;c. Place the juvenile under the care of a“fit person”;
d. Place him/her on stand alone
community service order;e. Place him/her on stand alone
weekend detention;
f. Place him/her on probation for aperiod ranging from 6 month to 3
yea rs with o r without conditions(which may include requiring him/her
to g o f o r p e r i o d i c t r a in i n g a s acondition of probation) and with orwithout a condition of residency in aprobation hostel for up to 12 months;
g. Order the juvenile to be detained for aperiod not exceeding 3 months andpla ce him/her o n prob ation upondischarge;
h. Order him/her to be detained for aperiod of not more than 6 months;

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RESOURCE MATERIAL SERIES No. 59i.

Order the juvenile to be committed to
a n A p p ro ve d S c ho o l f o r juv en ileof fenders f or reha bilitation fo r aperiod between 24 to 36 months;
j. Require the juvenile and parents toparticipate in family conferencing;k. Require the parents to go formandatory counselling.
IV. GUIDING PRINCIPLES IN THE
REHABILITATION OF JUVENILE
OFFENDERS
The following principles andconsideration underpin the rehabilitationof juvenile offenders in Singapore:
A. Diversion from Court Process
where Possible and Appropriate
Accor din g to police r ecords, th ep e rc en tage o f j uve nile s let o ff withwarning including all bail and referralcases to other departments is between
88% and 90%.
In October 1997, the Guidance
Programme (GP) was launched by the
Ministry of Community Development andSports (MCDS), to strengthen theeffectiveness of let-off with police caution
for selected juveniles who require morethan just a w arning to steer clear of
future offending. This a rose fromobservation in 1994/5 th at 30% ofjuveniles who were let off with police
caution went on to commit fresh offences
within 2 years of being let of with mere
police caution.
T h e G P , a p r o gr a m m e f u n d e d b y
Government, is an inter-agency
networking mechanism which involves
the Police, schools and VWOs appointed
by MCD to provide a counselling andrehabilitative programme for juvenile
offenders. Upon successful completion ofGP, a juvenile would be let off with astern warning in lieu of prosecution for116

the offences committed. Participation in
the programme is voluntary. The GP
spans 6-months in the first instance.
Where it is deemed necessary and in theinterest of the juvenile, the juvenile may
be required to undergo the programme foranother 6 m onths, subject to the
concurrence of both the juvenile and his
parents.
The GP aims to get the juvenile to:a. recognise the offence committed as acriminal act;
b. make a decision to help himself not tocommit an offence again;c. commit to work on his ability to
manage his vulnerability to commit
future offences.
Parents in turn are helped to acquire
knowledge and skills in effective
parenting and supervision of the juvenile.
As at the end of 2000, 1081juvenile cases
have been placed on the GP programme.
Completion rate is about 90%. Only 2%
re-offended.
The programme has just bee nevaluated and the findings, shared withall relevant stakeholders of GP on 30 May
2001.
W it h e f fe ct fr om 1 O ct . 2 0 0 1 , t heJuvenile Court will have the option ofgiving stand alone orders to deal withselected minor offenders deemed to beable to benefit from community orders
without need for supervision orders.
B. Institutionalisation as the Last
ResortCommunity orders such as stand aloneorders and probation offer an alternative
to sending a young offender to ac o r re c ti o n a l f a c i li ty . H o w e v e r , th ec ha ll e n ge lie s i n e n su r in g th e r e i sadequate supp ort service s and118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
interventions at the probation
programme level to lend weight to theviability of community-based orders.
Probation is the conditional suspensionof punishment while an offender is placed
under the supervision of a Probation
Officer and given guidance or treatment
within the community. The period ofprobation ranges from 6 months to 3
years and there are 3 grades of probation;
administrative, supervised and intensive
p r o b a t i o n . T h e l e v e l of s er vi ce a n d
supervision is matched to the level ofrisks and potential for rehabilitation.
Relevant factors include criminal history,
motivation for change, school progress
and family situation. The conditions
imposed as part of the probation orderdiffer in terms of the level of supervision,
frequency of contacts, the number ofrestrictions and the programmes thejuvenile is ma nd ated to a ttend. The
probationers may also be subjected toco mbination orde rs. T he degree o fsupervision and monitoring increases
progressively with each grade.
Split probation may be considered forcases which are assessed to be needing
more intensive supervision orintervention o nly d uring the initialperiod. The system of graded probation
allows for optimum use of resources whileproviding Probation Officers with theflexibility to tailor probation supervision
to meet individualised needs. Details of
the graded system can be found in Annex
II of the “National Standards for the
Probation of Offenders as their
Rehabilitation in the Community” (in thefolder). A copy is attached as Appendix I
for easy reference.
Singapore has put in place acontinuum of services and programmes toaddress young offenders’ risk issues while
enhancing the protective factors to steer

young people from offending.
Community-based supervision isstrengthened when there is a continuumof supportive services and programmes toenable the offender’s continued stay inthe community throughout therehabilitation period.
One of the core fu nctions of theProbation Service is to provide the courts
with pre-sentence reports on whether an
offender is suitable for community-basedorders. The availability of communitybased programmes and support services
which meet the offenders’ risk issues, andhis / he r w ill in gn es s to r e ce i ve su chservices are vital in Probation Officer’s
assessment of suitability for probationand conditions to be imposed. At the presentence stage, due consideration is also
given to factors such as ethnic parenting
perspectives of high risk cases. The aim is
to draw on the strengths in the family
network to support the helping process;whether to assist the offender in school
placement, remain in sch ool or be
engaged in skills training. Community
support and resources are also tapped toaddress the risk factors in the supervisionof cases where probation is recommended.
Increa sin gly, focus has been on
sharpening risks assessment andmanagement to bring about successful
rehabilitation of young offenders andtheir effective restoration to theco mm u nity witho ut the stigm a of aconviction or committal to a juvenile
correctional facility. To this end,
Singapore is developing a local
instrumentforpre- sentencing
classification of juvenile offenders. The
Juvenile Offending Behaviour (JOB)
criteria will enable the Juvenile Court todistinguish risk factors for categorisation
into “developmental limited versus life
course persistent” offenders. The
components to the JOB criteria include

117

RESOURCE MATERIAL SERIES No. 59
assessment of severity of charges, risk
assessment based on static and dynamic
factors and proximate factors which canaffect sentencing e.g. remorse level in
Court, behaviour while in remand or bail,chamber discussions, family conferencing
and so f orth. Stud ies are also being
conducted by the Ministry of Community
D e ve lo pm ent and S ports to ide ntify
predictive factors for success and failure
on community orders. These coordinatedefforts will move us into evidence-based
practice in the classification andtreatment of juvenile offenders.
At the programming level, several
measures have been taken to enhance thee f f e c tiv e ne s s o f co m m u n ity o r d e r s,
principally probation and promote its
c red ibility as an e ff e ctive m ean s o fdealing with selected offenders.
1. Community Service Order (CSO)
CSO was introduced as a condition ofprobation in December 1996. CSO is anorder of the court requiring an offender top e r f o r m un p a i d w o r k f o r a s p e ci f ic
number of hours. It is currently metedout either as a stand alone order or as acondition of probation.
The objectives of CSO are 3-fold:a. As a rehabilitative measure, CSO
afford s an offend er p ositive
experience through community workand this in turn fosters developmentof empa thy and consideration forothers. In the process, the offender
gains meaningful social experiences,develops constructive social
relationship skills, and regains selfesteem and confidence;b. As a punishment, CSO deprives anoffender of his/her leisure hours;c. As a form of reparation, CSO provides
the offender an opportunity to makeamends for the wrongs /hurt caused

118

by the offending behaviour throughservice to the community.
As at December 2000, 1449
probationers have been given between
40–240 hours of CSO as a condition ofprobation. The rate of completion to-datei s 9 8 % . A n ev a l ua t i on s t u d y o n t heeffectiveness of CSO from the viewpoints
of probationers, parents and CSO work
agencies (August, 1998) showed that CSO
h a s m e t w it h t h e o b j e c t i v e s o f t h e
programm e. B enef its cited bypprobationers, parents and CSO work
agencies include:a. Acquisition of new skills;
b. Improved intra-family relationshipthrough better communication;c. Greater respect for parents, elders in
the family, and authority figures;
d. Moreuseful
at
home,
more
responsible;
e. More considerate and mindful ofothers;f. Tendency for parents to inquire onwhat transpired at the CSO agency
thus increasing parent-child contact;
g. Parents generally pleased theirchildren were constructively engaged;
h. CSO
agencies
generally
found
probationers’ work good or at the very
least, satisfactory.
Since 1999, we have bee n
implementing value-added CSO
targeting selected young offenders i.e. thenon-academically inclined a nd those
asse s se d to be lack in g sup p o r t a nd
direction in life. Given probationers’
overall responsiveness to the programme,
we leveraged on the CSO obligation to
perform unpaid work for specified hours
by choosing placement options calculated
to p r o v id e e x p e r i e n ti a l le a r n in g &acquisition of trade and other marketableskills. Site supervisors with special trade

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
and other skills were engaged for valueadded CSO projects.

experience, celebrate success for eachwell-completed tasks.

M o re t ha n 5 0 0 p ro ba t i on ers ha vecompleted their CSO by participating invalue-added CSO projects such as wheelchair repairs, minor renovations andlandscaping works, painting walls andmurals, setting up of Visitor’s Corner inchildren’s home, overall improvement ofeldercare facilities and eldercare
management under the supervision of astate-registered nurse specialising in
geriatric care. Two new 2 value added
CSO programmes that are currently inforce are the “Bizlink Project” w hichinvolves the creation of hand-made cards
by probationers alongside people withphysical disabilities. The cards are thensent to volunteers, schools and other keensupp orters of the rehabilitation
programme to sustain their motivation to
support juvenile offenders.

Parents are well-engaged in the whole
CSO process. For many probationers, thevisible output of their CSO andappreciation from parents and services
users c reate pow er ful “teach able”
moments that can be life altering.

Another programme that has come on
stream is “Empowerment One” which
involves the referral of youth who havedifficulty benefiting from mainstream
educational and vocational system to theManagement Development Institute ofSingapore to complete mod ular
programmes which lead to a certification.
The probationers are then channelledeither to mainstream educational or
vocational institution. Those who are notinclined towards either set up are placedon industry attachment to keep themeconomically engaged in a supportive
work environment.
Besides using CSO as a platform forv o c a ti o n a l d e v e l o p m e n t a n d s k i ll s
acquisition, CSO placements are also
designed to give ample opportunities foryoung offenders to be self-affirmed. We
capitalise on self-enhancing moments to
get probationers to p rocess their

In implementing the CSO programme,
we strive to establish a nexus betweeno f f e n c e c o m m it t e d a n d t h e t y p e o f
com munity se rvice an offender isrequired to perform. For cyber offenders,C S O p la c e m e n t in c l u d e s a st i n t o fvolunteering in projects which demand
constructive use of IT savvy-ness for aworthwhile cause e.g. developing start-up
screens to warn against hacking andconsequences of cyber crimes, developing
parent education materials onsupervising children in internet time,developing IT applications for life-longlearning for the elderly or for disabled toplug into the info-tech world.
In 2000, the CSO placement process
was fine-tuned to render the process itself
a reasoning and rehabilitation tool topromote informed decision making, goal
setting, shared responsibility and childparticipation in his/her CSO placement
decisions. This move brings us closer tothe principles of respect for the views of
the child a nd c hild p a rticip a tion inmatters concerning him/her espoused in
the Conventio n on the R ights of theChild.
2. Strengthening of Probation Orders
A review of the use of probation orders
in 1 9 9 7 a nd im p le m e n ta t io n o f th ere com m e nd a tions o f the “R e po rt on
Strengthe ning Prob ation O rders” inJanuary 1998 was a significant move inpromoting probation as anything but a“sof t o ption ”. T he gra de d p rob a tion

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RESOURCE MATERIAL SERIES No. 59
system seeks to balance the need forpunishment and deterrence and the hopefor rehabilitation. We take into accountthe type of offences committed, severity ofoffences, type of offenders, circumstancesof the case, likelihood of re-offending, thepersonal factors and type of programmes
most appropriate in meeting all these
considerations.
The strengthening of probation has
resulted in better probation outcomes interms of higher completion rate and lower
recidivism over a 3-year post probation
period.
3. Institutionalisation of core & elective
programmes
Since 1998, a structured programme
was devised for probationers to augment
reporting and casework. Divided into coreprogrammes i.e. those deemed essential
and beneficial to every probationer orparent, and elective programmes whichtarget specific risks and needs dependingon the offender and type of offence, theprogrammes were intended to provide:a. avenues and measures to benchmark
the probationer’s progress;b. opportunities for probationers to workthrough lapses of bad behaviour;c. avenues for constructive pursuit ofleisure time; andd. opportunities for specific problems tobe addressed.
Core programme include group-based
induction for new probationer, victim
impact awareness, parents induction,
parenting workshop s and preterm ination
session.
Elective
programmes in turn seek to address avariety of risks factors or individual
needs of probationers which may
undermine progress on probation if left
u na tte nd e d . P ro gr a m me s ta r ge tingalcohol dependency, anger and120

aggression, secret society involvement,
drugs misuse, and personal development
programmes like making healthy lifec h o i c e s , s t u d y s k il ls e t c . a r e s o m eexamples.
4. Focused programmes to address
specific risks
To minimise non-completion or reoffending for the more serious or highrisk probation cases, specific programmes
are put in place in collaboration withvarious government, non-government,
people and the corporate sector:
a. Intensive quit smoking programmes
for under-aged smoking
b. “Get it Straight — Facts on Alcohol
Use and Misuse”
c. “Anti-relapse
programme
forsubstance abusers”
d. “Sex Offenders Treatment
Programme”
e. “Lucent-SHINE” programme — a
motivational programme with strong
parent involvement and service learning components for Chinese speaking
cases sponsored by Lucent Technology;
f. “POWER” programme for high risk
Malay cases;g. “360%” programme by Rotary Family
Service Centre;
h. “Lawless to Lawplus”;
i. Empowerment-One (E1).
5. Individualised Programme forIntellectually-disabled (ID) Offenders
In June 2000, a smart_id team (special
m an ag em ent a nd re sour ce tea m f or
intellec tually disabled ) was f o rm edcomprising specially trained personnel
su p p o r te d b y a n in t e r - d i sc ip li na r yresource panel (psychologist, medicalsocial workers, experts in various types of
disabilities, disability service providers,lawyers etc.) to specialise in the
preparation of pre-sentence reports for118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
intellectually-disabled (ID) offenders. The
main objective was to have an
individualised assessment and caseworkthat would enhance community-based
supervision of ID offenders. The move has
resulted in the development of a protocol
which requires investigating Probation
Officers to exhaust all possible avenues ofcommunity-based rehabilitation of ID
offenders.
6. Probation Service in Family Service
Centres and Community Focal Points
Efforts to widen probation for young
offenders bring in its wake, outreach ofProbation Service into schools and thecommunity and the intensification ofprogrammes by offenders to benefit theco mm unity. To -d a te , se ve ra l fa m ily
service centres and community centres
serve as venues for our individual andgroupwork for offenders and theirfamilies. Many are ethnic or faith basedorganisations and therefore best placed toaddress cultural and other diversity:
a. 4PM-Mendaki Family Service Centre(FSC)
b. Rotary FSC
c. Young Women Muslim Association —Mendaki FSC
d. Pertapis Adolescent Centre (PADC)
e. Singapore
IndianDevelopment
Centre (SINDA) FSC
f. 8 community centres
7. Employment Development
ProgrammesWork development programmes havebeen put in place to cater to out-of-school/
work young offenders who face difficulty
staying in school and yet unable to findw o rk . I n co m e ge n er a ti ng ac tiv itie s
through collaborations with the disability
sector e.g. Bizlink Centre, Metta Welfare
Association and Movement for the
I nt e l le c t u a l ly D is a b le d , S in g a p o r e(MINDS) are ways in which probationers

help people with special needs and theelderly to remain competitive in meeting
work targets to secure work contracts.
The probationers in turn get theopportunity to develop positive work
habits and skills within a sheltered work
setting.
8. Condition of Residency
Currently 5 facilities are gazetted asprobation hostels or “App roved
Institutions” under the Probation of
Offenders Act. They are:
For Malesa. Singapore Boys Hostel
b. Bukit Batok Hostel
For Femalesc. Pertapis Women’s & Girls’ Centre
d. Muhammadiyah Homee. Gracehaven
The Probation of Offenders Act
restricts condition of residency on aprobationer to no more than 12 months.
Sections 6 & 7 of the Act further require a
review report be submitted to the court
after the expiry of 6 month’s stay in ap ro b a tio n h o ste l f or the p ur p os e o f
he lp ing the court to de cide w he ther
continued hostel stay is necessary.
Besides gazetted hostels, there are also
numerous other facilities by voluntary
welfare orga nisations w hich take inprobationers who require a brief
residential stay on a voluntary basis, toiron out family problems, work throughpersonal or other crisis, or severe ties
with negative associates. The availabilityof options such as these allows for wider
use of probation in cases which would
otherwise be assessed to be too unstable
to benefit from co mmunity-based
rehabilitation.

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RESOURCE MATERIAL SERIES No. 59
Institutionalisation of a young offenderis considered only as a last resort after allelse have failed and when it becomes
sufficiently clear that committing a young
offender to an institution is really in his/her best interest.
C. The Family as Basic Building
Block of Society and Change
Agent
In 2000, about 78% of the probation
population were 18 years and below. Of
these, a close 80% are either in the schoolor technical education system. 19% werefrom single parent.
The family is the basic building blocko f society. It is also one of the m ost
important change agents for juvenile
delinquents and young offenders. In our
rehabilitative work with a youngo f f e n d e r, w e st r iv e t o b u il d o n t h estrengths of each family and its networks
to effect positive changes in the young
offender if not the whole family unit.
Probation is used as an instrument ofchange to re-shape attitudes, values andbehaviour. We work on amending flaws
within the individual and family system
to empower the probationer and family tosustain changes and build up resiliency.
The strengthening families frameworkused in community-based rehabilitationof offenders begin from the pre-sentence
stage right to the end o f pr obatio n.
Family engagement and empowerment
include:a. negotiatedactionplan
where
p roba tio n is reco mm ended or f orresistant cases, the plan of action
would have been discussed with theparents;b. parental bond to exercise proper careand supervision;c. attendance at core and elective
programmes for parents e.g. parents

122

induction, experiential parenting
workshops (“Raising troubled Teens
Without Raising Blood Pressure”),
parents support groups, educationaltalks on ga ngs, sub stance a buse,prison visits (with their offend er
child);
d. other specialised services e.g. special
sessions for parents of young sex
offenders;e. progress review with the parents andproviding feedback on outcome ofcourt reviews;
f. family
conference,solutionorprob le m-f ocuse d counselling andother sessions;g. pre-termination programme for bothprobationer and parents.
Parents sessions factor in language theparents are most comfortable in. Ethnic
dimensions, single parent status and theavailability of a special needs child in thefamily unit are given due consideration indesigning activities and programmes tofully engage parents in the rehabilitation
process.
At each stage of the probation process,the roles and responsibilities of parents
and what is expected of them are madeclear. Disadvantaged families are given
additional help to enhance theirfunctioning. Casework in such instances
may include sponsorship of a divorced or
widowed parent to a computer course or
back-to-work programmes.
D. The Many Helping Hands
Approach to Community
Rehabilitation
The effectiveness of probation, as aco mmunity-based rehabilitatio nprogramme, is enhanced only if there iscommunity support and involvement.
Community acceptance of offenders andtheir potential for change, understandingof the goals, principles and methods of118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
prob atio n, a nd their co mmitm ent tosupport reintegration efforts cannot be
overly emphasised.
Thus Probation Service has, since the70s, and more so in recent years, actively
engaged and involve the community in avariety of ways:
1. Volunteer Probation Officers:
Community Probation Service
The Community Probation Service(CPS), introduced in June 1971, will bemarking its 30th anniversary in October
2001. It is 350-member strong and has
evolved into a well-developed volunteer
programme. Volunteer Probation Officers(V POs), com plement the work ofProbation Officers. By befriending andguiding probationers, VPOs help to steer
young people back to the straight andc on str uctiv e p a th . Fo r m a n y of o ur
succe ssful ca se s, V POs m a ke a re aldifference in re-shaping the lives of young
offenders.
Sustaining, supporting and providing
on-going training to keep volunteers
continually challenged and motivatedposes a grave challenge especially in thisline of work where staff burn-out is a very
real issue. To appeal to the diversity ofinterests, skills, talents and volunteer
aspirations, CPS offers a wide scope of
involvement to cater to VPOs’ interests,
skills and training received as well as thevarious stages of their volunteer life
cycle. These include:a. casework;b. projects e.g. prepare pre-sentence
reports, organis e activ ities forprobationers & parents individual orgroup basis;c. time restriction checks;
d. committee & volunteer coordination;
ande. groupwork.

VPOs are currently involved informulating annual work plans relating
to a cti vitie s f o r a nd by v ol unt e er s,organising VPO Skills Training Seminars
aimed at sharpening skills in working
with today’s youth, and recently, evendeveloping a guidebook to support VPOs
in r e h a b i l it a t i o n w o r k w i th y o u n g
offenders.
CPS is being positioned toaccommodate group volunteering as wellas corporate volunteerism.
2. School-Probation Service-Court Link
(SPC) Link
The Schools-Probation Service-Court(SPC) Link was established in April 2000
to provide a school-focus to the probation
programme given 80% of probationers 18
years of a ge and below are either inscho ols or the institute of te chnica l
education (ITE) centres. The SPC Link
ha s b ee n e xpa nd ed to co ver pr iva teschools and tuition centres attended bypr o b a tio n c a se s. T he S PC L ink ha sresulted in more streamlined information
gathering processes, more opportunities
for dialogue between the agencies before,
du ring a n d a f t e r pr ob a t i on , a nd a n
integrated management of young
offenders through close partnership withOperations Managers or other authorised
persons from participating schools.
3. Community Links
Besides collaboration with schools, theProbation Service, has linked up withsevera l volunta ry welf are a gencies,
religious-based organisations, civic andself-help as well as theatre groups, sports
bodies, grassroots organisation and thecorporate sector to actively engage the“many helping hands” at the local andcommunity level to enhance prospects ofrehabilitation and reintegration of young
offenders through engagem ent in

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RESOURCE MATERIAL SERIES No. 59
meaningful pursuits for physical,
material and spiritual well being.
4. National Standards for the Probationof Offenders & their Rehabilitation in
the Community
To reap maximum benefits ofp a r tne rsh ip s w ith f a m ilie s an d th ecom munity, it is im porta nt tha t theprobation investigation and supervisionp r o ce ss b e m a d e tr a nsp a re nt t o a ll
parties including the probationer andfamily. Transparency and accountability
are twin goals that are especially relevantin the p ro b a tio n c on te xt w he re th eb alance of p ower is so mewha t tilted
against the offender.
As a stamp of commitment to service
standards and best practice in probation
work, Singapore launched the “National
Standards for the Probation of Offenders
and their Re habilitation in theCommunity” in August 2000. The
p ublicatio n, put to ge th er jointly by
MCDS and the Subordinate Courts, is asignificant milestone in the developmentof the probation system in Singapore. The
standa rds ha ve b een translated into
Mandarin, Malay and Tamil to cater tope rsons more conversant in thevernacular languages.
Wh en co m m unity- b a se d o rd er s iseither just not viable whether from theviewpoint of a juvenile offender’s needs or
public safety, institutional orders are
meted out. Even so, preference is on
placing the juvenile in an open institution
to allow him/her to continue on withmainstream education or employment. It
is only when all else fail, that we go for acommittal order in a secured facility.
Since July 1999, we have introduced apost-sentencing classification system toassess risk of violence, abscondence, selfharm and victimization among newly

124

co m m it te d j uv en ile ca se s. T h e r isk
assessment forms a basis for caseworkers
in the juvenile homes to conduct theneeds assessments and formulate anindividual care plan for the period of the
boy’s residence and during aftercare
supervision. A detailed write-up on thetreatment of juvenile in custody can befound in the folder.
V. CHALLENGES FOR THE FUTURE
As we transit into the new knowledgebased economy, and confront all thatcomes with it, the challenge is for us toco nt inuo u sly str ive fo r a p r ob a tio nsystem which is cogent and transparent,
structured in process and procedures, yet
flexib le a nd resp onsive to cha nging
needs.
One of the strategic thrusts would be tocontinue to leverage on our national
policy of continuous learning and ease ofa c c e s s t o in f o - t e c h n o lo gy t o b e t te r
prepare probationers to carve job niches
for themselves and reduce re-offending
due to economic reasons.
F o c us w ill als o b e o n id e n tif y in g
pa rtne rs fo r colla b ora tive re se arch,
exchange of executive programmes ando th e r p a rt n e r sh ip s b o th w i th l o ca lpartners and overseas counterparts toco ntinue to inje ct dyn a mism in our
m a n a g e m e n t , i m p l e m e n ta t i o n a n devaluation of the service both at the
programmes as well as system level.
Identification of risk assessment andmanagement tools and data management
system that will help us to achieve better
outcomes with less manpower, will bevital in Singapore’s manpower scenario.
No less important are managerial issues;of a tt ract ing a nd reta ini ng s uita bl yqualified staff, providing staff training
and career development, and capacity

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
building of all the constituents of thejuvenile justice system.
Widening the use of probation willinvariably mean the challenge of having
to meet and deal w ith m ore complex
n e e d s o f in d i v i d u a l s a n d f a m i l ie s ,prioritising responses to target “whatw o r k s ” a n d p r o v i d in g s u p p o r t a n dtechnical expertise to the many helping
hands we engage in the rehabilitation ofo f f e n d e r s. T h e s e i ss u e s h a ve t o b eadequately dealt with at appropriate
levels if we are to continue in our drive
towards a more progressive, morehumane and progressive treatment ofyoung offenders in Singapore.

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Appendix 1
Conditions and Duration of the 3 Grades of Probation
Grades And Period of Probation
Item

Administrative
Probation(6 months to 1
year)

Conditions• To comply withtime restrictions• To work faithfully at a suitable
employment orfaithfully pursue
a course of study
or vocational
training that will
equip the offenderfor employment• To make a goodfaith effort
towards completion of his/hercourse of study or
vocational training• To participate inor comply withthe rehabilitation
programme specified by either the
court or the probation officer

126

Supervised
Probation(1 to 2 years)

Intensive
Probation(2 to 3 years)

In addition to theconditions which
may be imposed for
Administrative Probation, the following may be
imposed:In addition to theconditions which
may be imposed for
Administrative Probation and Supervised Probation, thefollowing may be
imposed:• To maintainregular contact
with theprobation officer• To allow the
probation officer
to visit theoffender atreasonable times
at his home orworkplace or any
other place• Not to smoke• Not to consume
alcohol• Not to associatewith or be in thecompany of secretsociety members• Not to associatewith or be in thecompany of
persons who are
engaged incriminal activities• To reside for a
specified period in
an approved
institution orhome or hostel• To beelectronicallytagged118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Grades And Period of Probation
Item

Administrative
Probation(6 months to 1
year)

Supervised
Probation(1 to 2 years)

Conditions(continued)• To attend andparticipate inanti-secret society
talks or prison
visits• To attend healthy
lifestyleawareness
programmes• To participate incommunity
projects• Not to patroniseor visit pubs,
discotheques,night-clubs,
karaoke lounges,
billiards saloons
or video gamearcades• To maintain aneat and proper
appearance• If so ordered, tohave secretsociety related
tattoos removed
by a medical
practitioner
within a specified
period from thecommencement
date of theprobation order• To refrain fromany contact,direct or indirect,
with the victim or
any other person
connected to thecase• To submit toregular drug and/or alcohol tests

Recommended
Hours of CSO

Not less than 40hours

Not more than 120
hours

Intensive
Probation(2 to 3 years)

Between 120 to 240
hours

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JUVENILE JUSTICE REFORM IN ENGLAND AND WALES
Rob Allen*, **I think the first thing to say is that thereform of the youth justice system has
been a big political priority in my country
over the last 4 or 5 years. I don’t know if
any of you follow politics in the United
K ingdom, but in 1997, we had a new
government of the Labour Party, lead by
Mr. Tony Blair, and this was after a longtime in opposition, and in fact he madehis reputation in part because of his
polices on crime, and he invented a slogan
or a saying, ‘Tough on crime, tough on thec ause s o f crim e’ which su ms up theLabour Party approach. They think that
we should be quite harsh on criminals,
and punish them and so on. But they also
recognize that the roots of criminality andcrime lay in social conditions, in the
depravation, poverty, bad housing and soon. And they are trying to change the way
in which people live, in their lives, tomake it less likely that they would bec rim inals t oo . Th e re was a s p ec if ic
interest in the youth justice system. The
government said, ‘if you look at all thepeople in prison, all of the adults inprison, most of them started to commit
the crimes when they were children.’ So if
w e can make it that this pa rt of thesystem works better, it would be a good, avery good investment because we would
be reducing the number of adultoffenders.
When Tony Blair went to the electionsin 1997, he produced a little card with 5

pledges, 5 things that he said that the
government were going to do. They wereab out red ucing the w aiting tim e forpeople going to hospitals, or reducing thenumber of children in classes, making
class sizes in schools smaller, but one ofthem related to young offenders, it was
about reducing the length of time it takes
for young offenders to be detained withthe yo uth ju stice sys tem , to ha v e ashorter time from arrest to sentence. For
persistent young offenders, and you may
sa y th at it is a st r a ng e th in g f o r apolitical party to say: “We are going to do
this change” it seems like a rather minor
thing, but it shows it has been politicallya very important issue in our country.
And I will say a little bit about why thatis in a minute. What that has meant isthat one of the first pieces of legislation,t h e f i r st l a w s t ha t t he n ew L a b o ur
government brought in to be enacted.
With the Crime and Disorder Act there
is another imp orta nt a ct, the Y outh
Justice and Criminal Evidence Act. They
brought it one year later in 1999 and I
will be talking about that in my third
lecture, because that introduces somevery interesting new ways of dealing with
first tim e of fe nd ers. ..o ff end er s w ho
appear in court for the first time, ways
which borrow heavily from New Zealandand other systems. I will not talk about ittoday as I’m going to concentrate on
measures which for the most part are in
the Crime and Disorder Act.

* Member of the Youth Justice Board and Directorof the Esmee Fairbairn Foundation, London
England** This paper is a transcript of a lecture delivered by
M r. Allen at UNA FEI d uring the 118th
International Training Course.

128

What the Crime and Disorder Act tries
to do is to put into effect a new
philosophy. And it is a philosophy I
suppose which could be summed up by
the term ‘early intervention’. It is based

118TH INTERNATIONAL TRAINING COURSE
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on an idea that we know what makes itlikely that children will become offenders.
We know the kinds of factors: these arechildren who have problems in theirfa milies, these a re children who are
failing at school, these are children who
are at an early age get involved in drugs
or alcohol misuse. These are children who
get involved in gangs at an early age. So,
in principle, if you can do something
about those things, than you will make itless likely that they would continue tooffend. So you need to intervene early, todo things, to try change the way whichyoung people behave. Now I say that
because that philosophy was really incontrast to the old philosophy.
The old system, if it had a philosophy,
w as something like this: “Well m ost
children commit crime—a little bit ofcrime, and most of them as they get older
they grow out of it.” What is more, if they
get involved in the system, that makes
things worse. This philosophy was verymuch influenced by labeling theory, theidea that if negative labels are attachedto somebody, they live up to them. If you
give a dog a bad name then he would
behave badly... that kind of idea. So theold philosophy was very much diversion,
keeping people out of the system.
The new philosophy is to get a bit into
the system. Now I think that might besomething we want to come back to anddiscuss later because I think it is quite animportant question—the generalorienta tion tha t the juvenile justicesystem has. For my own view, the oldsystem was really only saying, ‘don’t put
people in to the criminal system, let’s dothings through social welfare througheducation , through oth er forms ofintervention.’ But the problem is thatthose things will not be done, those
problems as well, those needs were not
m a tc hed thro ugh the socia l welf ar esy st e m . S o it wa s l e f t o p e n f o r th e
criminal system to come and deal with,that is really what is happened in ourcountry I think.
So there is a new philosophy and there
is finally a new infrastructure, and by
infrastructure I mean bodies andorganizations and people to do things
with young offenders. At the local level
there are youth offending teams. So every
area of the country has to have by law ayouth offending team, and the Crime andDisorder Act law sets out who is in ayouth offending team: a police officer, aprevention officer, somebody from the
Health Department, a social worker,
somebody from the Education
Department. Some youth offending teams
have additional people, some have maybe
a youth recreation worker, some havesomebody who knows about housing andaccommodation. But the idea is it is amultidisciplinary,multi-agency
approach. Because it is the only approachthat can tackle the roots of offending
behavior. So there are a hundred andfifty-four, I think, youth offending teams
in England and Wales, and at the center
there is the Youth Justice Board which isfor the first time exercising leadershipover the system. So what we now have ine f f e c t i s a n a tio n a l sy s te m , l o ca lly
delivered, so youth offending teams are
local agencies but they are coordinatedvery much more strongly from the center
than was previously the case.
I want to say a little more about theph ilosophy bec ause th e cr ime anddisorder act introduced a new aim for the
youth justice systems. So in the law the
principal aim for all of the agencies andorganizations in the system is preventing
offending. It is not punishment, it is noteducation, it is not welfare, it ispreventing offending. Now what thatmeans in practice—well, unfortunately

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the position is a bit complicated because
we still have other aims and principles
which are involved in the youth justicesystem. So under quite an old law, there
is still a requirement that the youth court
takes account of the welfare of children
appearing before it, in the whole idea thathaving a separate youth court is based onthat children have special needs, special
welfare needs that need to be taken into
consideration. There is also, a principle ofproportionality. I am not sure how easythat one would be to translate, but theidea that intervention measure sentences
particularly should be in proportion to
the seriousness of the crime. So, in order
to send anybody to prison, a dults orjuveniles, a court must be satisfied thatthe crime or the offence is so serious thatno other penalty will do. And to qualify
for a community sentence, the court has
to be satisfied that the offence is serious
enough.
We basically have in our law 3 kinds ofsentences: custodial or prison sentences,
community sentences, and at the bottom
end-fines and charges which are lessserious. The thing that divides them isthe seriousness of the offence. And there
is a 3rd principle which is growing inimportance in England and Wales, but infact throughout the United Kingdom,which is restorative justice. The
government in the UK talk about thesystem trying to, well having three aims
o f instilling respo nsibility in young
people, restoration paying back to thevictim and reintegration, they call these
the “3 R’s.” We have a joke in English,
this won’t work very well. People talkabout the “3 R’s” ‘Reading’ ‘Writing’ and‘Arithm etic’ well, “writing” and“arithmetic” don’t begin with the letter “r”
so that’s the joke bit. But anyway within
the youth justice system there are these 3
words which begin with “r”;
“ R e s p o n s ib ili ty ” “R e st o r a t io n ” a n d

130“Reintegration” which are all seen to bevery important. The point I want to makeis that each of these principles does not
sit very comfortably with the others. If
you are about “preventing offending”,
only about “preventing offending”, youwill do wh at is needed to prev en t
somebody offending whatever theseriousness of the crime, so say somebody
has done a very minor crime—he hasstolen something from a shop of verysmall value. But when investigations are
made there are all sorts of problems in achild’s home life and he is in a gang or isabout to be, or he is sniffing solvents or
involved in drinking too much. You would
say well, he needs a lot of intervention
because he is in a high risk situation, but
we have the proportionality principle
which says ‘hang on a minute, he onlystole a bag of sweets from the shop’. So
how do you in your system manage to finda response which satisfies the
proportionality requirement andpreventing offending requirement?
If you read the Beijing Rules about theUnited Nation’s Standards Minimum
Rules for Juvenile Offenders they talkabout sentences needing to take accountof the offenders and circumstances of theoffender, but we say in England it begs
the question, ‘which is the more
important of these principals?’. You havethis welf are principle, you haver e s t o r a t iv e j u s t i c e s o i t i s q u i t e acom plicated, m essy picture and in
addition to reducing delay it is not reallya philosophy question but it has almost
been exalted to the level of aphilosophical require ment, thego ve r nm e nt a r e v e ry k e e n tha t t hesystem works quickly, partly because
they had on their card—they will reduce
delay, but they think that speed throughthe system is a very important factor.

118TH INTERNATIONAL TRAINING COURSE
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I want to say just a word about thebackground to the changes. In 1996 there
was an important report called “Misspent
Youth” this is a bit of a pun, a bit of a joke
in English because we refer to young
people who behave badly as having a
misspent youth. They have spent their
yo ung yea rs b a dl y. Thi s rep o rt w a sordered and it reviewed spending bygovernment public spending and theirreport was saying that the money whichis spent in the youth justice system wasbeing spent very unwisely, and being
wasted and so on. So the title “Misspent
Youth” was a bit of a joke, obviously not ago od jo ke . B ut th is rep o rt w a s ve ry
r esp o nsib le f o r this q ue stio n—h igh
lighting that question of delays, how longit takes to deal with youngsters in thesystem, it was very critical of the fact thatlots of children went through the criminal
justice system but nothing much wasdone to them. At the end they would get afine or discharge. Nothing was done tochange their behavior, and it was criticalof the fact that nobody knew really what
was hap pe ning in th e you th justic esys tem, that there was very little
measurement of the im pact, ofinterventions on children. And it wasn’t
really a system at all. So this reportwhich was very critical, was a part of thereason that the reform programme wasundertaken.
The second background report that was
important was produced in 1997 by theinspectors at the prisons. In England wehave an independent inspector who visits
all of the prison establishments
throughout the country, at the moment
he is a man who used to be the general in
the arm ed forces. And it is very
interesting that he had never been in a
prison, I think, before he took this job, but
he was very critical of the conditions thath e f ou n d i n m a n y o f th e p ri so ns in
England, and I think his view was that

we do not treat people like this in anarmy, and there are very similar young
men often in prison. Anyway he produced
a report about thejuvenile
esta blishment, that w as very highly
critical and called for major reforms.
The third point isn’t really a point
be ca use I a m a fra i d t o s a y t ha t t he
British government has not really taken
very much account of the United Nations
Convention on the Rights of the Child. As
you will know, the country has to submit
reports every 5 years, I think. Last time
the United Kingdom submitted the report
it was criticized by the Commission on
the Rights of the Child, particularly overthe low age of criminal responsibility
which is 10 years old, and the low age at
which courts can send young offenders
into custodial establishments. Well, bothof those things continued to be the case.
T h e go ve r n m e n t ha s no t m a d e a ny
reforms, on account that, I am sad thatth e g o v e r n m e n t w o u ld s a y , th a t i trespects the spirit of the U . N.
Convention, because although the age ofcriminal responsibility is 10, the way inwhich the criminal justice system deals
with y oung c hil dr en is very muchmodifie d from the w ay it dea ls withadults. It is not really the same sort ofsystem at all.
What has been much more importantin terms of the context for change in the
youth justice system has been public andmedia concern about crime. I do not know
if you remember this, but in 1993 there
was a terrible case, in which two 10 year
o ld b o ys m u rd e r e d a sm a ll b a b y inLiverpool, which is a city in the north ofEngland. It was a very shocking crime,and it was one of those ‘how could they dosuch a terrible thing?’. Ever since then, it
has been this way, juvenile crime is often
in the news papers, and it is often said
that there are children out of control, who

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RESOURCE MATERIAL SERIES No. 59
have committed lots of crimes and thesystem needs to get tougher, and what I
am afraid of is that government ministers
listen to that rather than the U. N.
Convention on the Rights of the Child,and that is the political reality in whichthese things work.
The reformed youth justice system has
6 key objectives, and I want to just briefly
s tart by say ing wh y it’s g ot th es eobjectives The first of these questions
spread through the system—why is thatimportant, well, there are number ofreasons for having a long delay between
being arrested and being sentenced. It is
obviously a time of uncertainty for ayoung person, it is a time of uncertainty
perhaps for a victim if there is a trial; andmaybe quite a lot of stress all aroundw hich should be kept at a minimum.
T he re is a r isk o f c ou rse tha t so m echildren will offend before the trial, if
they are not locked up in an institution, if
they are given bail. Then the longer they
are in a period of uncertainty, there aresome children who say ‘well I am going to
be sentenced for this crime anyway’ so I
might as well do a couple more. And it
would be rolled up into one sentence, sothey sometimes go on what we call a“spree,” a number of crimes, because they
think they have nothing to lose. Having along time between being arrested andbeing sentenced, means that for somechildren, they simply have forgotten what
it is that got them into trouble. These
children often, if they are young, maybe
do not go to school, they might not have avery strong sense of time, they live verym u c h in t h e p r e s e n t , t h e y c a n n o t
remember what it was they did 3 or 4 or 5
m o nths a go a nd o b viou sly h av ing a
speedy, a speedy response means thatyou can take action early to try to dosomething about the offending, to try totake some measures quickly that would
keep youngsters out of trouble.

132

The second key ob je ctive is a bo ut
getting young offenders to takeresponsibility and by that the idea is thatthe government criticizes the previous
system for being too lenient in the sense
that, they called the white paper, one of
the w hite papers that proceeded thelegislation, “No More Excuses.” They felt
the system was making too many excuses
for children who commit crimes, or it
wasn’t their fault, it was their parent’s
fault, or it was a school’s fault or society’s
fault. So the idea of a new system is that
it is a proper level of responsibility or
accountability. If children do realize what
effect they have on their victim, they areless likely to offend perhaps. And ofcourse society demands increasingly thatchildren do accept some proper level of
responsibility for what they have done.
And there will be those of you who, withyoung offenders, think that a lot of young
offenders try to not take responsibility I
think it was an American sociologist
criminologist Maxwell, who talked about
techniques of “neutralization”. He used
this phrase to describe the way which
offenders, if you talk to them they would
say that “Well that wasn’t my fault, he
was asking for it,” “he had insurance, it
was so and so’s idea, I was just goingalong with him” all of these things will befamiliar to prevention officers and social
workers every day. So the idea is that ap r o p e r l e v e l o f a c c o u n t a b i l i ty a n d
responsibility for young offenders isneeded in the system. Third, the idea of
tackling risk factors, as I had said, lots oflots of research has identified the generalfactors that suggest that somebody will
become an offender, it is true that there
are a lot of youngsters w ho w ill ge t
involved in minor crimes maybe once or
twice, as an experimentation. But I am
talking about factors that predict morechronically p ersistent or serious
delinquency, and those factors are related
as I said to the families, schools and so118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
on. But obviously the presiding factors
will depend on the individual. So the idea
is that the system should have in place, atthe local level, the resources to be able totackle both individual risk factors foryoung offenders who are coming to thesystem.
The fourth objective is “proportional
punishment.” I mentioned the question of
proportionality, obviously it is importantthat the general public have confidence inthe system, that it does deliver something
in the way of punishment. Research thatthe government has conducted showsthat the youth court was the part of thecriminal justice system that the generalpublic had least confidence in. They were
not happy with the way the youth court
was operated. Now in fact the public are
not very well informed about the facts of
the you th cou rt or a ny o the r c ourts
actually. People tend to underestimate
the severity of the system and part of mywork to try to change public attitudes topunishment is simply to try to get the
public better informed about the facts
and evidence because at the moment wehave a public who is very ignorant in ourcountry, about how the current system
works. But some levels of proportional
punishment are obviously important.
Fifth, reparation. I mentioned thisquestion of getting young people to takeresponsibility. O bviously repa ra tion
provides a prospect of a better deal for thevictim of juvenile crime. Certainly in oursystem, both for adults and juveniles, thevictim has not been a very important
player, until very recently, it has been avery minor consideration. But the ideathat juveniles who commit a crime shouldbe paying back in someway, has become
an i mpor tant th ing , and the final
objective is about reinforcing an dstrengthening parental responsibility,
the responsibility the parents have forth e ch il d re n . A s y o u w il l k no w th e
resea rch shows that poor parenting,p a r e n t s w h o a r e in c o ns i st e n t— o n eminute very strict, the next minute very
rela xed with their children—tend to
produce children who do not really know
when they could behave well, when they
could behave badly. So providing some
guidance, support and also some threat toparents to try and help them to become
more effective parents is an important
objective.
OK , first of the objectives, “Speedthrough the system”. In 1997, the averagetime from arrest to sentence was 142
days, so over 4 and half months, and thegovernment, as I said, wanted to havethat time reduced. That figure is now 83
days, so there has been a lot of progress
made in reducing delay. In fact the vast
majority of cases now are done much
more quickly than not. In our system, themost serious cases can be sent to the
Cr ow n C o urt s o ca ses o f mu rd ering
another, grave crimes, can be transferred
to be done in a more serious adult court,
and those cases can take a very long time.
I mentioned those 2 bo ys who
murdered the baby in Liverpool, they
were tried one year after they had beenarrested. That is exceptional but there
will often be 6 or 7-month delays in those
C ro w n C o ur t ca s e s. W h a t ha s b e enachieved in the Youth Justice Board has
been an important part in achieving thisend to what we call “judgment culture.” If
you had come to Britain 4 or 5 years ago
and sat in the youth court which doesn’tlook unlike this building; Actually, we
could arrange to have this youth court
and you would sit in the back of the youth
court and watch what was going on, you
would no t see a case sentenced, you
would see lot of cases coming through andmagistrates would say we will put it off
for 3 weeks, because either the legal

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representatives, or the social w orker
would say, or the prosecutor would say,‘we are not ready to proceed with thiscase’. So that was a culture of simply
putting off and putting off, andsometimes the prosecutor would say: “Oh,this boy has committed another crime
since then” and we want to deal withthese crimes together, so we will put it off
and put it off. That has changed and now
there is much more emphasis by thepolice, by the crown prosecution service
the independent prosecutors, by the
courts, in terms of getting these cases
dealt with quickly. And what was meantis that priority is given by those agencies
to juvenile cases. You might say, well if
priority is given to juvenile cases thenless priority is given to adult cases. And I
think the government say “yes that isright, because if w e get it right withjuveniles we will be saving ourselvesproblems in the future”.
This emphasis on speed through thesystem has clashed, has been in conflictwith some other priorities andparticularly with “restorative justice” it isdifficult to go quickly. If you want thesystem to involve the victim of the crime,then you need to take time with thevictim. We had an example where, when I
was working for my last organization,“NACRO,” the National Association for
the Care and Resettlement of Offenders,
we were running a programme which
provided reparation orders which is a
new sentence I will talk a little bit aboutlater. One of our workers was asked by
the court when there was an opportunity
for the victim to be involved when theywanted reparation directly, wanted theoffender to do something to them, and theworker said: well I don’t know we hadn’t
had chance to talk to them yet. So thecourt said: ‘Can’t you phone up them now
a nd ask them ’; a nd our worker s aid:
“That is not very good practice to ring up

134

and say: ‘Hello, I heard you have been a
victim of a crime. Would you like theoffender to come around and clean up
your garden? Or do something for you?
That is not the right way to do thesethings. And if you do it the victim will say‘no! I want to know more I need time tothink about it’. The result is that thevictims are not involved as much, becauseof the priority a ttached to speed thesystem.
Taking responsibility, that was thesecond of the objectives, but one of thee le m e n t s w a s t ha t t he g o ve r n m e n t
reacted to remove what was the legal
doctrine called doli incapax, which would
be interesting for lawyers but perhaps not
so much for others here. Until 1998, forchildren under the age of 14, I said theage of criminal responsibility is 10 but
until 1998 there was a safe guard, there
was a protection, the prosecution had toprove that the child knew what they were
doing was seriously wrong, before they
could be convicted, because obviously thechild of 10, 11, 12 might not really knowwhat they were doing. But the
government took a rather dim view ofthat, and said well they are old enough toknow what is right and wrong, at the ageof 10, so we will scrub that protection, we
will take away that safe guard. So whenth e U n ite d K ing d o m re p o r ts t o t he
U nite d Na t ion s C om m is sio n o n the
Rights of the Child next year they will
have to say that, I am afraid, we have notrisen the age of criminal responsibility, infact we have removed one of thesaf egua rds w e ha d, in te rms o f do li
incapax. I expect that the United Nations
Commission on the Rights of the Childwill not be very impressed w ith thatparticular change.
More important is a new scheme forreprimands and final warnings, and in
the printed version of the paper there is

118TH INTERNATIONAL TRAINING COURSE
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quite a detailed appendix which describes
the reprimand and final warnings
scheme. Before that was introduced we
had a system that was ca lled police
cautioning. The police would give
offenders a caution, which was like a
w a rnin g but that sy ste m w a s n ot a
statutory system. That was just apractice that was grown up by the police,a nd co nse quently the re wa s a lot o finconsistency about how it was done.
There were a lot of stories, whether they
were true or not, about some children
who had 5 or 6 cautions, it was supposed
to be only used once. But there are stories
that there are some young people who
offended and have got cautions and they
offended again, 2 or 3 weeks later andthey got another caution. But in fact
there was only a very small number but
this became one of those things that
happened, the public got the idea that allthese children are being let off. Well infact cautioning—police cautions—reallygrew during that year when I was talking
about when labeling theory was
influential. In fact, 10–15 years ago,people tried to caution a lot of children,
because the aim was to keep them out of
the system. Anyway the current system ismuch more rigid, much more laid down in
the law. So, basically, at first, when you
co m m it a c rim e and if it is a m ino r
offence, say stealing from a shop, which isquite common among children, you arelikely to get a reprimand and that means
you are warned, your parents come to thepolice station, a record is made of that,but no further action is taken. If yourfirst offence is a serious one, you can beprosecuted immediately, and if it is amedium one you can get a final warningi m m e d i a te l y. I f y o u a l r e a d y h a d areprimand, and you committed an
o f f e n c e , th e n y o u c a n h a v e a f in a l
w ar ning a nd tha t is a m os t se rio us
matter because after a final warning you
get no more chances. What happens now

is that in a lot of cases, as well as simply
being warned by police officers, about
your future behavior, you are actuallysent to the youth offending team who
make an assessment of your case. Youma yb e get invo lved in so me k in d o fprogramme, to try to improve the way
you behave. In some parts of the country
we have introduced restorative
conferencing at this stage of the process,so that if you have maybe stolensom e thin g f ro m s om e b od y, st ole n abicycle from somebody, you get a final
war ning. I f yo u a re in a p a rt of thecountry which operates this system ameeting might be called, in which theperson, a victim whose bicycle was stolen
comes, the child comes, the parent comes.
The child says they are sorry and offers to
do something to put that right. And ifthey do that, that is the end of the matter.
In other areas they maybe assess thechil d’s need s, and if he has someproblems, then maybe some effort to dosome work is done to try improve it. So
the final warning is the first stage in thesystem where action is taken to try to
prevent future offending.
What the Crime and Disorder Act also
does is put limits on the youths getting
conditional discharges. This is one of thesentences that is available in the youth
court and basically it means that nothing
will happen to you providing that you
stay out of trouble for the period of thedischarge. So if you get a conditional
discharge, for 1 year, you don’t have to do
anything, all you have to do is stay out oftrouble, if you commit another crime, you
can be sentenced both for the new crimeand for the old crime. So it is a kind ofchance, and the government said, well if
we want these young offenders to takeresp onsibility it does not seem ve ry
sensible to go all the way to the court.
The court says we are giving you anotherchance. So there are limits on the way the135

RESOURCE MATERIAL SERIES No. 59
court can use this. If you have a final
w arning in the previous 2 years you
cannot receive a conditional discharge.
What that means in practice is that you
can receive one of the orders.
An important part of getting young
offenders to take responsibility is throughthe sentences that the youth court can
impose. I thought it might be useful justto say a word about the range ofsentences that are available in youth
courts in England and Wales. When thegovernment reformed the youth justicesystem it did not repeal all the existinglegislation and change it completely. It
just added a new layer on. So, we have a
lot of different sentences, some of which
are very similar to other ones. Somepeople from other countries think that it
is a very strange way to behave.
I mentioned the system in Scotland,
and I just say one thing about that. They
ha ve a trib una l co urt the child re n’s
hearing or children’s panel, which deals
with most cases of juvenile offenders in
Scotland, but they only have one effective
sentence of supervision. They can makethe supe rvisio n re quire me nt on thejuvenile, and they can introduce, within
the box of a supervision requirement,
anything they think needs to be done.
That, I think, is the approach in many
countries.
In England and Wales we havedeveloped all these different kinds ofspecific court orders. The person who
asks the question. “Will the young people
understa nd the system” I think it isunlikely that many young people properly
understand the youth justice system, I
think many of the people who work in it
struggle to understand it, because it isquite complicated, all these range ofoptions. On the left we have discharges, I
mentioned, the conditional discharge,

136

there is a lso the absolute discharge,
which is very rarely used for cases whensomebody is guilty but it is a very, very
minor crime and it is often technical,
technically an offence. Fines, in Englandand Wales parents can be m ader e sp o n si b l e f o r p a y in g th e f in e s o fjuveniles, and in fact in the cases of under
16s, children under 16—parents should
be made liable for paying fines. There arealso things called “bind overs”. Parents
can be bound over to take proper care andcontrol of the child. A bind over is like asuspended fine, you are bound over forsome money, 100 pounds say. If the childbehaves badly you can forfeit or lose thatmoney. There is a compensation ordera va ilab le. Co mp ensa tion ord ers a resupposed to be available throughout thesystem, for juveniles and adults. The
reparation order effectively allowed thecourt to order the juvenile to do unpaid
w o r k , e i th e r f o r t h e b e n e f i t o f t h ecommunity, or for the individual victim of
the crime. We have, for about 30 years,
had the sentence of community service for
adults and young people down to the ageof 16, and in some respects the reparationo rd e r is a k in d of j un io r v e rs io n o fcommunity service, or the possibility of
paying back something to the specificvictim is a distinctive part of reparation
orders.
C omm unity pena ltie s, co mm unity
sentences are sentences for which thecourt has to be satisfied are offences
serious enough to need a sentence likethis and at the top there is a new
sentence, the action plan order, which is a
3 months intensive sentence designed totry and rea lly shake the youngsters
lifestyle, so they change the way they
behave. S o the member of the yo uth
offending team will work very hard for 3
months to try to get to the bottom of why
the youngsters are committing the crime
and to try to do something about it. I

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
mentioned that there were limits on the
courts’ use of conditional discharges. Up
to 3 or 4 years ago, a large number ofyoung offend ers got conditional
dis ch arges, now they ei th er get a
reparation order or an action plan order.
And many of them, when is it introduced,
will get a referral order. The
government’s idea that we will intervene
earlier and we will do more to change thebehavior, is really enshrined in thesesentences. The other sentences on theright hand column are ones that havebeen available for a while. The Crime andDisorder Act has made some changes tothem. The attendant center, that is asentence that requires juveniles to go on
Saturday afternoon for 2 or 3 hours at atime for a period of up to 36 hours, they
are organized by police officers, And theidea is they get 3 or 4 hours of instruction
and discipline from police officers, there
is a supervision order, and supervisionorder plus requirements, so you can headstraight for a supervision order whichplaces you under the supervision of amember of the youth offending team or
requirements, conditions can be added tothe supervision order. Requirements thatyou refrain, that you do not do certain
things, that you do not go to certain
places, you do not talk to certain people,
they may be conditions that you actually
do certain things, you undertake certain
activities designed to try keep you out oftrouble, whatever that is. Counseling,group work, therapeutic work, sport andleisure activities, the supervision order isa main way in which youth offending
teams construct a programme of
measures to try to meet the needs of theoffender to stop them getting in trouble,
for the more serious offenders.
Three orders only are available for 16
and 17 year olds in the youth court: thecommunity rehabilita tion order, thec o m m u n it y p un i sh m e nt o r d e r , a n d

com munity
punishment
andreh abilitation o rder. Yo u may no t
recognize those terms, I don’t really
recognize them, because, they have only
been the names for orders since April I
think. The community rehabilitation
order used to be known as a prevention
order. T he governm ent decid ed tha t
people did not und erstand what
prevention meant. So they decided to callth e p r e v e n t io n o r d e r a c o m m u n i ty
rehabilitation order, they decided thatpeople did not und erstand what
community service was so they decided tocall it community punishment and there
is one other which used to comb ine,prevention and community service, sothat is now a community punishment andrehabilitation order. The government
were going to change the nameprevention service to community but theydecided not to do that, so we still have
prevention service in England and Wales.
There was a lot of debate about the nameof this service.
I want to take just a minute to say alittle about the prevention service in ourcountry, because obviously it is mostly
important for adult offenders, but they doplay an important part, they are one of
the members of youth offending teams,
and particularly for 16 and 17 year olds.
In the youth court, prevention officers
play an important role. The prevention
service has undergone a lot of changes
over the last 2 or 3 years, it is not just ayo uth ju stic e sys te m th at has be en
reformed , the government has
un de r ta k e n to a rr a ng e q uite m a j orchanges to public services over the last 3–
4 ye a rs , a nd a s s o me w ill kn ow t hegovernment of Tony Blair was reelected acouple weeks ago and he has promised to
do even more to modernize public
services. S o there w ill be even morechanges, but there are 3 main changes tothe prevention service which are worthy

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RESOURCE MATERIAL SERIES No. 59
of perhaps mentioning, the first of whichcalled the modernization programme.
U ntil April, there were about 50
prevention services around the country,
which were in a way independent andlocal. They reported to local communities.
T hat is all change d no w, w e h ave anational prevention service, so there iso ne pe rson w ho is a pp ointe d by thegovernment, who is in charge of the wholeprevention service. So it is like a prison
service, in that respect, so if something
goes wrong maybe somebody who is on
prevention, does some terrible act, theminister can call one person and say:what is going on here? I think that is apart of a desire to have a much morec e n tr a li z e d n a ti o na liz e d se r vi ce t ointroduce more consistent programmes
and so on.
The second change has been a muchgrea ter em phasis on enfo rce ment o forders. Research was under taken, whichshows that of those prevention officers
who were supposed to take offenders backto court if they were not compliant withthe orders, they were not doing as muchas they should, so some offenders were
getting away with not attending and notparticipating, and the government rightly
said it is no good, it is not good for publicconfidence, it is not good for the offenders,so there is much more emphasis now on
enforcement, but I think it is an exampleof the pendulum swinging the other way.
And we may end up with prevention
officers who are more like prevention
officers in the United States, where thejob is really only about enforcement oforders, and they carry guns. The slogan of
one pr evention service, I t hink in
California is, “Surveil them, nail them,jail them”. It means “watch them”, “waituntil they go the wrong way” and then“jail them” so that is not a vision of
prevention service that I particularly look138

for. So I hope that is not the way we aregoing.
The third change of the prevention
service is this— a major emphasis onwhat is called ‘effective practice’. It is
known as the “what works initiative” andthis is base d loo sely on the N or th
American system—mainly research thatshow s that certain programmes withoffenders can produce good results interms of reducing re-offending. This is a
big deal for the prevention service, there
is a lot of money and effort and training
going on. These programmes which arequite psychological, there are lot more
psychologists in the prevention service—
if you want to get on in the UK in thecriminal justice system become a
psychologist at the moment. For my taste
these programmes are too psychological,
they are about trying to change the way
offenders think and behave. And theysometimes do not take enough account of
the environment in which offenders areliving. So yo u ca n h ave a ve ry go od
scheme for teaching an offender, theconsequences of their actions and to knowwhat is the right thing to do and what is
the wrong thing to do. But if thatyoungster has no proper place to live, issleeping on the floor of a friend’s house,has no income, is being offered drugs,
then those programmes are not going towork. So you need to make sure that you
are attacking the problem in a whole way.
But I think the idea of doing effective
things, rather than doing the ineffective
is a very good idea.
One of the other ways in which thechanges are trying to tackle the questionof responsibility is by a new custodial
sentence. It is called the Detention andTraining Order. It can last between 4months and 24 months on the whole andthe id e a i s t hat it is se r ve d h a lf i n
detention and half under supervision in

118TH INTERNATIONAL TRAINING COURSE
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the community. A lot of sentences forjuveniles and adults have had elements ofsupervision after release, but I have tosay in practice this has always been thepart of the system that has been very
weakly implemented, when somebody
comes out of prison, they don’t get a lot ofsupervision or help. Another problem inour country was that, people who work incustodial establishments, such as prison
officers or social workers were on a reallyvery different track from people who
worked in the community. Often theywould be working with the same young
people, there was very little in the way of
joint work or planning. The idea of theDetention and Training Order is that it isa similar sentence, it is one sentence
without joining. So within a few days of ayo ung p er son ge tting the d e tentio n
t r a in i n g o r d e r t h e r e is a p l a n n i n gmeeting held at the institution which
involves the youth offending team andwith the plan for what to do with theyoung person lasts through the sentence
in a secure detention part and also in thecommunity part. How well th at ishappening in practice I do not know.
One of the problems with the trainingo rde r is that it a p pe are d to b e very
attrac tive to the se nte nce rs, so th enumber of young people who arer e ce i vin g t hi s se n te n c e h a s gr o w n .
Because in theory it is obviously a muchbetter idea, if are going to send somebody
to custody, it is much better, and you plan
their release from day one, and when
they are released back to the community,
there is a place at school, there a place tostay, some supervision with their family
and all of that. And of course if you are ina court, if you are a magistrate, thatappears very attractive, because theYouth Justice Board says we are making
these institutions much better than theyused to be. And there is some progress
being made, that of course makes thesentence attractive, and it is an age-old
problem for penal reform and change how
y o u i m p r o v e c o n d it i o n s i n c u s t o d y
without making custody so attractivethat more people go and you can notcontinue the improvement, because you
have too much crowding, and too many
people, and trying to get out from thatcircle is quite important.
The other custodial sentence that isstill available is long-term detention for
those youngsters who commit grievous
crimes. I mentioned two boys that were
co nvi c t ed of mu rd e ri ng t he b a b y i n
Liverpool. They were 11 by the time they
were sentenced. They received what is an
automatic sentence of detention “at her
majesty’s pleasure” which is effectively alife sentence, it does not mean that they
spend their whole lives locked up, and inf a c t th e r e ha s b e e n a g r e a t d e a l o f
litigation, and a great deal of publicdebate about precisely how long theseboys should serve. I think this week theparole board, which is a body that decides
when long term prisoners should be
released is considering the case of these
two boys. They will probably be given new
identities when they are released, andthere is some talk that they may be given
new lives in other parts of the world. I do
not know but that’s by the by. It shows
how much public concern there has been
about this case. But there are long-term
detentions for other grievous crimes andthe law, I think, compared with othersystems around the world is very tough inour country for youngsters who commit
serious crimes. By grievous crimes wemean any crime broadly that in the caseof the adult carries 14 years
imprisonment or more. In fact, 1 or 2
other offences as well, but that meanst ha t a n o f fe nc e l i ke rob b e ry , w hi chcarries the maximum life imprisonment,
you can as a juvenile get any thing up tolife imprisonment for a robbery. Robbery

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obviously covers a huge range of different
kinds of crimes, from armed robbery
w h e r e p e o p le a r e h u r t , t h r o u g h t osomeb ody taking something off fromsomebody on the street. In London we
have had a real spate of theft of mobile
telephones. I don’t know if you have thisp r ob le m in Ja pa n . I d o n’t th ink so ,because it seems that you do not reallyhave crime here in Japan, but you have a
lot of mobile phones. In Great Britain, inthe cities, there has been a big problem ofchildren stealing mobile phones fromeach other and sometimes threatening
each other. Now if the are caught they
can be charged. If they said, “give me
your mobile phone or I will hit you,” that
could be robbery and so, some of theseboys are getting quite long sentences forthat. So, that’s a little about custodial
sentences,
Moving back to the framework that I
talked about, we went to the third of thesix objectives. I have already talked about
the final warning intervention. The idea
when someone gets a final warning it
isn’t just a police officer saying don’t you
do that again. It is actually referred to
the youth offending team, who say, wholook at the case and say, “right, is thisyoungster going to school, how are they
doing with their mother and father, isthere any problem with drink or drugs?”
They are actually making some kind of
ass ess me nt, an d if n ece ssar y do ing
something. Maybe it is not a great deal
because remember the proportionality
question, we are not talking about greatin ter ve ntio n he re , but we mig ht be
t a l k i ng a b o ut a nu m b er o f s e s s i o ns
designed to try to improve the way theb oy think s a bout going to school, or
control his temper, or some advice about
drinking and drugs and health education.
At least there is some intervention.
Obviously, multidisciplinary youth

140

offending teams in themselves are a wayof tackling the risk factors, by having
som ebody from the Educatio n
Department, and somebody from the
Health Department, that provides theopportunity for the experts from those
fields to be able to try and ensure that the
youngsters are getting the services thatth e y ne e d . N o w t hi s le a d s in to th equestion of whether those services were
provided directly by youth offending
teams, and this is an issue I think that’s
coming up in a workshop group that I will
be involved in. Certainly my view is that
if a child has a right to be educated,which they do until 16 in our country,
then they don’t lose that right by being an
offender. What we do now is that a lot ofoffenders are out of school, they maybe
don’t want to go, they maybe have been
excluded from the school, but it is no
reason for the schools to wash their handsof their responsibility for these children,and by hav ing s omebody from theEd uca tion De partm ent in the youth
offending team to teach the kids to read,
write or geography or science orwhatever, they are there to get a child aplace in school, where they can properly
learn those things. Similarly the personfrom the Health Department isn’t theren e c e s s a r i l y t o p r o v i d e p s y c h i a t r ic
intervention, they are there to get that
service. So that is an imp ortantdistinction. Of course those people may dosome direct work with the individuals,
but I think it is important there aregateways to the mainstream services forthese boys and girls, rather than setting
up some shadow service which would bev e r y m u c h w o r se — th a t is t h e id e a
anyway.
The third item o n he re is A SS ET.
ASSET is the name of the assessment
tool or assessment form that the Youth
Justice Board has developed. It is part ofan initiative which YJB has created, but

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
basically the exception is that ASSET isused on all young offenders or certainly
all that go to court. It is a bit too time
consuming to underta ke a t the final
warning stage, so we are developing asmaller version of it. But the idea is that
there is a systematic assessment of theneeds and the risks that an individual
poses. There is a particular concern about
drug misuse in our country, a lot of young
people misuse drugs. Fortunately it’s
mostly cannabis, marijuana, soft drugs,
there are a small number who use harddrugs, amphetamines or ecstasy or there
are smaller numbers still who become
involved with cocaine or heroine, highly
addictive opiates and so on. Obviously
involvement with drugs very often meansa link with crime because needing to pay
for drugs means you need to have money,an d yo un gs te rs w ill o f te n n ot h a v emoney. There is also the problem with a
lot of youngsters who drink too muchalcohol, there are a lot of alcoholic drinks
w hich seem to b e ta rgeted a t young
people particularly. The idea is that every
youth offending team will from this year
have a worker who will be responsible fortrying to ensure that youngsters arescreened, are assessed specifically for thisquestion of drugs misuse, and w here
appropriate, some services are put inplace to deal with that. New projects,
e f f e ct ive p ra cti ce , b et te r d e te n tio nfacilities, these are all part of a packageof reforms to try to tackle risk factors,
that the Youth Justice Board is doingquite a lot about.
Perhaps I have said enough about thewhole proportionality question, but one
th ing again I will me nt ion n ow ar e
intensive supervisions and surveys. As
p rogra mm es these a re ne w kinds o fprojects that will be established this yearby the Youth Justice Board in local areas.
I m e nt io n e d t ha t t he c o n d it io n s incustodial establishments, we are trying to

improve them, they are still really notvery adequate, the reconviction rates foryoung people coming out of custodial
establishments are about 85%
reconvicted within 2 years. So more than
8 out of 10, nearly 9 out of 10, which isvery, very high. We, the Youth Justice
Board, also did some research whichfound that there were some young peopleof any age who were being sentenced or
remanded in custody, because there wasnothing in the local area that provided
intensive enough supervision.
Even with the youth offending teams
and infrastructure I have talked about,there are some young people who needvery much cl os er su perv ision an dmonitoring. The intensive supervision
surveillance scheme will provide 2 things:
very intensive programmes, this may
provide actual education, this will be forchildren who can’t for whatever reason go
to local schools, so this scheme may wellactually provide direction during the day,education during the day, they will havea restorative component, they will work
on offending behavior, but they will also
have a surveillance component, that willcomprise what is called intelligence-leadpolicing, so the police will keep a very
close watch on those individuals who aresubjected to this. Or it will be suppliedwith electronic monitoring, so the young
offenders will wear a bracelet on theirankle which emits an electronic signal
and this is a way of enforcing curfews. So
if the youngster agrees to the scheme andpart of the rules are he has to be at homefrom 7o’clock every week day, then theelectronic bracelet is the way of knowing
whether he will keep that curfew. We
have also another technological systemcalled voice verification, in which an
imprint of the voice of the young person istaken, and then they are phoned at home,
and they have to answer some questions
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know where the person you are talking to
is at the time you want. That is, in a way,a b e t t e r w a y o f e n f o r c i ng c u r f e w s ,because it does not require wearing thebracelet on the ankle. It also enables you
to m onitor if the young person iswherever they are supposed to be during
the day, at school, keeping appointmentswith so and so at work, going to see a
psychologist or whatever, it provides away of keeping track of where the young
offender is. The idea is, this is a very closemonitoring and supervision, very likely to
be more criticized, that question about
w hether practitioners support thesechanges, some practitioners do not likethis so much. My argument is if I had achoice of going to prison or having anelectronic tag, I would have an electronic
bracelet. So why should I not allow thischoice to others in that position, and aslong as it is used on people who would go
to prison, then it is fine, the problem withthese intensive alternatives is that they
are sometimes not used to replace theprison population, but to supplement thecommunity treatment population, so you
do not red uce the prisoners. Tha t issomething we will have to watch very
closely.
The final objective was about parenting
and parental responsibility, again thishas been a slightly controversial subject,because the idea that parents should be,
have to account for offences committed bytheir children, some people find in conflictwith basic principles of law. Basically the
Crime and Disorder Act allows the court
to place a parenting order on parents.
A nd the parenting ord er has 2components and 2 elements, first of all, it
requires the parents to take proper careand control of the child, and secondly it
can require the parents to participate in acourse of guidance, a session designed totry to improve their parenting skills, andwhat is controversial about this is that

142

they can be required to do this, and ifthey do not participate, they can be fined,
and if they don’t pay the fine, they could
automatically be imprisoned. It has never
happened, but it is a possibility in theory.
I was initially quite against fo rcing
parents to do this, I think there is a lot tobe said for developing these courses on a
voluntary basis, and trying to provide
support and help to parents, but I havechanged my mind because I have talked
to some parents and I have seen evidence
that some parents say that they would
not have attended if they had not been
forced by the court and they have foundthe classe s very he lp ful. T he Yo uth
Justice Board has been funding someprojects, parenting projects, and we havea little bit of evidence about how they are
working. There are 3 final orders whichhave some relevancy to parental
responsibility, the first—local childcurfews—this was a measure that was
introduced in the Crime and Disorder Act
which allowed the police and the local
governm ent to apply to central
government to institute a local curfew ina particular area and that would meanthat anybody under the age of 18 would
not be allow ed out the homes on thestreet after the certain time unless they
are accompanied by an adult. Now, as far
as I know there have not been any ofthese yet implemented. I think I made a
mistake with the ages initially, the local
curfew was introduced for children under
the age of 10, and the government has
recently extended it not to 18 but to 16, so
it would be interesting to see whether
these are used, and if they have any
impact. They are used in certain cities in
the United States, they have been used in
Scotland, and some people say that have
had a great impact on public order interms of crimes committed by young
people. Other people said that it is a great
infringement into civil liberty, not being
able to leave your house at certain times.

118TH INTERNATIONAL TRAINING COURSE
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So we have that discussion to come.
Obviously the link with parents is that
if one of these schemes is in operation andthe child is found to be out after thecurfew, the n the parents will besumm oned to the police sta tion a nd
required to make some kind ofundertaking that this would not happen,
but if it happens repeatedly the
expectation is that there would be an
investigation by the welfare authority
into the possibility of proceedings if thechild is not being properly supervised
Similarly the child safety order was anorder that was introduced for children in
respect of children under the age of 10. I
said that the age of criminal
responsibility was 10, but obviously there
are children under 10 who do things that
if they are over 10 would be described as
crimes I guess, or at least they takethings from shops, they behave badly inc er ta in wa ys, th e go ve rnm e nt ha v e
introduced an order which the youth
offending team or the social services
departments can apply for to the court, inthese circumstances, and it allows somework, some measures, some programmes
to be introduced to even these younger
age groups of under 10 year old children.
Now there have only been a very small
number of these orders made, because inp r a c t i c e th e r e a r e o t h e r m e a s u r e savailable under the child welfare law todeal with these problems. So in a way I
think it is unnecessary.
Finally, and again this has been quite
controversial in our country, thegovernment has introduced somethingcalled an antisocial behavior order, andthis is really a kind of legal injunction
where somebody is behaving badly, where
they a re, I think th e ter m in la w is“causing alarm harassment or distress tosomebody,” perhaps they are up till late
at night making a lot of noise, over andover again, and they won’t let any body
sleep, they might be out drunk every
night in public housing, threatening
people as they go home, and everything
ha s b e e n d o n e t o c h a n g e t ha t , a n dapplication can be made for an antisocial
behavior order which would allow the
court to say, ‘right you must not go to thisplace, we are making the legal rules thatyou stay away from this particular public
housing area, or this particular part oftown, between these hours or this periodof time.’ This has been used on a numberof juve niles in Britain, p articularly
juveniles who have committed quite a lotof crimes. Bu t there ha s not been
evidence to be able to use criminal law toconvict them, often they might be serious
things, and everybody seems to know that
it is a particular boy who was doing all of
this, but nobody, perhaps they are too
frightened to give evidence, perhaps
no bod y re ally is p re p are d to say orwhatever. What it means is thein j un c t io n i s b r o k e n if th i s p e r so n
continues to behave that way and canthen be sentenced in the case of adultcustody and in the ca se of juve nile s
automaticallyputinsecureaccommodation. It is controversial that
this law is framed in a very general kindof way, and there are some human rights
lawyers who do not like the way it isdrafted in such a general way w hichallows such a wide range of behavior, tobe throw n into an encompassment ofm e a s u r e s o f s o m e b o d y lo s in g th e ir
liberty. And obviously there are
implications for parents of children who
are made subject of those orders.
In co nclusio n, I ho pe w ha t I havedescribed is a quite wide ranging reform.
But really the implementation in practiceis the key to whether it will work or not.
There is more change on the way, because
there is this important change to how the
first time offenders in court adapt to it.

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YOUTH JUSTICE BOARD INITIATIVESIN REDUCING OFFENDING
Rob Allen*, **In my first lecture I hope I gave ap ictu re o f th e syst em a little b it inEngland and changes we have had. Today
I am concentrating on the role that theYouth Justice Board plays in my country.
The Youth Justice Board you willremember was set up by the Crime andDisorder Act, so it has only been going forabout just over two years. And I am goingto say a little bit about the work of theY o uth J us t ice Bo ard a nd p arti cula r
initiatives that have been undertaken to
try to reduce youth crime.
What is the Youth Justice Board? Well,in law it is an executive, nondepartmental public body. Now that is
not very clear, I think. But it means it is
set up by the government, but is not partof the government, it does not belong to agovernment department. But it is one
step removed from the government, I
don’t know if you have these kind of
bodies in your countries, but in Englandw e have a nu mber . An example ofanother body like this would be the paroleboard in our country. It is set up by thegove rnm ent b ut it is no t run b y thegovernment. It has some independence.
And it reports to a minister that is set up
b y the Hom e O ffice. I n Engla nd t hegovernment department is called theHome Office, which is, I guess, like the
Ministry of Justice, and the minister iscalled the Home Secreta ry. We have
* Member of the Youth Justice Board and Directorof the Esmee Fairbairn Foundation, London
England** This paper is a transcript of a lecture delivered by
M r. Allen at UNA FEI d uring the 118th
International Training Course.

144

funny words in England for describing
these things. Each government
department has a chief civil servant, andthat is called the permanent secretary,a nd I kn ow som e tim e s w he n th is istranslated by interpreters they translate
it as “eternal typist” fo r pe rm anent
secre ta ry. B ut secre tary me ans tw othings in English, someone who types but
also someone who is at the very top. So
we have the home secretary, who I do notthink does typing.
It is set up by the Home Office, and the
B o a r d c o n si s t s o f 1 2 m e m b e rs , o n echairman, a man called Lord Warner,
who is in the House of Lords, which is thesecond chamber in our parliament, andthere are eleven other members, and I am
one of these members. And they havebeen selected, so I applied to become amember, there was an advertisement in
the newspapers, anybody could apply,
beca use we h ave speci al ru les for
ap p oin tm en ts to bo d ie s like this toprevent the government simply
appointing their friends, otherwise theywould just put their friends on these. I
t hi nk pr o b a b l y t he y a r e m o s t l y t hegovernment’s friends anyway.
My background is in non-governmentalorganizations looking at the government
policy and research. There is on the
Board a chief constable of policing, a
police officer, there is a magistrate, there
is someone who has been a chief
probation officer, someone who has beena director of social services, there is a
doctor, a psychiatrist who is an expert onadolescent mental health. There is only
one person who is a member of the Board

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
who has not previously worked in the
youth justice system and he is a man who
was formerly an editor of a newspaper,
the editor of the Times newspaper, and I
think he was appointed because he knows
about the media and public relations, andthis is very im porta nt, to be able tocommunicate the efforts that are being
made by the Youth Justice Board and by
go vernm ent a nd by youth o ffe nding
teams to try to improve public confidence,
beca use I think I said be fore publicconfidence in the system is rather low, so
we need to raise that. So there are 12
members but there is also an executive
staff, there is a chief executive of theBoard and a staff of almost 100 staff who
are involved in doing the work of theBoard.
It has a number of roles which are laid
down in statute, in the law. It has a roleof advising the home secretary, advising
the government about the youth justices y st e m a nd ho w w e l l i t i s d o in g inm e e tin g its o b je c tive o f p r e ve nti ng
offending by young people, and it also hasa specific role in advising aboutstandards, and we will talk a little bitlater in this lecture. In England we havea sy st e m o f n a t io n a l st a n d a r d s f o r
supervision of offenders, and these are
introduced and revised every so often,
and the Youth Justice Board has a role inadvising what the standards should be. It
has a role in monitoring the operation of
the youth justice system . The youth
courts, how they are working, the youth
offending teams, how they are working,and also the se cure acc om m od a tio nestates, the detention facilities. And it
has a role thirdly in developing bestpractice, in identifying and disseminating
w h a t w o r k s i n d e a l in g w it h y o u n g
offenders, so undertaking and funding
research, and then funding programmes
and projects which try to put the research
into action. So it is not simply about doing

the research and saying, well, this is
w h a t w o r k s , i t i s a b o ut d e ve l o p ing
progra mmes on the ground to try to
prevent offending.
There are two more important roles
that the Board has taken on. The first is
to do with the funding of youth offending
teams. Most of the funds that pay for themembers of the youth offending teams
come from local services. So you willremember I said the youth offending
teams comprise of a police officer, a social
worker, a probation officer, somebody
from health, somebody from education,and there is a manager of the team at the
local level. Now the funds that pay for,the money that pays for these people
comes from these agencies from theirlocal budgets. But the Youth Justice
Board does have some additional funds
that it gives out to youth offending teams
to top up that money, and that enables
the Youth Justice Board to exercise some
control, because we can say, you can havethis money provided that you spend it on
this. Because this is a system which,although it is centrally directed by the
Youth Justice Board, it is locally
implemented. One of the dangers withthat system is that the local agencies dowhat they want to do, they don’t do what
we want to do. So, having some funding
allows some leverage, some ability toc o n t ro l a n d ta r g e t t h e w o r k o f t h eoffending teams particularly, and I willtalk about how we do that later. Also thisrole in funding the secure estates, thedetention facilities, the Youth Justice
Board is responsible for all, now, of the
facilities, we have taken over the budgets
that were previously held by the prison
service and by other parts of the system,
and we administer that.
So, in summary, the Youth Justice
Board provides a leadership role in the
youth justice system. Before the Youth145

RESOURCE MATERIAL SERIES No. 59
Justice Board was created there was noreal focus, or leadership within the youth
justice system, and this was one of the
weaknesses that was identified by theaudit commission, by the auditors thatlooked at the system five years ago, theysaid, this is not really a system at all, it islots of local people doing things, and it
needs something in the center, to drive it,
and this is what the Youth Justice Board
is trying to do.
I will just say a little bit about thevision that the Youth Justice Board has,
what it is trying to achieve. We think, att he Y o u th J us ti c e B o a r d , t ha t i t i simportant that young people are treatedfairly whatever their background in thesystem, this is an important priority. You
may say that should go without saying,that I should not need to say that, ofcourse the justice system should be fair.
But we do have a particular problem in
the United Kingdom, in England andWales, this is a disproportionate use ofcustodial detention for people from racial
minorities. I don’t know how many of you
have been to England and know about thecomposition of the population, but about
5% of the general population in Britain is
made up of racial minorities from AfroCaribbean, South Asia mainly, some fromthe Far East, but the Afro-Caribbean andAsian subcontinent are the main racial
minorities in the U.K., but they are overr e pr e se nte d in the cr im inal ju stic esystem, pa rticula rly amongst young
people. And that is a problem, there has
been some research in the past that hassuggested that the system discriminates
against people of color, in our system,
which is very bad, and we are trying toensure that everything is done to remove
any discrimination of that kind.
The second point is about opportunity.
The philosophy of the Youth J ustice
Board is that young people should be146

given opportunities to contribute, andthat if we do give genuine opportunities
to young people, that is the best way ofkeeping them out of trouble. And it is in a
way what distinguished the youth systemfrom the adult system. We treat youngpe o ple d if fe re ntly b e ca use th ey a reyounger, they have not yet reached theirfull potential, and if we can give them theright opportunities that is an importantpart of helping them develop into lawabiding adults. Having said that, there isa second part of the vision, which is that
we think it should be a matter of shamefor young people if they appear in the
youth court. This concept of shame, I’msure Pam Philips will talk about this in
the context of restorative justice, but I
think on the Youth Justice Board we feel
it is important that young should feelsome shame if they are caught, if they get
into trouble, and are brought to court.
And I think some young people have notre a lly f e lt m u ch sh am e . T he y ha ve
shrugged their shoulders and said, sowhat, it doesn’t really matter.
We need a sy stem, thir dly , t hat
respects the rights of victims, and therights and re sp onsibilities of young
people and their parents when they get
into the criminal justice system, andfinally, a system in which people areproud to work. I think it is fair to say thatthe youth justice system has notparticularly had a high status in oursociety, so it is not a kind of work thatnecessarily has attracted the best people,
peo ple ha ven’t said whe n the y’re a tschool, yes, I really want to work in the
youth justice system, that is what I want
to be when I grow up. So there is an effort
to try and raise the status, to raise theway in which people think about thiswork, because it is important to society as
a whole that people who are engaged intrying to help young people to grow up as
good citizens, that is a very important

118TH INTERNATIONAL TRAINING COURSE
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role in society, and we are trying to makethe system one in which people are proud
to work. And also, we are trying to ensurethat people who work in the youth justicesy ste m se e th e ne e d f o r w o rk ing in
partnerships w ith other parts of thesocial policy system. Because, and this isa theme that I will refer to, I think on theYouth Justice Board, we think that theyouth justice system on its own will notachieve the prevention of offending, evenwith the multidisciplinary team, it isabout other parts of social policy giving ahigher priority to young offenders thanthey have in the past.
Just the aims of the Youth Justice
Board, these echo very much the aims of
the system I talked about on Tuesday.
Reducing crime by young people, we want
to see fewer young people getting into
trouble in the first place, we want to see
f e w e r o f f en ce s co m m itt ed b y yo u ng
offenders when they do commit crime,
and we want to see a reduction in theseriousness of crime by young people.
And a reduction of frequency. So it is areduction all the way along the line. We
want to reduce the need to use the youth
courts, and the number of young people
who acquire a conviction in the youth
court. We want to reduce if we can theuse of penal institutions, and we want toimprove regimes, activities that go on insecure facilities, the detention centers.
How are we going to achieve this? Well,
I talked about the philosophy on Tuesdayof early intervention in the lives of young
people, so I won’t about that again. What
I want to talk more about is how in apractical way we will do this. First of all,we need to ensure that the local services
are strong, and do work at a high quality
with young people. As I mentioned, youth
offending teams are local. What the law
requires, it requires each area to have ayouth offending team, and above theyouth offending team there is what iscalled a steering group, a youth justicesteering group in every local area. And onthat steering group should be the chief
officers of all of the agencies which are
involved, so the chief of police, the chiefprob atio n officer, the chie f of so cia lservices, somebody senior in the healthdepartment, and they will meet every
three months or six months to discuss
youth justice issues in their area. And we
think it’s very imp orta nt tha t thosesteering groups have the senior people,
there is a great danger that the chief
probation officer will say, “oh, I’m to busy
to go to this meeting on youth crime”, andsend somebody more junior to him/her,but we like the people to be involved in
the steering group who are as senior as
possible, and our recommendation is thatit should be chaired by the chief executiveof the city or the chief executive of thearea. Now of course the chief executive isa very busy person, and he may say, “I
have no proper time, you may be very
concerned about youth crime but I havelots of other issues in my city that I haveto worry about.” But from the Youth
Justice Board point of view we try to getsenior representation in the steeringgroup because that ensures proper local
investment in the local youth offending
teams.
One consequence of that is that we
think it is important to intervene strongly
where local agencies are failing, where
the quality and standards of services foryoung offenders are not good. We think
we need to intervene strongly. Now you
may say what does “intervene strongly”
mean? And I think I will talk a little
about this later, but I think ourphilosophy is, what we say in English,
carrot and stick. I don’t know if thatmakes se nse, I think it is if you aredealing with a donkey or a horse, youoffer them a carrot to try and get them to147

RESOURCE MATERIAL SERIES No. 59
do something, and if that doesn’t work
you hit them with a stick. So it is ac o m b in a tio n of e nc o ur a g em en t a n dresources and help and support, but also
saying if you do not do this we will takesome more severe action. And one way of
doing this, which is quite popular in someareas of public services, is to publish aleague table, a table of performance bydifferent agencies. They have introduced
this with scho ols in m y c ountr y, b y
examination results, so schools that are
doing very well are top of the league
table, and everybody can say, oh, that is agood school, that is the head teacher, thatis very good, those are the tops of them,
they say, well that is not very good. And
that is kind of a sham ing p rocess, I
suppose. It is not very popular with theschools. We have not done this yet withyouth offending teams, but it is one of thepossibilities that we would say, if we needto do that we would produce a table whichis comparing the performance of different
youth offending teams.
Finally, about achieving the aims, it is
imp ortant to co ordina te ap proa ches
across government, because obviously
there are other government ministries
and departments who are doing work invery closely related areas, particularly
education, but also the department ofhealth, which is responsible for welfare
a nd so ci al se rv ice s . W e h a ve h a d aprogramme of devolution of power in mycountry, so in Wales, which is part ofEngland and Wales, there is a separate
assembly now which has responsibility
for social services and public services in
Wales. So part of the role of the Youth
Justice Board is to be a champion withingovernment, although we are not part ofgovernment, to try to get these othergovernment departments to keep young
offenders and youth crime as a priority.
So those are the main ways in which wetry to achieve them.

148

What I want to talk about now are thespecific initiatives that we haveundertaken over the last two or three
years in the Youth Justice Board. And thefirst things I will talk about are thespecific projects and programmes that wehave set up in local areas. Before I give
specific examples I just want to mention
three or four things that are common tothese different programmes, in terms of
how we have administered, how we haverun these programmes. The first is thatgenerally-speaking, the funding that wegive is for three years only initially, andlocal agencies, youth offending teams
have to bid for the money. So the Youth
Justice Board sets aside some money andsays, we are going to make 15 million
po un ds a va i l a b le fo r t hese kind s o f
p ro g ra m m e s a n d th e n in vit e s lo c a lagencies to say what sort of programme
they want to set up, and effectively there
is a co mpetition, beca use we have alimited amount of money, we cannot fundevery area for every project. So we held akind of competition and judged the best
projects. We will sometimes require what
we call m atche d funding, so we will
require local agencies to put some funds
in alongside the central funding. So, forexample, the first funding initiative weran was for bail support and supervision
programmes for young people awaiting
trial. Special projects to try and ensurethat they did not commit crimes while
they were on bail and that they appearedin court when they were supposed to andso on. And we gave 90% in the first yearof the funding, 60% in the second year,
30 % in the third ye ar, a nd the n thecentral funding stopped. Because the idea
is that the local agencies assume
re sponsibility for funding the
programmes after the central money
finishes. This is quite common in funding
as in development and things like this. So
sometimes we would require local money.
We would always require commitment

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
f ro m the lo ca l a ge nc ie s t o f un d th e
programmes after three years, provided
that they work. Obviously if the projects
are not very successful then the local
agencies might say, we do not want towaste our money on this.
I mentioned the intensive supervision
programmes, and I’ll say a bit more about
those. We are funding, we are giving the
who le of the money for thosep r o g r a m m e s , b u t w e a r e s a y in g t oagencies that if they prove successful
then they must continue after three years
to fund those. They have to fund them if
it works, so we need to know whether
these projects work, so we are insistingon all of the projects that there is someindependent evaluation of the impact ofthe project, each project has to have an
evaluator, so it m ight be a local
university. Our bail support andsupervision programme is funding 170
projects, we at the Youth Justice Board
have an evaluator to see whether that
programme overall is having the impactthat we wanted.
F ina lly, we ha ve a lways p rovide dtechnical assistance to these projects by,what we call national supporters. So wehave a contract with an organization,
maybe a university, or an NG O, or a
private consultancy company, and theidea that they are expert organizations,they help to ensure that the projects that
we are paying for start on time, workwith the right children, that the money is
not used for other things to try and keepthese projects on course, because
sometimes if in the center you give moneyout, they say, thank you very much, andthey go and spend it on something else,
which is not really what you want themto do. So we have the evaluators, but wealso have national supporters, and thenational supporters also do provide sometec hnic al he lp f or pro gra mm es tha t

require some specific input like some of
the restorative justice programmes, orsome of the cognitive behavioral
programmes when there is some clear
work to train the staff to do things in theright way, that is the role the national
supporters play. In com bination themoney on the evaluation and the national
support is about 10% of each programme
which is spent on this, which we thinkmight be quite high. If you have a block ofmoney for an initiative, we say about 10%
could be spent on making sure the projectworks and measuring it. I think that isabout right, because you are trying to get
the b est use o f the m one y f o r the seinitiatives.
The first sort of project I am talking
about are prevention projects. Although
we are called the Youth Justice Board, weare interested in preventing young people
from getting into crime in the first place
as well. And I thought it was aninteresting discussion yesterday in thereport of group 1, M r. K itada talked
about the fact that it is important for the
deliberations to concentrate on the rolethat the police and probation andprosecutors and prisons and so on playwith prevention. B ut I think it isin te r e s t in g i n m y c o un t ry w e h a v e
som eth in g ca lled th e Youth Justice
Board, but it is very much interested inprevention and some of the projects thatw e f u nd a r e d e sig ne d t o w o r k w ith
children who have not yet been in trouble
at all. So youth inclusion, we have funded
70 projects across England and Wales,
and the idea is that they identify 50
children age 13 to 16 who are most at riskof getting into trouble. These projects are
all in high-crime areas. When I said we
ha d a competition for funds, and w einvited people to apply, sometimes weonly invite certain neighborhoods toapply, targeted initiatives on high-crime
areas, and youth inclusion is just in the149

RESOURCE MATERIAL SERIES No. 59
worst areas. So basically the projects
involve a coordinator who identifies these
50 children, this is the ideal model, andthe way they identify is by talking to thepolice, by talking to social services about
youngsters with family problems, talk to
education about children who are notdoing well at school, and often these willbe the same children who show up on thelists of these agencies. In lots of areas,
everybod y w ill know tha t it is thesechildren who are the ones who are verym u c h a t r is k , o f t e n t h e y w i ll h a v ebrothers who are already in the system,
although not always, and that is one
intere sting question from thecriminological research, why sometimes
in families you have some children who
get into trouble and others who do not.
But, the idea then with these 50 children
is to set up an individual programme forthem which tries to make sure that they
do go to school, that they are getting thebest out of education, that they haves o m e c o n s t r u c t e d a c ti v i t i e s i n t h eevenings, if necessary they have family
counseling and help and so on. So it istrying to nurture, trying to help thosechildren that have been identified.
The second kind of project, calle d
S p la sh , th a t g r e w o u t o f t he y o u thinclusion project, programme, though
there are now 150 Splash projects, andthese are only in operation during theschool holidays, because it is quite wellknown that when children are not at
school, in our country there are threeschool terms, so now children will finish
school in about, well about the same time
you’re finishing here I think, and thenthey will start at school again in
September. So that is a long period, fromthe middle of July until early September,and they will be at high risk of beingbored, nothing to do, they get involved in
vandalism or theft, so if you can provide
activities that these children will actually150

attend, that is sensible targeted crime
prevention. They have funded 150 ofthese programmes in summer holidays
and spring holidays.
Third, we have a small initiative called
Positive Futures, which is a programme
which uses sport to engage theparticipation of young people,
particularly football, soccer, which is very
popular in the U.K., but also other kindsof recreational activities including art
and music and drama, but it is mainly
sp o r t, a nd th e i d ea is th at yo u ca nsometimes engage, and get youngsters
involved by organizing them throughfootball and so on, and then you can doother work with them. So football is thegateway, soccer is the gateway to doingwork. So those are the three specificprevention initiatives that are underway.
Unfortunately, I know you are going to
ask me, do they work, and I have to say, I
don’t know yet, because it is too early totell. Although there have been somestudies of the crime rates in areas which
had the school holiday schemes which did
show big falls in some kinds of crimes,
but it is very difficult to be absolutely
sure that it is the impact of this scheme.
One of the problems for evaluators is that
there are a number of different initiatives
going on, we had our new government in
1997, and they are doing a lot, they had
been out of government for 18, 19 years,
an d w h en th e y c a m e to p o we r th e ywanted to change everything, so they
have put money into doing regenerationof communities, improving schools, morepolice, so when you go to an area and say,well is this project making a difference, it
is difficult to tease out, to say it is thisand tha t has m a de the red uctio n inburglary or the reduction in car crime or
the reduction in vandalism. So it is a hard
job for evaluators, but at least the crimein the areas is going down, and that isgood. We need now to find out which of

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSt he t h in gs th a t a r e b e in g d o ne a r e
responsible for that. Which is really thep oint I w a n t to ma ke a bout broad er
prevention efforts.
There are important initiatives goingon in England. For example, thegovernment made a very bold
commitment to end child poverty in the
U.K., and what we mean in the U.K. bychild poverty is families who have lessthan half average earnings, that is thekind of definition. And they wa nt to
reduce and ultimately end that. So there
are a number of initiatives designed to
end family poverty, and they are starting
to w ork, a nd I think if the se so rt o fpolicies are successful then they willprobably do more to reduce crime in thelong-term than anything you do throughthe youth justice system. There are somespecific programmes to improve the earlyeducation of children. We have a scheme
called S ure Start, it is ba sed on theAmerican programme called High Scopethat was a programme under the headstart initiatives in the 1960s in the
United States in which children fromp o o r f a m i l ie s w e r e g iv e n e n r i c h e deducational experiences in their earlydays at school. And we have introduced
this. So we have a lot of different kinds ofthings going on in the prevention side, so
I don’t want you to think that it is just theYouth Justice Board that is engaged inthis, it is much broader.
On prevention, we do have under the
Crime and Disorder Act a requirement,
separate from the youth justice changes,a requirement that the police and local
government produce every three years acrime prevention plan, a crime reduction
plan based on an audit, a measurement ofcrime problems and consultation with thelocal community. This is done at a very
local level, so it would be at the city level
here, Fuchu City would have to have a

preventio n plan, it would be theresponsibility of the chief of police andthe mayor to produce that, and there
would be other agencies who would need
to be involved, probation and health, who
would need to be, a strategy drawn up
and consultation with members of thecommunity to produce that.
I want to turn now to intervention
projects, and by intervention projects I
mea n projects tha t are designed forchildren who are in the youth justicesystem. These are for youngsters who,
they may have received a final warning,they may be under a court order, under
supervision of some kind. And the Youth
Justice Board has funded projects inthese areas, more than 400 projects all
together. Restorative justice, education
training and employment, parenting,drugs and alcohol, cognitive behavioral,
bail support and supervision andmentoring. I’m going to talk about the
mentoring projects in my final lecture
which is about community involvement inyouth justice. But I want to say a little bit
about each of the other projects because I
said that all of them have been evaluated.
Well, fortunately a few weeks ago thee v a l u a t o r s h a v e p r o d u c e d in t e r i mpreliminary reports after the first year or
so of operation. So we do have some data,
we do have some findings from these. But
I would say, although we did use thesena tional supporters, these technica lassistance people, what is true across allof these projects, is that they have beenquite slow to start. And I think, maybe
this is something that is specific to the
U.K., there are not a lot of skills out inagencies, skills for people to get projects
up a n d r u n ni n g, g e t th e m w o r k i ng
quickly are not there. And that is partlyb e ca u se f o r s ev er a l ye a r s w e ha d agovernment that did not really invest alo t i n t h a t . W e h a d a co n se r va t iv e
government that was more about151

RESOURCE MATERIAL SERIES No. 59
reducing public expenditure. So people ina ge ncie s w e re m ore use d to cutting
services. So now a government comes andsays, well actually we want to provide youwith some money to set up programmes,
people say, well thank you very much, butthey do not necessarily know how to do
this very well, and it takes time to recruit
staff, and we are lucky in the United
Kingdom we have low unemployment,
and so the recruitment of staff has notalways been straight-forward for theseprojects.
Restorative justice, the Youth Justice
Board funded 46 projects which have so
f ar prod uced tw o a nd half thousa ndinterventions. So two and a half thousand
young people have been w orked with
under these projects. The evaluators saythat 70% of these have been successful.
And by successful they mean that theintervention has had a successful
conclusion. But the interventions havevaried enormously. For the most part
they have been relatively minor, modest
interventions, so the offender has maybe
apologized to the victim, or maybe has
undertaken some work for thecomm unity, unpaid work for thecomm unity, and that has beensuccessfully completed. In only 7% of
c a se s has the r e be e n dir e ct vic tim offender contact. I think, for us, it ispartly a problem to do with the speed
through the system, which has made itdifficult for victims to be fully involved inthese projects. And so people running the
projects have said, we have not got thetime to do this, so we will just get this boy
to do 12 hours work cleaning the canal or
clearing up rubbish or doing some kind of
payback type work, which is okay, it isgood, but I think the promise ofrestorative justice should be higher than
7%, that is too low I think for us to be
comfortable.

152

We have funded 40 education, training
and employment projects, and they arevery varied, some are courses which train
people in skills, som e are school
inclusions, so there will be some support
given to a young person to help them tostay in the school, through mentoring or
something, some provide career advice,helping youngsters to pursue a career
through college and training. Others arec o u r s e s w h i c h in v o l v e e l e m e n ts o fphysical activity, taking youngsters onco urses to try and improve theircharacter through challenging activities
in the outdoors. About 1,700 participants.
O ne disa pp ointing f ind ing f rom theevaluators, up to 50% of the young people
drop out from these schemes, which I
thought was high, but you will remember
at the halfway house yesterday, when wew e r e he a r i n g a b o ut t he s c h e m e f orteaching boys to be chefs in Chinese
restaurants there were dropout rates ofabout this, I think two out of the six so far
had succeeded all the way. Because weare talking about difficult young people
we are not going to have 100% success, so
within that 50% dropout some of the
programmes were more successful andsome of them were less successful, andthe importance of the evaluation is to beable to ident ify th e factors or thecharacteristics of the successfulprogrammes. It seems to me that the
programmes that are most successful are
the ones t hat provide the h igh es t
intensity of contact, which is not
surprising, it is what you would expect. If
you just say to a boy, come once a week
and talk to me about what job you want
to do, that is one part of intervention. If
you say, right, you are going to comeeveryday, and we’re going to do this,we’re going to get your literacy levels
better, and then we’re going to talk about
this, if you can engage the youngster like
that, that is much more likely to turn

118TH INTERNATIONAL TRAINING COURSE
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around the motivation in their life. So I
think intensity is important.
Parenting, we have funded 42 schemes.
Almost all are women attending, rather
than fathers. The research found thatthree quarters of sessions were attended
by parents. The impact is not yet know,
thought the evaluators say that a lot of
the women that went said that they found
it very helpful, which is good. What we
d o n ’t k n o w is wh et he r it m a d e an ydifference when they went home, and inth eir f a m ilies , and in th e way the yrelated to their children, whether thatchanged, and indeed even if that changed,
we do n’t know whether tha t ha d a n
impact on how their children behave. So
there are a lot of if s, but it is quite
encouraging. It is disappointing that so
f e w f a th e r s a p p e a r e d t o h a v e b e e ninvolved in these courses, but I think thereality is that a lot of young offenders do
not live with their fathers, there are a lot
more in single parent households, and infact that has, I will say a little bit aboutsome data we have from the asset
assessment profile, the assessment toolthat we have developed has given us
some data about children who are going
through the youth justice system, and I
think 30 or 40 percent of them do not livewith a father or any kind of male person
i n th e i r h o u s e a nd th a t m a y b e a nimportant part of their delinquency. And
it is obviously part of the rationale formentoring programmes, to try to fix up
young people with role models,particularly boys with men who can act
as a good role model for them.
The drugs and cognitive behavioral
programmes have been particularly slow
a t sta rting, a nd ha ve not had m any
referrals. By referrals I mean not many
children have been sent to these projects,
and we don’t know quite why that is. And
there h ave also been methodology

problems, what I mean by that is the
projects have not been very clear about
what exactly it is they are trying to do.
There is an issue with drugs projects,
because I think I said the other day thatuse of cannabis and marijuana is fairly
wide-spread amongst our population anda lot of young people do not really see it asa problem. It is against the law, but it is
not the most serious. O bviously it isserious if it involves graduation to otherdrugs, b ut w hat exactly you do w ith
children who have got this problem, it is
not entirely clear. So these projects have,of all the projects these are the ones thathave struggled the most.
Th e bail supp o rt and su pe rvision
programmes, which is the largest single
group, they have seemed to have beenquite successful because there has been afall in the number of children remanded
into custody by the courts, and that is
almost certainly because there are now inevery area just about these schemes toprovide support, so the court can say,instead of having to choose whether togive someone bail, conditional release or
remand to an institution, they have a
middle way, they can say you have bail,but you are under the supervision of thisproj ect, some of th e projects have
surveillance with the electronic bracelets,
some of them just have very intensive
surveillance by project workers. But thefall in custodial remands could be to dowith the reduction in delay, I talked
about speeding up the system. Well if you
speed the system up, which we have, that
reduces the time that young people are on
remand, so the population comes downthat way. So if you do want to reduce thenumber of people in institutions, one good
way of doing it is to speed things up,
because you just have less time to do it,
rather than create projects. So we arestill wo rk ing o ut w hy it is that the153

RESOURCE MATERIAL SERIES No. 59
numbers have come down, and what role
specifically these projects have had.
The e stim a te is that 3% o f yo ung
offenders commit 25% of the crimes thatare committed by this age group. There
are very high reconviction rates fromc u s t o d y, s o t h e r e w a s a n e e d f o r atargeted pro gramm e providing
surveillance so that the public w ere
confident but also providing intensive
supervision because these are often very
damaged children with a lot of problems.
So for entry into the intensive supervisionand surveillance programme, you have tohave committed at least four crimes, youhave to have ha d four convictions toqualify, and your most recent one has tobe a serious one, so it is really trying
target those youngsters who would begoing into the institutions, to try andprevent the kind of net widening, thekind of, what happens sometimes when
you create an a lterna tive, yo u d on’t
replace the prison, you supplement thecommunity. This is trying to say, prison
is not working for these boys, and it ismostly boys, let’s try and do something
different. And they are just starting, thefirst ones are starting on the first of July,so we will have some results by next year
as to how well these are going.
I have talked about the projects andthe programmes that the Youth Justice
Board has created and funded. I want toturn now to some other measures that theBoard has introduced, what I have calledpractice tools, things that are supposed tohelp people who are actually doing thework with young offenders face-to-face, todo that more effectively. And I want totalk first about the assessment tool,
ASSET. It is 12 pages of basic assessment
form, and then 4 pages additional forhigh-risk juveniles, where there has been
an identification of a risk of violence. And
then 3 pages at the end that the young

154

person themselves complete. When wedeve loped this, this ASSET wasdeveloped by Oxford University, andwhen they produced the first draft it was
30 pages long and all of the members of
the youth offending teams said, no way,
we are not going to fill in 30 pages forevery young person that comes into thesystem, so it is reduced.
It has three roles, there are three
purposes for this assessment. First of all,it is an opportunity when a child, when ayoung person first comes into the system,
first commits an offence for an initialassessment of the needs that they have,and the risks that they provide. The
second use or purpose is to track progress
through the system. O bviously mostyoung offenders may have one or twocrimes and then they stop offending, butthere are some who continue. Now wehope that all of these changes will meanthat number will be reduced, but there
are obviously some young people who
continue to commit crimes, and what thisform provides is an opportunity to see
how their needs and risks change overtime, and whether the interventions,
whether the programmes, whether thecase work, has any impact. And thirdly, it
provides a source of data, of information
about young people coming through thesystem. So every form is sent to the Youth
Justice Board, not with the names, it isanonymous data without names, but theYouth Justice Board wants to collect thed a ta, the inf o rm atio n to build up a
picture of the needs and risks presented
by young offenders in order to argue form o re r e so u rc e s w ith ot he r p a r ts o fgovernment. If, for example, there has
been some research on 500 ASSET forms
completed in 40 youth offending teamareas and it found, for example, only 40%of the young people had been living with
their father. So 60% had not been livingwith their father, that was the statistic I

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
was trying to remember before. 15% had
n o sch o ol p la ce , a nd e mo tio na l a n dmental health create frequent problems.
Well, when be build up the picture about
the school problem, we can take this to
the Ministry of Education and say, look,there is a very serious problem here, 15%of these children a re not having any
school place, we need to develop somemore policy to deal with that. So threer o l e s , in it ia l a ss e s s m e n t, p r o gr e s sthrough the system, and then building up
a picture.
What the form does, it goes throughdifferent sections. It starts of with asection on the criminal and care history of
the young person, and then covers theiroffending behavior, their living
arrangements, their family and personal
relationships, education, the kind ofneighborhood they live in, the kind oflifestyle they have, their health, whether
there is any substance misuse, what theirperception of themselves is, and of otherpeople, what their attitudes are, how they
think and behave, what their motivation
to change is like, what positive factors
there are. Which I think is very
important, because it is very easy in these
exercises simply to list problems,
problems, problems, problems. But I
think, certainly I be lie ve, that it isimportant to look as well at the strengths
and competencies and potential thatyoung people have. And again this a partof what is distinctive about the youth
system, we are saying, these are young
people, they have yet to fully develop so
let’s look at what could be developed andwhat is positive. We look at indicators ofvulnerability, and indicators that thechildren might present a serious risk,
because obviously this is an important
way of trying to predict if there are somevery serious, there are a small number ofvery dangerous young people, and it isperhaps a way of doing that.

Now under each of those sections there
is a rating, a score, the person filling in
the form is invited to make a score as tohow lik ely, w hat is the im p ac t tha t
se c ti o n h a s o n th e ir l ik e ly f u r th e roffending. The idea at the end of the
document, there is space to describe theplanned interventions, and how thosemeet all of the se prob lem s. Beca use
another of the problems with assessmentin the past has been, you have a very
detailed assessment, and then you don’t
actually do anything, you have not got thetools to be able to meet all of these needs.
So there is a section to say ho w theplanned programme of supervision, ofintervention, whether it is mentoring or
restorative justice, or parenting, how it isgoing to link into all of these problems.
There is a shorter version of this asset
which is done at the remand stage, and ashorter one as well is being developed forthe final warning. I said that the final
warning stage of proceedings is a lot of
yo un g p e o pl e a n d i t ha s to b e d o nequickly, and people, practitioners havesaid that this is too much to do then, so
we are producing a shorter version.
The evaluation which I mentioned thathas been undertaken of ASSET has beenquite encouraging. It found that it is usedon 80% of young offenders when they firstenter the system, and of those 80%, innine out of ten cases the whole form iscompleted, which is good. And on thewhole, practitioners have accepted thistool, and I say that because there aresome people who are resistant to tools
like this because they say, well, I am aprofessional social worker or probation
officer, I do not need this list of boxes totick, it is not a good way of doing it. There
are some people w ho sa y that. Some
professionals say they have been doing
this for 20 years and they do not needthis. But the id ea is this is not a
substitute for professional judgement, it

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RESOURCE MATERIAL SERIES No. 59
is an aid, an assistance to professional
judgement, and if that message is given
then people are more likely to embrace it.
Two problem areas that the evaluation
showed, first of all, the section about therisks posed by young people has not been
filled in very well. Some of theprofessionals have misunderstood thatand they have thought it was about risks
to the child, not risks by the child. And
the other thing is although the idea isthat the ASSETs completed at the start ofan intervention and at the end to see
whether there has been any change, it isless well completed at the end. So that is
an area we have to work on at the Youth
Justice Board to get practitioners to fillthis in at the end. One of the problems
may be that youth offending teams do not
like to fill it in at the end in case it showsthat the work they have done has notbeen successful. There is one specificproblem which has been mentioned to me,which is to do with drugs. If you start towork with a young offender, and you say
to them, maybe I have not met you before,a nd I sa y to y o u , h a v e y o u g o t a ny
problem with drugs, they’ll say no, no, no.
I work with you, I get to know you, I visit
your family, I talk to you about w hy
you’re in trouble. Three months later they
trust me, I trust them, I’m filling the form
in, and I say do you have a problem withdrugs, they may say well, yes, actually I
do. So it looks like they started with nodrug problem, and finished with a drug
problem, which is not good, so we need tofind a way around that sort of thing. So
we need to get people to do more work at
the end of the measures.
Ne xt a fte r AS S E T , I just w a nt tomention that the Youth Justice Board has
produced a lot of other guidance, a lot of
documentation about various aspects of
how to work in the youth justice system.
There is a list in the full paper, and156

again, if people would like copies they canlet me know and I can arrange that when
I get back to England. I want to mention
just two or three of the pieces of guidanceor tools that have been made available.
We have done a lot of work about
reducing delay because of the importancethat’s been attached to that. I do notthink that will be particularly interesting
to many of you because it is very specificto the system in our country. But wehave, as well as ASSET, we are working
on two specific assessment tools. One, totry and assess whether a case is suitable
fo r resto ra tive justice, w he ther theattitude of the young person, and thekind of crime, and the attitude of thevictim ma ke it the kind of case tha ts h o u l d g o f o r a r e s t o r a t i v e j u s ti c eapproach. And the second is anassessment tool for parents. Is this aparent who should go on a parenting
programme, do they need help with theirparenting skills or not, so it’s a specific
tool because the basic asset does not havea lot about parenting on it. We have as
well, at the Youth Justice Board,
produced a parenting video for use by
projects that are working with parents. It
is a 25, 30 minute video with scenes ofconflicts within families that trigger
discussion. So you play a little of thevideo, a child comes back late at night,
and they are two hours past their curfew
and there is a flaming row between themother and the child, and then the video
stops and you have a discussion with theparents about how to handle that. Or themother finds some cannabis under theyo ung p e rso n’s b e d, or so m e str on g
alcohol, how do they handle thatsituation. So very practical to try to help
parents. I did some years ago, in fact, I
myself went on a parenting course, I was
not ordered by the courts, I was a
volunteer because I wanted to see what
this was like. It was very interesting, thiswas about five years ago, and we used

118TH INTERNATIONAL TRAINING COURSE
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another video, and it was a very good wayof getting people to think about different
ways of com munication, because
communication is the key I think.
The final piece of guidance that I wantto mention has been the most difficult one
to produce. And it sounds a very boring
subject, and it is information sharing.
And the reason it is difficult is that wehave a data protection law in the U.K.,
which means that if someone has some
information about an individual that they
get in the course of their work they can’t
just give that information a round to
everybody else, that is a protection forin div idua ls. I don ’t kn ow if oth er
countries have these laws or not.
Although the Crime and Disorder Act
tried to say that in cases of crimes, then it
is okay to share information between
agencies, it is still quite complicated andsome agencies, some organizations do no
like to share information so much about
individuals. I give you an example, asocial worker is visiting a boy, a social
worker in the youth offending team, he
has a boy under his supervision, and hefinds out that the boy’s older brother isinvolved in drugs, does he tell the police
at the youth offending team, has he got to
do that or not? These are difficult practiceissues that have developed. There is alsoa question about information about thevictims, how, whether that should betran sferred amongst th e different
agencies. So it is a technical question, but
it shows that the multi-disciplinary work,
the w ork be tw een a gencies, is q uite
difficult in pra ctice. There are som e
problem areas that need to be overcome,and the Youth Justice Board is trying todo that.
Fina lly on this, the Y outh Justice
Board had promoted training, there is afive-day basic training course which is
aimed at youth offending team members

who have not previously experienced theyouth justice system, so people fromeducation a nd health who have beenbrought in to youth offending teams,
because most of the social workers, andpolice, and probation officers alreadyhave some experience in this area fromtheir own professional training. So it ismore to get the new members of the youth
offending teams involved. The Youth
Justice Board has promoted training aswell for ASSETs and some restorative
justice training, and is currently working
on the development of on-the-job training
for unqualified staff. There is arecognition that there are a lot of people
who ar e may be n ot pr ofes sionallyqualified, who have a lot to offer young
people working on these projects, and soon, but there is not currently a system fortraining them, and we are in the processof establishing something like that. One
thing I should mention, the basic five-day
training has been held both for youth
offending team members and staff indetention facilities, they have done thisjointly, and that may sound very sensible.
Tha t w a s a big ste p fo rw a rd fo r us,
because in the past, people who worked indetention, and people who worked in thecommunity were in very separate kind of,separate lives, and separate training andseparate everything, and we are reallytrying to bring them together on the basisthat they are working with the same boys
and girls, this new detention and trainingo r d e r is a b o u t a j o i n t a p p r o a c h t oplanning, to treatment, to work. We haveto get people to work together and do
training together much more.
I want to say a little bit about setting
performance targets, because, this sounds
a rather boring subject, but it is, an
important part of the function of theYouth Justice Board has been to raise
performance, to raise the quality of theservices available locally. The targets are

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the things that it is saying it will do. For
example, we are saying that by April nextyear, ASSET will be completed in allcases where a youngster gets a
community sentence and a custodial
sentence. That is the target, under atarget to cross the range of the Board’s
interest.
I mentioned at the beginning that theYouth Justice Board had some ability to
p rovide funding f or youth offe nd ing
teams. Most of the funding is local, butthere is some central top up funding, andwe can make that funding available onth e con ditio n th at the lo cal yo uth
offending teams meet their targets. At
the Youth Justice Board we can’t goaround completing ASSET forms, weneed the people in the youth offending
teams to do it. But we can say to them, we
will give you some more funding if you
need more people to do it, but you mustmeet these targets to do it. How will weknow whether those targets are met?
Well there are various ways in which wemonitor the performance of the local
services. Every year each youth offending
team, or each area of the country has top roduce a youth justice p la n, w hichd e scribe s the arr a nge m en ts f o r th esteering group who is on the top level,
and who is on the youth offending team,
how many staff, from what agencies,
what is the budget, what other services
are available to young offenders, what are
the numbers of young offenders going
through the system, to make an analysisof whether the arrangements in a local
area meet the need properly. And eachyear we grade the plans depending on
h o w g o o d th e y a r e . S o gr a d e 1 i s acommended, excellent plan, so that’s fine,down to grade 4 which is sorry, that is notgood enough, try again. I think this year
there were only three or four that were ingrade 4 out of 154 or so, most of the youth
justice plans are quite good. But that is158

just them writing down what they want
us to see, they may be making it up. So
we have another way of monitoring, andthat is through what are called quarterly
returns. Every three months the youth
offending teams have to send information
to the Youth Justice Board about the
numbers of young people going throughthe syst em in th eir a re a , and wh at
happens to them, whether they get final
warnings, if they get a final warning, if
they get some measure, someinterve ntion to try and help the
youngster stay out of trouble, how many
re ports are written, how m any
supervision orders, how many detention
and training orders and so on. Althoughpeople could make that up, there will be away eventually of seeing whether thattallies with centrally-held information, sothat is quite a good system, and it is a
way of assessing whether some of thesetargets are being met. And thirdly, there
is an element, or there will be an elementof independent scrutiny of the system.
The detention facilities are inspected byan independent inspector of prisons, aninspector of social services, the youth
offending teams, the Youth Justice Board
is at the moment finalizing the right way
to do inspections of these services. So we
ha ven’t yet got in p lace a process of
independent inspection of the yo uth
offending teams but we will do it over the
next few months.
When that process of inspection is inplace, one of the things that theinspectors will look at is how well youth
offending teams meet what are called
national standards. We have hadnational standards for the supervision of
offenders in the community since 1992 in
England and Wales, and I think you havesome from Singapore that have been
distributed, and I haven’t had a chance toread them but I suspect they are in somerespects similar. In England they set out

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
central exp ecta tions b y government
departments of how individual cases
should be supervised by probation officers
and social workers. So there are national
standards, but th is is not just forjuveniles, they have been for initially for
adults and juveniles, so they form a kindof benchmark against which you caninspect and assess performance. They
were revised first in 1995, and when theYouth Justice Board came on the scene in1998, you’ll rem ember that has astatutory role of advising aboutstandards.
They came into operation in April lastyear, although there are two caveats,
there are two kinds of conditions. One,
they are very demanding standards interms of what they expect, and basicallyw hat they said a re, expectation thatmembers of the youth offending teams
should do things within particular timescales. T hey sho uld see an o ff end er
within a day of an order being made,there should be a minimum level o fconta ct betw een a supervis or an d
somebody of an order, so that if a young
offender does not comply with an orderthen they are given a warning and thenmaybe another warning, but if they fail tocomply a third time then they are takenback to court for breach proceedings, thatis the sort of level of specificity. And theyouth offending teams said we do nothave the resources now to be able to meetthese standards. So the Youth Justice
Court has a target, you will see that in
the list of targets, that by 2004 they will
be operating according to thesestandards. If they can get there quicker,
great, but there is a recognition from thecenter of government that you can’t justask people to do more and more withoutbuilding up the resources, the numbers ofstaff in youth offending teams and so on.

S o w h a t t he s t a n d a rd s c o v e r a r e
preventive work, work with young people
following arrest, one of the functions in
our country, if a young person is arrested,
then they cannot be interviewed unlessthey are with a parent or an adult, someother adult that is called an “appropriate
adult”, and it is for the youth offending
teams to provide appropriate adults if
pa rents refuse to come, or cannot befound, there has to be a scheme by whichanother independent person can comeand act as an appropriate adult. There isa stan d a rd o n as se ssm e n t wh ich i s
obviously about using the ASSET tool,
there is a standard on work with thevictims of crime, pre-court interventions,court work and remands, court-orderedintervention, detention and training
orders, and the supervision of gra ve
offenders. So that is an important tool
really for ensuring that the actual work
between individual youth offending teammembers and individual young offenders
is done effectively, and q uickly, andintensively.
Finally, I want to just talk for ten or
fifteen minutes about what we now callthe secure estates, but I suppose what I
mean is all of the places where people
under 18 can be locked up in England andWales. There are on any one day justunder 3000 young people under 18 locked
up on remand and under sentence. I
mentioned on Tuesday, conditions in theprison establishments are very, or havebeen historically very poor. There wast hi s re p ort i n 1 9 9 6 t ha t w a s a very
serious criticism of these. Basically there
are three kinds of institutions for young
offenders, closed institutions.
First of a ll, what are called young
offender institutions, which are run by
the prison service, so they are basicallyprison establishments, 80% of under 18s
who are locked up are locked up in young

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o f f e nd e r in sti tut io ns. Th e re a r e 1 3
establishments now that take juveniles
under 18. In some of these the whole
institution is for under 18s, in others it isa part of an institution that is made overfor under 18s and the other part usuallytakes 18 to 21 year olds, but there is no
mixing, so it is a separate establishment
eff ective ly. These are quite large
institutions, so the biggest one now takes
about 350 boys living in units of about 40.
So that’s the prison part of the estate. Im entione d that conditions are poor.
T here is a pro gram me o f trying to
improve things but it is a slow business
improving, because there has been a lot ofneglect of these establishments.
The second set of establishments arewhat are called local authority secureunits. I suppose these are like children’s
homes, but they are locked children’s
homes. So they are very much smaller,
and the regimes, the quality of life in asecure unit is very much better, verymuch higher, the staffing levels are verym uch better. They are run b y social
services departments of local authorities,s o t he y a re s oc ia l w o r ke r s w ho a r erunning them rather than prison officers.
But you will not be surprised that theya re very m uch more expe nsive tha nprisons, maybe up to six times the cost to
keep a child in a secure unit.
The third set of institutions are called
secure training centers, and currently
there are three, and they are run byprivate companies, and they provide
about 150 places. I should have said the
local authority secure units provide about
350 beds, 350 places. The secure training
centers about 150. These secure training
centers were very controversial because
they represented a new ability for courts
to send children as young as 12 directly toa secure establishment, and they were
controversial because they were run by160

private companies. Two are run by acom pa ny ca lled G roup 4 , w hich is asecurity company. The third is run byanother organization called Securicor,
which is another security company, who
run other adult prisons in the U.K. and inother countries, including I think South
Africa, or they are going to, I think, run
an establishment in South Africa, Group4.
The idea tha t people should makeprofit out of locking up 12-year-olds was acontroversial political idea. I have to saythat they had a very sticky start, the firstof these secure training centers had a lotof difficulties, when it first started there
was a riot at the establishment, and a lotof staff left and they had a very hard time
bu t the y ha ve w o rked q uite ha rd to
improve conditions and the latest reportsby the inspectors show that they havemade a lot of improvements. And
although I used to be not in favor ofp r i v a t e co m p a n i e s d o i n g t h i s w o rk
personally, I have visited recently one ofthese establishments and it is very goodquality care of children, probably betterin some respects than the local authority
units. So the secure training centers andthe local authority units take the younger
children. We have an arrangement thatchildren under 15 do not go to the prison
establishments, and some of the children
who are 15 and 16 who are particularly
vulnerable would also go to these smaller
local auth ority or secure trainin gestablishments.
One of the particular problems in oursystem is finding suitable accommodation
for the girls who need to be locked up, andthere are currently about 70 girls who arelocked up in prison establishments andthe Youth Justice Board has made acommitment to get those girls out ofprison establishments and into either

118TH INTERNATIONAL TRAINING COURSE
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local authority units or secure training
centers.

raising performance by making theserequirements.

So what are we doing to improve theestate? Well the way the system now
works is that the Youth Justice Board at
the center basically has a contract withthe prison service and the local
authorities and the secure training center
providers. And in that contract there are
se rvice le ve l a gr ee m ents, the re a r e
agreements about the level of service thatis going to be provided, the outcomes, theoutputs, what will have to happen. For
these organizations to get the money fromthe Youth Justice Board, they have toensure that children have 30 hours ofeducation, that they are out of their cellfor 12 hours at least every day, and so on
and so forth. So there are sets ofspecifications that are put in place, and inorder to check whether those things are
actually done, the Youth Justice Board
has monitors, actual people, there isn’t
one in every establishment, they cover agroup of establishments, but they go andt h e y c h e c k w h e t h e r w h a t is i n t h econtrac t is being provided. So th e
specifications are quite thorough, theyc o v e r w ha t a n e s ta b l is h m e n t m u st
provide, they cover standards of healthand hygiene, they require the provider to
get engaged with the assessment process,and review the progress of youngsters,
they specify how many visits are allowed,
there must be a complaints procedure,th e re m ust b e a suic id e p r ev en tio nsystem and so on. The biggest weakness,
I think, is the education and training thatis available in the prison service
estab lishm ents is not of a very highquality. The prison service has failed so
far to meet all of the elements in thecontract, and they had to pay some money
back to the Youth Justice Board because
the y faile d to m e et, s o it is like acontractual relationship. The idea is thathaving this central quality is a way of

Obviously the Youth Justice Board islimited by the fact that there are only acertain number of locked establishmentsin the country. It is not really a market.
We cannot easily say, well, if you do not
perform to these standards we will not
send the children here we will send them
there, because there isn’t a “there” tosend them to. So we are in the process ofcommissioning some new establishments,
some new secure training centers, which
will in a way diversify the market andenable childre n to be sent to better
quality establishments. So there is a
programme of commission ing n ew
establishments. Most of these, well in fact
th e y ar e a ll b e in g c re a te d th r o u gh
something called the private financeinitiative. So a private company finances,
designs, constructs and manages the newunit and then receives its money when it
starts to take young people. They get paid
on a per day or per week basis dependingon the numbers of children that they
have. But I think most of the contracts
are designed that they borrow the money
to build the place, and then recoup thecost through the cost that they charge theYouth Justice Board for looking after thechildren, that is the method that we have.
One of the other problems with thesecure estates is that the establishments
are not in the right places. So we have a
lot of young offenders in London, which isin the capital, biggest city, but we do nothave enough places. We have one rather
bad establishment to the west of London,
and there is really nothing else. So somechildren from London have to be based along way from home. One of the targets
that the Youth Justice Board has is toensure that as many children as possible
are places within 50 miles of home, so
within 80 kilometers of home, which is161

RESOURCE MATERIAL SERIES No. 59
still quite a long way if you w ant tom a i n t a i n c o n t a c t w i th f a m il y , a n dschooling and all of that.
The third thing we’re doing to try andimprove the estates is to research anddisseminate best practice. There are few
effective programmes for changing the
behavior of young offenders in custody. In
the young offender institutions there aresome programmes that have originallybeen developed for adults that are being
used with juveniles. In the securetraining centers and local authority units
they tend to adopt what they call a wholesystem approach, or a positive parenting
approach, in which the idea is to try andinfluence the young people on a day-today basis through eve ry kind ofinteraction that the staff have. It is in
psychology terms pro-social modeling. So
the way in which I, as a member of staff,
talk to you, as another member of staff, in
front of the child, that should be how wewant that child to be, to be relating topeople. So you should be courteous, you
should not shout, you should not lose yourtemper, you should be reasonable, you
should negotiate. All of these things, if
you go to a prison establishment that is
not always how things are in our country.
There is a lot of shouting, and so the idea
is that throughout the whole system you
are trying to model good behavior.
In addition, you need sp ecificp rogra mm es, b eca use so me of thesechildren have very serious problems with
their anger management, they cannot
c o n tr o l t h e i r te m p e r , o r t h e y h a v e
problems with alcohol, drugs. So we aretrying to introduce some newprogrammes, we are also about toproduce some guidance on rewards andincentives for young people in theseestablishments to try and encourage goodb e ha vio r, b e ca u se the re h a s b e e n a
problem, the introduction of the detention

162

and training order which I mentioned has
removed the right of governors of prisons
to add additional days, if a young person
in a prison behaves very badly you used
to be able to add time, say you get an
extra week. It is possible for the period in
custody to be extended but that is if you
have failed to cooperate with the plan forpreventing offending. So the idea is when
you go into custody a plan is drawn up
between the secure establishment andthe youth offending team, and if theyo un gste r d o es v er y we ll he c a n b e
released early, and if he does very badly
on that then he can be required to staylo nger. What has ha ppe ne d in so me
places is some boys who have been about
to be released, because they have donewell, they know they are going, theysmash up their room the night before
they go, and there is very little that canb e d o ne at th at sta ge . S o the re is a
programme of rewards and incentives.
We already have in prison establishments
a s y st e m o f in c e n t iv e s a n d e a r n e dprivileges, and basically there are threestandards of, you have a basic regime
when you first arrive, and if you behave
well you can end up with a television inyour cell, and the ability to wear yourown clothes, and so on.
This sector, as I said, is inspected very
thoroughly and it is very right that there
is an independent inspection. If you aretaking the liberty away from children or
young people then it is essential thatsomebody is coming to check that this isokay. We ha ve ha d historically very
powerful inspectors of prisons who have
had no hesitation in publishing in thenewspapers their views about the qualityof establishments. So if the Youth Justice
Board does not deliver the changes thenit will be obvious to everybody, so it isvery important that these changes dotake place. But it is a big challenge,
because there is a lot of work to do.

118TH INTERNATIONAL TRAINING COURSE
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So finally, in conclusion, the Youth
Justice B oard is exercising thislea de rship ro le , b oth o n com m unity
treatment and institutional treatment.
What it is trying to bring about is acultural change within the system. A
cultural change to try and encourage
more intervention with young people,
better quality work, and better
performance, so that people can actually
measure whether what they are doing is
successful. Now it is very early to knowwhether the Youth Justice Board has
been successful. We have been successful
in setting up, putting the pieces in place,but whether it is working, I don’t know.
But it is interesting that in the manifestoof the Labor party before the election
which took place two weeks ago, there
was a commitment to extend some of theideas that have been put in place forjuveniles to the next age group up, to the
18 to 21 year-olds, because the thinking isthat just because somebody reaches 18,
they do not overnight turn into a capable,
developed, sensible person. They often
have the same problems, the same needs,
the same difficulties. The approach of themultidisciplinary team, it would perhaps
be different disciplines th at wereinvolved, but that is seen to be a very
promising one, not only for youngo f f e nd e r s b u t f o r yo u ng a d ult s a n dperhaps some adults as well.

163

INVOLVING COMMUNITY IN YOUTH JUSTICE
Rob Allen*, **This word “community” is used a lot.
We all talk about “the community.” Wet a l k a b o u t c o m m u n it y p e n a l tie s o rcomm unity trea tment or community
sentences or community punishment. We
sometimes don’t really think what wemean by community. Often we just mean
it is the opposite of institutions. So thetitle of this course is about best practicein institutional and community-based
treatment. So it simply means you haveinstitutions and you have the community.
It also has another meaning which isreally about involving ordinary people,
ordinary members of local communities.
Not police or social workers or probation
officers, but ordinary citizens who do notnecessarily have any formal or official
role.
Now, in my country, most of the workwith young offenders that is done in thecommunity is, in fact, done byprofessionals who are paid. I talked about
the youth offending teams w hich are
made up of police, social workers,
probation, health, education. These arepeople who are paid to do these jobs. They
are not really community members inthat sense. What I want to talk today
about is the experience in the U.K. of
involving ordinary people in youth justicein dealing with young offenders.
Before I do that, I want to say a little
bit about the involvement of ordinary* Member of the Youth Justice Board and Directorof the Esmee Fairbairn Foundation, London
England** This paper is a transcript of a lecture delivered by
M r. Allen at UNA FEI d uring the 118th
International Training Course.

164

community members in the criminal
justice world—in the wider activities to
do w ith crime—b eca use I think it isim p o r ta n t to s e t it i n c o n t e x t . F o r
example, there is, in the United Kingdom,a l o t o f c o m m u n i t y i n te r e s t i n t h e
reduction and prevention of crime. And
we have a big movement, a bitorganization called Neighborhood Watch.
I don’t know if you have this in yourcountry. Some of you will. Some of you
won’t. In England it was set up in 1982
and it has grown very rapidly. And it isorganized at a street or neighborhood
level and it is ordinary citizens who cometogether and agree that they will watch
over their community to see if there isany crime going on, if necessary, to reportto the police. They will encourage eachother to take care of property—to locktheir cars, to make sure they lock theirhouses and take other kinds of measures.
And this is a big movement in the United
Kingdom. There are more that 150,000
Neighborhood Watch schemes covering
up to 10 million people in the U.K. And
there are about 55 million people all
together. So they claim that it is theb igg es t v olu nta r y m o ve m en t in the
United Kingdom: Neighborhood Watch.
There is another important community
organization which we have heard a little
bit referred to. It is very big in the United
Kingdom, called Victim Support. Victim
Support was set up about 25 years ago
and provides practical advice, help andassistance to victim s of crim e, tow i tne s se s, th e ir f a m ili es a n d t he ir
friends. And it also has a role in raisingpublic awareness about issues to do with
cr i m e a n d to p r o m o t e th e r ig ht s o fvictims. There are about 13,000 trained

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
volunteers who visit and contact victims
of crime. So, a few years ago, where I was
living, my house was broken into andthings were stolen. And within one day, I
had a telephone call from a volunteer who
rang up and said, “I understand that you
have been burgled, your house has beenbroken into. Are you feeling alright? Is
there anything that I can do to come tohelp you?” And I said, “No, that was fine.
That was okay.” But for some people who
get very upset and traumatized by crime,
it is a very important role. So that is an
important community involvement, I
think, in the system.
The third kind of involvement I want tomention is what we call in England andWales “magistrates.” Lay Magistrates. A
lot of criminal offenses are dealt with not
b y p r o f e s s io n a l j u d g e s , b u t b y l a ymagistrates who are ordinary members of
the community. They have training. But
they deal with the vast majority of theless serious crime. It is the first tier of ourcourt system. It’s made up effectively ofvolunteers, magistrates. This is an officethat goes back many hundreds of years.
In the middle a ges, the king used toappoint what he called “justices of thepeace,” local people to take responsibility
for law and order at a local level. We still
have this office of magistrates. I thinkt h e r e a r e a b o u t 2 5 o r 2 6 th o u s a n dmagistrates up and down the country.
And a proportion of those magistrates
deal with young offenders. We have a
special youth court which is made up ofyouth court magistrates and they receive
additional training to do the work in the
youth court.
I want to mention, in this paper, thefact that, in the United Kingdom, we
h ave a l arge nu mber of v olu nta ryorganizations, civil society groups, nongovernmental organizations who are
working in this field. I think in somecountries this civil society sector is welldeveloped and, in other countries, lesswell-developed. A lot of the seorganizations may have their origins withfaith groups, with churches, with otherkinds of religious motivations. Some ofthem are charities. many of them dopractical work to help prevent crime, tohelp offenders and so on. So there is awide range of organizations. An
organization I used to work for, for many
years, called NACR O, the Nation
Association for the Care andResettlement of Offenders, that was one
such voluntary organization. I was paid. I
had a paid job with this organization. But
the peop le who had set up theo r g a n i z a ti o n w e r e vo lu n t e e r s . T h etrustees, the directors of the organization
were doing it in their own time because
they thought it was work that needed to
be done. So I just want to say that is thecontext in which I talk about community
involve ment b ecause I think, in the
United Kingdom, we have a goodtradition of volunteering.
There was an a rticle in the Japan
Times newspaper on Saturday about
volunteering in Japan and how this was
beginning to increase, particularly after
the earthquake in Kobe 5 or 6 years ago
when a lot of people gave up their timeand ef f o rt to g o and he lp with th at
disaster. And since then, a lot of privatecompanies allow employees to do somemonths volunteering work of one kind or
another. Now they, in this article, it said
that in Japan, 25% of people say that they
have done some voluntary work in theprevious year. In the United States, it is50%, in the United Kingdom, about 45%.
I do not think these are very meaningful
figures because there is no clearly-agreed
und e rs t a n din g o f w ha t w e m e a n b y
volunteering. I think that it is importantwhether, in different countries, there is aculture of community involvement or

165

RESOURCE MATERIAL SERIES No. 59
whether people say, “Well, it is up to thegovernment to do these things. It is up to
the state or it is up to private companies.”
In England, we call this, I think, the third
sector. So you have the government, youhave private businesses and you have athird sector, which is civil society groups.
M y o w n v ie w i s t h a t t h e y a r e v e r yimportant for a healthy society to have a
h e a lt hy s e cto r in w hi ch p eo p l e c a n
involve themselves in the issues thatinterest them, that they are concerned
about. Obviously, dealing with offenders
is one such issue.
Turning to the specific question of
dealing with offenders, of course, those of
you that know about the history of, forexample, the probation service, will knowthat this started as voluntary work. In
the United States, a shoemaker in Boston
decided one day that it was ridiculousthat people were going off to prison, so hesaid, “I will take somebody home with me
and supervise him, look after him, givehim a place to live. If he does not behave
well, he will go back to the court.” And
the court said, “Okay.” Twenty years
later, in England, a printer took homewith him, an alcoholic offender and said,“I will look after this man and make suret h at h e d o e sn ’ t g e t i nt o tr o u bl e . I fnecessary, he will go back to court.” Thisis the origin of probation as we know it.
So the voluntary involvement,c o m m un ity inv o lve m e n t has a lo ng
history. It was very impressive to meetand hear about the system of voluntaryprobation officers. I think it is one of thevery distinctive things about theJapanese system of criminal justice tohave so many—50,00 I think—voluntaryprobation officers doing this importantwork.
We, in the United Kingdom, do nothave that in quite the same way. But we
do have a lot of interest at the moment in

166

trying to recruit ordinary members of thecommunity to work with offenders, tobefriend them and to try to help them. We
call this system “mentoring” or“coaching.” I think, in its modern form, itbegan in the United States. It isinter esting beca u se a lot of p rivatecompanies in business use mentoring, bywhich they mean junior employees are
given a more senior member of staff wholooks after them, who helps them to get
involved in the organization, tounderstand how things are going and tofurther their career. It is the same ideathat somebody who has more experiencein life is able to help somebody who is
young and vulnerable and so on. So there
is a lot of mentoring going on in the
United Kingdom now.
I want to talk about a programme that
the Youth Justice Board has beenfunding. You’ll remember in the lastlecture , I ta lk ed a b out the ra nge of
projects and programmes that the Youth
Justice Board were funding. One of theseis a set of mentoring projects. The Youth
Justice Board has funded 39 schemes. I
will just say a little bit about what theevaluation of these schemes has shown.
It has been shown that most of theoffenders who get mentors are minor
offenders. They are not the most serious.
This is obviously the case because, if I
was a member of the community, I would
not necessarily want to be a mentor forsomebody who had very violent crimes or
who had a lot of crimes. It is interestingthat 5% of the children who had a mentor,
in fact, had 10 or m ore previous
convictions, which is a lot, which means
tha t they are quite persistent, quite
chronic offenders. Most of the children
were in the age range 13–16. There wereabout, in these 39 schemes, there havebeen about 1400 referrals. 1400 cases
have been sent to the scheme to say,

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS“These are children. We want to findmentors for them.” And just over 1100
mentors have been recruited from thecommunity. There are 565 active cases.
So there are 565 cases going on at them om ent. 167 have bee n com plete dsuccessfully. 175 have broken down, have
not worked out. Now the average timethat is set for a mentoring relationship in
the UK is one year. Usually a mentor will
see a child once a week for a year, period.
S o w h e n I s a w t h es e f ig ur es , I w a s
disappointed at the high numbers ofbreakdowns. But I think, as we have said
before, we are sometimes talking about
difficult young people.
Some of the issues that have arisen
from the evaluation of the mentoring
programme. First of all, recruitment.
What these projects have found is that it
is more difficult to recruit mentors, moredifficult to get community involvement as
mentors in areas where there are richer
people. In the more affluent, in the more
prosperous areas, it is more difficult to
recruit people. This is very interesting
because, later, I will be talking about thereferral order, which is a new order inwhich members of the community areinvited to become involved. There it is theother w ay a round, it is easier to getpeople from the more prosperous areas tobecome involved in the Youth Offender
Panels and less easy to get them involved
in mentoring. I think the reason is thatthe more middle-class, prosperous people,
they like to b e involved in decisionmaking, but they do not like to, actually,
we say in English, “get their hands dirty”
with the actual work. It is easier to maket h e d e c is i o n s t h a n i t i s t o p u t th edecisions into practice.
There are some interesting ideas thatthe projects have used to try to recruit
different people, different marketing
ideas. For example, they p ut

advertisements in local newspapers. They
have put details about the mentoring
sc h e m e in t h e s a la r y s li p s o f l o c a lgovernment employees. So, people whowork for local government, when they get
their money at the end of each month,they get a little slip that says how muchthey have. Also in there is a little thing
saying, “Would you like to be a mentor toa young offender?” So maybe they are in agood mood when they get their money
and they think, “Oh, maybe I will pay
something back to the community.” I
don’t know. There are ta lks given toparticular groups of people targeted, orparticular groups who m ight beinterested—some of these civil society
groups and organizations whose members
might be interested in doing it. There isuse of local radio and local newspapers.
Some of the other issues that havea r i s e n in m e n t o r i n g i n t h e U n i t e d
Kingdom, this question of police checks.
We ha ve, I think, alread y had so me
discussion about the extent to which it isa good idea to use people who perhaps
have been in trouble themselves to workwith young offend ers. The y cansometimes be very good. If they have beena young offender and have put their lives
straight, then they can b e very good
mentors and very good because young
peo ple are m ore like ly to listen to
somebody like them who has been introuble than they are to listen to someone
like me who has never been in trouble.
But, of course, this is a risk—well, I havenot been in serious trouble anyway. There
are risks attached to such programmes.
Of course, you cannot use people whohave ha d o ff enses a ga inst child ren,sexual offenses, these kinds of things. So
you need to check their records with thepolice. And I don’t know what it is like inyour countries. But, in our country, this isa very slow process. So you send somenames off to the police and maybe some167

RESOURCE MATERIAL SERIES No. 59
months later they will say, “no” or “yes.”
In the meantime, when they have had
their salary and they have said “Yes, I
w a nt t o b e a m e n to r” a n d t h e y a r einterviewed and then nothing happens
for several months because they are being
checked and checked and some of themlose interest. They go and do somethingelse. So that is a small practical question.
But for community members, if you want
to involve them, you have to think about
it from their point of view. Sometimes thebureaucracy, the systems that we have toh a ve c a n ge t in th e way o f h ow th ecommunity would want to do things, howordinary people—they would not always
understand.
It is a similar question about the rightlevel of supervision and support to offerm e n t o r s . H o w m u c h s h o ul d y o u b e
c h e c k i n g u p o n th e m ? I f y o u a r e a
probation officer on the Youth Offending
Team who are running the programme,
you have your volunteers seeing thesechildren, should you ask them for reports
every week? Every month? Every six
months? Should you arrange meetings forthem? This is a difficult balance because
the people like to be able to do the thingthat the y want to do themselves.
Sometimes they might run into
difficulties. So you need to find a way
which offers them support to do the work
properly, but does not over-intervene andallows them to be members of th ecommunity. This is a theme which I will
return to when I talk about the Youth
Offender Panels. There is a danger, when
you involve the community, that you
want to turn them into professionals
because it is easier to deal withp r o f es sio na ls th a n it is c o m m un ity
p e o p l e . S o yo u t r a i n th e m a n d y o u
support them and you supervise them.
And then, suddenly, they are not reallylike the co mmunity that they aresupposed to be. They have become more

168

like you. They have become an additional
member of the Youth Offending Team. If
it is to work, you actually want them to be
as they normally are. So getting thebalance is very important.
F in a lly , t he r e i s th is q u e st io n o fcontingent mentoring. In the UnitedStates, the research shows that
contingent mentoring is the mosteffective. This means that, if I am amentor for a boy and I say to him, “Okay,
I am going to see you next Saturday and I
will take you swimming. But I will only
take you swimming if you go to school
every day and you do your homework
everyday. I ring up the school on Friday
and they say, ‘Yeah, he has been in schooland he has done his homework,’ then I
will meet you on Saturday and take you
swimming.” So I ring up on the Friday
and they say, “Well you did not come toschool on Thursday” or “He did not do his
homework,” then I have to say, “I’m sorry,
we don’t go swimming.” The idea is thatyou build in the reward of the mentoring
relationship and link it to improved
behavior. I think this is quite difficult inpractice because mentors want tobefriend the young person. They will notalways obey the system of contingent
mentoring. They will not always obey therules because they will want to take theboy swimming on Saturday whether hehas done his homework or not. So there isa question about that. Also, these areboys, mainly, sometimes girls, but boys
who, of course, do not do what they aresupposed to do. So I haven’t looked indetail, but I suspect some of the
breakdowns in the relationships havebeen because of this, contingent
mentoring. The boys have not done what
they were supposed to do so the mentor
says, “Well, what is the point ofcontinuing?” and he finishes. Well, there
is no point in having a perfect contingent
mentoring scheme. But no mentor ever

118TH INTERNATIONAL TRAINING COURSE
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meets any child because they do not dowhat they are supposed to do. They wholesystem then fails. So you have to keep
this in balance.
J ust two mo r e thin gs. T he Yo uth
Justice Board is extending the mentoring
programme in two specific areas wherew e t hin k it is im p o r tan t. On e i s inim p rov ing lite racy and n um era c y—teaching children to read and write andarithmetic and mathematics because thelevel of basic skills among young
offenders is very very low. It is one of theindicators in our country of the likelihoodof being a persistent offender is these arechildren who have not learned to read or
write well. They have a reading age, aread ing level much lowe r than theyshould have. Mentors can help them toimprove those basic skills.
The second area we are extending thisto is with ethnic minorities. I mentionedthat in the United Kingdom there are—not large—but there are, in certain partsof the country, quite large ethnic minority
populations from the Caribbean, fromSouth Asia, from other parts of the world.
And these are youngsters who have notbeen treated very well by the criminal
justice system. There is overrepresentatio n of these groups,
pa rticularly Afro- Caribbean boys inprisons. So there is a lot of interest intrying to develop alternatives to custodyfor these groups. So w e are trying torecruit older people from the minorityc o m m u n it ie s t o a c t a s m e n t o r s f o r
minority youth. That is a big target for
the Youth Justice goal.
I want to mention three other areas ofcommunity involvement in Youth Justice.
The first is what we call “appropriate
adults.” It is probably true in many ofyour countries that young people, when
they are arrested, cannot be questioned

except in the presence of their parents oranother adult. Of course, you try to get
the parent to come. But sometimes they
won’t or they can’t. Many areas now haverecruited panels of people who act as
appropriate adults. Their role is to ensurethat the young person understands what
is going on; and they can intervene. They
can say to the police officer “Hang on aminute. I’m not sure he/she understands
this. I w ant to talk to them.” This isseparate from any legal representation. It
is possible to have legal representation ina p o l ic e s t a t i o n w h e n y o u ’ r e b e i ng
questioned. But it is not a very highpercentage of children who have legal
representation at that stage. They haveto have an adult with them.
The second thing I want to mention arewhat we call, rather confusingly, “Boardsof Visito rs.” And these a re ordina ry
members of the community who visit
prison establishments in order to checkupon the welfare of people in prison andto hear complaints from prisoners. There
are 135 boards of visitors, one for each of
the prison establishments in England andWales. I mentioned last time, there are
13 prison establishments that take thejuvenile. So each of those will have apanel of Boards of Visitors. Each of thepanels has about 15 or 20 people on it.
Some of them are local magistrates. Someof them are just local people. They areappointed by the government. They arecommunity members, but they have toapply because they are given wide accessto the prison establishments. In fact, I
think they are even given keys to be able
to go at any time of the day or night tovisit or check. It is an important, I think,function of the local community to checkupon those people who are detained inthose communities. Because, although
they are in prison, they are in custody,
they are detained, they are still citizens.
Their rights have not been taken away. It

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is important that there is a mechanism, ameans in the local community forensuring that they are treated carefully
and properly. There has recently been areport by the government on the roles ofBoards of Visitors. The recommendationis that the name is changed to something
like Independent Monitoring Panel tomake sure the role of monitoring theconditions and monitoring how people aret r e a te d i n t he se e s t a b li s hm e n t s is
p r op e rly c om m un ica te d . “B o a rd s o f
V is it o r s” so u n d s li k e th e y a r e j u st
visiting, “Hi. How you doing?” and they goaway. But it is stronger than that. It is
confusing because we separately havesomething called “prison visitors” who are
ordinary people who simply go in andthey are simply befriending prisoners
who have perhaps not got families. And
perhaps they bring them food or theycome and talk to them. That is different.
Boards of Visitors are a more formal partof the arrangement.
Fina lly, the re ar e sim ila r k ind o fvisitors f or police sta tions. We haveordinary members of the community whogo and can visit police stations to checkthat people who are detained in police
stations are not being badly treated. This
does not just apply to juveniles. This is forthe whole age range. But I mention that
because I used to be, many years ago, I
was a lay visitor to police stations. So I
used to visit the local police stations tocheck that people were being detained inaccordance with the rules.
So those are the main current ways inwhich the community can becom e
involved in youth justice in the United
Kingdom, I think. I want to turn now to
the new development, the new sentencethat is currently being tried out in 11
a re a s o f E ngla nd a nd Wa l e s , c al l e dreferral orders. We have borrowed quiteheavily from the New Zealand system of170

Family Group Conferencing in developing
this new system. We have also borrowed
from the system in Scotland, which is in
the north part of the United Kingdom
which, as I had explained, has a separate
jurisd ictio n, a se pa r ate s et of le gal
systems and they have a more informal
way of dealing with young offenders. So
we have created a hybrid system, a new
system called referral orders. It will work
like this. It will be an order that is madeby the youth court. It will be mandatory,
it will be automatic for cases where young
people have no previous conviction. So it
is their first appearance, the first timethat they are guilty in the youth court.
They have to plead guilty. There areth r e e e x ce p ti o n s to th i s a u to m a t ic
referral order.
First of all, if there is an absolutedischarge given—which means that it issuch a minor thing it is really a technicalbreach and nothing at all happens. Or it
is so serious that the young person has to
immediately go to custodial detention.
Or, if the young person has a mental
health problem and they can be given a
hospital order to be detained in hospital,
that very rarely happens. But other thanthose exceptions, the referral order willbe the sentence that is made. It lasts
between 3 and 12 months. When the
court makes the order, it decides how
long the order should last, reallydepending on how serious the offense is.
That is the main consideration. So themore serious ones, 12 months. The lessserious ones, 3 months. But it isimportant to note that it is only for people
who plead guilty. So, if you are appearing
in the youth court and you say “I didn’t doit” and there is a trial and you are foundguilty, you cannot then go down thisreferral order road. The reason is that we
think it is important that the young
person, from the beginning, accepts thatthe y ha ve do ne the crim e. S o it is a

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
slightly different emphasis from New
Zealand where, I think, young people cango back into the Family Group
Conference when they have been foundguilty, even though they were saying
before that they hadn’t done it. In oursystem, you have to say “guilty” from theword “go,” from the start.
What the referral order means is thatyo u a r e re q ui r ed t o a t t en d a Y o uth
Offender Panel. So we have created a newtier of decision-making, a new kind of
way of determining, a way of deciding
how to deal with these young offenders.
So the court hands over the case to thisnew thing, the Youth Offender Panel.
And, rather confusingly, we call this in
shorthand, the YOP. So we already havethe YOT, the Youth Offending Team. And
now we have a YOP, the Youth Offending
Panel. So it is very confusing foreverybody. It is particularly confusing
because it is the responsibility of the YOT
to set up the YOP. So the Youth
Offe nding Team is re spo nsible fo rorganizing the Youth Offender Panel.
They are responsible for recruiting thecommunity members who are going to beon it. They are responsible for organizing
the meetings, for training the members,
for sending out information, for arranging
it. If this was a Family Group Conference,
this would be for the Youth Offending
Team to do.
Perhaps the most important distinction
with the Family Group Conferences isthat the comm unity members areperhaps the most important and new partof this system. The idea is that there will
be in each Youth Offender Panel two
members of the local community, twoordinary people, one of whom is the chair.
So the Youth Offender Panel meeting ischaired by an ordinary member of thecommunity. There has to be one othermember of the community there. The idea

is t h a t t h e Y o u t h O f f e n d i n g T e a m
recruits a pool, a group of community
representatives to act as panel members.
The idea is to recruit a broad range of
people. There is a minimum age of 18 tobe a panel m emb er. B ut we do wa nt
young people. We do want some people
who are 19, 20, 21, 22. We don’t just wantcommunity elders. We want people whoare closer in age to the young people they
are dealing with because we think thatthe young people may take more notice ofsomeone closer. Now this is an important
cultural question w hich va ries fromcountry to country: how much respect andhow much people take account of older
people. I’m afraid, in our country, a lot of
young people do not take much notice ofwhat older people say or are perhaps
more influenced by people closer to them.
Tha t i s a genera lizat io n. I a m not asociologist. But I think it is perhaps animportant difference with some systems.
I think there is a minimum age for beinga voluntary probation officer in Japan
which, no? But most of the voluntaryprobation officers are somewhat older, I
think, than probably mentors orcommunity panel members would be in
the UK. So they can be as young as 18.
We have said that if you have had aprevious minor offense, that will not be abarrier to being a member of the Youth
Offender Panel. I was involved in a groupwhich was developing a guidance for how
we recruit the community members. I
remember I had a big argument with apolice officer who wanted to say that
nobody with any criminal offenses should
be involved in this and I said I thought it
was important. I managed to win a little
victory. So a previous minor offense does
not act as a barrier.
Really, w hat w e a re looking for incommunity members are personalqualities to bring to this work. We want

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people who are interested in questions ofcitizenship and questions of how young
people develop. We want people who areon the w ho le now, of good cha ra cteralthough they may have had some trouble
in the past. We want people who cancommunicate well, who can understandwell and make good judgements. We wantpeople who have a good temperament,
who are not going to lose their temper or
shout or anything like that. We wantpeople who are reliable and who will
make the commitment because the kindof commitment we are talking about ismaybe 2 or 3 hours a week for 40 weeks ay ea r. Tha t is t he ex pec tation of acommunity panel member. So it is quite aheavy commitment to do one or two casesa week 40 weeks of the year. You have to
be clear that you’re going to be available.
If you have a lot of other commitments,
you may not be able to do that.
So the community members are thekey part of the Youth Offender Panel.
O b v io u sl y, a s in th e F a m i ly G r o u p
Conference, the young person and theirparents have to be there. The victim has
to be invited to the panel meeting and, as
in New Zealand, the young offender andthe victim can bring a supporter witht he m . O n e o f th e in t e re s ti ng o th e rdifference, I think with the New Zealandscheme, is that there are no lawyers in
the Youth Offender Panel. That is nottechnically true. If the young offender’sfather happens to be a lawyer, then he isallowed to come. Or you could perhaps
bring a lawyer as a supporter, but that is
discouraged, really. Because the idea isthat we w ant direct participation bypeople. Be do not want people to speak
through representatives. And there is ab it of an argument in the UK at the
moment because the United Kingdom has
signed something called the European
Convention on Human Rights, which is ab ig huma n rights convention w hich,172

amongst other things, gives a right tolegal representation in judicial
proceedings. So you have a right to dothat. But the youth justice board and thegovernment are arguing that these are
not judicial proceedings. The judicial
proceedings is the court that has madethe referral order. The Youth Offender
Panel meeting is part of the execution of
the sentence. It is not proceedings. But
there are some people who are arguingthat question. So maybe there will be acase to decide this. In a way, if lawyers
are allowed into it, it rather defeats theobject of having this new panel systemb e ca u se it is sup p o se d to b e a ve r ydifferent kind of way of dealing withthings.
Finally, the idea is that the Youth
Offender Panel should be held within 15
working days of the referral order having
been made, which is a very demanding
target—very tight, given the importanceof the preparation and everything. You’ll
re member I talked about the
governm ent ’s emphasis on speed,
speeding cases through the system. So
they did not want to introduce a newmeasure which brought back delay. Thisidea that the cases are dealt with quickly
is still important. So they have set thistarget, the expectation is 15 days.
So the aim of the Youth Offender Panelis to agree a contract. I will not talk indetail about how the panel works. But insome respects it is similar to the FamilyGroup Conference methodology. The idea
is that, at the end of the meeting, there isa contract that is signed by the young
person and the chair of the Youth
Offender Panel. That contract shouldhave 2 elements. One is, how is the young
offender going to make reparation forwhat they have done? How are they goingto pa y b a ck either the victim o r thecommunity for the wrong they have done?

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The second element is what are we goingto do to stop the youngster committing
the crime in the future? What sorts ofmeasures are going to be taken? So thecontract might say that the young person
w ill do a certain number of hours of
unpaid work in the community,community-service kind of placement,
plus they will attend specia l cla sses
d esigne d to he lp the m lea rn how tocontrol their temper or about helping
them to reduce and give up drinking
alcohol or to help them with some otheraspect of their offending to improve theirattendance at school, sessions with theirparents to improve relationships at home,a w h o l e r a n g e o f d if f e r e n t s o r ts o fmeasures to try to deal with the problems
that underlie the offending.
Again, I think, two differences from the
New Zealand model is that there will be
two more meetings of the Youth Offender
Panel. There will be a review meeting tosee how this is going. This is a contract.
So, you signed the contract so you have to
do it. So there is a meeting about half way
through because the contract will specify
by and when this work has to be done.
You will remember that the referral orderhas been set from 3 months up to 12
months. So that provides the length oftime within which the contract has to becompleted. Then at the end, there will bea meeting reconvened to see how things
have been done. If the young person has
not completed the contract, then the casecan go back to court, and the court cansentence the m a s though it w a s the
beginning of the process again. So in away, it is all on the young person to dowhat has been agreed. If they do complete
the contract, then they do not have acriminal record. Their criminal record ista ken fro m the b oo ks. S o that is a n
incentive for the young person to do this,so that they will not get a criminal record.
It is possible for the young person to ask

for a Youth Offender Panel to meet again
if they want to change the contract. If
they, after a while think that it is unfair
or they don’t think that it is right or theircircumstances—their parents are moving
house or there is something going on—
and it is possible to vary the terms of thecontract with another meeting.
In term s of a mode l, the Youth
Offender Panel is within a kind of shell of
the referral order. There is always thethreat of going back to the court to deal
with the case if the thing doesn’t workout. A nd I think that is beca use, in
Britain, we are a bit nervous of how thiswill work. This is a new kind of system
for us. I personally hope it works very
well because I think it is really good.
There are some people who are a little
skeptical, they do not think it will workand they think that the traditional court
system is better. So we are going
carefully to see whether it works.
Okay, I’ll just quickly say something
about the rationale—why, specifically, in
Britain we have introduced this. In away, the reasons for introducing this are
similar to the reasons in New Zealand.
But I think there are some particularissues in Britain. Part of it is about giving
victims more of a say, giving victims theright to have an explanation, to have an
apology, to have restitution or reparation.
Part of it is about getting an offender tobe able to take responsibility, but also tohave a chance to give their input, tocontribute their ideas. Part of it is for thecommunity to express their concerns andto engage with the problems. So I think,in Britain, we think of the youth justicesystem as having three components, likea triangle—the offender, the victim andthe comm unity. T hese a re the three
in t e r e s ts t h a t n e e d t o b e s a t i s f i e dproperly in a system of juvenile justice.

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Now, in principle, some people say theordinary youth court should be doingthese things. We are about to introduce,in Britain, a system for giving victims theop portunity to make a statem ent
through—or at least have their views
about the impact of the crime given to a
court. So there is a way, in the normal
courts, for some victim impact
information to get into decision making.
If you go to a youth court, the magistrates
will ask the young offender what they
think. They will normally just grunt.
They will normally not say anything. But
there is, in principle, the mechanism, theway for the young offender to contribute
their thoughts. As I m entioned,m agistrates are members of thecommunity. S o some people will say,“Well, we already have a system whichm eets the needs of the offender, thevictim and the community well.” But
when you look at the system of the youth
courts closely, you will see that it does notwork in that way. What specifically the
Youth Offender Panels are providing is asystem that is much more direct. You willremember that I talked about one of thegovernment white papers was called “NoMore Excuses,” that the old philosophy
was that we were always making excuses
for young offenders. Before the Labour
government came into power, the Home
Secretary, the minister in charge of all
this went to sit in a youth court to watch
what was going on. He did not like what
he saw because the young person was
sitting there and the lawyers were doing
all of the talking, the professionals. The
young person who committed the crime
was simply not engaged, not involved. So
the idea is to make it more direct. The
young person has done the crime, theyshould be more directly involved in theproceedings. In consequence, it should be
more informal to encourage participation
because the reality is we are often talking
about people who have not had the best174

e d uc a tio n, the y a re no t th e b e s t a tspea king. If you put them in a ve ry
formal setting and say “Speak! Tell us
what you think,” they would just find it
too difficult. They cannot do it. So you
need to create an informal setting. You
need to have a dynamic setting. By that I
mean a kind of forum in which fresh ideas
emerge during the proceedings in how todeal with this problem. It isn’t often in
the court, the social worker or probation
officer had written a report saying, “Thisis what we think should happen to thisyoung person.” It is all agreed and it is, as
we say in England, a stitch up. It is all
kind of agreed by the professionals andthen everybody goes off. The idea here isthat the actual meeting of the Youth
Offender Panel could create some newideas that had not been thought of before
for how to deal with this.
The idea is that a young person is more
likely to comply with measures that he/
she has had a part in determining, a partin deciding in a discussion thancomplying with something that has been
imposed from on high by a court. So theYo uth Off end er Panel is not a court
sentencing, it is a panel agreeing. And
this is a very different kind of mode of
decision-making. I think part of that is to
do with the kind of people that we hope
will become community members. I willta lk a fter the b reak a bout the early
research on these Youth Offender Panels.
One of the community panel members
told the researchers, “Magistrates thatlive in big houses in nice areas and are
visualized as being officials, young people
can see that we, the community panel
members are normal and live in the same
areas that they do and experience thesame problems.” Well, I will tell you that
picture is not entirely true because theevidence is that a lot of the community
panel members are still middle class,more prosperous, affluent people. But the118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
idea, and this is an idea that we arestruggling with, is to try and make itdecision-making by people who are moresimilar to the offenders. I think that is an
important distinction. So those are thefour key items I think in our context, in
Britain, more direct, more informal, mored yna m ic and mo re p rob le m- so lving.
Those are differences from the youth
court system which the panel will replace.
I mentioned that we are testing pilot
schemes in eleven areas of England andWales. The pilot started last summer.
There has been one evaluation report
produced earlier this year. The plan isthat the referral order and youth offenderpa nels will be introd uced across thecountry from next April. So April 2002
will be the national implementation, thenational rolling-out of the programme. So
already all of the areas in preparation fornext April are beginning to think about
the questions of recruiting the membersof the community and so on.
So what is the early experience of thesepilot schemes? Well, first of all, on thisquestionofrecruitment
andrepresentation of the panel members, theevaluation has found that, because there
was a big rush to get enough community
members ready, they have not worried somuch about whether the panel members
are representative of the community.
Ideally, you would have people who wererepresenting the bigger community. But,in practice, they have been so worried
that the y would not have enoughcommunity members to run the panels,
they have not worried so much about thequality, the representative nature of thepeople. As I said, there has been moredifficulty in recruiting people from poorer
backgrounds. Most of the community
panel members are women rather thanmen. I will come back to talk about someissues, at the end, to do with this.

Second thing is that a training
programm e for com munity panel
members was developed by the Youth
Justice Board. We asked a university to
produce a training manual for community
members. And it was for the local Youth
Offending Teams to do the training of thecommunity members. The training is sixdays, which has taken place at weekends.
S o o v e r s i x w e e k s , t h e c o m m u n i ty
members came to a training course. Thatis quite a lot of training, I think. Somepeople say it’s too much. This question ofwhether we are too w orried abou t
com munity m embers just being
themselves, so we want to train them into
little professionals. In the pilot schemes,
the training course is also acted as theway of selecting out people who are notsuitable. The system will be different
when the programme is national because
there will be a process of interviewing thepeople who want to becom e panel
members, to see if people are suitable.
But, in the pilot areas, because time wasshort, people were invited to come on the
training. And if, during the training
co urs e , t he y b eh a ve d i n a w a y t h a t
su g g e s t e d t h a t t h e y w e r e n o t v e r ysuitable, then is w as suggested tha tperhaps they should do something elsewith their volunteering. Their community
involvement could be some other kind ofactivity, but not with young offenders.
One of the problems with the training has
been that it has raised expectations of thecommunity members, which have notalways been fulfilled in practice. So there
are two specific issues that I will talka b o u t l a t e r . O n e a b o u t th e k i n d o f
information that is made available tothem in the meetings, and the second isabout the attendance of victims.
It is interesting, the researchers ask
th e c o m m u n it y m e m b e r s w h y t h e ywanted to do this because it is quite a big
commitment to give up 2–3 hours a week

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for 40 weeks a year. Some of thecommunity members said it was theirown experiences as a young person. They
had not necessarily been in trouble, but
perhaps they had some difficult times asa teenager and they wanted to try andhelp. Some people said they were worried
about the crime problem in their area andthey wanted to do something about it.
Some people said it was related to a jobthat they had previously done. Perhaps
they had previously been a probation
officer. Some people said it was a way ofgetting some experience because it mightallow them to do a job in the future in thiskind of area. So those were the main kindof motivations, the main reasons why
people wanted to do this.
The positives of what the community
panel members said were that they did
feel that it was important work that they
were doing. One or two of them said that
it was the most important thing that they
had ever done in their lives and they werevery excited by it. They felt that they
were valued and that they were wellsupported by the Youth Offending Team.
In the panel meetings, they were on thewhole impressed by the contributions
that the parents had made in thesessions. I think they had expected theparents to maybe be a problem. But theyh a d b e e n v e r y im p r e sse d w it h h o w
concerned the parents had been and thekind of care that the parents on the whole
were taking of the young people.
The disappointments—this question
about information. The evaluators foundthat they were disappointed about thelevel of information they got before thepanel meeting. And I want to come backto this question in a minute because I
think it is quite important when we’retalking about community involvement,
how much information they should haveabout the individuals. They were176

disappointed that the number of victims
was small. And they were disappointed
that the kind of things that they could
put in the contract, the kind of activities,
the kind of programmes were a smaller
number than they wanted. They weredisappointed at the range of programmes
and the breadth of programmes. So theywould be in the panel meeting and theywould talk to the young p erson andmaybe the victim and the parents. And
they would think, “What this boy (or girl)needs is a programme which would help
them find work on a Saturday morning”
or “improve their skills in this way” or“will occupy them after school on
Tuesdays” or “will get them involved insoccer because they are very interested inthat.” They were disappointed that there
weren’t these things there. They could
say “This is what w e want,” and theYouth Offending Team would say, “Well,
I’m sorry, we do not have the ability to do
all of these things.” S om etimes theym ig h t se e t h a t t he r e w a s a sp e c ia l
problem, that they needed a course on
drugs to help them become more aware
ab out drugs or to have som e specia ltreatment. These programmes aren’t
there. I think that was an overwhelming
finding, that the community members
were disappointed in that.
Now, from my point of view, I thinkthat it is important to try to turn thatdisappointment into action because it is
no good the community members justsaying “Oh, there are not enoughfacilities. There are not enough activities.
There are not enough things for theseyoung people to do.” They must try to
exercise influence to increa se thosethin gs— whether th at is in flu en ce
through their personal efforts or theirpersonal contacts (through their families
or f riends) or whe the r it is thro ughlobbying politicians to spend more moneyon th es e areas or asking for more

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
resources or more programmes. But it
w ould b e no good if you just had thecommunity members sittin g th ere
complaining, “Oh there is not enoughthings for young people in the area.” In away, that is what the youth court
magistrates already do. They make thosecomplaints. But the idea of having thecommunity members is to engage them inthe problem and to say, “This is yourresp onsibility as m embers of thecommunity, as representatives of thecommunity, these young people who arecommitting offenses, we need to sort thatout as a community. So we need to belooking at ways to improve the range ofthings. So, hopefully, it will create a kindof dynamic, a process in which there isgreater investment, a greater number ofthings available for young people to do.
So the early evidence from about 300
panels, less than half were managed to beheld within the 15 days of the referral
order being made, which is not
surprising, I think. This is a new system
and I think 15 days is too short to do all
the preparation that is required to run agood panel. Two-thirds took place after
5pm. I put that statistic down because itshows that there is some flexibility about
the timing of these meetings. The idea, if
you are going to involve the community inany kinds of activities, you have to takeaccount of the demands. It is no good if
the Youth Offending Team likes to havethe meeting at 10 o’clock in the morning.
People have jobs. So a lot of the meetings
are in the evenings. Some at theweekend. I think, if you are going to
involve ordinary people, you have to takeaccount of ordinary people’s lives. And
that is the reality. Half last more than 40
minutes. And some of them may last 2 or
3 hours. They don’t last as long as the
New Zealand conferences on the whole.
Some of them only last half an hour. We
are talking here about 1st time offenders,so there may be a theft from a shop or
something like this. So it is the first timesomeone has stolen a shirt or something
like this. There is not necessarily a lot to
do in that kind of case. So some of themare quite short. Some of them which are
more complicated obviously last longer.
The most w orrying, from my point ofview, statistic is that victims attend in
only 10% of cases. So in about 30 or sopanels out of these 300, victims came,which is very low. Much too low. I havebe en a sking f or so me m ore de ta iledresearch on why it is that the victims
have not wanted to come. I have alreadytalked about the question of speed andthe importance attached to doing things
quickly. But, as you will see, as I said,
only half of the panels were held within
15 days. So it is not simply a question of
speed. I think it is a question of skill.
There is not the skill yet in our country to
be able to talk to victims in a way which
encourages them to become involved
with out pre ssuring them to be com e
involved. It is very important, of course,
not to put pressure on a victim. “Youmust come to this panel. It is your duty tocome to this panel.” That is wrong. Thatwould be wrong. They have not done
anything wrong themselves. They havebeen the victims at this point. But, if you
just say, “Well we got this project. Come if
you want,” they’ll say, “No, I don’t think I
will.” So you have to find a way of, I
think, interviewing and talking to themso that they will think, “Y es, this issomething that I could get something out
of. And maybe it is a part of myresponsibility as a community member. I
don’t really want to do it, but I think...”A t the m o m en t, we d o no t hav e theexperience or skills to do that very well.
And we are trying to build that up andtrying to identify what training is neededin this whole question of dealing withvictims in a way which encourages themto get involved in restorative processes.

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What is good news is that contracts areagreed in almost all cases. So in 99% ofcases, the contract is agreed in the panel
meeting, which is good.
I want to just end by talking aboutsome of the emerging issues, some ofwhich are specific to this question ofYouth Offender Panels, but some of theseissues have a broader importance when
you are talking about involving
communities in Youth Justice or indeed
Criminal Justice. The first question is a
specific one and it is one that has come up
in the conference and training already. It
is this question of what we call
“proportionality.” As I said, there is not alawyer in the Youth Offender Panel. Oneof the functions of the lawyer in the New
Zealand conference is to ensure that thecon tract or th e agreement in New
Zealand is proportional, is fair, is not too
heavy in terms of the young person but is
not too light in terms of what they havedo ne. So, in N ew Zealand, as I
u n d e rs ta n d it , t ha t f u nc ti o n is th e
f unctio n of the la w yer or the Y outh
Advocate. So they can say “Hang on aminute, this is too much.” We don’t havethat. All we have as a safeguard is thefact that it is an agreement. So, if theyoung person doesn’t like it, they don’t
have to sign it. They can say, “No I would
p re fer to go to court.” Because if anagreement is not reached and a contract
is not signed, then the case goes back to
the youth court. And the young person
might say, “I don’t like to have to do all
this work, I would prefer to go to theyouth court.” And if they went back to theyouth court, they may just get a fine.
They may get a small sentence effectively
than what comes out of the panel. The
fact is that 9 9% of cases do end in acontract being signed. Some people may
say, “well, there is pressure put on theyoung person in these.” What you aret a l k in g a b o u t, a nd I ha ve h e a rd o f178children’s rights lawyer talk about thisand say “this is a terrible system because
you have one child and you have a room
full of adults. And there is nobody there
for that child.” You cannot rely on theparent to be there for that child because
sometimes the parent is the most criticalof the child of everybody. So this is notfair to the child. Now, one of thepossibilities would be to change to system
to produce some kind of safeguard. In
Scotland, where they have a similar kindof system, they do have somebody called a“sa f e gua rd e r” w h o sa f e gua r ds, w ho
protects the rights of the child. But, at the
moment, we don’t have that. So that is an
issue that has come up.
There’s also another side to this. I
mentioned that the referral order itself
can be for as short as 3 months and aslong as 12 months. But that is not a very
wide range because these are dealing
with all cases of 1st time offenders, 1sttime court appearances. Now that could
be riding a bicycle without lights, it could
be very minor offense like this. Or it could
be a very serious offense. Now, in themost serious, the court can send theperson to custody, to detention. But, on
the whole, youth court does not like tosend, particularly 1st time, offenders todetention. So we have a wide range ofoffenses but not such a wide range ofpenalties. So 3 months to 12 months is
not a huge range. So there is then thequestion, “Should the contract of theYouth Offender Panel be related to theseriousness of the crime?” Well, you
would think that is—possibly that shouldbe. But the law says the contract is about
two things. It is about making reparationand you could say “Well, the more serious
the crime, the greater the reparationnee d s to be. ” So , ye s, ther e is som e
proportionality there. But it is also about
preventing offending. What is needed toprevent this yo ung person from

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
committing a crime again? Sometimes
that would be related to the seriousnessof the crime. But sometimes not. It is adifferent question of what you need to do
to prevent the person. Now the difficultywith all this proportionality is if panelss tar t to ge t in to th es e d isc us sio ns ,somebody says, “Ah, I know what we needto help us with this! We need a lawyer inhere to help us decide these difficult
questions about proportionality.”
Lawyers are the people we don’t want in
the panels because we want the direct
participation. So this is emerging as an
issue in the panels—how much should
the community members, the chair of thepanel be concerned about this question of
proportionality. or should they say “Wellthe proportionality question has been
dealt with by the court. The court has
said 3 months, 6 months, 9 months, 12months. So now we forget aboutp r op o rt io na lity . W e c o nc en tra t e o nrepairing the harm preventing
offending.” That is my view. But there areother people who have different kinds ofviews in this. So this is an emerging
issue.
The second specific issue is this victim
attendance question. And I talked about
this alr ead y. We d o ne ed to ge t th enumbers higher. There w ill be som eoffenses for which there is no real victim.
And one of the questions that is
important in restora tive justice andimportant in the whole victim-offenderarea is what to do when the victim is a
shop or an organization rather than an
individual person. And in these cases, inmy country we are talking about quite a
lot of cases where people have stolent h in g s f r o m s h o p s. T h a t i s q ui t e acommon offense by young people. We callit “shoplifting” or “shop theft.” Now, say aboy has gone into Marks & Spencer’s,
which is an English shop, and taken ashirt—well, he probably wouldn’t go toMarks & Spencer’s. This is a Marks &Spencer’s shirt. He wouldn’t want to wear
a shirt like this. But he goes to a T-shirt
shop and takes a T-shirt with “Adidas,”that would be more like it, something likethi s, a n d he is c a ug ht a n d a Y o uth
Offender panel is arranged, who comes as
the victim? Well, it is difficult to findsomebody from the shop w ho will be
prepared to come because they have ashop to run and it is not important forthem. They have not really been thevictim. Okay, they have lost a shirt. Okay
the profits of the company will come down
a little bit because of the loss of a shirt.
But it is not real individual harm or loss
to an individual person. Now, if someone
from the shop comes, the security guardor the manager of the shop, what do they
say? Do they say, “The profits of my shop
have gone down because of your crime?”
Because the boy will then say, “I don’t
really care about the profits of your shop.
So what?” And I think there is a realissue about whether restorative justicevictim attendance works when you have a
corporate victim. It works much better
when there is an individual w ho has
rea lly suf fered som ething. Then thewhole philosophy comes into play. It isonly my view that it can be a bit false to
try and get somebody to feel shame andsorrow because of the effect on a security
guard in a shop or the manager. So you
understand the p oint I a m trying to
make. So I am more concerned about
victim attendance in the case ofindividual harm. That is, I think, where
we should try to concentrate our efforts.
We should not w orry so m uch if theattendance for these cases of the shops or
offices is low.
Final emerging issue, specific issue isabout the impact on custodial sentencing.
You’ll remember that I said the youth
cou rt, in a s eriou s ca se, can s en d
somebody s traig ht t o det en tion if

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RESOURCE MATERIAL SERIES No. 59
somebody has probably done a serious
burglary, broken into somebody’s houseor set fire to something or hurt somebody
seriously, they would probably go into
custody immediately. The problem is thatthe court, in making that decision, only
really has two choices. It has referral
order or detention. The court has nocontrol over the Youth Offender Panel.
The Youth Offender Panel decides whatis the contract. So they may not trust that
the Youth Offender Panel will come up
with a contract that is sufficient to markthe seriousness of the crime. If someone
has already had a crime, they cannot go
to the referral order. They just get dealt
with by the youth court. But then the
youth court has available a whole rangeof sentences that I talked about before:
supervision orders and probation orders,attendance sentences. But, strangely, for
1st offenders, there are just 2 things,
really. That means that young people
may be more likely to go to prison andthese places when the referral ordercomes in than they are now. So thatmight be a slight problem for the system.
It has not been anticipated, but people
suddenly realized, after this system wasintroduce d, that this wa s one of theconsequences that might occur. So weneed to watch carefully whether that isthe case.
Okay, so what are the final emerging
issues? Well, I talked about this questionof how representative the panels are. Oneof the panel mem bers told theresearchers, “We are basically middlec la s s p a n e l m e m b e r s d e a l in g w i t hworking class communities.” So “we arebasically prosperous people dealing withpoor people.” Now, the idea of the youth
offender panel is that it should not be like
that, that we should be recruiting people
from all over society to deal withoffenders. How we do that is one of the
big challenges for us. And I think it is180

partly this question of maybe 6 days
tra ining for panel mem bers puts off
certain people who don’t want to give up 6
Saturdays to go and learn to be a panel
member. Maybe that is too demanding.
Maybe they have not got the confidence to
put themselves forward for these kinds ofactivities. So I think we need to look at allof that. On this question ofrepresentativeness, this is a questionthat does have wider implications. If you
are talking about comm unity
involvement, you need to consider thiswhole question of whether the people you
are involving properly represent thecommunity. And I’m thinking about men
and women, different minority groups,
different social classes, a whole way inwhich society is made up.
Similarly, the second question that I
raise here links with the YOT (the Youth
Offending Team). One of the community
members said, “I ignore the YOT staff
and I am determined not to be a puppet
on a string.” Some community members
think that they are just there for “window
dressing,” as we say in England. They are
just there to make the thing look a s
though it is participation, but really thedecision is made by the YOT. And some of
the community members are concerned
about that. Another said, “I think that wewill be able to do the panels without the
YOT. In fact, I think it would be easier
without them.” This is the whole questionof, if you do have comm unity
involvement, the relationships with theprofessionals and how that works. Someof the professionals are suspicious of thecommunity members. They do not reallytrust them to do a good job, they are
worried. They see that this is the job thatthey used to do, being taken away andgiven to ordinary people. Some of themth i n k , “ T h a t ’ s n o t r i gh t . I w a n t t ocontinue to do that.” Now I don’t think it
is possible for the Youth Offender Panel118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
to operate without the YOT because theYouth Offending Team is preparing all of
the meetings, it is recruiting & training
the mem bers, it is providing theinformation.
I want say a little about this questionof the information because I think that, ina way, sums up one of the issues between
p rof e ssio na ls a nd the com m unity. I
mentioned before that the youth justiceorders produced this ASSET assessment
tool. When the community members wererece iving their training, they ha d asession about the ASSET tool. And the
YOT said, “Whenever a person commits acrime, we fill in this form and find out allabout their backgrounds and so on.” So
when they came to do the panels, they
expected that they would get this form
about the child, but they don’t. They justget a short summary of the information
about the case. There have been some
practical problems because they did notr e c e i v e t h e p a p e r s lo n g e n o u g h i nadvance to read them. I think a lot ofsystems have these problems. That is not
to worry so much about because we cansort that out. But I think there is a realissue about how much you tell ordinary
people. So say a child has been subject tosexual abuse when they were younger. Is
this information that should go to thecommunity panel members? Of course,
they sign confidentiality agreements, but
still, there are some professionals whoworry about this information getting too
far out. Of course, you would not give thisinformation to all of the participants inthe meeting, the victim. Or should you?
And I think there is a real question now
over wh ere i nformation sh ou ld g obecause, if a victim of a crim e
u n d e rs t a n d s t h a t t h e o f f e n d e r h a s
behaved in the way they behaved because
they have had a very bad experience, thatis not an excuse, but it might help themto understand why they have been a

victim. Is it fair on the child to put all thisin f o r m a t i o n t o p e o p l e w h o a r e n o t
professionally trained and so on? So I
think this whole question of informationand safeguards about information is quite
a difficult professional and mor al
question that needs to be looked at.
The third point is safety. One of thepanel members said to the evaluators, “Itis very nice saying that it is community.
But the reality is that some people canretaliate. So I would prefer to do panels
outside of my immediate community.” Byretaliate, what she meant was that she
was afraid that an offender who she hadseen and dealt with in the panel mightrecognize her in the street and say, “Youare the woman who made me go and do
all this community work and I don’t do it”
and he might take some revenge on her. I
think this is an important factor to take
into account. It is easy sometimes to talkabout the community as though it is a
happy place in which everybody gets onvery well. But there are conflicts and oneneeds to take account of the reality ofcommunity life. It may be that people
who are living very close to the area
where the offenders live may not be thebest peop le to do it. I think if p anel
members are expressing those concerns,
they need to be taken account of. They
need to be listened to.
And finally, there is a q uestion ofextending this system to other offenders.
W i th o u t a n e w l a w , i t h a s t o g o t oParliament. But it could ask Parliament
to agree that the system could be
extended beyond 1st time offenders toother kinds of offenders, maybe someoffenders who have already committed
one crime. So it becomes more like the
New Zealand system, more and more theway in which young offenders are dealt
with. It also allows the government tochange the kinds of offenses. So it might

181

RESOURCE MATERIAL SERIES No. 59
sa y that it is not re ally suitab le foroffenses like riding a bicycle without
lights. It is a waste of resources to have ayouth offender panel for a very smallc rime . Le t’ s f in d som e othe r way o fdealing with that. So that the kind of
range of offenders and offenses can bechanged. My view is that, if it starts towork well, and to work well we need more
victims and we need to know how many of
the contracts are properly completed—
and it is too early to know how many ofthese contracts have been completed by
the young offender—but if victims comeand are satisfied and the contracts arecompleted, I think it is potentially a goodmodel to be extended throughout thesystem.
I think that it’s very important tofi ni sh by s aying w hy I think it ’s
important. It is to do with this wholequestion of why we should involve thecommunity. As you know, I am involvedin a project which is about public
attitudes in this area towards offenders
and towards crime. What the evidence, in
my country is, is that, if you ask people
what they think about crime andpunishment, they will say “The system is
not harsh enough. We need a lot morepunishment. Offenders are getting awaywith it.” But, if you give them details of areal case, of a real offender, a real humanbeing who has committed [a crime], when
they start to see the details about thebackgrounds, where they live, the kindsof circumstances in which they have beenbrought up, the pressures on them, they
sta rt to think a nd sa y, “Well ma yb e
punishment is not going to solve thisproblem.” What the Youth Offender Paneld oes is mo ve pe ople f rom ha ving a nemotional reaction about crime—we all
don’t like crime and we must stop it—it is
not an emotional reaction. It is a practicalproblem that they have to solve. They are
representing the community in solving a

182

p ro b lem f or t ha t co m m unity . Wh e npeople are solving problems, there is not
so much room for emotions because it
doesn’t help you solve the problem. I
think the w ho le sys tem o f cr imin a ljustice, particularly for young people,
needs to have that injection of practicalrealism and sense. The Youth Offender
Panel is a model for doing that. If it does
work, it can help to produce a bettersystem for the young people, for thevictims and for the communities where
they live. Thank you very much.

A PREVENTION SCIENCE FRAMEWORK
AIMED AT DELINQUENCY
Tracy W. Harachi, M.S.W., Ph.D.*
For over ten years the U.S. has had theunfortunate and dubious distinction of
being a leader in terms of having thehighest rates of serious violent crime inc o m p a r is o n to o th e r i nd u st ri a liz e dnations. It is one of the most violent
countries by a factor of four. A census of
U.S . prisons showed that there w ere
1,284,894 people incarcerated at the endof 1999 in our correctional system. The
incarceration rate has more than tripled
since 1980. Between 1990 and mid-year
1999, the incarcerated population grew
an average 5.7% annually. This increase,in part, reflects changes in policies thath ave s oug ht to r ein for c e pu ni tiv em easures. So me state s have p asse dlegislation such as the “Three Strikes”
effort that stipulates that anyone who
commits three felonies will be
automatically sentenced to life in prison.
Projections suggest that the U.S. prison
population will only continue to grow andindustries involving prison construction
and management are burgeoning.
Are solutions such as “Three Strikes”
effective? Greenwood and others at the
Rand Corporation (1996) did an analysis
o f the c os t sa v ing s a ss oc ia t ed w ith
different prevention approaches (pre- andpost-natal home visits, parent training,
graduation incentives, intensive
supervision of adjudicated delinquents)
and the “Three Strikes” law in California.
They com pared the costs of eachintervention and examined the millions of* Social Development Research Group,
School of Social Work,
University of Washington,
Seattle, Washington, USA

dollars that w ould be averted by the
reduction in serious crimes. Costs
associated with “Three Strikes” are $5.5
billion a ye ar in C a lifo rnia and are
expected to reduce serious crime by about
21%. Reductions in crime are expected tobe less with the other preventive
approaches, 15% for grad uation
incentives and 10% for other approaches,
however because of their lower cost—
approximately $1 billion annually forgradua tion in cen tiv es an d pa ren t
training, this study suggested that for
one-fifth of the investment—graduation
initiatives and parent training can reduce
as much crime as the “Three Strikes”
initia tive. In addition to graduationin ce n t ive s a n d p a re n t in g t ra in in g,
another preventive strategy, intensive
supervision of adjudicated delinquents,
also com pares favorably in costeffectiveness with the “Three Strikes”
law. It’s important to note that the study
did not take into account future costsavings that may occur as a result of
these preventive efforts.
T hi s is j us t o ne ill us tra tio n tha t
underscores the legitimacy of prevention
in the area of crime and delinquency. It’s
important to note that prevention efforts
are not meant to replace treatment andaftercare efforts, but should be viewed as
a viable and legitimate component withina continuum of care model. In 1993, theInstitute of Medicine convened a numberof experts to examine state of prevention
science to reduce the risks for mental
disorders. This resulted in a hallmark
report that described the knowledge baseof prevention science and the emergenceof a new paradigm (IOM, 1994). Further,183

RESOURCE MATERIAL SERIES No. 59
it specified a new classification scheme
for prevention that illustrates different
types of prevention strategies to add toour spectrum of care. These three types
are universal, selective and indicatedprevention. Universal prevention
includes those strategies that shouldb e ne f it t he g e n e ra l p o p u la tio n . A ne xam ple o f a universal prevention
strategy in the area of dental health is
the addition of fluoride into drinking
water. Selective prevention strategies
targe t pop ula tions at higher risk o fdeveloping a disorder. A prenatal
programme targeting low income mothers
who are higher risk for low birthweightinf ants is an e xam ple of a selective
programme. I ndicated prevention
strategies target p opulations which
a lready dem onstrate early or initial
symptoms of the disorder. An example ofan indicated strategy includes weekly
children’s group sessions to enhancesocial skills for aggressive kindergarten
boys. Universal strategies reflect theearliest prevention component in thecontinuum of care model followed by
selective strategies. As one moves beyond
the next tier of indicated prevention, one
moves into case identification and thetreatme nt of a disorder. Beyond
treatment, our continuum of care model
includes maintenance components whichseek rehabilitation and the reduction of
relapse. The IO M report reflects thegrowing attention that is being focused on
prevention science and the increased
legitimacy that it is earning.
Prevention science draws in principle
from a public health model. A publichealth framework initially defines the
problem and then identifies risk andprotective factors associated with the
problem. Take for example the problem ofc ardiovasc ular disease. Ex ten sive
research has been conducted to examine
the prevalence and incide nce of184

cardiovascular disease within various
populations, to determine the age inwhich rates of the disease increase and tounderstand how the disease develops.
Further, decades of research now haveidentified risk factors such as a family
history of heart disease, smoking, andhigh le vels of cholestero l w hich a reassociated with an increased risk ofcardiovascular problems. Conversely, a
he althy die t and exercise have bee nshown to be protective factors that buffer
the negative effects of risk factors. In
addition to defining the problem, a public
h e a l th f r a m e w o r k h e l p s us s p e c if yinterventions to reduce the identified risk
factors and to promote protective factors
and lastly, to evaluate our efforts.
It’s important to acknowledge that thepresence of risk factors does not imply
that one will develop the disease rather itsuggests an increased “likelihood”. Eachof us may have personal examples ofacquaintances whom have multiple risk
factors associated with cardiovasculardisease yet these individuals appear togrow old without any apparent incidenceof the disease. This underscores the needto understand and investigate protective
factors. Protective factors mediate ormoderate the negative effects of risk
factors.
The public health model can be utilized
in the area of delinquency prevention andb eg in b y d ef i ning t he p ro b l e m. T he
National Youth Study by Del Elliot showsthat the prevalence of violent offenders at
age 12, 13, and 14 is low, 10–15%. The
prevalence of violent offenders rises
during late adolescence to 25–35% by age
17, and then declines back to the 10–15%
level by a ge 21. T his age dep endent
quadratic trend is common across the lateadolescent and young adulthood periods
for a variety of delinquent activities. We
also know from Moffitt’s research from

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
New Zealand, the U.K. and the U.S. that
there are two groups or two types ofserious violent offenders. One groupbegins their violent behavior at ages 15–
17 and contributes to the increase inprevalence, but few of these offenders
persist in their behavior. On the other
hand, another group that begins their
violent behavior earlier by age 12 is themost likely to persist in violent behavior,including into adulthood. In terms ofgeneral delinquency, we find that among
boys, early aggression and shy behaviorb etw een ag es 4 –6 is a s ign ifi ca nt
predictor of later conduct problems anddelinquency. Further, we see an
e s c a l a t io n o f b e h a v i o r f r o m m i n o r
p r o b le m b eh a v io r a t a g e 7 le a d s t omoderately serious behavior at ages 9–10,
serious delinquency by age 12 and initial
contact with the juvenile justice system
by age 14.

the relationship be demonstrated
longitudinally. Specifically the study
must have measured the risk factor at
one point in time a nd mea sured theadolescent problem at a later point. This
has resulted in a compilation of risk
factors associated not only withdelinquency and youth violence, but otheradolescent problem behaviors such as
drug use, school drop-out and teenage
pregnancy (see for example Hawkins,
Catalano, & Miller, 1992). What’s notable
is that there is significant overlap in risk
factors across problem outcomes.

The empirical evidence that describes
the problem of delinquency and violence
has important implications forprevention. This evidence suggests that
there are developmental periods in which
the opportunity for preventive efforts ismore salient. On the one hand,
prevention efforts may seek to target
aggressive and shy boys to derail what
appears to be a developmental trajectory
into delinq ue ncy. A nother p otential
target would be delaying the onset ofviolent behavior in early adolescence tod is c o u r a g e t h e d e v e l o p m e n t o f t h epersistent violent offender.

•
•
•
•
•
•
•

Over the last two decades, a growing
body of research has identified a numberof risk factors associated withd e l in q u e n c y , a n d o t h e r a d o l e s c e n t
problem behaviors. In order for a trait tobe identified by our criteria, there mustbe published evidence that a factor isc o ns i st e nt l y r e l a te d to th e p ro b le mbehavior across multiple studies and that

Risk factors reside in multiple domains
ranging from community level, school,
family and individual and peer. The
community environment in which a childdevelop s can a ffe ct their cha nce s ofdeveloping a problem through contextual
factors such as:Firearm and drug availability
Community laws and norms
Community disorganization
Media portrayals of violence
Transition and mobility
Low neighborhood attachment
Economic deprivation

F ire a rm a v a i l a b i l i t y a n d f ir ea r mhomicide have increased together since
the late 1950s. Laws regulating the saleof firearms have had small effects onviolent crime that may diminish after thelaw has been in effect for multiple years.
In addition, laws that include penalties
for using a firearm in the commission of acrim e have also been related toreductions in the amount of violent crime
involving firearms. A number of studies
suggest that the small and sometimes
diminishing effect of firearm laws is dueto two factors, the availability of firearms
from other jurisdictions without legal
prohibitions on sales or illegal access, andcommunity norms that include a lack of

185

RESOURCE MATERIAL SERIES No. 59
proactive monitoring or enforcement oflaws.
Neighborhoods with high populationd ensity, lo w levels of atta chm ent toneighborhood , lack of natural
surveillance of public places, and highrates of adult crime have high rates ofj u ve ni le c r im e . I t ’ s s u gg e s te d th a tneighborhood disorganization contributeto deterioration in the ability ofs oc ializ ing u nits s uc h as c hur ch e s,schools and families to pass on positive
values to children.
There has been a lot of research on theimpact of media violence on boys andgirls. Leonard Eron and others haveshown that short and long-term increases
in violence result from media exposure tov io len ce . T he str on ge st e vid e nc e isavailable for boys.
Rates of problem behavior including
d elinq uency, drug use, and d rop out
increase among adolescents following
school and residential changes. Even
normal transitions between elementaryand middle and middle and high school
are followed by increased rates of problem
behavior. Further, children incommunities characterized by frequentmoves and frequent nonscheduled school
changes are at higher risk ford e li n q u e n c y , d r u g u s e , a n d s c h o o ldropout.
Children from extremely economicallydeprived environments are at four times
higher risk of the problem behaviors. In
the violence area, children from areas
characterized by poverty, poor living
conditions, and high unemployment are
at increased risk of becoming violent inadolescence and young adulthood. While
we don’t know the mechanism specificallyfor violence in poor urban areas, it may bed ue to ex po sur e to m ultip le f a cto rs

186

inc lu di ng pover ty an d poor li vin g
co nditions, racism and lack ofopportunity, that lead to youth
developing a fatalistic outlook. Under
these conditions, deadly forces may be
mo re like ly to be e m ploy ed to solve
problems or settle arguments.
Factors ex pres sed in th e school
environment include:•••

Aggressive behavior
Achievement
Commitment to school

Th ere is co nsistent e vide nce that
identifies boys who are aggressive fromabout age 5 as being at higher risk forproblem behaviors. Additionally, boys
with hyperactivity or shyness along withaggressiveness a re a t an even m oreelevated risk for delinquency, drug abuse,and violence. Both boys and girls who get
involved in antisocial behavior in earlyadolescence,
includingschoolmisbehavior, truancy, skipping classes,
getting into fig hts, or inv olved indelinquent acts are at higher risk forserio us f req ue nt invo lvem en t in a ll
problem behaviors in adolescence.
Academic failure as a risk factor begins
to be operative in m iddle to lateelementary school, and applies to all
problem behaviors. It doesn’t seem to belack of academic ability but rather thee x p e r i e n c e o f f a i l u r e it s e l f t h a t i s
predictive of adolescent problem
behavior. These are the youngsters who
feel that school is not important and do
not care for school.
Experiences in the family that begin to
be salient early in development can also
increase the chances of delinquency.
These include:•

Family history of criminality

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS•••

Family management problems
Family conflict
Family involvement and favorable
attitudes toward crime and drug use

G r o w in g u p in a f a m i ly in wh ic hparents or siblings have a history of the
problem behavior puts a child at risk forthat specific problem behavior.

delinquency and other problem outcomes.
These include:
•
•
•
•
•

Additionally, children in families withpoor management are at higher risk of
p r o b le m b e ha vi o r . T h e r e a r e t h re eimportant characteristics of good family
management or good management ingeneral:1. clear expectations and rationale forbehavior—parents have to know what
they want and let their child knowwhy;
2. good monitoring and supervision of
behavior—if know what you want,
watch and see if you get it; and,3. consistent recognition and consequences—if you see it recognize it andcelebrate it, and if you don’t see it or if
it’s not done up to standards, apply
moderate consistent consequences.
On the other hand, inconsistent discipline and excessively harsh discipline
have been associated w ith higher
risk.
Children raised in families
charact erized b y conflict between
caregivers or caregiver-child conflict are
at increased risk of problem outcomes.
Children exposed to parental violence inor outside the home or whose parents
condone violent activity are at increased
risk of developing aggressive behavior inchildhood and violent behavior inadolescence and young adulthood.
Lastly, there are several factors that
reside at the peer and individual domain
which have been shown to be predictive of

Alienation and rebelliousness
Friends who engage in the problem
behavior
Favorable attitudes
Early initiation in the problem
behavior
Constitutional factors such as impulsiveness and sensation seeking

Child ren who feel they are
marginalized or outside of conventionalsociety are at higher risk for problem
behaviors. Additionally, rebelliousness iscurrently being examined as a risk factor
for violence.
Association with problem peers is astron g and proximate pr edictor of
problem behavior. Even children whogrow up without other risk factors but
associate with those who use drugs, aredelinquent, are violent, are dropouts, arepregna nt are at a higher risk of thespecific problem behavior. However, thegood news is that those who grow up withfewer risk fa ctors a ren’t a s likely to
associate with these types of peers duringadole scence , since individuals are
typically found in the company of peerswith similar behaviors and attitudes.
F a v o r a b l e a tt i tu d e s to w a r d s t h especific behavior enhance the risk ofdeveloping that behavior. Additionally,
several researchers have found that those
who get involved in these behaviors earlyin life are at higher risk for the frequent
occurrences of the specific behavior. Lee
Robins and colleagues found that those
who tried drugs before age 15 almost
doubled their risk of drug abusecompared to those who first tried drugs
after 19.

187

RESOURCE MATERIAL SERIES No. 59
Lastly, constitutional factors due tobiological or physiological factors (such as
low autonomic nervous system response,
Fetal Alc oh ol Syn dr ome, prenatal
abnormalities or brain trauma) are often
indicated by a behavior such as
sensation-seeking or low impulse control,and increase the risk of proble m
behaviors.
Research continues to be conducted to
update our knowledge and discovery ofother risk factors. Research continues toinvestiga te the extent to which risk
factors are salient across, for example,
different ethnic and cultural groups orgender. Additionally, research is being
c ond ucted to be tte r u nde rstand themechanisms through which the effect ofrisk on to the problem outcome manifests.
Turning now to protective factors,
much of what has been discovered
regarding protective factors is derived
through research conducted with children
exposed to multiple risk factors.
Researchers noted that many of thesechildren were able to avoid later problems
de spite high exposure to risk.
Researchers wanted to investigate whatk e e p s c h il d r e n w h o a r e e x p o se d t om ultip le risk fa ctors, protecte d a nd
motivated to develop healthy lifestyles
and not become involved in adolescentproblem behaviors. Seminal work has
been conducted by Rutter and Werner,and more recently Resnick and Blum, tounderstand the concept of protective
factors. Similar to the criteria used to
identify risk factors, their findings havebeen derived from multiple, longitudinalstudies. It’s critical to acknowledge that
protective factors are not the reverse or
opposite of risk factors. Rather these are
unique factors that mediate or moderate
the effects of risk on to the individual.

188

Protective factors derived from theempirical literature include supportive
relationships and attachment to prosocial
adults and environmental reinforcements
of appropriate coping strategies. At theindividual level, a resilient temperament,
accurate processing of cues, appropriate
problem solving and sense of self-efficacy
have been shown to act as protective
mechanisms against risk.
One theoretical framework thatincorporates the mechanisms ofprotective factors is the Social
Development Strategy (SDS) (Catalano &Hawkins, 1996). The SDS is a guide for
how families, schools, communities andpeer group s can build protective
environm ents for children. The SD S
p o s i t s t h a t b y p r o v i d in g p r o s o c i a lopportunities for involvement, skills for
involvement and rewards or recognition
for involvement, a child will increase hisor her attachment to the corresponding
positive socializing unit such a s thefamily or c lassroom. Bonding to aprosocial entity creates a social control
mechanism that discourages behaviors
w h i c h go a g a i n s t t h e b e l i e f s o f t hesocializing units. Additionally, healthy
standards and clear beliefs increase thelikelihood that the child will develop
healthy behavior.
There is a gre at dea l of e mpirica levidence regarding risk and protective
f a c to r s a s s o c ia t e d w i t h a d o l e s c e n t
problem behaviors that can be applied
within the public health framework. We
know that risk and protective factors
exist in multiple domains ranging fromthe individual and peer to the larger
environmental context of the school,
neighborhood, and community. Many
commo n risk f actors predict diverse
behavior problems. Additionally, researchsugge sts th at the m o re risk f a ctor spresent, the greater the risk, and the

118TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
gre ater the likelihood of problem
b eha viors. F urther, risk f actors a reimportant or salient at different points ind e ve lo p m e n t . T h is s u g ge s t s th a t adevelopmental continuum of prevention
p ro gra mm e s f rom pre na ta l thro ughadolescence would be appropriate. We
know that protective factors reduce theeffects of exposure to risk. The greater
the level of protection, the less likelihoodof problem behaviors. It is important to
involve each socialization institution inenhancing protection as children maturefrom family, school, and throughcommunity.
I n summ ary, com munities a nd
p ro gra mm e p rovid ers wo uld be we llserved to develop a logic model thatutilizes the public health framework. A
logic model becomes a road map to specify
the distal target of our efforts, in thisi ns ta n ce , th e r e d uc ti o n in ju ve n il edelinquency. Additionally, it specifies theproximal targets for our intervention
efforts, the risk factors that we seek toreduce and the protective factors that willb e e n h a n c e d . B y f o cu s in g o n t h e s eproximal factors, the logic model guides
u s to sele c t a p p ro p ria te p re ve ntiv eintervention programmes w hich will
target initially the proximal targets andin the long run prevent delinquency.

compliment treatment, as well as in somecases, these preventive efforts provide
both a cost savings and greater efficiency
i n p r e v e n t i n g n e g a t iv e li f e c o u r s e
trajectories.
REFERENCES
Catalano, R.F., & Hawkins, J.D. (1996).
The social development model: A theoryof antisocial behavior. In J. D. Hawkins(Ed.), Delinquency and Crime: Current
Th e o r i e s ( p p . 1 4 9 – 1 9 7 ) . N e w Y o rk :Cambridge University Press.
Hawkins, J.D., Catalano, R.F., & Miller,
J. (1992). Risk and protective factors fora lc oh ol a nd o ther d rug p ro b le m s i nadole scence and early adulthood:
Implications for substance abuse
prevention. Psychological Bulletin, 112:
64–105.
Mrazek, P. J. & Haggerty, R. J. (1994).
Reducing Risks for Mental Disorders.
Washington, D.C., Institute of Medicine,National Academy Press.

It’s clear from the increasing levels of
incarceration and high rates of violent
crime in the U.S. that simply focusing on
the treatment and rehabilitation end oft h e c o n t in u u m o f c a r e s p e c tr u m is
insufficient. Borrowing from the field of
public health, prevention science as aparadigm has come of age. There now
exists a significant body of research that
identifies risk and protective factors
associated with delinquency and otherproblem behaviors among adolescents.
These factors provide us with modifiabletargets for preventive interventions that189

RESOURCE MATERIAL SERIES No. 59
APPENDIX

Cost-Effectiveness of Early
Interventions Compares Favorably withthat of Three Strikes

PublicHealthApproach

Program
Implementation
andEvaluation

300
250

Interventions

Serious 200
CrimesAverted Per 150$Million
Dollars 100

Define the
Problem
Three
StrikesDelinquentSupervision

Graduation
Incentives

ParentTraining

0

Visits &Daycare50

Identify Risk
and Protective
Factors

CONTINUUM OF CARE

Response

ProblemDefine the Problem• What is it’s prevalence?
• When does it begin?
• How does the problem develop?

Types of Prevention• Universal• Example – Fluoride water treatment• Selective• High risk children• Indicated• Children with initial symptoms

190

Violent Offenders• 12-14 years

10-15%• Age 1725-35%• Age 21

10-15%

118TH INTERNATIONAL TRAINING COURSE
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Pattern of Delinquency• Age 4-6 Aggressiveness &shy/withdrawn• Age 7 Minor Problem Behavior• Age 9-10 Moderately Serious
Behavior• Age 12 Serious Delinquency• Age 14 First Contact with Court

Risk Factors Reside in
Multiple Domains• Community• School• Family• Individual / Peer

Risk Factors for Heart Disease

What are Protective Factors?

• Example: Family history of heartdisease• Buffer the effects of risk exposure• Increase likelihood that disease willdevelop• Demonstrate results in multiple studies• Risk factors are associated with heartdisease• Demonstrate results in longitudinalstudies• Not 100% guarantee

V io le n c e

S ch o o l D r o p -O u t

T een Pr egn an cy

D e l in q u e n c y

R isk F ac tor s• Multiple, longitudinal studies haveidentified risk and protective factors thatpredict delinquency, substance abuse, youth
violence, dropout and risky sexual
behaviors.

S u b st a n c e A b u se

Adolescent Problem Behaviors
Research Base to Identify Risk
Factors for Delinquency
C o m m u n it y
A v a ila b ili t y o f D r u g s

A v a ila b ili t y o f F ir e a r m s







C o m m u n it y L a w s a n d N o r m s
F a v o ra b le T o w a rd D r u g U s e,
F i r e a r m s , a n d C r im e

T r a n sit io n s a n d M o b i lit y

L o w N e i g h b o r h o o d A tt a c h m e n t a n d
C o m m u n it y D i so r g a n iz a t io n







E x t r e m e E c o n o m ic
D e p r iv a ti o n



  



M e d ia P o r t r a y a ls o f
V io le n c eUsed by permission of Developmental Research and Programs

191

RESOURCE MATERIAL SERIES No. 59

Violence

Teen Pregnancy
School Drop-Out

Risk Factors

Substance Abuse
Delinquency

Adolescent Problem Behaviors

School
Early and Persistent    
Antisocial Behavior
Academic Failure Beginning    in Late Elementary School

Lack of Commitment to
School    

Protective Factors• Family–Supportive relationships–Attachment to prosocial adults• Environmental– Reinforce and support coping

Used by permission of Developmental Research and Programs

V io le n c e

Sch o o l D ro p -O u t

T e en Pr eg n a n c y

D elin q u en c y

R isk Factors

S u b st a n c e A b u se

Adolescent Problem Behaviors

F a m ilyF a m ily H ist o r y o f t h e
P r o b lem B e h a v io r    

F a m ily M a n a g e m e n t
P r o b lem s    

F a m ily C o n f lic t    

F a v o r ab le P a r e n t a l A t t it u d e s
a n d In v o lv e m e n t in t h e P r ob le m 
B e h a v io rProtective Factors• Individual–Resilient temperment–Accurate processing of cues
–Good problem solving–Sense of self-efficacy

Used by permission of Developmental Research and Programs

The Social Development Strategy
Healthy Behaviors

Violence

School Drop-Out

Delinquency
Teen Pregnancy

Risk Factors

Substance Abuse

Adolescent Problem Behaviors

Healthy Beliefs&
Clear Standards

Individual/Peer
Alienation and Rebelliousness
Friends Who Engage in the    
Problem Behavior
Favorable Attitudes Toward   the Problem Behavior
Early Initiation of the    
Problem Behavior
Constitutional Factors Used by permission of Developmental Research and Programs

192

Bonding•Attachment•Commitment

Opportunities

SkillsIndividual
Characteristics

Recognition

118TH INTERNATIONAL TRAINING COURSE
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The Social Development Strategy
PublicHealthApproachGang Involvement
Unhealthy Beliefs&
Clear Standards

Interventions

Bonding•Attachment•Commitment

Opportunities

SkillsProgram
Implementation
andand
Evaluation

Recognition

Individual
Characteristics

DefineDefine thethe
Problem

Identify Risk
andand Protective
Protective
Factors

Generalizations About Risk
and Protective Factors• Risk and protective factors are found in
multiple domains• The more risk factors present, the greater
the likelihood of problem behaviors• Protective factors reduce the effects of
exposure to risk

Logic Model
Intervention

Generalizations Continued• Common risk and protective factors predict
diverse behavior problems• Risk and protective factors show muchconsistency in effects across different
groups• Risk and protective factors should be used
to target preventive action

Response

Problem

ProximalTargetProblemTargetLogic Model
Intervention

ProximalTargetProblemTargetParentEducation

Risk Factor:
Family Management

Delinquency

Protective Factor:
Attachment

193

RESOURCE MATERIAL SERIES No. 59

Prevention Science Principles• We have empirical evidence of risk andprotective factors that should be targeted by
our intervention efforts.
• Address risk and protective factors at
appropriate developmental stage• Intervene early

194

PREVENTION SCIENCE PRINCIPLES FOR INTERVENTION
Tracy W. Harachi, M.S.W., Ph.D.*
There is growing consensus that a risk
reduction and protective factor
e n ha nc e m e nt a p p ro a ch is th e m o st
promising approach across a number offields. Interventions that seek to both
reduce risk and enhance protection in
multiple socializing domains will likely bemore effective towards achieving our goalof supporting the healthy development ofc hild r e n. T h e N a t io na l A c a d e m y o f
Sciences, the Institute of Medicine, andseveral U.S. fede ral governm ental
agencies including the Departments of
Education and Justice, Office of Juvenile
Justice and Delinquency Prevention,
Centers for Substance Abuse Prevention
and Mental Health Services, and theCenters for Disease Control have adopted
a nd supported a risk a nd protective
f o cu se d a p p ro a c h to p r om o tio n a n dprevention.
Today, many promotion and prevention
i nte r v e nt io n s th a t r e d u ce r is k a n denhance protection have demonstrated
effects in interrupting the processes that
produce adolescent problem behaviors(including violence, crime and substanceu se ) , a s w el l a s p ro m o tin g p os itiv edevelopment (academic success, socialand emotional competence). This is asignificant increase from the early 1970’s
when a review was conducted on behalf of
the O ffice of Ju venile Justice an dDelinquency Prevention of all existingdelinquency prevention programmes withstrong evaluation designs that were
sufficiently rigorous and demonstrated* Social Development Research Group,
School of Social Work,
University of Washington,
Seattle, Washington, USA

effectiveness. Of nine programmes withstron g e va lu atio n, only on e show e dpositive results.
I n de linq u en cy p re ve ntio n, m a ny
alternative programmes were tried in theearly 70’s, in which youth were removed
from their urban environment and given
a rural or wilderness challenge type ofexperience; for example, a programmecalled National Intervention Programme
Using Minibikes (NIPUM ) which
consisted of motorcycle riding in thedesert. What we know f rom theevaluation of these programmes is thatinvolvement alone did not appear to
reduce delinquency. While many of theseexperiences were attractive toadolescents and staff, especially innerci t y a d o l e s ce nt s , m o s t o f th e e a r ly
programmes made no effort to change thebasic criminal environment the children
were exposed to on a daily basis. Further,often th es e experiences had little
applicability to children’s lives when they
returned from these outings.
Research has provided us with a set of
preventio n p rinciples f ro m w hich tooperate when considering intervention
options to optimize effectiveness. These
principles include the following:•••

Preventive interventions should focus
both on reducing risk and enhancing
protection.
Preventive
interventions
shouldtarget individuals exposed to higher
levels of risk.
Address risk and protective factors at
developmentally appropriate stages
and whenever possible, intervene
early.

195

RESOURCE MATERIAL SERIES No. 59••

Use data to select priority risk andp r o te cti ve fa cto r s in d e sig na te dcommunities.
Select preventive interventions thathave empirically demonstrated
effectiveness to target the prioritizedrisk and protective factors.

The first principle emphasizes thatprevention strategies should focus on
reducing risk factors and enhancing
protective factors in order to maximize
effectiveness. Both an individual’s level ofr isk and le ve l of p r ote ctio n m a ke adifference. Research has shown that highlevels of protection are not likely to befound in high risk environments. As sucha nd giv e n lik e ly li m ite d re so u rc e s,another principle suggests it is essential
to target individua ls exposed to thehighest levels of risk and the lowest levelso f p r o te ct io n. I t’ s lik e ly t ha t the s eindivid uals will b e cluste red; hence
identifying community areas exposed tohigh le vels o f risk and lo w le vels o fprotection becomes critical.
In order to provide maximum strengthof in terven tion , another prin ciple
suggests that interventions should bechosen which address risk and protective
factors at appropriate developmental
stages. Some risk factors affect children
early in life. These should be addressed
early and new risk factors that are salient
l a t er in l if e s h oul d b e a dd res s e d a s
children mature. The earlier we intervene
the greater the likelihood that we will beable to change risk factors and patterns of
behavior. If we wait until fam ily
m anage me nt pro ble m s produce anabused or neglected child we may havew a it e d t o o l o n g t o p r e v e n t a lo t o fdamage. Therefore, we need to create adevelopmental continuum of prevention
with programmes appropriately placed tor e d u c e r i s k s a s s o c ia t e d w i t h e a c hdevelopmental period.

196

Let’s look at data produced from ourwork with six states in the D iffusion
Project (NIDA funding, PI: Hawkins).
School children in this study represent a
statewide sample and have responded tosurvey questions on risk and protective
factors and problem behaviors. Figure 1
examines the prevalence of thirty day
alcohol use by the number of risk andprotective factors reported by the youth.
As the number of risk factors increase,
the general trend for alcohol use also
increases. Additionally, as the number ofprotective factors increases prevalence ofu se lo w e r s. F ig u r e 2 e x a m i n e s th eprevalence of arrests in the past year also
by number of risk and protective factors.
A similar pattern is portrayed with theprevalence of arrests in the past year
highest for those youths with the lowest
level of protection and highest number ofrisk factors.

118TH INTERNATIONAL TRAINING COURSE
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Prevalence of 30 Day Alcohol Use by Number of
Risk and Protective Factors
Six State Student Survey of 6th-12th Graders, Public SchoolStudents
100%
90%

Number ofProtective
Factors80%

Prevalence

70%

0 to 1
2 to 34 to 56 to 78 to 9

60%
50%
40%
30%
20%
10%
0%
0 to 1

2 to 34 to 56 to 78 to 910+

Number of Risk Factors

•
•
•
•

Relationship Between Risk andProtection
The more risk factors the greater theprevalence of alcohol use.
Black line (top line) is the group withno protective factors.
Red line (bottom line) has the most,
6–7 protective factors.
The more protective factors— thenegative effects of risk go down.

197

RESOURCE MATERIAL SERIES No. 59

Prevalence of Arrests in the Past Yearby Number of Risk and Protective Factors
30%

Prevalence

25%
Protection, Level 0

20%

Protection, Level 1
Protection, Level 2

15%

Protection, Level 3
Protection, Level 4

10%
5%
0%
L=0

L=1

Risk Factor

L=2

L=3

L=4

Copyright permission from Developmental Research & Programs

Relationship Between Risk andProtection• Similar relationship for arrests inpast year.
• The difference between 1 and 3 risk
factors doesn’t seem so strong.
• Having 4 or more risk factors seems
to reach a critical level where
protection is more important.
These data illustrate both the need tofocus on risk and protection, as well as
highlight the impact of greater exposure.
The following figures also from the
Diffusion Project illustrate the principlethat risk and protection can be identified
in geographic clusters. Information suchas this can help determine geographic
priorities in terms of identifying areas ofgreatest need.

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118TH INTERNATIONAL TRAINING COURSE
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Maine Student Risk Factor Profile
Risk Quartiles
44.38 to 48.39
Aroostook

41.21 to 44.37
Piscataquis

36.63 to 41.20
Somerset
Penobscot

19.91 to 36.62

Franklin

Washington

Kennebec Waldo

OxfordHancock
Percentages compiled from the 1995
Maine Student Survey, Grades 6-12

Androscoggin
Knox
Sa LinCu
ga col
da n
mb
ho
erl
c
an
d
York

Social Development Research Group,
University of Washington
Six State Consortium for Needs Assessment P.I.: Andrew O'Donovan
Supported by the Center for Substance Abuse
Prevention; May 1996

Maine Student Protective Factor Profile
Protection Quartiles
36.10 to 47.39

Aroostook

30.85 to 36.09
Piscataquis

27.65 to 30.84
Somerset
Penobscot
Franklin

OxfordKennebec Waldo

Androscoggin

24.71 to 27.64
Washington

Knox

Sa LincCu
ga oln
mb
da
ho
erl
c
an
d

Hancock
Percentages compiled from the 1995
Maine Student Survey, Grades 6-12

York
Social Development Research Group,
University of Washington
Six State Consortium For Prevention Needs
Assessment Studies - P.I.: Andrew O'Donovan
Supported by the Center for Substance Abuse
Prevention,; May 1996

199

RESOURCE MATERIAL SERIES No. 59
While these figures illustrate areas ofneed, they do little to help diagnose theindividual risk and protective factors thatshould be targeted. Information is needed
to determine which factors are at higher
levels and therefore should be the focus of
our intervention efforts. Let’s take forexample two neighborhood risk profiles.

The first neighborhood “A” has a uniquerisk factor profile. For this neighborhood,peer antisocial behavior and attitudes
favorable to antisocial behavior appear tobe the risk factors at higher levels asreported by youth in this community.
Th is is fo llo wed by e a rly antiso cial
behavior and sensation seeking behavior.

Risk Factor Profile, Neighborhood A
1.00
0.80

Z-Score Value

0.60
0.40
0.20
0.00
-0.20
-0.40
-0.60
-0.80

Priorities for Neighborhood A(i) Peer Antisocial Behavior(ii) Attitudes Favorable to Antisocial
Behavior(iii) Early Antisocial Behavior(iv) Sensation Seeking Behavior

200

Rebelliousness

Sensation Seeking

Peer Antisocial Behavior

Peer Rewards for Antisocial Behavior

Early Initiation of Antisocial Behavior

Antisocial Behavior

Attds. Favorable to Antisocial Behavior

Low School Commitment

Low Academic Achievement

Family History of Antisocial Behavior

Family Conflict

Favorable Family Attitudes

Poor Family Discipline

Poor Family Management

Laws and Norms

Perceived Availability

Transitions and Mobility

Community Disorganization

Low Neighborhood Attachment-1.00

118TH INTERNATIONAL TRAINING COURSE
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Z-Score Value

Risk Factor Profile, Neighborhood B
1.00
0.80
0.60
0.40
0.20
0.00
-0.20
-0.40
-0.60

Priorities for Neighborhood B
Family History of Antisocial
Behavior(ii) Early Initiation of Antisocial
Behavior(iii) Antisocial Peers(iv) Low Academic Achievement(v) Transitions and Mobility(i)C ontrast the risk profile ofneighborhood ”A” to the risk profile forneighborhood ”B”. For this neighborhood,a family history of antisocial behavior isreported as a higher level of risk by youth
in this community. This is followed byearly initiation of antisocial behavior andi nv o lv e m e n t w it h a nt is o ci a l p e e rs .
Further, youth in Neighb orhood “A”
report that low academic achievement
and high transitions and mobility are thenext more frequent risks. On the other
hand, poor family management including
p o o r f a m ily d iscip lin e ap p e ar to b e
relatively low risks in this neighborhood.

Rebelliousness

Sensation Seeking

Peer Rew ards f or Antisocial Behavior

Peer Antisocial Behavior

Early Initiation of Antisocial Behavior

Antisocial Behavior

Attitudes Favorable to Antisocial Attitudes

Low School Commitment

Low Academic Achievement

Family History of Antisocial Behavior

Family Conflict

Favorable Family Attitudes

Poor Family Discipline

Poor Family Management

Law s and Norms

Perceived Availability

Transitions and Mobility

Community Disorganization

Low Neighborhood Attachment

-0.80
-1.00

Using the inform ation from theneighborhood risk profiles, we would
develop distinctly different logic models
to specify both our targeted risk factors
and chosen interventions. In
neighborhood “A”, we would prioritize
peers who engage in antisocial behavior
as our proximal target. Consequently, we
might choose an intervention such as
parent education and training to reduce
negative peer associations. In contrast forneighb or hoo d “B”, fa m ily histo ry o f
a n ti s o c ia l b e h a v i o r i s t h e p r io r i ty
proximal target and therefore we mightchoose an intervention such as prenatal
an d inf a ncy hom e b ase d service s toaddress this factor. It’s critical to notethat the selection of priority risk factors
does not mean that other factors are notimportant. Rather prioritization helps
with targeting programming to areas
most in need.

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RESOURCE MATERIAL SERIES No. 59
One of the last prevention principles
suggests that using programmes withdemonstrated effects in well-controlled
studies increases the likelihood that the
programme will be positively evaluatedand reduce the priority risk factors andenhance priority protective factors. It isparticularly important to use evidenceb a s e d p r o g r a m m e s t o in c r e a s e t h echances of successful risk reduction andprotection enhancement.
Multiple U.S. federal agencies now
require com munities to utiliz eempirically supported programmes when
sp en ding gove rnm e nta l b lo ck gra nt
funds. For example, the U.S. Departmentof Education requires communities tos e le ct a p r og ra m m e f r o m its lis t o fapproved programmes when utilizing
f un ds f ro m th e S a f e a nd D rug F re e
Communities Act. Other organizations
such as the Office of Juvenile Justice andDelinquency Prevention have publishedthe “B lue Prints Progra mm e” w hichhighlights programmes that havedemonstrated effectiveness. Anotherexample is the Center for Mental HealthServices that has a listing for promising
violence prevention programmes. Whilethe criteria to demonstrate effectivenessvaries across agencies, these programmes
are required to affect a change in either aproximal risk factor or protective factor ora change with the target problem
behavior. Additionally, the results must
be derived from studies that have either
an experimental or quasi-experimental
design.
The accountability of where publicdollars are being spent has significantly
increased. Encouraging communities toimplement programmes that havedemonstrated effectiveness increases thelikelihood that money will be spent on
programmes which will reach theintended goal of reducing adolescent202

problem behaviors such as delinquency.
Therefore more and more agencies are
adopting this type of emp irically
sup ported me nu-driven a pp ro ach tointervention selection. The challenge toprevention scientists and community
programmes is to ensure that research be
co nducted to p rovide the needed
empirical support for promisingprogra mm es. M ore over, p reventio nscience offers a set of principles that can
assist com munities in allocatingr e s o u r c e s to w a r d s m a x i m i z in g i t ’ s
prevention efforts.

PARTICIPANTS’ PAPERS
INSTITUTIONAL TREATMENT AND MANAGEMENT OFORGANIZATIONS FOR JUVENILE OFFENDERS IN MALAYSIA
Teh Guan Bee*I. INTRODUCTION
This country report confines its scope
to two challenges: institutional treatment
and management of organizations ofjuvenile offenders. The institutional
treatment programme we have today in
Malaysia was only introduced after theSecond World War. It has been shaped bymany factors, including British colonial
involvement, the teachings of Islam anddistinctive geographical and population
characteristics.
The infrastructure for the treatment ofjuvenile de linq uents, as with social
d evelop me nt in M a laysia, is closely
linked to British colonial involvement in
the region prior to independence in 1957.
Ma ny practices and some legislationg over ni ng the c ar e and c on tr ol ofjuveniles still date from this era of Britishcolonial rule. This is most clearly evident
in the Juvenile Courts Act 1947 which isstill operational today. However, newcomprehensive children’s legislation will
be introduced in Malaysia for the newmillennium.
The Juvenile Courts Act 1947 wasintroduced essentially to prevent and tosalvage children and adolescent who
would have otherwise taken to a life ofcrime. Later in 1950, the Juvenile Court
Ordina nce (The Place s of De te ntion
Rules) was also introduced. Another Act,The Children and Young Persons Act,* Principal,
Sekolah Tunas Bakti (Juvenile Boys Home),
Malaysia

1947 was intended to protect and preventchild abuse and neglect. The Adoption
Ordinance 1952 and the Registration of
Adoption, 1953 was intended to safeguard
the rights and status of children.
All these A cts w e re intro duced in
response to the social upheavals brought
about by the Second World War. In atransition from a traditional society to anind u str ia l o n e , t he co m m u ni tie s in
Malaysia (Malays, Chinese, Indians andothers) experienced a disruption to theirtraditional balance, so these Acts cameinto being.
The Juvenile Court Act 1947 provides
the legal and administrative
infrastructure for the arrest, detention,
trial and treatment of juvenile offenders.
In the treatment of juvenile offenders, thecon cep t ‘ child fr ie nd ly’ is given theprio rity w here the w ell b eing of theinmate is of utmost importance. This is inline with the seventh strategic objectiveof Malaysian Vision 2020 where it seeks
to establish “a fully caring society and acaring culture”.
II. TREATMENT OF JUVENILE
OFFENDERS IN MALAYSIAIn Malaysia, the treatment of juvenile
offenders is placed under the preview of
the Social Welfare Department, as it
considers that the delinquents are asymptom of maladjustment. As such, amore humanistic approach is being used
to deal with the delinquent behaviour.
Based on this understanding, social work
approach towards helping in the203

RESOURCE MATERIAL SERIES No. 59
rehabilitation of the juvenile is by meansof processes such as family centred casew o r k , c o u n se ll in g, g ro up w o r k a n dcommunity. The salient aspect of thisapproach is the inculcation of life skills
that include coping skills and vocational
skills for their ultimate social
reintegration into society.

Members of the public are encouraged
to be involved by providing trainingf a c i l i t i e s . T h e y p la y a v it a l ro l e i n
ju ven ile cr ime con tr ol a part fr om
providing jobs and on-job skill training.
Besides, they also contribute efforts ininculcating socia l, m oral values andworking habits in young offenders.

The programme as discussed earlier iss upported by b oth leg islativ e an dadministrative infrastructure to provide
compulsory treatment. The treatment
modalities contained in this programme
have treatment facilities both within theco mm unity and in institutions. T heprocess of treatment and rehabilitation ofjuvenile d elinquents is sho wn inappendix A.

Under the Juvenile Courts Act 1947,
a n d T h e C o n s t i t u t i o n s a n d D u ti e s
Re gul a tions 1 9 76 , J uvenile We lfa reCommittees in all district levels havebeen appointed by the Minister to workwith the P rob ation Off ice rs. In thisre spe ct, p ro b a tion o rd er s a r e give npriorities. The Juvenile Welfare
C om m itte es are e ntr uste d with the
responsibilities to guide and organize
re c re a t io na l, e d uc a tio n a l, m ed ic a l,
psychiatric and mental health facilities
for the juvenile and the family as a whole.
Besides, the juvenile is also encouraged tochannel their energies with constructive
and wholesome activities such as
camping, jungle tracking and mountainclimbing.

A. Treatment Within the Community
Community treatment for offenders
has a positive effect on juveniles. The
Probation O rder given by the courts
allows the Probation Officers or the Social
Welfare Officers to carry out treatment
and re habilitatio n in the op e n. T he
Probation Officer, who is assigned thesupervision of the case, works with thejuvenile, his family and his immediate
environment. There are instances whereth e P robation O fficer has to wor k
separately w ith the juvenile a nd his
family because of strained relationships.
While the juvenile temporarily resides in
the hostel, the Probation Officer works
hard to improve their relationship. Othercase work efforts involved reinstating thej u ve n i le ba c k to s ch o o l if p o ss ibl e ,arranging for medical treatment, fortraining facilities and placing in
employment, or enabling the juvenile toe ng a ge in s o m e in c o m e - g e n e r at in g
projects. While in the hostel, the juvenile
is allowed to continue his formal
education in a normal outside school.

204

Service Clubs such as Lion Clubs,
Rotary Clubs, and many others comeforward to sponsor such programmes.
The community awareness in promoting
the c once pt o f a “Caring So ciety” isimportant. With concerted efforts, theconditions of the family and the juvenile
are assured of his rights and dignity of
being part of the community. Recognizing
the im p orta nce of no n-institutio na lmeasures, the “adoption” scheme is avehicle to encourage the participation by
voluntary organizations and individuals
in the community. The members of theJuvenile Welfare Committee who arenormally well-known and well-respected
members of the Community take in one
or two juveniles into their supervision.
The Juveniles will then be introduced to
the residents associations, neighbourhood

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
committees and religious bodies so thatthey will be under better supervision
giving the Probation Officer more time forother complicated cases which require
professional case work and counselingsessions. In this manner, the juvenile
feels more accepted in the community
with easy accessible and regular contacts
with the neighbours and people who care.
The rate of success is encouraging.
B. Institutional Treatment
In Mala ysia , the system generally
encourages treatment within thecommunity. Institutional treatment is tobe considered as a last resort. In addition
to this, the re are further protective
provisions regarding institutionalizing ajuvenile. They are:•••

A child under the age of 10 years shallnot be sent to an Approved School.
A child under the age of 10 years
cannot be made to reside in a
Probation Hostel.
An offender below the age of 14 years
cannot be sent to a Henry Gurney
School.

The institutional treatment forjuveniles consists of two modalities in
Malaysia. One being a closed institution
or advanced Approved School, that isunder the administration andmanagement of the Prison department;
and the second, an open institution or
A p p r o v e d S c h o o l t ha t is u n d e r t h e
Department of Social Welfare.
Juveniles who have committed more
serious crimes or those who have notmade good in other modalities oftreatment are normally admitted to theadvanced Approved School for treatment
under more rigid security. Even though
under different departments, thetreatment is geared towards preparing
the juvenile from the very instant hesteps into the school for his ultimate
reintegration to society.
The juveniles in the Approved Schools
are subjected to rules and regulations in a
structured environment. Daily routines
are strictly adhered to. Nonetheless, childrights and treatment under the Child
Right Convention is implemented
carefully and monitored. This is also inline with the Malaysian concept of “Child
Friendly” and “Caring Society.”
Therefore, punishments in any form,
are only given by the head of institution,
strictly in accordance to the Approved
Schoo l Rules. A record for all
punishments is properly maintained forinspection. Corporal punishments are thelast form of punishment when otherforms of punishment are just as effective.
1. Sekolah Tunas Bakti (STB)
This institution is an Approved Schoolfor the detention and rehabilitation of:(i) Juveniles who are involved in crime.
(ii) Juveniles who are beyond parental
control.
The Approved Schools are run on an
open institutional concept maintaining as
far as possible full access to thecommunity at large. The School in reality
is o n e c o m p o n e n t o f t he tr e a tm e n tcontinuum.
R ef er ra ls to S TB ar e ma d e und er
section 26 through 33 of the Juvenile
Co urt A ct 1 9 4 7 a nd re s ul t i n C our tOrders placing boys as young as 10 inApproved School training for amandatory period of 3 years.
A Juvenile is a person who has
attained the age of criminal responsibility
prescribed in section 82 of the Penal Code205

RESOURCE MATERIAL SERIES No. 59
and is und er the age of eighteen
according to the Juvenile Court Act 1947.
The re are eight Approved S chools
throughout Malaysia. Six in Peninsular
Malaysia, one in Sarawak and one in
Sabah. Out of these eight schools, six arefor boys and two for girls.

Eighty five percent of the institutional
staff are full-time staff. The head of theinstitution is a professionally trained
personnel with a team of social workers.
Under the Approved School Rules, every
inmate has to be supplied the following
components:(i)

Th e o b je c tive f or t he se A pp r o ve d
S ch ool s is to prov ide t he ju veni leoffenders with education that is geared
towards positive attitudes and characterbuilding, promoting and improving theircap acities so that they can bereintegrated back into society as well aslive a more independent and beneficial
life.The programmes in these Schools are
geared towards preparing the juvenile
from the very instant he steps into theschool for his ultimate return to his
family and society.
2. Admission
Admission to the Approved School is by
Court Order.
3. Period of Rehabilitation
Rehabilitation in this institution is fora period of 3 years. However, a resident
may be released on licence before theexpiry of his/her rehabilitation period by
the Board of Visitors subject to his/her
progress but not earlier than 12 months
from the date of admission.
4. Administration
The administration of the Approved
School is guided by the Juvenile Courts
Act 1947 and Approved School Regulation
1981.
5. Services
Care and Protection
The training and treatment ininstitutions are also directed towards theprovision of adequate care and protection.

206

Facilities/Accommodation
These juveniles a re he ld in sem i
secure facilities designed to look lesslik e p r is o ns an d m o r e li k e hi g hschools. Their living environment isdesigned to meet their needs. They
live together in the dormitory where
they have to learn to live together.
STB facilities include administrativebuildings, dormitories, workshops forv o c a t io n a l t r a i n in g , c l a s s e s f o r
academic studies, a dining hall, abakery, an indoor hall and a seminarroom. STB is also equipped with otherfacilities like a library, computerroom, gymnasium, sick bay, TV room,
washing area and surau for prayers.
With all these facilities, theindividual treatment, education both
vocational and academic, and dailyneeds of the juvenile offenders are
more than met.

(ii) Food
Adequate basic need such as food isprovided . J uve niles a re served 6
meals daily—breakfast, morning tea
bre ak, lunch, eve ning tea bre ak,
dinner and supper. Every inmate
should be provid ed by theadministration at the usual hour withfood of nutritious value, based onscales recommended by the Ministryof Health. Food served varies fromday to day according to the menu
prepared by the staff and approved by
the Director-General of Social Welfare
Malaysia. The daily menu rotates
every six months so as to provide a

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
varied type of balanced and nutritious
food to promote physical and mental
development. This is a necessary
requirement to be met.
(iii) Clothing
Articles such as clothing, shoes andslippers are provided by theadministratio n. The inm ates are
however allowed to wear their own
clothes during their leisure hours, so
for those parents who can afford top r o v id e s u c h c l o t h i n g, th e y a r eallowed to do so. These inmates arere q ui red t o w a s h a nd k ee p t heir
clothes clean as well as to observe
personal hygiene. They are required
to wash regularly and every once aw eek the juveniles’ bed linen are
washed. This is supervised by theHouse Master (Welfare Assistant) incharge of each dormitory. In someschools, washing machines areprovided.
(iv) Medical Treatment/Care
Inmates suffering from minor
ailments are treated at the sick bay
by staff. Those suffering from serious
illnesses are taken to hospital for
more intensive treatment. For thoserequiring dental treatment, they arealso taken to the government dental
clinic for treatment. M edical and
Health Units also pay regular visits tothe schools to give medical and healthservices.
(v) Daily Needs
Inmates are supplied with necessary
items of personal hygiene such ast o o t hb r u sh e s , to o th p a st e , s o a p ,towels, underwear, and others. Such
articles are sometimes supplied byfamilies who can afford to do so.
Every child is given a daily allowanceof 50 sen for pocket money by theGovernment for those not schooling,whereas for those who are schooling,
they are given RM1.50 for pocket
money. This money can be used to buy
necessities such as the above or they
can request to use the money to buy
their favourite food stuff. Most ofthem go for fast food like Kentucky
Fried Chicken.
Counselling and Guidance
The inmates are given counseling andguidance to overcome their emotional andpsychological problems. Towards thisend, the Principal and the Social Welfare
Assistants regularly held individual andgro up co un seling se ssion s and ca se
c o n f e r e n c e s . C o u n s e ll in g is a v e r yimportant component as it provides anopportunity for the juveniles to express
their feelings openly with the goal ofresolving personal issues and problems.
This will help them to solve specific
p ro b le m s as w e ll a s to d isc o n ti nu e
inappropriate, damaging, destructive or
dangerous behaviour.
The focus of these counseling sessions
is to enable the juvenile to overcome theiremotional and psychological problems aswell as to develop coping skills and life
skills to function effectively in society. As
these inmates require care andsupervision 24 hours d aily, eachdormitory is put under the care of a
House Master (Welfare Assistant) to offer
more personalized care, social counselingand moral training.
Academic Studies(i) Inside Institutions
The educational programmes include
education and training, inside andoutside the institution. Inmates whoare still schooling are allow ed tocontinue the ir f orm al e duca tion.
Formal education is provided in the207

RESOURCE MATERIAL SERIES No. 59
i ns tit ut io n til l th e p r im ar y an dsecondary level.
Inmates who are school dropouts andhave not attained the educational
level w hich allow them to attend
normal schools outside are required toattend educational classes which are
specially arranged for them to acquiresufficient literacy. For those illiterate
inmates, they are taught based on the
3M curriculum in order to at least
learn how to read, write and count.
With these basic skills, it is hopedt h a t t h e y ca n a t l e a s t a cq ui r e a
training programme based on theired ucatio nal le ve l. J uveniles w hocannot attend the normal school but
have go od potential are given
correspondence courses and tuition
within the institution.
Education is an important componentof rehabilitation in the institution. It
is clear that education is obligatory
for all juvenile inmates by taking into
consideration their different levels.
(ii) Outside Institutions
Inmates are allowed to attend normal
schools during the day, outside their
institution. Inmates who are eligible
for upper secondary education are
en couraged to do s o. For th os e
inmates who are interested inlearning how to use the computer,they are taught so.
Religious/Moral education
Religious instructions and facilities areprovided for all inmates irrespective ofcolor, race and religious observance andpersuasions. Muslims are escorted to
prayers in mosques. For these Muslims, a
special religious teacher is employed
p a r t- tim e to in str uct th e m in the ir
religious classes while non-Muslims aretaken to temples and churches for weekly

208

prayers. Voluntary religious groups also
give them religious and moral education
within the institution from time to time.
Vocational Training
Vocational Training is anotherimportant component of rehabilitation.
Taking into consideration that many of
the juvenile offenders are school
dropouts, the training programme drawn
up for each inmate must be appropriate
to their educational standard. The ability
and preference of each inmate is also
given due consideration for the type ofe m p l o ym e nt lik e l y t o b e a va i la b le .
Vocational training is provided with thehope that after their release from theinstitution, they will be able to secure
employment based on the skills acquiredby them.
V o c a tio n a l t ra i nin g ( f o r B o ys) i n
different skills are as follows:
•
•
•
•
•
•
•
•
•

Carpentry/wood carving/canefurniture and work
Motor mechanics
Welding
Electrical wiring
Handcraft
Compressing bricks and brick laying
Bread/cake making
Plumbing
Agriculture/Animal rearing

V o ca tio na l tra inin g ( f o r G irls) indifferent skills are as follows:
•
•
•
•
•

Domestic work/cooking
Tailoring
Embroidery
HandcraftCatering

Institutions have embarked on the ideaof inviting private companies to assist
and p articip ate in the training
programmes to upgrade the standard to a

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
marketable level not only standard of
products but also the quality of training
and skills which are in demand in theprivate sectors. The private sector is also
encouraged to establish jointly in thef a c tor y situ a tio n fo r th e o n- th e- jo b
training and ultimately to absorb theminto employment. This joint venture
programme is known as Smart
Partnership and has been carried out inmany of these Approved schools. Under
this smart partnership, inmates undertraining are paid a daily allowance of
RM15 to 20. So far, this joint venture
involved skills like carpentry, motor
mechanics and bread/cake making.
Sports and Recreation
Inmates should be employed in outdoor
work with at least one hour of suitablephysical exercise in the open air daily. Ifthey wish, they may play sports such assoccer, basketball, takraw, volleyball,table tennis, netball and badminton.
There are football fields, a volleyballcourt, a badminton court, a sepak takraw
court, a basketball court as well as aclosed gym. They may also play indoor
games like carom and chess. Sporting
con tests are sometimes organ ized
between the juveniles in other states orother representatives of normal schools.
Thus, they get an opportunity to be incontact with the outside world.
Recreational and cultural activities
also include playing musical instruments
and traditional musical instruments liket he kompa ng, participa ting i n b ra ss
b ands and learning cultura l dances.
Besides that, juveniles may watch TV
programmes and videos in the eveninga n d a t n ig h t a s w e l l a s d u r i ng t h eweekends and holidays. They may also
listen to the radio till the time theyshould go to bed. They can read books,
ne w spa pe rs a nd ma ga zine s in theirlibrary and also borrow books from thelibrary.
Thes e recreational and culturalactivities are provided for the benefit of
the mental and physical health of theinmates. I nm ates are encoura ged top a r tic ip a te in t he v a r io u s f o r m s o frecreation to maintain good health, toutilize their leisure time and to cultivate
good relationships among themselves.
Privileges
Inmates are occasionally taken for
picnics, camping trips and visits outside.
They are also allowed, under necessary
supervision, to communicate with theirfamily and reputable friends at regularintervals both by correspondence and byreceiving visits.
Discipline
Discipline is encouraged through asystem of rewar ds and pr ivileges.
D e s ir a b le b e ha vi o ur is e n co u r a g e dthrough a book system which is tied up
with rewards and privileges. This system
focuses on specific behaviour modification
through deprival of privileges. It has its
positive element as it provides facilities toearn back lost privileges within a shorter
period of time through the performance ofsome task job. The forms of rewards andprivileges tied up with the system arepocket money, home-leave, outings, filmshows, visits, early release, etc.
Board of Visitors
Each Approved school has a Board of
Visitors, which comprises of not less thanseven Members who are appointed by the
Honourable Minister of National Unity
and Social Development. The Board of
Visitors is responsible for:•

Providing assistance towards theresident’s rehabilitation programme

209

RESOURCE MATERIAL SERIES No. 59••

Guaranteeing smooth and efficientmanagement.
Making recommendations on the
management of the institution to theauthorities.

Follow-up Supervision
A juvenile who has been released fromthe Approved School is placed under thesupervision of the Probation Officer foro n e y e a r . A j uv e ni l e w h o h a s b e e nreleased on licence is placed on licence by
the Probation Officer until the period of
the order expires.
C. Case Management System
Juvenile delinquency refers to the
behaviour of non-adults which violates
the rules and regulations set by thegovernment or society. Juvenile
delinquency globally has been a serious
p roblem and the concern of all. The
nature and magnitude of juvenile
delinquency differs from place to place.
The root causes are many and diverse.
Case studies reveal tha t the m ain
contributing reasonsaretheconsequences of economic, social, culturala nd m o r a l p ro b le m s l e a d i ng to th e
breakdown of families, poverty, domestic
violence, polygamy, a degeneration ofvalues and civility.
In Malaysia, juvenile delinquency is
c los ely a ss oc ia te d w ith p o or f a m ily
attachment and failings. The inclination
towards juvenile crime often arises fromfactors at hom e. Poor parenting
behaviour, lack of love and care as well as
violence in the family are among the
ma in rea sons w hy children resort tocrime.
Havingunsatisfactory
relationships as well as having grown up
in these neglected and poor
environments, children are driven intodelinquency problems. Deviant behaviour

210

is often the result of an unstable andunloving home life.
Delinquency violence is often linked tolack of parental supervision, parental
rejection, lack of parental involvement
and poor disciplinary practices. Childabuse or neglect, poor marital relations,parental absence and large family size
are also among the factors that turnjuveniles towards anti-social activities
and eventually, crime. Juvenile crime isalso attributed to lack of positive
interactions with parents or others andinconsistent discipline as well as
inadequate or inconsistent parenting
skills.
A similar trend is found in MalaysianSociety. It is evident the family plays asignificant role in shaping the juvenile
delinquents. The majority of our juvenile
delinquents come from broken homes andare either illiterate or school dropouts. As
suc h t he m e tho ds o f tr ea tm e nt andmanagement of these juveniles can be
full y un ders tood on ly a gain st t hebackground of these important factors
influencing them. Needless to say that inparticular, the national crime picture andthe national value system and that theeconomic structure and social system of
our society play an important part informulating policies, legal guidelines forthe treatment and management of thesejuvenile delinquents.
In the implementation of the law, inac co rd a nc e wi th th e na tio n al le ga lsystem, the well being of the juveniles
from their early childhood and cultural
background should be the focus of any
preventive and treatment programmes.
The rapid increase of juvenile
delinquency saw the introduction of someforms of legal system including penal
laws. The system must ensure positive
correlation and responsibilities, which

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
help the development of young offenders
with specific roles for the family andsociety. It is imperative for the system tostrike a balance between the protection of
the child and protection of society. The
system has to devise innovativea p p r o a c h e s t o up ho l d th e r ig ht s o fchildren in conflict with the laws without
undermining their needs. In this respect,
the most significant legislation in thiscou ntry wa s t he en act men t of th eJuvenile Courts Act in 1947 and theRules of the Approved School, whichd efine d m inim um sta nda rd s for thetreatment and rehabilitation in
institutions.
1. Juvenile Courts Act 1947
This Act categorizes juveniles into
Children and Young Persons. A “child”
means a person under the age of fourteen
whereas a “young person” means a person
who has attained the age of fourteen
years and is under the age of eighteen.
Under the Juvenile Courts Act, a juvenile
charged for an offence appears before aJuvenile Court where a Juvenile Court
judge would preside. The age in question
for the court to impose judgement is theage at the time of the offence.
Juvenile offenders are handled andtreated separately from the adults. The
detention of minors with adult suspects isin contravention of the Juvenile Courts
Act 1947, which clearly prescribes themanner in which minors are arrested,d e ta in ed a nd tri ed . U n de r th e la w ,juveniles are recognized as being
different from adults and as such areaccorded different treatment.
A juvenile w ho is a rrested ca n b edetained for up to 24 hours and thereafter
a court remand order is required. This isprovided for under the C riminal
Procedure Code. He has to be detained
away from the adult suspect in a police

station or remand home or hostel. The
Act also states that while under
detention, a juvenile must be prevented
from associating with an adult offenderand if a girl offender must be under thecare of a woman. The detention awaiting
trial is restricted to a minimum period oftime so that the case will be disposed as
early as possible.
Immediately after his arrest, the police
must inform a Probation Officer andp a r e n ts o r g u a r d i a n o f t h e a r r e st .
Offenses of a lighter nature are given bailor bailed by the parents or guardian who
w i ll e n s ur e th e j u ve ni le o f f e nd e r ’ s
presence in court. More serious offencesor those where parents are not found are
rem a nd e d in the R e m a nd Ho m es or
Probation Hostels.
2. Constitution of Juvenile Court
A j uv e n il e ca n o nl y b e tr ie d in aJuvenile Court, which is very different incomposition and procedure from othercourts. It is presided over by a Juvenile
co ur t ju d g e w ho i s a ss is te d b y tw o
a d v is e rs , o ne o f w h o m i s u su a l ly aw o m a n . T h e s e a d vi s e r s a d v i se t h emagistrate in the selection of thetreatment programmes suitable for thejuvenile. It is not a n open court andcomprises only of court officials, parties tothe cases, parents/guardians, lawyers
and witnesses. Newspaper reporters areallowed to be present with permission
granted by the Magistrate. However, theycannot reveal the name, addresses orschool or any particulars that may lead tothe identification of the juvenile.
Procedure in the trial also differs fromthe trial of an adult. The Court has toexplain the charge to the juvenile insimple language and ask him whether heunderstands and admits the facts of thecase presented. If he does not, witnesses
will be ca lled an d the juve nile m ayquestion the witness.

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RESOURCE MATERIAL SERIES No. 59
He may also choose to m ake astatement instead of questioning thewitness. The court will then ask
questions. If the offence is proved, thecourt shall obtain a probation report toenable it to make a decision in the bestinterest of the juvenile. A juvenile cannot
be sentenced to death by the Juvenile
court. A young person who is jailed will
not be allowed to associate with adultprisoners. Instead, he will be sent to anadvanced approved school or suitably
dealt with in other ways in society.
3. Manner of disposal of Cases
There are several dispositional options
provided under the law to deal withjuvenile offenders:
•
•

•
•
•
•
•

212

To admonish and discharge theoffender;To discharge the offender upon his
entering into a bond to be of good
behaviour and to comply with such anorder as may be imposed;
To commit the offender to the care ofa relative or other fit person;
To order his parents or guardian to
execute a bond to exercise proper careand guardianship;
Without making any other order, or in
addition to an order under paragraph(c) or (d), make a probation order
To order the offender to pay a fine,compensation or costs
To order the offender to be sent to an
approved school or Henry Gurneyschool (advanced approved school);and where the offender is a young
person and the offence is punishable
with imprisonment, the court may
impose upon him any terms ofimprisonment which could beawarded by a Sessions court, or if thecourt considers that its powers areadequate, commit him to the High
Court for sentence. It is evident thatthe general trend in the court orders

is to a llo w the off ende r a second
chance to correct himself/herself.
4. Probation Order
The Probation Order has the same
effect as the suspended sentence for
adults. The placement of the juvenile
under the supervision of the Probation
officer is an effective and alternative
treatment to institutional treatment. The
offender will be told and explained to insimple language the effect of the orderand that if he fails to comply with theorde r and its cond itions or com mits
another offence, he shall be liable to be
dealt with for the original offence as well
as for the other offence thereafter. A
Probation Order could be made for aminimum of one year to a maximum of
three years. Under certain circumstances,
should the home environment not be
c o n d u c iv e , t h e c o u r t c a n o r d e r th e
offender to reside for a period of twelve(12) months in a Probation Hostel for
close monitoring of his behaviour andconduct
This approach involves his family andits e nv iro n m en t. T he f a m ily a s theprincipal unit for transmission of values
for social, moral and educational growth,should be regarded as the important
agent of change for the offender. Since
juvenile delinquency is viewed primarily
as an offshoot of the breakdown of thefamily, therefore strong emphasis isplaced on supporting and strengthening
the family unit as a preventive device. At
the same time the relationship of thepolice, the courts and probation officers
are deemed crucial in working towards
the same goal. The probation supervisee
is brought back to the courts for review
from time to time. The Probation reportwith detailed information pertaining to
his behaviour and conduct is discussed.
The duration of the probation supervision
can be shortened if his behaviour is found118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
to have improved and justified for such
revocation of the original order.
5. Client Management System (CMS)The juveniles admitted to the approved
schools are subjected to specific rules andregulations under the Approved School
Regulation 1981 as mentioned earlier.
Besides that, the Department of Social
Welfare has also drawn up som e
guidelines in a system known as Client
Management System (CMS). CMS is usedby the staff in the Approved School tohelp and guide them in the managementof the inmates from the day they step into
the school till the day of release. This ise spe cia lly use fu l fo r th ose ne w a n d
inexperienced staff.
Information and guidelines areprovided on every aspect involving themanagement of the juvenile offender in
the institution. Aspects such as
registration of the inmate, the forms to be
filled, medical check-ups for inmates,
briefing on rules and regulations, basic
necessities to be provided, etc. are drawn
up carefully, keeping in mind the wellb eing of the juvenile off ende r. CM S
p r o v i d e s d e t a il e d i n f o r m a t i o n a n d
instructions on the procedure of each andevery aspect mentioned above. CMS alsostresses on the duties of each and every
officer. It has provision for the time frameof each task given to the staff for the
management of each new case right fromthe first day the inmate steps into theschool till his last day in the institution.
6. Behaviour Modification
The discipline of the Approved School
is maintained by a system of reward,
privileges and punishments. This system
encompasses the fab ric of behaviour
modification using rewards to reinforce
good
behaviourand‘punish’undiscip lined behaviour within aprogressive grading system. It creates a

co nd u civ e a t m os p he re a n d p o sit ive
change. Every inmate’s behaviour is
ob se rved b y the staf f a nd re cor de d.
Misbehaviour and undisciplined conduct
receives some sort of punishment. The
punishment in the form of forfeiture ofprivileges such as pocket money,
deprivation of shopping, outing, homeleave, etc. The most effective action iswhen points or marks are deducted foreve ry misd emea nour or misconduct,
preventing him from climbing up theladder of grading from lower to higher
grade. The juvenile depends solely on his
grade for home leave and early release.
This system, however, has its positiveelement to provide facilities allowing him
to earn back lost privileges through theperformance of some tasks. The systemcreates an atmosphere of competitive
growth and positive check on misconduct.
It is one of the most effective
measurements of treatment programmes
in institutions.
7. Behavioural Assessment
Initial be havioura l assessme nt isconducted by observing the juvenile’s
conduct and personality during the periodo f o n e m o n th o ri e n ta t io n a f te r th eadmission. The house parents counselors
ma inta in and inte nsify ra p port a nd
confidence with the juvenile concerned.
During the orientation, all behaviour,interests, weaknesses and strengths of
the juvenile are recorded. At the end of
the month, detailed records are produced
for discussion for the purpose of planningtraining programmes for the juvenile.
The juvenile will then be placed in aworkshop of choice in which he showskeeninterestandpotential.
Simultaneously, the House parents andother Welfare assistants following theplan of action, continue to work with thejuvenile to correct his weaknesses andencourage positive social development. At

213

RESOURCE MATERIAL SERIES No. 59
this stage, the focus is on juvenile-worker
centred relationships where the House
parents are fully involved and participate
in the juvenile’s programme to ensure thesuccess of the treatment plan.

mandatory period of a year’s after-care.
During the licence and after-care period,
the probation officer effects supervision
over the dischargee and assists him toadjust to his environment.

Skill and behavioural assessments in
respect of his behaviour, personality,
attainment of education and vocational
skills are conducted at regular quarterlyintervals. A sse ssm ent and p rogress
reports are forwarded to the probation
officer for the information of the parents
as to what transpired in the institution.
In return, the probation officer submits areport to the institution regarding hishome environment, parental response,
employment and future plan.

W ith th e c o nc e rte d e f f o rt s o f t heprobation officer and the School, it ishoped that once released, the juvenile ismore then ready to be reintegrated backinto so ciety and to lead a more
independent and beneficial life.

It is evident that management of thejuvenile in the institution is gea red
towards preparing the juvenile from thevery instant he steps into the school for
his ultimate return to his family andsociety. While the school works with thejuvenile, the probation officer works withh is f am i l y t o b r in g a b o ut s uf f ic ientchanges in his home environment for thejuvenile’s ultimate return. Throughout
the juvenile’s stay in the institution, a
two-way feedback is maintained between
the school and the probation officer.
8. Release
Release is arranged after the probation
officer who has been working with thefamily has provided a full report on thes ui ta bil ity of the juvenil e’s hom e
condition and a suitable occupation has
been arranged for him. A juvenile can bereleased on licence or on conditional
discharge before his original period ofcommittal expires. During this period, hecan be recalled to the school, if he is not
performing well outside, to complete thefull period of his order and if necessary,
his period of stay is extended by anothersix months. In addition to this, there is a214

D. Case File/Record System
O n th e a d m issi o n o f the ju ve n ile
offender on his/her first day, the Welfare
Assistant in-charge has to open a newp er so nal file f or th e d e taine e . Th is
personal file on the detainee contains thefollowing information on the detainee:
•
•
•
•
•
•

Personal particulars of the detainee
Court Order
Probation Report
Charge Sheet
Medical Report (to show detainee isfit for traveling)
Parents’ Written consent for Medical
treatment.

This file is kept in the Administrative
office and is maintained by the officer incharge of the case.
A Record System is available to record
the following:
•
•
•
•
•
•

Admission of inmates
Daily attendance book
Log Book for Duty Officers
Personal belongings and valuables of
the inmates
A Record to record punishments
meted to them
A Record to record Merit and Demerit
Points118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS•••

A Daily Record for each teachert e ac hing d if fe ren t a ca d em i c a n dvocational skills.
A Monthly Report made by eachteacher of academic and vocational
skills.
A Record of fire drills conducted by
the staff

I n keeping w ith the gove rnm ent’s
effort to establish an E-Government, all
the STB are equipped with computers.
The Social Welfare Department is in theprocess of setting up a database system ina ll the S TB to ke ep a nd compile
information on juvenile offenders. Some
STB have set up a record system for thesejuvenile offenders in their institutions.
III. MANAGEMENT OFORGANIZATIONS ON
INSTITUTIONAL TREATMENT
A. Strategic Utilization Of Limited
Financial Resources And
Maximizing Cost
The continual developm ent ofresidential care and control of juvenile
offenders in Malaysia is closely linked tothe ava ilable financia l resources for
management of these institutions. Thea ll o c a t io n o f r e s o u r c e s t o f u n d t h einfrastructural develop ment andoperations of the system is fundamental,
but in a fast developing country like
Malaysia where its government is facedwith a multitude of other just ascompelling priorities, sometimes it may
n ot be adequa tely addressed. Th e
financial costs associated with residential
care of these juvenile offenders are high.
I n this re spect, besides theGovernment Agency, different actors
such as local NGOs, communal groups
and volunteers also have a vital role top la y i n p r o v i d i n g v a r i o u s f o r m s o f

assistanc e. Pa rents o r guard ians ofjuvenile inmates who can afford it, arealso req uired to contribute a certain
amount of money through the Court
Order. This amount may be small, about
RM50 to RM100 that is depending on theincome of the family but it may in a way
help to make the family moreaccountable.
Normally, an institution consists of 35–
40 staff, including both temporary andpermanent staff to supervise about 150 to
200 inmates. As these inmates requirecare and supervision 24 hours a day,sometimes it may be difficult to offer
more personalized care, social counselinga nd m o ra l t ra i ning a s t he s t a ff a reresponsible not only for the care andcounseling of the inmates but must also
h a n d l e a l l a d m i n is t r a t iv e m a t t e r s
relating to the institution. Hence, thein m a t e s a r e t r a i n e d t o he lp in t h emaintenance of the institution. Chores
m a y in clu de d ut ie s lik e ga rd e nin g,
cutting the grass, helping in the kitchen
and maintaining the cleanliness of theschoo l. By training them to b e se lf proficient, at the same time they also help
to reduce the costs of maintaining theinstitution.
In some Approved Schools such as STB
Taiping, the inmates are trained in theskill of making bread and cakes. Besides
learning a skill, the bread they make isused to feed the other inmates in theinstitution as well as the inmates of theO ld F o l k s ’ H o m e , a n o th e r W e l f a r e
Institution. At the same time, this also
helps to generate income from the sales of
br ead and buns to the public. T heinmates learn to be self-sufficient as wellas to minimize the cost of maintaining
the institution.
Active participation is also practised at
the lo we r m a nag e m en t le ve l in t he215

RESOURCE MATERIAL SERIES No. 59
i n st it ut io n s th r o u gh T h e B o a r d O f
Visitors. These gazetted board members
are usually individuals of respectables ta nd ing a nd inf lue nce in the lo ca lsociety, professionals and experienced
retired government officials. This board isusually very active in getting funds fromthe public through fund raising activities
such as Jogathon, Food Fair, etc. Local
NGOs like the Lion Club, Rotary Club
etc., also play a part by donating somemoney or basic necessities for the use of
the inmates.
B. Staff Training
Since all the Approved Schools areu nde r the jurisd iction o f the Soc ial
Welfare Department, the well-being andthe best interests of the juvenile offenderin the institution are of utmost
imp ortance. This is in line with thegovernment’s concept of a caring society.
Hence, staff training is very important inthis aspect.
Sixty percent (60%) of the staff in these
institutions are Social Welfare Officers so
their training is mostly on social workand cou nseling. T he So cial W elf ar e
Department’s own Institute is available
to train its own staff at the Federal level.
A t the S ta te le vel, the re is a a lso a
T ra ining U nit e a ch to assist in th et r a i nin g o f s t a f f i n a s p e cts s u ch a s
admission and supervision procedures.
Sometimes in-house training is provided
in the institution itself.
The increasing nature and magnitudeof juvenile delinquency require more
specialized treatment and counseling.
There is a need to have experienced andtrained counselors to see to their different
needs. In order to overcome this problem,
more counselors should be trained. In thisrespect, the Social Welfare Department
has taken steps to collaborate with a local
university in its efforts to train its staff in

216

diploma counseling. However, it is scarce
for any staff posted to the institutions, tohave an opportunity to go for training
overseas.
C. Managing Public Relations andObtaining Public Trust
Many in Malaysia haveamisconception and negative attitude
towa rd s juvenile delinquents. In its
efforts to bring these juvenile offenders
back into the fold of society after theirrelease, the staff in the institutions haveto correct this misconception. At the sametime, they must liaise with the public togain public trust.
In the past, the technical processes ofplanning,
m anagement
andimplementation of programmes in theinstitutions were left in the expert handsof its sta ff. Th ese process es w ere
considered and regarded as out of bounds
to members of the public, but today such
trends are changing. It is not uncommon
now for the government agency to seek
assistance from the public. One suche xa m p le is th e c o lla b o ra tio n o f t heinstitution a nd private sector in its
training programmes for the inmates,
whereby through a smart partnershipprogramme, the vocational skills of theinmates are upgraded. With this joint
effort between the two, the inmate canupgrade his skills as well as to prepare
himself for a reintegration into society.
Bes ides, it is hoped t hat with thetraining, Malaysia can achieve its dreamand objective of obtaining more trained
skilled workers in the future. However,
the actual exercise of planning, managing
and implementing is still in the hands ofthe government servants.
Community support and participationin the rehabilitative efforts is also drawn
through the Juvenile Welfare
Committees at district levels. These118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
committees comprise members of the
public who assist Probation Officers insupe rvising juvenile s, finding them
employment, arranging training facilities
and most of all making them feel accepted
into the com munity. The wholep r o g r a m m e i n v o lv e s p r o v i d i n g t h ejuvenile not only with coping skills but
also a stress-reduced environment to copewith.
The Department also has programmes
for establishing more Probation Hostels
amidst housing schemes in preference forlong institutionalised treatment. This is
in line with both its concept of a caring
and child friendly society. In the case of
the family of the juvenile offenders, help
in the form of various financial aids fromschemes administered by the department
is also provided. With these efforts geared
towards the well being of the juvenile
offender, it is hoped that public trust is
obtained.
Another effort to gain public trust is
through the Client’s Charter (as shown inAppendix B) for the Approved School.
Through the Client’s Charter, it is hopedthat responsible and fully committed staff
will help to improve the services provided
to the inmates. This will help to makethem more accountable to the public.
With the improvement in quality, publictrust is obtained.
The institution also tries to mobilize
the expertise and resources of NGOs. Its
clo se ra pp o rt with th e NGOs wo uld
inevitably help them in terms of resourcem o b i li z a ti o n . T h e v o lu n t e e r s f r o minternational welfare-orientated NGOs
such as the World Health Organization(WHO) and Japanese Overseas
Cooperation Volunteers (JOCV) haveresulted in the running of several social
projects such as the Community Based
Rehabilitation Programmes throughout

the country. This has helped to improve
tremendously the quality of professional
input in the institutions involved. In
terms of financial aid or grants, throughtheir international parent bodies, local
NGOs could hold sem inars andco nf e re nce s o n soc ia l is sue s. T he sese mina rs and co nf erences have a lso
helped to sustain family participation in
the care, education and control of theirchildren.
IV. CONCLUSION
In summary, a n attempt ha s beenm a d e to r e v ie w th e p r ac t ic e in th e
in sti tu tio n a l t re a tm e n t o f j uv e ni leoffenders as well as the management oforganizations providing institutional
treatment to the juvenile offenders aspractised in Malaysia. Specific mention
has been made to programmes carried out
in institutional treatment of the juvenile
offenders in the Approved Schools (STB).
Reference was also made to practices
used in the care and control of juvenile
inm a te s r ef e rr e d to the re sid e nt ial
Approved Schools by a Juvenile Court
system that still reflects the influence ofBritish colonial traditions. Mention wasmade to the New Bill which is expected to
be implemented sometime in the near
future. Finally, issues relating to the
management of organizations providing
institutional treatment to the Juvenile
offenders were also highlighted for theongoing developm ent of juveniles in
Malaysia for the 21st Century. It is hoped
these issues will contribute to ongoingprofessional and social policy debates as
the nation enters the new millennium
and a s efforts are made to transla te
Vision 2020 into reality for all Malaysia’schildren.

217

RESOURCE MATERIAL SERIES No. 59
Appendix A
PROCESS OF TREATMENT AND REHABILITATION FOR JUVENILE
DELINQUENTS

ARRESTED BY LAWENFORCEMENTBEYOND PARENTALCONTROLPRODUCE IN
JUVENILE COURT

REMAND ORDER

ON BAILPROBATION INVESTIGATIONPROCEDURE IN COURT FOR HEARING

COURT ORDER FOR
REHABILITATIONINSTITUTIONAL
TRAINING -3 YEARSPROBATION ORDER-1 -3 YEARSLICENSED/AFTERCARE SUPERVISION-1 YEAR

REDUCE/EXTENDPROBATION ORDER

CASE CLOSEDDISCHARGED OF
PROBATION ORDER

218

SUPERVISION ORDER(NOT EXCEEDING
3 YEARS)CASE CLOSED118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Appendix B
CLIENT’S CHARTER(For Approved School)
We are committed to provide services of quality at all times to inmates under ourcare by:
•
•
•

•
•

•

•
•
•
•
•
•

•

Giving care, protection, guidance,
counseling and service for the wellbeing of the inmates.
Strengthening the image and identityof each inmate
Ensuring the physical and mentald eve lo pm ent an d gr ow th o f ea chindivid ual under its care in a
comfortable, safe and harmonious
environment.
Carrying
out
beneficial
andmotivational activities.
Providing academic studies andvocational training in keeping with
their potentials and age as well as
providing adequate guidance andfacilities.
Providingreligiousandmoral
ed ucatio n as w ell as f acilities inaccordance to their own religion andbeliefs.
Helping to facilitate job opportunities
f o r i nm a t e s a s w e l l a s a d e q ua t e
support
Providing balanced diet, medical andd e n ta l s e r vi ce s a s w e ll a s b a s ic
necessities
Being ready to help inmates in timesof emergency and difficulties
Concentrating on good moral values
and conduct.
Ensuring the confidentiality ofinmates
Striving and facilitating a closer
relationship and rapport among theinmates themselves as well as
inmates and family/staff.
Providing facilities and a safe
environment for the care andprotection of the inmates••

Encouraging self-discipline
Advocating a healthy lifestyle.

219

OPERATIONAL ISSUES IN INSTITUTIONAL TREATMENT
AND COMMUNITY-BASED TREATMENT METHODS FORJUVENILE OFFENDERS IN SRI LANKA
R. Sunethra Gunawardhana*[BSc. sp. (zoology), PG. Dip (Colombo,) S.L.A.S]
I. INTRODUCTION
At this time, where great attention ispaid regarding children, the time is ripe
for the implementation of rehabilitation
programmes needed for juveniles who
have gone astray. Sri Lanka is a
developing country in the Asian region
and the reason for the increase in thenumber of children who get used to wrong
deeds & behavi ou r is du e to theirinvolvement in various difficulties which
is a problematic situation.
In the legisla tive enactments, themeaning for “child” is illustrated in many
ways. There is some confusion in Sri
Lankan Law as to the definition of a“child”. Different laws define a “child”
differently.
•

The penal code specifies crimes
relating to children of the ages of 8,
10, 12, 14, 16, 18.
The Children and Young Persons
Or dina nce d ef ine s a “child ” a s aperson under 14 years of age, and a“Young Person” as a person between
the ages of 14 and16 (below 16
years—Juveniles)
Under the Employment Women,
Young persons and Children
Ordinance, a “child” means a person
under 14 years of age, and a “young••* Provincial Commissioner, Department of
Probation and Child Care Services,
Badulla, Sri Lanka

220

•
•

person” means a person who is over
14 years but is under 18 years of age.
According to the children’s charter of
Sri Lanka a child means any person
under the age of 18.
In Sri Lanka, several Institutes/
Departments are formed to mediate
and take decisions regarding children,
where necessary.
- Courts- Department of probation andchildcare services- Police Department- Prison Department- Labour Department

A. Juvenile Offenders
T h e in i ti a l s t e p s w i th a j u ve ni leoffender are taken by the Police, therelevant reports are supplied by the
Department of Probation and Childcare
service s. Decisions are ta ken b y the
courts and rehabilitation activities areprovided by the Department of Probation
and C h ildc a re Se rvic es . The pr iso n
department takes decisions for children
whom imprisonment is necessary andwhe re child lab our is concerned theD e p a r t m e n t o f L a b o u r o f f e r s t h e ir
services. Due to the 13th amendment of
the Constitution, the function of theProbation and Childcare services cameunder the Provincial Councils. The Law
Courts, Police, Labour Department andPrison Department are under the Central
Government. Institutional rehabilitationand community based rehabilitation ofchildren are directly under the Provincial
Department of Probation and Childcare

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Services. For this reason Institutes areformed on a Provincial basis.
There are four remand homes(sepa rating the males from females)
where the children are kept separatingthem from the adult offenders until they
are produced in court.
B. The Objectives of this Report
I would like to discuss the following:
•
•
•
•
•

•

The lawful oaths pertaining tochildren in Sri Lanka.
The present state of the institutional
rehabilitation activities.
The organizing structure and usage ofresources of the institutes connected
to institutional rehabilitation.
Problems and issues encountered in
the above activities.
How to implement community based
treatment processes to child offenders
in Sri Lanka and the institutions
connected thereto.
Problems and issues in that process.

C. The Aims of the Institutional
Rehabilitation Activities
The aim s of the institutional
rehabilitation activities are as follows:••••

Mental development of children
Increase development of professional
training opportunities
Moulding towards good qualities
To make an individual acceptable tosociety

A lthough experienced staff are
required for this purpose the dearth ofsuch staff is a main problem. Anotherp ro b le m is t hat the incr ea se in th enumber of children is not parallel to thenumber of institutes. The children who
cannot be rehabilitated by the communityb a se d system a n d those o the rs w h ocannot b e rehab ilita ted in the hom eenvironment due to the gravity of thecommitment are directed to institutional
tra ining. Children not intereste d ineducation show voluntary interest in theprofessional training units. It should bestated that the main objectives of thisinstitutional rehabilitation training are
to train the child offender to a suitablea n d p r o f it a b le p r o f e s si o n , t h e r e b ycontribute towards the development of
the country. Due to economic deficiency
in Sri Lanka the contribution from thef a m i ly u n i t , t o w a r d s f a m il y b a s e drehabilitation is less, and as a state, suchinstitutes are maintained with limited
financial & human resources. It could beemphasized that the activity ofrehabilitation is not an easy task.
II. THE LAW
In this chapter we will consider the lawthat is applicable to juvenile offenders.
The Children’s Charter, Sri Lanka’s
version of the CRC, will not be discussed
because it lacks binding authority upon
the judiciary.
A. The Children and Young Persons
Ordinance (CYPO)The CYPO. No. 48 of 1939 (asamended) continues to function as thebasic law dealing with children.
••

It provides for the establishment ofjuvenile courts; located separatelyfrom others in a different building orroom, to be presid ed over by aMagistrate to the hearing of cases
involving “juvenile offenders”. The
proceedings of such courts are notopen to the general public.
To protect the privacy of the child, theCYPO prohibits the publication ofreports of any proceedings before ajuvenile court, or proceedings
involving a child in any other court.

221

RESOURCE MATERIAL SERIES No. 59
•

•

•

•

The CYPO established categories ofdifferent “offenders”,(i) “Child”—a person who is under
the age of 14 years.
(ii) “Young person”—attain the age of
14 but not 16.
(iii) “Youthful person”—reach the ageof 16 but not 22 years.
The CYPO specially deals with thedetention of the arrestee who comesunder the category of “Young
Persons”. They are required to be kepts e p a r a t e d f r o m a d u l ts in p o li c estations and courts.
The
CYPO
stipulates
severalr e q u ir e m e n t s in r e la ti o n t o t h eproceedings involving children in thejuvenile court;(i) The court should explain mattersto the child in simple language.
(ii) If the offence is an indictable one
under the Penal code, the court
shall ask the child whether hewishes to be tried by it or a higher
court.
(iii) The children should be informedthat they have the right to consult
with their parents or guardians
before making the decision.
The CYPO spells out the punishments
and sanctions which can be imposedu p o n c h il d r e n w h o f a c e ju d i c ia lproceedings under its provisions.

A “child” cannot be imprisoned, while“young persons” can be imprisoned only ift he co u rt c e rt if ie s th a t th e y a r e s o“unruly” or “depraved” that they cannot
be institutionalized.
Alternatives to imprisonment(i) An offender under the age of 16—
could b e se nt to a re ma nd hom e(detained to produce at the Courts)
for a period not exceeding one month(ii) An offender between the age of 12–
16—could be committed to a certified
school for a period of 3 years.

222

B. The Penal CodeThe Penal Code of 1883 was amended
by the Penal Code (Amendment) Act No:
22 o f 1 9 95 w hi ch ca me int o force i n
October 1995. It is the basic (main) legal
docum ent which describes thepunishment and sanctions for offences.
The amendments introduced several new
sections relating to offences committed bych i l d re n ( m i n i m u m a ge o f cr i m i n a l
responsibility is 8 years).
These are:•••Obscene publications relating tochildren for the purpose of adoption
and custodial rape of girls under theage of 16.
Cruelty to children (covers illtreatment, neglect, etc.)
Sexual exploitation of children.

C. Probation of Offenders
Ordinance No: 42 of 1944
(Amended in 1947, 1948)
On the matter of probatio n of“offenders”, this ordinance is applied. It is
used as the community based treatment
method. This ordinance applies to amend
the law relating to the release of
offender s on pr ob ation and to thesupervision of such offenders, and top r o v i d e f o r t h e e s t a b li s h m e n t a n dadministration of a Probation Service.
D. Youthful Offender (Training
Schools) Ordinance. No: 28 of1939 (amended in 1943, 1944)
This ordinance makes provisions forthe establishment of training schools, forthe detention, training and reformation ofyouthful offend ers a nd for p urp ose s
connected therewith. Youthful offenders
between ages of 16–22 who have been
convicted of certain offences and haveprevious convictions or have violated
probation orders.

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
In terms of judicial proceedings there
are two statutes which are important, theCode of Criminal Procedure No: 15 of1979 (as amended), and the Evidence
Ordinance No: 14 1895 (as amended.)

It is of course important to rememberthat the 1978 Constitution of Sri Lanka
accords specific rights which children canenjoy in common with other citizens orother persons.

III. TREATMENT OF JUVENILE OFFENDERS
The institutional treatment and thecommunity based treatment processes
are interconnected in the proceedings ofrehabilitation of juvenile offenders.

and justic
Law
e

Commu

Familyocietyil ste institutionsStay and civ
nit

Protection against violation
Welfare, Protection
Development, Protection
Care, Development, Protection

The responsibility of the family unit isto provide care and protection to thechildren and develop them mentally andphysically.
The subject of trial and treatment ofjuvenile offenders as distinct from adultoffenders w as first considered in Sri
Lanka in the 1920 s. The juvenile justiceadministration was first introduced in1939 with the enactment of the Children
and Young Persons Ordinance (CYPO)
and the Youthful offenders ‘Training
School’ Ordinance (TSYO.)The CY PO Provides for theestablishment at Juvenile Courts, thesupervision of juvenile offenders and theprotection of children and young persons.
The TS YO Provi des for theestablishment of training schools foryouthful offenders for their detention,
training and rehabilitation.
Juvenile justice administration laws
have never been subject to any
a m en d me n ts s ince the ir e na c tm en t
nearly 60 years ago and the need for theirreview to suit current circumstances hasreceived the attention of the relevant
authorities.
In 1997, the Law Commission of Sri
L a n ka ha s id e nt if ie d t he f o l lo w ing

223

RESOURCE MATERIAL SERIES No. 59
general areas as requiring consideration
for change:
a. Terms used to define categories ofjuveniles.
b. To ensure the segregation of juveniles
from adult detainees at all stages ofthe legal process.

c.

The classification and conditions ofplaces of detention of juveniles.
d. Protection for juveniles involved in
the legal process.
e. The need to develop community based
treatment for th e treat men t ofjuveniles in conflict with the law.

Legal Process for Treatment of Juvenile Offenders

Juvenile
Offender•Complaints
Police Station•

Petitions fromgeneral public

Courts•Discharge

Institutional Treatment
•
•

•
•
•

224

Community-Based Treatment

Education
Vocational training

Certified Schools
Approved Schools
Children’s Homes(below age 16 years)

According to thereports (PSR) given by
probation officer(According to thelegislative enactments)

•
•
•
•
•
•

CounselingSupervision

Probation Service
Supervision
Miscellaneous
After Care Programme

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
IV. INSTITUTIONAL TREATMENT
OF JUVENILE OFFENDERS IN SRI
LANKA
There are a number of state agencies
which are required to play main roles in
the w orkings of the lega l process inrespect of juveniles:
•
•
•
•
•
•

The Courts.
The Department of Probation andChild Care Services (DPCCS).
The Provincial Departments ofProbation and Child Care Services(PDPCCS).
The Police Department.
The Prison Department.
The Labour Department.

Institutional treatment of juvenile
offenders is implemented mainly by theProvincial Department of Probation andChild Care Services.
U nder both the CYPO and theProbation of Offenders Ordinance, theDepartment of Probation and Child Care
Services effectively became the lead statea g en cy fo r th e p ro te ctio n, ca r e a n drehabilitation of children in need of careand protection and the children who cameinto conflict with the law.
The devolut ion of powers to th e
P r o v i n c ia l C o u n c i l s f r o m t h e 1 3 t hamendment of the constitution and theenactment of the Provincial Council Act
No. 42 of 1987 meant that the Provincial
Departments of Probation and Child Care
Services started functioning as the main
agencies for unprotected children. The
PDPCCS function under the supervisionof the Provincial Commissioners of the
PCCS.

A. Institutional Arrangements
There are three categories of state
institutions which deal with children who
are involved in the legal process.
•••Remand Homes
Detention Homes
Certified Schools

The Government provided improved
institutional care facilities for those who
were placed in Remand Homes, Detention
Homes and Correctional Institutions.
Children in the institutions referred towere provided with both formal educationand vocational training during their stayin the centers.
1. Children in Remand Homes (below
the age of 16 years)
Table 1
Year

No. of children

1994

1995

1996

1997

1998

1110

1654

1379

1652

1711

There are 3 Remand Homes which aremain tai ned for boy s an d only on e
Remand Home for girls.
Boys Remand
Homes

Girls Remand
Homes

2

Western
Province

1

North Central
Province1

Western
Province

Source: The Department of Probation andChild Care Services

225

RESOURCE MATERIAL SERIES No. 59
2. Children in Detention Centers
There is only one Detention center
meant for both boys and girls from 5 to 16
years of age, w hich is located in theSouthern Province.
Table 2
Year

No. of children

1994

1995

1996

1997

1998

1999

2000

138

165

109

95

141

191

260

Source: The Department of Probation andChild Care Services
3. Correctional Institutions
Four certified schools, (one for girls andthree f or bo ys), continue to pro videcorrectional services to children referredto them by courts of law. The number ofchildren admitted during the relevant
period is given in Tables 3, 4, 5, and 6.

Admissions to Certified Schools (year 1995–1999)(As per race, religion, age and offence committed)
Table 3Per race
Race*

No. of offenders
1995

1996

1997

1998

1999

Sinhalese (s)

180

140

153

176

195

Tamil (T)

36

45

38

26

56

Muslim (M)

21

21

20

17

25

Others (O)
Total

13

1

1

–

–

250

207

212

219

276

*. Population ratio: S (72%), T (20%), M (5%), O (3%)
Population (in 1997): 18,552,000
Table 4
Per religion
Religion

No. of offenders
1995

1996

1997

1998

1999

Buddhism

176

133

152

174

189

Hinduism

35

45

38

26

54

Islam

21

20

3

17

25

Catholic

18

9

19

2

8

250

207

212

219

276

Total

226

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Table 5
Per ageAge group

No. of offenders
1995

1996

1997

1998

1999

28

17

4

11

37

Between 12–14 years

91

108

79

62

94

Between 14–16 years

107

58

86

115

112

Over 16 years

24

24

43

31

33

250

207

212

219

276

Between 8–12 years

Total

Table 6Per offence committed
OffenceNo. of offenders
1995

1996

1997

1998

1999

1. House breaking and
theft

88

108

130

84

85

2. Disobedient to parents

49

34

19

49

33

3. Usage of alcohol/drugs
and marketing

1

5

3

13

15

4. Care and protection

1

52

33

44

92

5. Suicide

–

–

–

–

–

6. Others

21

8

27

29

51

250

207

212

219

276

Total

4. Children Confined in Remand Homes
S ince child ren re ma nd ed throughCourts are confined for a short period, thetraining programmes in these Institutes
are also short. To develop the juveniles’

religious and general knowledge,
ed uca tiona l p ro gra mm e s a nd slig ht
vocational training are given. Special
staff are available for that purpose.

5. Certified Schools
The four certified schools in Sri Lanka
came into being several years back.
Table 7
Certified Schools

Year established

No. of children (year 2000)

1. Makola (Boys)

1959

125

2. Hikkaduwa (Boys)

1951

135

3. Keppettipola (Boys)

1961

60

4. Ranmuthugala (Girls)

1961

160

227

RESOURCE MATERIAL SERIES No. 59
A child offender in the age group of 12–
16 who commits an offence is directed by
the Courts to these Certified Schools
w h e r e a c t iv i t ie s a r e c o n d u c te d f o r
rehabilitation.
The main object is to give a systematicv o ca tio n al tr ain in g to t he c hil d re na dmitted to Certified Schools. In all
Certified Schools, training is provided in
motor mechanics, metal work, carpentry,
electrical work, sewing, agriculture andTV/radio repairs, etc.
Children w ho show enthusiasm in
education are admitted to surrounding
government schools, with all facilities
provided.
B. Case Management System
1. Reporting, Maintaining Case Files,
Progressing Reviews
Individual case files are maintained forj u v e n i le o f f e n d e r s a d m i tt e d t o t h e
Institutes. The system of maintenance of
those files is as follows:(i)

Filing of court order relevant to theoffender(ii) Obtaining the Social Report from theprobation officer(iii) To discover the child’s skills, by thatreport and discussing it with the child(iv) Directing children to educational andvocational training, accordingly(v) Study the child’s behaviour daily andmake entries in the files. (The housemaster, in charge of the children,
records th e health an d mental
condition of the children)(vi) Every two months a case committee
is h el d, f or wh ich th e f o llo w ing
participate:• Provincial Commissioner ofProbation and Child Care
• Probation Officers• Principal of the Certified School

228• House Masters• Juvenile Offenders.
(vii) Submission of monthly detailed
report of relevant institute to the
P rovincial C om missio ner b y the
Principal of Certified Schools.
• Number of children• Children who left after completing
vocational training and those who
escaped.
• Other problems.
2. Functions of the Case Committee• Discuss child’s progress.
• Discuss child’s short-comings andproblems, and find solutions.
• Decisions to be taken regardingchildren who could be released prior
to the prescribed period.
• Decisions to be taken as regards
donation of equipment to children
who have successfully completed thevocational training.
• Make inquiries of the progress after
the After Care Programme.
3. After Care Programme
Supervision in the home environment ofchildren who have completed th evocational training and education is theaim. This is performed by the probation
officers. Here, inquiries are made of theemployment engaged in by the children
who have completed vocational training
and counseling is given to them and theirguardians. The probation officer has toarrange a suitable homely atmosphere andalso provide a place of work for juveniles
before being sent out from the Institute.
Apart from the foregoing vocational
training for the children, excursions,parties/functions, New Year festivals,
Vesaks, Christmas, Parents’ days etc. arece le b r a te d . E x hib itio ns a re he ld todisplay children’s creations so as to givethe general public an idea of the Instituteand it’s activities.

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
V. MANAGEMENT OFORGANIZATIONS
A. Organizational Structure
The Organizational Structure of the
Department of Probation and Child Care
Services and it’s officers can be displayed
as follows:

Provincial Council

Courts

PoliceDept.

PrisonDept.

Provincial Ministry ofProbation & Child Care

National Department

Provincial Department of
Probation & Child Care

Commissioner

Provincial Commissioner

Correctional Institutions

Probation Offices(Probation Officers)

State Receiving Homes(Matron)Certified Schools(Principal)

Detention Homes(Superintendent)

Remand Homes(Warden)Since this was decentralized to theProvincial Council the activities areorganized in accordance with thesupe rvision and direction of theProvincial Commissioner. The Principal
is the head of the Correctional

Institution. The management of the other
Staff is under him/her. The staff work
according to a shift basis—day and night
service is performed.

229

RESOURCE MATERIAL SERIES No. 59
Each Officer’s duties are briefly given
below:
•
•
•
•
•
•
•
•
•

Principal—Supervision of the Institute and administration.
House
Masters—Maintenanceof“subject files” and study children’s
progress.
Vocational Instructors—Provide vocational training to children.
Graduate Teacher—Conduct classes
and counseling for literally weak children.
Overseers—Safeguard children andprovide their needs, directing ‘Units’
Matrons—Preparation of diet charts
a nd sup ply f oo d ac cord ingly a ndmaintaining records.
Cooks—Preparation of food.
Watchers—Provide security to theInstitute and children.
Labourer—Cleaning up the Institute.

Although Officers are categorized asabove, the shortage of required staff isthe main handicap.
B. Financial Resources
The required financial allocation tot he s e I n st itu te s i s p r o vid e d b y th er ele vant P rov in cial C ou ncils. Sinc e
Provincial Councils function in various
ways the financial allocation varies.
The financial allocation to theK eppetip ola Certified S chool in Uva
Provin ce is substa ntial. Alth ou ghfinancial allocation is made according to
the p repa red estima te s to wa rds thechildren’s welfare which is not a problem,the financial allocation for the generalmaintenance work of the Institutes isinsufficient (telephone, electricity, watersupply and staff payments). The smoothfunctioning of the Institutes is therefore aproblem.

230

C. Staff Training
Special training is provided for theInstitutional Staff in the fields given
below:(i) Legislative enactments(ii) Counseling methods.
(iii) Care and protection of juveniles.
(iv) Maintenance of case files.
(v) Planning children’s programme.
(vi) Knowledge in vocational training.
(vii) Office management and public relations.
While in-service/on-the-job training ispracticed, short-term training
programmes (syllabuses) are speciallyuse d. Fa cilitie s a re pro vided for six
months training programme for abusedchildren with activities for rehabilitation.
VI. PROBLEMS AND ISSUES IN
INSTITUTIONAL TREATMENTMETHODS
When the Institutional trea tm ent
method is adopted this department ismainly confront ed with nu merou s
problems.
A. Shortage of Institutes
In Sri Lanka, the number of institutes
available for the treatment of juvenile
offenders amounts to four. Of these, threea r e f o r m a le a n d o n e i s f o r f e m a l echildren. Since the yearly intake is about
300, providing them with hostel andbuilding facilities is a problem. Since only
one institute is allocated for girls, thenum ber of ch ild ren adm itted to theinstitute is far in excess of the facilities’
capacity. In the Ranmuthugala (Girls’)
Certified School, the facilities available
are for sixty children only. Now 160 arehoused there.

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
B. Children not Accepted by
Guardians after Rehabilitation
Although children, after institutional
rehabilitation, should join their family
unit, in many instances, it is not possible.

D. Staffing
There are two aspects to the staffing
issues:••

The reasons are:(i)

In such family units, the financial
stability is low. (Inability to provide
required facilities to children)(ii) Parents are separated and the family
environment is detested andunsuitable for children.
(iii) Children within family units whose
mothers are abroad are not rightfully
provided protection and welfare.
(iv) Children
detesttheir
homeenvironment due to father’s addiction
to liquor and cruelty.
(v) Absence of guardian to accept
children, (street urchins, andorphans)
In the above instances we are facedwith immense problems.
Since no Institutions are available in
Sri Lanka to re-admit such children, they
are provided with employm ent
oppo rtunities and the Probation
Department has to supervise (guide)
them f or a lengthy period. With thelim ited number of Officers it is very
difficult to perform such tasks/services.
C. Financial Constraints
Financial constraints are revealed in a
myriad of ways;•••

from unfilled staff positions to thedeterioration of the physical plant.
from difficulties of obtaining raw
materials for the vocational trainingclasses at the Certified Schools.
to problems in transport because of
the unavailability of vehicles.

unfilled positions
the inadequacy of the qualifications of
those who hold appointments

E. CongestionThe
children’s
institutions
accommodate far greater numbers thanthose for which they were designed. This
creates a host of problems, ranging fromthe obvious logistical problems ofproviding for the accommodation out ofcongestion.
VII. COMMUNITY BASEDTREATMENT METHODS
The aim is to rehabilitate the juvenile
offenders in a residential atmosphere andsociety. For this, the D epa rtment of
Probation and Child Care Services adopts
some key methods:(i) Probation Service(ii) Supervision Orders(iii) After-care Programme
F o r th i s , P r o b a t io n o f O f f e n d e r s
Ordinance, Children and Young Persons’Ordinance and legislative enactments are
adopted. These services are performed byprobation officers. These supervision
activities are conducted by a Court order.
Juvenile offenders committed to theprobation services are supervised forthree years, and children on a court order
are supervised for 1 or 2 years and for a
maximum period of 3 years. During these
periods, the concentration of theprobation officer is as follows:(i)

To improve the juvenile offenders’behaviour by counseling.

231

RESOURCE MATERIAL SERIES No. 59(ii) If the child is at school, send him toschool again and provide an
opportunity to gain education andlater make observations (follow-up
action)(iii) If interest is shown in a career, admit
to a Professional Training Instituteand have him trained.

Provision of equipment after training
and guide him/her to an employmento p po rtu nity a n d la ter f o llo w - upsupervision (later observation).
(iv) By counseling juvenile offenders,
their parents and relatives makes
the family environment a pleasantone.

A. When Adopting Community-Based
Treatment Method (C.B.T.)
a. Maintaining individual case files for d. Counselinge. Continue supervision without a breakjuvenile offenders.
(during the prescribed period andb. If a school-going child, afford followlater generally)up action and supervision by going tohis home and school.
Probation officers pay special attention
c. If employed, meet the employer at theto these matters.
work place and discuss.
Community-Based Treatment for Children on Court Order(Uva Province only) [Year 2000]
Table 8Province
Uva

No. ofOfficers

No. of Juvenile
Offenders (CBT)

Badulla3

45

Bandarawela

2

42

Monaragala

2

58

Probation Office

Taking into consideration these figures
it is evident that among the duties, theperformance of these activities by theprobation officer is not easy.
B. Problems and Issues in C.B.T.
MethodWhen adopting C.B.T. method, facts tobe considered mainly are the problems
arising therefrom which can be describedas follows:
1. Shortage of Efficient and Trained
Staff
Since Sri Lanka is a multi-national/
racial/religious country, it is necessary tode sign program mes so that all
nationalities could be represented. But,232

the number of officers who could handle
duties in several languages are very few.
T h e r e f o r e , f o r t h is p u r p o s e st r o n g
dedication and interest is called for, but
scarcity of such staff is a problem.
2. Limited Public Participation
After committing an offence, the childis branded by the Society as an offender.
The removal of such an impression fromsociety is not e asy. There fo re, theprovision of employment opportunities,
re-admission to school, and gaining publicconfidence is rather difficult. However, as
far as possible, probation officers act as
mediators and solve this problem.

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
3. Family Environment in UnpleasantState
In families where parents are
separated and in families where mothers
are abroad, due to the disruptive
atmosphere within family units, refining
c hild of f e nd e rs is d if f icu lt. I n su ch
instance s co unseling and m ediation
enable us to solve this p roblem to acertain extent.
4. Inadequate Attention from Courts
Towards C.B.T. Method
Mostly court orders are given to childoffenders to confine them to institutes.
Although the p rob ation officers w ho
understand the importance of C.B. andfurnish rep orts for that purpose,children’s confinement in institutions
under court order has been a problem.
VIII. RECOMMENDATIONS
Today, it is very essential that juvenile
offenders are rehabilitated. For reasons
such as carelessness of elders, breakdown
within family units, mental disorder andwant of guidance, children get involved inv a r i o u s a c t i v it i e s a n d t h e r e b y t h enumber of offenders increases. Therefore,
when performing institutional training or
Community Based Treatment, th epractical problems arising therefrom
have to be sorted out before putting it
into operation.
For that purpose the following
recommendations can be given:
1. Recruitment of a trained anddedicated staff.
2. Provide them with further training.
3. In order to provide the necessary
facilities to children, the state andv o l u n ta r y o r g a n iz a t i o n s s h o u l dcontribute.
4. Provision of suitable salary scales,
office facilities, housing facilities andtransport facilities to the staff. (Toensure job satisfaction)
5. To re-scrutinize court activities.
6. To revise the legislative enactments
to suit the present times.
7. To gain more public participation,
their attitudes have to be changed.
T h e r e f o r e , a w a r e n e ss h a s t o b einstilled.
8. Provision of the necessary financial
allocation by the state.
9. Co-ordination with relevant organizations [court, police, probation department, prisons department].
10. Implementation of policy formulationand planning considering the present
necessities.
11. Familiarize with advanced methods
such as data collection, preparation(data) and assessment (valuation) of
progress.
12. While conducting various pieces ofresearch, a study has to be made torevise and improve rehabilitation
methods according to the changing
social conditions.
REFERENCES
Children and Young Persons Ordinance,
No. 48 of 1939
Probation of Offenders Ordinance, No. 42
of 1944
Samaraweera V., Report on the AbusedChild and the Legal Process of Sri Lanka.
July 4, 1997
Sri Lanka—Second Country Report on
the Implementation of the Convention on
the Rights of the Child, 1998.

233

JUVENILE JUSTICE SYSTEM IN THAILAND
Duangporn Ukris*
I. BEST PRACTICE IN THE
INSTITUTIONAL TREATMENT OFJUVENILE OFFENDERS
A. Development of Model Treatment
Programme Provided Separatelyfrom Adult Offenders
1. Introduction
Juvenile delinquency refers to the
behavior of non-adults which violates therules and regulations set by thegovernment or society. Today juvenile
delinquency is a major problem in bothdeveloped and developing countries.
As a result of the growth in science andtechnology,
industrialization,
urbanization and the intensive flow of
information, Thailand right now is facinga transition in values. The existence ofthe value transition can be marked by thediminishing of traditional values, theem ergence of new values such aschanging family patterns and lifestyles,
and the lessening of community social
controls. Along with this growth andchanges, the number, rate and spread ofjuvenile delinquency, especially drug
abuse among children and teenagers isapparently increasing. As per th e
statistics complied and published by theC entra l O b se rva tion a nd Protection
Center, the Ministry of Justice during
1996–2000.
Juvenile Justice System
Juvenile justice is a system distinct
from the adult system and it has been
* Acting Superintendent,
The Sirindhorn Vocational Training School
Thailand234

created by legislation; the Act Instituting
Juvenile Courts, B.E.2494 (1951) and theJuvenile Procedure Act, B.E.2494 (1951).
As a result, the Central Juvenile Court
and the Central Observation andProtection Center were established byvirtue of the Act in 1952. For the elevenyears that follow ed the Ac ts wereamended to extend to the juvenile courts’jurisdiction and to bring speedy trials in
criminal cases in the interests of the childor young person.
R e c e ntl y, t he A c t ins tit uti ng t hejuvenile and family court and its
procedures relating to juvenile and familycases of 1991 superseded all 13 juvenile
court laws and amendments. The new Act
has extended the court jurisdiction tocover all family matters as provided by
the family law, the civil and commercial
code. In criminal proceedings and thewelfare of juveniles, the law has clearly
defined and revised certain provisions toprotect the rights of children and young
persons.
Organizations
The Juvenile and Family Court (JFC)
is a constituent of the organized judiciaryof Thailand. It is a specialized court of thefirst instance within the meaning of theconstitutional Court of the Justice. At
present, there are 10 Juvenile and Family
C ourt s a nd 2 4 J uve nile a nd F am i l y
Sections in provincial Courts. All juvenile
and Family Courts have similar
comprehensive structures. They consist of
two separate but coordinating parts;
judiciary and administration. The Court
is staffed by career judges and associate

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
judges (lay judges). A quorum consists ofassociate judges.
The administration is divided into:
1. Office of the Courts’ registrar
2. The Observation and Protection
Center (OPC)The Observation and Protection Center(OPC)
The OPC was established to serve the
JFC before the trial of juveniles andfamily affairs cases and after the
adjudication of juvenile cases, moreoverto carry out other activities according tothe orders of the court a s w ell as tocorrect and rehabilitate juveniles to begood citizens.

Pre-adjudication process
Under the criminal procedure code any
injured person may file a complaint to thepolice against a child or young person.
When a child or young person is alleged
to have committed an act against the law,
his case shall be commenced andinvestigated by an inquiry police officer,
as required by ordinary criminal cases
but the handing of a juvenile offender ismore informal and lenient.
A competent inquiry police officer, who
is assigned to a case, has the power to
conduct a n investiga tio n within his
territorial jurisdiction:••

Professional pe rsonnel includ ep r o b a ti o n o f f i c e r s , s o c ia l w o r k e r s ,psychologists, physicians, psychiatrists,
etc. There are 34 centers throughout thecountry.

•

where an offence has actually beencommitted,
is alleged or believed to have beencommitted; andthe offender is residing or has beenarrested within his territorial
jurisdiction.

(i)
In 1993, His Majesty the King was
graciously pleased to proclaim that the
new Constitution B.E.2540 (1997) had
been enacted. Under this Constitution, allcourts of justice became independent.
Consequently, the constitution for theorganization of the courts of justice of2540 (1997) governs all courts of justicewhich are separated from the Ministry ofJustice and a new organizational
structure and administration was set up.
The OPC still remains under the office of
the Permanent Secretary, Ministry ofJustice.
2. Juvenile Case Procedure
An overview of the juvenile justicesystem and juvenile case procedure in
Thailand shall be described in pursuanceof the juvenile law and criminal
procedure.

ArrestI n p ri nc ip le , a c hi ld sh a l l no t b earrested for an offence unless a flagrant
offence or an injured person identified
and insisted on the arrest or a warrant ofa r re s t i s m a d e i n p ur su a n ce o f t h ecrim inal procedure code. Afterapprehension, the police officer in chargeof the case or who keeps the child or
young person in custody is required bylaw to notify the Director of the OPC, his
parents, guardia ns or a p erson w ith
whom he is residing.
(ii) Investigation
The officer shall conduct an initialinquiry and is required to complete thiswithin 24 hours from the time a child or
young person has arrived at his office. He
will then refer him to the OPC. Further
inquiry, if needed may proceed under the
law.

235

RESOURCE MATERIAL SERIES No. 59(iii) Detention and Provisional Release on
Bail
In general, a child or young person may
be detained during investigation at thepolice station or in a remand home of theO b se rv a tio n a n d P ro te c tio n C e nte r(OPC). The Director of the OPC may, if hethinks fit, keep him in custody. Under thelaw, a request for provision release on
bail of the arrestee shall be made to thecustodial authorities as the case may be.
(iv) The OPC is empowered and vested bylaw to perform the main functions asfollows;
a. Preparing a social investigation
report concerning a child or young
person such as historical background,family, occup ation, education,
character, crime motive and othersocial data.
b. Preparing a report on both physicaland mental examination.
c. Preparing an observation report inthe case of a child or young person
who has been detained in a remandhome.
A social investigation report isrequired in every case, except pre-hearing
investigation which is not necessary intrivial cases. In the process a probation
officer who is in charge of the case will
deliver an investigation report to thep o l ic e w i t h in 1 8 d a y s. T h e o f f i c e r ,usually, will conclude his case in 6 days,
then forward an inquiry file attachedwith the report to the public prosecutor
who has discretionary power to decide inpursuance of the procedural law whether
to enter or drop the change.
The Director of the OPC will submit
the report together with his routine
recommendation on causes of delinquency
to the JFC.

(v) Prosecution and Deferred Prosecution
If the public prosecutor decides toinstitute prosecution, he has to enter acharge in the JFC within 30 days fromthe day in which a child or young person
has been arrested. In case of necessity
when the charge against the offendercannot be filed within the mentioned
p e r io d , t h e p o l i c e o f f i c e r o r p u b l ic
prosecutor who is responsible for the caseshall apply by motion to the court fordeferment.
In case of a grave offence where theminimum imprisonment is 5 years or
over, the court may, if it thinks’ fit, grant
longer deferment.
(vi) Trial
The JFC procedure will be informed
and simplified for the interest of a childor young person. The judge in charge ofthe case m ay call the accused forquestioning or explain the proceedings inorder to assist him. The trial is held inprivate. The persons present at the trial
are the accused, parents, guardians, legal
advisory, witness, prosecutor, members of
the court and other persons permitted by
the court. Photographs, reports on facts
presented at the inquiring proceedings
are not to be released to the public. An
attorney shall not be appointed in thejuvenile court, except a legal advisor. If
the child or young person has no legal
advisor, the court shall appoint one forhim if it considers it desirable.
(vii) Adjudication
After the trial is completed, prior to a
judgment or an order being given, thecourt will hear the report and opinion of
the Director of the OPC, including his
recom me nda tion for mea sures to b etaken.
The JFC always takes the following
measures;236

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
1. Admonish the child or young person
and then discharge.
2. Discharge parents or guardian withprobation order.
3. Place under the care of person ororganization the court thinks
desirable.
a. Suspended judgment with probation order.
b. Suspended judgment without probation order.
4. Commit into juvenile institution.
5. Substitute imprisonment to commit
into juvenile institution order.
6. Suspensionofjudgment
withprobation order
7. Fine
8. Imprisonment
B. Designing a Case Management
System to Provide Individualized
Treatment
T r ea tm e nt and re habilit ation f o rjuvenile delinquents in Thailand areadministered by the OPC. There are 2
treatment programmes for as follows;
1. Non-institutional treatment
2. Institutional treatment
1. Non-institutional treatment
Probation service. Probation is used by
the JFC to place an offender at liberty
under the supervision of a probation
officer for a period prescribed the court.
Probation is comm only used on first
offen der c ommittin g an offence ofrelatively minor nature.
The following conditions prescribed by
the court under the supervision of theprobation officer are as follows:
1. Forbidding the child or young person
to enter any place or locality whichmight corrupt him.

2. Forbidding the child or young person
to leave his residence at night time
except in case of necessity.
3. Forbidding the child or young person
to associate with any person who isdeemed undesirable by the court.
4. Forbidding the child or young person
to do any act which might corrupt
him.
5. Order the child or young person topresent himself from time to time tothe court or probation officer or social
worke r who was assigned by the
Director of the OPC.
6. Order the child or young person totake up education or carry on any
substantial occupation.
A probation officer pro vid es
supervision and personal guidance toprobationers through regular home visits
and interviews them during the probation
period, and exercises his/her professional
skill and knowledge of local resources tomeet the needs of the probationer and,
where necessary, that of their family
members for fin ancia l ass istanc e,
employment, etc. The probation
supervision is brought back to the courts
for r eview from t ime to time. T heprobation report with detailed
inform ation p ertaining to theprobationer’s behavior is considered tosee how he/she has im proved andwhether there are reasons for revocationof the original order.
The Ministry of Justice and theProbation Division of the OPC operates a
volunteer scheme for probationers whichaims at providing greater community
involvem ent in the rehabilitation ofof f e nd e rs a s fr om 1 9 9 5 . U n de r t h i sscheme, selected volunteers provide
probationers with personal and moral
support and he lp them develop
meaningful hobbies, habits, cultivate

237

RESOURCE MATERIAL SERIES No. 59
healthy pursuits, find jobs and provide
tuition for them.
The volunteer, however, will not takeover the role of the probation officer who
is dealing with the legal aspect of duties
and solving the behavioral problems of
the probationer. The volunteer is
e x p e cte d to a s sis t a p ro b a tio n e r in
activities which require no professional
skills.
Suitably recruited volunteers will begiven a training and orientation course
conducted by the OPC and Department of
Probation, Ministry of Justice before they
are considered ready for service. Based on
the probation cases, probation officers
may select a suitable volunteer from thepool of unmatched volunteers to assist a
probationer. Once a case is matched, it isth e d u ty of the p ro batio n o ff ic er toregularly contact the volunteer to keep
track of the progress of service and toreview its ef fectiveness on theprobationers.
2. Institutional Treatment
A training school is a juvenile
institution receiving juveniles committed
by the JFC for protective and innovative
measures in lieu of a penal sanction.
Juvenile institutions set up in the OPC
are divided into 3 types;
1. The Training School (There are 22
t rai nin g s ch ool s for ma les an dfemales in the whole country)
2. The Vocational Training School(There is 1 school.)
3. The Therapeutic Community Center(There is 1 center.)Training School
These schools take juveniles throughthe order of the JFC, where it appears to
the court that other means of
rehabilitating them has failed. It should

238

also be noted that these juveniles are notin any sense seriously demoralized. The
objective of a juvenile training school is tofacilitate readjustment to society and topromote sound growth throughdisciplined communal life, academic andvocational training, counseling and living
guidance.
A t p re se nt, the re a re 1 2 tra inin gschools for boys and 10 for girls
throughout the country. Since juveniles
are committed to the training schools inorder to receive reformative treatment
and are still at the stage of character
formation, educational programmes are
conducted. The school programme aims todevelop adjustment skills and life skills of
inm a te s th ro u gh r e gu lar g uid an c e,
vocational training, education, moral andreligious instruction and recreational
activities. While most of these activities
help instill specific disciplines in them,general discipline is encouraged througha system of granting or revoking rewards
and privileges. The rewards andprivileges used include home visits, prerelease among others, participation in
special activities, etc.
At the beginning of their stay, stress isplaced upon developing the social skills
required to maintain good humanrelations with other inmates. In the prerelease period guidance is provided tohelp juveniles pre pare for return tooutside social life after release. Juveniles
are given the opportunity to return tosociety as well as to adjust themselves totheir families and society. This training
school provides various programmes forjuveniles, they must choose the coursethat they prefer and for which they haveenough skill, except juveniles who did notfinish compulsory school who have to
study until they finish. Programmes ofthese schools are as follows:

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS(i)

Academic education.
J uveniles w ill be placed at a levelr elative to the ir p re viou s ac ade m ic
history prior to their admission. The
curriculum of educational programmes
and standard of education are under
supervision and controlled by the NonFormal Education Department, Ministryof Education.
(ii) Vocational training.
V oca tional training is provided intraining schools so as to enhance
employment opportunities. Each training
school a rra nges different vocationalcourses depending on the employmentm a r ke t a nd r eso ur ce s in tha t a re a .
Juveniles are encouraged to qualify for
official licenses and certificates. These
cover a wide range of craft and technicalsubjects including printing, carpentry,
welding, air-condition repairing,
electricity, automobile repairing, haircutting, ceramics, music training,a griculture , dre ss m ak ing, wom en’s
handicrafts, cookery, etc. An inmate who
has passed the exam ination of hairdressing will be given a certificate, issued
by the Ministry of Education, and an
inmate who passes their welding
examination will be given a certificate
issued by King Mongkut’s Institute ofTechnology, North Bangkok.
(iii) Treatment service
These services are provided by social
workers and psychologists in order todevelop juveniles’ ability to function
effectively with peers and family and tochange juveniles’ behavior andp e rso nality. Th ese ser vice s inc lud e
advice, guidance, psychological tests,
group activities, etc. which are employedbased o n the needs and problems
presented by juveniles. Moreover, thesocial workers will provide social services
to all inmates who get into difficulties

and need services during their training in
the training school.
(iv) Spiritual and religious services
Spiritual and religious services include
the development of moral and spiritualvalues. Advising shall be helpful in aiding
the solution of individual and family
problems. Army moral instructors andvolunteers from outside impart social
values and moral instruction.
(v) Medical services
Medicalservices
providecomprehensive health care education,
health care ranging from routine physicalexamination by nurses and screening
procedures to diagnosis, treatment andfollow up of illnesses and other medical
problems.
(vi) Sports, recreation and athletics.
Offer the juveniles the opportunity toenga ge in constructive activities, toes ta b lish p e er r el a tion ship s a nd tod ev elo p the d isci pli ne n e ce ssa r y to
improve a skill or gain respect for good
physical health. Games and sports areheld daily to provide fun and recreation,
pr om o te inte ra ctio n, e nco ura g e theproper use of leisure, compliance withru le s an d d e v e lo p a sp ir it o f gr ou p
participation.
Regarding the evaluation of thetreatment programme, the social worker,
the instructor and housemaster will
evaluate the result of the treatment. An
inmate whose treatment is satisfactory
will be given certain rewards such ashome visits, or pre-release, or release in ashort-term sentence or be able top a rti ci p a t e i n s p ec i a l a c t i v it i e s, oroutings, etc. Juveniles may be released
sooner depending on the evaluation of thetreatment. On the other hand, juveniles
will be released at the end of a certain

239

RESOURCE MATERIAL SERIES No. 59
period even if the result of his treatment
is not satisfactory.
The conduct of a juvenile staying in the
training school is evaluated by means ofascertaining his behavior under seven
general criteria, which are as follows:
1. Performance at training school, study,
vocational training, work
2. Personal appearance
3. Language
4. Behavior
5. Respect for authority
6. Care of property
7. Co-operation
The Director of the OPC is powered tosend an incorrigible juvenile who is asource of danger to other juveniles for
detention in prison.
(vii) Parole
A juven ile o ff end er w ho ha s b e enconditionally released on parole from theTraining School by the decree of the JFC.
The term of parole supervision is usually
up to the remaining term of his or her
sentence with early discharge in case ofserving the period of training for onequarter and good behavior.
Screening of inmates for release onparole is under the conditions as follows:•••

Good result of treatment andrehabilitation
Good home condition
The JFC makes the decision torelease a juvenile on parole.

Supervision of parole process is thesame as the process of supervision ofprobationer.
(viii)Aftercare service
Aftercare plays an important role inthe social reintegration of release from240

the Tra ining Schoo l, the V oca tiona lTraining School and the Drug Addiction
Treatment Center. It is duty of the Social
Work Sub-division, the OPC to do suchthings as are necessary to ascertain themodus vivendi of juveniles released frominstitutions w ith a view to assisting
the m , in so f a r a s m a y be p o ssib le.
A f te rca r e c o mm e n ce s so on a ft er a n
inmate is admitted and includes
individual casework aimed at building aso li d f o u nd a t io n o f c o n f i d e nc e a n d
fr ie nd ship betwe en the inm a te, thefamily and the social worker. The social
worker provides solid support to both theinmate and his or her family and thoseunder statutory supervision (probationand parole) overcome obstacles to theirrehabilitation.
Regarding the aftercare services, suchservices are for the released inmates ortheir families who are confronted withprob le ms. I n such a ca se , the so cia lworker will take care of juveniles andtheir families and give advice on how
they solve problems and what kinds ofservices will be provided such as busfares, scholarships, job placements, basic
amenities and personal utilities, etc.
However, the existing juvenile
institutions for juvenile delinquency
esp ecially in Bangkok ca nnot afford
effective treatment and rehabilitation
systems due to inadequacy of buildings
and scarcity of equipment and lack thecapacity to administer and operate theprogrammes, to the effect that contents oftreatment and rehabilitation become
degraded and insufficient.
Under the above mentioned
aggravated circumstances in 1991, theCentral Juvenile and Family Court, theMinistry of justice, endeavoring to attain
more efficient rehabilitation of problem
youths, made a plan to newly construct a

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
V o c a tio n a l T ra i nin g S c ho o l to he l p
un la wf ul yo uth r eturn to socie ty inNakorn-prathom Province near Bangkok
area by a request to the Government ofJapan for the grant of aid for the project.
The objective of this project is toconstruct a model vocational training
school functioning as an innovated model
school along with its implementation ofprogressive innovative treatment andrehabilitation, and is expected to enhanceand strengthen the functions and systemsof juvenile corrections of Thailand. Under
this request, the government of Japan
approved this project by granting aid andtechnical assistance. The construction ofthis project was started on February 17,
1994 and completed on March 31, 1995.
The Vocational Training School was open
on January 15, 1996. This school has
served 910 trainees from 1996–2001.
Thailand, has a remarkable situationo f d r u g a b u s e a m o n g c h i ld r e n a n dteenagers and it is increasing year by
year. The Central Juvenile and Family
Court is endea voring to attain more
efficient treatment and rehabilitation for
drug addicts by the establishment of the
Drug Addict Treatment Center and theDrug Rehabilitation Center in Bangkok
as pilot projects. These Centers werestarted on June 8, 1994.
In 1994, the Ayudthaya TherapeuticCommunity Center was opened to serve
juvenile drug addicts as well.
In 2001, the Drug Addict Treatment
C enter a nd the D rug R ehabilita tion
Center which were to be used as pilot
projects were closed after a follow up andevaluation of ineffective treatment andre ha b il i t a t io n. At pre sent , onl y th e
A yudthaya Thera pe utic C omm unity
Center still remains.

Other m ajor topics such as thedevelopment of model treatment
pr og ra m me s fo r juv enile s a nd d rug
ad dic ts as we ll as de sig nin g a c a sem a n a g e m e nt sys te m f o r in d ivi d ua ltreatment in the Vocational Training
School and the Ayudthaya TherapeuticCommunity Center, will be explained
next.
The Vocational Training School
The capacity of the school is for 200
persons. The salie nt f eatures of the
Vocation al Train ing S ch ool (VTS)emphasize positive working attitudes ofjuveniles as well as helping juveniles toacquire working skills, arrangements forjuveniles to undergo a test of the Trade
Standard Testing Committee, theMinistry of Labour and Social Welfare.
They conduct effective treatment andoperate 8 vocational training courses. The
capacity of the school is 200 persons per
year.
(i)

Enrollment
Due to the reasons that the VTS has
lim ited ca pa city, the ne w syste m oftreatment correction and rehabilitation isjust introduced in order to get the mostqualified outcome. It is not possible forevery vocational training course to enroll
j u ve n i le s a t th e s a m e t im e , s o t h eenro llm ent sc hed ule a nd num b er ofjuveniles are f ixed. E ach vocationa lcourse enrolls 13 juveniles twice a yearfor 7 courses, except for the construction
vehicle operation course which enrolls 18
juveniles once a year a nd the school
provides 8 vocational training courses asfollows:•

There are 1-year courses (1,216
ho urs) in m achining, a uto mob ile
maintenance, printing, welding andsh ee t m e ta l , w o o d w o r k , e l ec tr ic
wiring and air-condition repairing

241

RESOURCE MATERIAL SERIES No. 59•

There is a 6-month course (608 hours)in construction vehicle operation.

(ii) Selection System
In Thailand we d on’t have aclassification system to enroll juveniles tothe VTS. We set up a selection system ino r d e r to se l e ct ju ve n ile s un d e r th e
selection conditions prescribed as follows:
1. Male2. Aged 14 through to 18 (until 24 years
if specially admitted by case)
3. Juveniles who are not afflicted withany great physical or mental disorder
4. Duration of training is 6 months ormore for the construction vehicle
operation course and 1 year for othervocational courses.
5. Juveniles can read and write.
6. Juveniles who have appropriate skills
for vocational training and interests
in vocational training.
The Selection Committee from the
O PC selects and screens a juvenile’s
requirements for training in the VTS
form under the enrollment of the VTS
schedule.
The committee will review that form
and recommend juveniles for selection.
T he S u p e r in te nd e n t w i ll m a k e t h eselection decision.
(iii) Dormitory Placement
We arrange the dormitory for juveniles
as follows:
•
•
•

242

Introductory stage: dormitory 1–2 for
new admissions
Intermediate stage: dormitory 4–5 forjuvenile grades 3 and 2
Pre-release stage: dormitory 3 for 1month release.

(iv) Individual Treatment Plan
The VTS will be divided into 3 stages
for the treatment of juveniles as follows:
1. Introductory stage: 1 month.
2. Intermediate stage: 10 months for 1year course and 4 months for 6-monthcourse.
3. Pre-release stage: 1 month.
Introductory Stage (1 month)
The introductory stage is 1 month prior
to the opening of the vocational training
cour se . T he sta ge ha s the fo llo w ing
procedure:•

Admission
After juveniles are sent to the VTS,
they have to register and have a phototaken, their body checked, take a shower,
get their uniform and necessary items,
have a physical examination and have abrief introduction regarding the basic
rules of the VTS.
•

Orientation
Orientation starts on the 2nd day ofarrival at the VTS by a housemaster,
vocational instructor, social w orker,
psychologist, nurse, librarian, and chief ofsecurity. The main themes of orientation
are rules, regulation, training system,
activities, and services. In order to reduce
tension, motivate juveniles to improve
behavior and encourage the responsibility
to abide by the VTS’ s regulations.
•

Treatment Programme
Self-supporting work
For new admissions, juveniles a reassigned to self-supporting work such as
cleaning the cafeteria, washing dishes,
cleaning floors of the dorm itory andagriculture work. In order to encourage
juveniles to devote themselves, to givethem the opportunity to learn about theirbasic responsibilities and w ork withothers.

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Medical services
A physical and mental check up service
is provided to every juvenile, including
k no w le d ge a b o ut h ea lth e d uc a ti on ,prevention of communicative diseases,
basic he alth ca re, trea tme nt healthpromotion which is conducted throughmorning exercise and sport. Responsible
staff are physical instructors, nurses, etc.
Vocational training
At this stage juveniles will study basic
secu rity in workshop and hyg ien e
provided by instructors in charge of eachvocational course.
•

Evaluation and Upgrading
Evaluation
A ll juve nile s sen t to the V T S ar e
instantly categorize d in grade 4.
Conditions, privileges and services forjuveniles in grade 4 are assigned to do
self-supporting work and get permission
for parents to visit once a month. The
result of p erformance, conduct,adjustment, group activities are used toevaluate juveniles.

treatment and rehabilitative programmes
as mentioned in individual plans.
•

Treatment Programme
Self-supporting work
At this stage juveniles are assigned tohave self-supporting work the same as at
the introductory stage
Medical services
This programme is available on many
topics to enhance knowledge of juveniles
about health protection, for example, theprevention of AIDS, prevention of drug
abuse, sex education, unity promotion,
sports promotion, etc. Physicalin st r u ct o r s a n d s o c ia l w o r k e r s a r e
responsible for these programmes.
As for sick juveniles, nurses will takecare of them. For severe cases, they ares e n t f o r t r e a t m e n t a t h o s p it a l s b y
security guards.

UpgradingAfter 1 month, the committee shallhold a meeting to make a consideration as
to whether to upgrade juveniles to grade
3.

Sports, recreation and athletics
Offer the juveniles the opportunity tod ev elo p the d isci pli ne n e ce ssa r y to
improve skills or ga in good physica lhealth. Sports are held daily to provide
recreation, promote interaction,encourage proper use of leisure,compliance with rules and develop a
spirit of group participation.

Intermediate Stage (10 months)
This stage takes 10 months and isdivided into the 2 following courses:

Academic education
Academic education consists of 3 levels
as follows:

1. Basic course, 7 months
2. Advanced course, 3 months

1. Compulsory (6-month course)
2. Junior high school (1-year course)
3. Senior high school (1 and a half years)

During the inte rmed iate stage
juveniles learn about relevant advanced
techniques and practice to improve theirskills. Aside from vocational training,
juveniles are required to attend academicclass in order to widen their academic
knowledge and undergo corrective

This course is started for only half a
day every Saturday and instructors fromthe b ra nch C enter of Non-Forma l
Education, Ministry of Education conduct
this course. Moreover every juvenile has
to do self-study in the dormitory at night243

RESOURCE MATERIAL SERIES No. 59
time under the supervis ion of th ehousemaster.
Vocational training
The basic course consists of theories
and basic practice. The training period forthe basic course is 7 months.
The advanced course consists oft e c h ni q u e s , p r a c t ic e f o r i m p r o v in g
juv eniles’ skills, p rovid ing wo rking
experiences. The training period for thea d va nce d co urs e is 3 m o nths. A f te r
c o m p l e t i o n o f th i s c o u r s e t h e s k i ll
standard testing of the Department ofSkill Development, Ministry of Labour
and Social Welfare will be provided.

grade 2. The conditions, privileges
and services for juveniles in grade 3
allow them to do self-supporting workand get permission for parental visits
and write letters to their parents 2
times a month. They can attend someof the activities organized by the VTS
or volunteers outside.
2. From grade 2 to grade 1:
juveniles are in grade 2 for 4 months
before being considered for upgrade tograde 1. The conditions, privileges
and services for juveniles in grade 2
allow permission to visit and write
letters to their parents 3 times amonth and join observation tours andother activities

Rehabilitation programme
A t t h is s t a g e , th e r e h a b i l it a ti o nprogramme is done in accordance with anindividual plan. This programme can bedone through an individual or groupprocess, such as case/group guidance,
individual counseling, role playing, rolelettering etc., depending upon a juveniles’
problems in individual plans. Responsible
staff are social workers, psychologists andhousemasters.

The results of progressive vocational
training, academic education and theimproving of their attitudes towards lifeand performances are used to evaluatejuveniles.

Special activities by volunteers or otherorganizations
The VTS cooperates with otherorganizations and volunteers outside toarrange projects of activities such as
cam ping projects, job placem ent
programmes, short course vocational
training, giving lectures, walk rally
activities, etc.

After 4 months, the committee shallhold a meeting again to consider
upgrading juveniles to grade 1.

UpgradingAt this stage, juveniles are in grade 3,
and after 3 months the committee shallhold a meeting to make a consideration to
upgrade juveniles to grade 2.

Pre-release stage
The pre-release stage takes 1 month
before the release date. Its procedure is
as follows:••

Evaluation and Upgrading
Evaluation
For this stage, we evaluate juveniles 2times:
1. From grade 3 to grade 2:
juveniles are in grade 3 for 3 months
before being considered for upgrade to244

Treatment Programme
Self-supporting work
Juveniles are assigned to have selfsupporting work, only laundry work at
this stage.

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Medical services
This is the last check up on juveniles’
hea lt h b y nurse s a nd doctors bef ore
release.
Academic education
The academic education course will becompleted at the pre-release stage.
Vocational TrainingA t this sta ge , in o rd e r to p ro vid ejuveniles with more opportunity to gain
professional experience, juveniles who
have satisfactory training results can goout for job training and, for those who area ll o w e d , t r a i n in g o u ts i d e t h e y ca npractice within the VTS set up.
•

Rehabilitation programme
Preparation for release
F o r th is s ta g e th e o b je c tiv e is t oprovide m ore expe riences about
vocational training and social skills.
Juveniles were required to attend special
a c t iv i t i e s . M a n y t o p ic s o f le c t u r e s
p ro vi d e d f r o m le c t u re r s o ut s id e o robservation tours to significant places,
factories, and education institutions or to
be volunteers of social services, etc.
Besides preparing juveniles, guidance
for their families is necessary too. Them ain id ea is to guide pa re nts a bout
j uv e ni le s’ jo bs , e d u c ati o n, se r vi ce s
available in society, including the propercare of juveniles.
•

Evaluation and Upgrading
At this stage juveniles are in grade 1.
Conditions, privileges and services forjuveniles in grade 1 allow them to go backand spend a night stay at home during
weekends. They can join every activity.
The juveniles are entitled to pre-releaseand after care services. Moreover, the lastmonth before their release date, twenty
juveniles in dormitory 3 will get special

privileges by staying without security
guards. The juveniles feel more free.
•Release
Release divided into 2 types;

1. Release without parole is applied tojuveniles with the following
qualifications; a juvenile has
co mpleted the vocatio nal co urse,
shown progress in evaluation results
and is upgraded to grade 1.
For juveniles who complete thesequalifications, the VTS will
immediately send their release reportto the court for consideration for
release without condition.
2. Release under parole is applied tojuveniles who have completed thevocational training course but theresultsofevaluationareunsatisfactory and their grade lower
than grade 1. Their release report will
sent to the court for consideration for
release with conditions.
•

Aftercare services
Social Work Sub-division, the OPC willtake care of released juveniles who areconf ronte d with pro b le ms b y giving
advice, providing many kinds of services
such as job placements, aftercare hostels,
fo ster pa re nts, basic am en itie s andpersonal utilities, schools or vocational
schools for juveniles, scholarships, etc.
Follow up after release; the VTS will
start to follow up 1 month after juveniles
are released from the VTS byquestionnaire. Follow up is continued for
1 year after juveniles are released.
The Drug Addict Treatment Center
The Drug Addict Treatment Center
will receive drug dependents who weresentenced by the Juvenile and Family
Court.

245

RESOURCE MATERIAL SERIES No. 59• The objectives of the center
1. To assist the juvenile to gain insights
into their behavior, attitudes andredirect counterproductive behavior
patterns and anti-social attitudes into
more positive and constructive ones,
furthermore, to change the juveniles
to be responsible persons.
2. To enhance the juveniles copingc a p abilitie s, tr ust o f o the rs an d
improved self-image.
3. To rehabilitate and assist thejuveniles to change themselves to begood citizens and return them tosociety free from drugs.
•

The aims of the compulsory treatment
and rehabilitation programme are as
follows:
1. Restoration of physical health
2. Uprooting psychological and emotional dependence on drugs.
3. Juvenile treatment and rehabilitation
by applying the therapeuticcommunity models and techniques.
•

Treatment and rehabilitation
programme
The therapeutic Community Model andtechniques have been applied throughtreatme nt
andrehabilitation
programmes in the Drug Addict
Treatment Center. These programmes
are divided into 3 stages as follows:
Rehabilitation Stage
This stage is to root out psychologicaland emotional dependence on drugs andrestore physical health. Furthermore,family therapy is employed based on theneed and problems presented byjuveniles. The participation of parents
and family in the rehabilitation process is
encouraged.
Treatment Stage
This stage is to assist the juveniles togain insights into their behavior and246

attitudes, and redirect counterproductive
behavior patterns and anti-social
attitudes into more p ositive andc o ns tr u ct iv e o n e s a nd e nh a n c e th ejuveniles coping capabilities, trust ofothers and improved self-image.
I nd ivi du a l a nd gr o up co un se lin g isconducted on a regular basis throughout
th e p e ri o d o f tr ea tm e nt. T his w o rk
progra mm e is aim ed to im prove thejuvenile’s personality and encourage goodwork habits, establish self-confidence aswell as a sense of responsibility. At thesame time, in order to implem en t
treatment
andrehabilitation
programmes more effectively, the Drug
Addict Treatment Center has applied
the rap e utic co m m unity m o de ls andte ch n i q u e s th r o u g h tr e a t m e n t a n drehabilitation programmes, such as thetherapeutic community’s philosophy,
unwritten philosophy, basic (who you
are? what you do?) rules and regulations,chains of command for staff andresidents, cardinal rules (no physicalvio lence , no use of drugs, no sexua lcontact), basic house rules, rules of thehouse (morning meetings, encountergr o u p s , se m i n a r s, h o u se m e e ti ng s,
general meetings, static groups, hair cuts,
confrontation, peer confrontation)
Re-entry Stage
This stage is for juvenile’s
rehabilitation and assistance in order toreturn and adjust themselves into society
by freedom from drugs. This center will
arrange and provide the following reentry activities:
Preparation for release
Juveniles will be prepared one month
before release, this duty is under the
responsibility of the social worker,
nurse a nd ho use ma ster who will
provide general knowledge to makejuveniles p repare themselves forreleas e. Besi des , j uv en iles a re

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
required to attend special activities
outside the center. Parent meetings
will provide for guiding parents on
how to look after the release djuveniles.

II. BEST PRACTICE IN THE
MANAGEMENT OFORGANIZATIONS PROVIDING
INSTITUTIONAL TREATMENT TOJUVENILE OFFENDERS

After care services
This center plays an important role inthe social reintegration and discharge
from the center. The social worker onafter ca re duty w ill provide solid
support to both juveniles and theirfamilies and others who may assist
juveniles’ rehabilitation.

A. Strategic Utilization of Limited
Financial Resources andMaximizing Cost-effectiveness
Every year the OPC receives a limited
fiscal budget. It’s not enough fororganizational management to provide
institutio nal trea tme nt for juve nileoffenders.

Follow up and evaluation
A f ol l ow u p w i l l b e sta rt ed a f te r
juveniles have been released from thiscenter for 1–3 months by home
v is i ti n g , te le p h o n e c a ll in g , a n d
q ue st io n n a i r e s se n t to re le a se djuveniles and their parents. Social
workers on follow up duty will use
th is i nf o r m at io n f o r so lv ing th ejuveniles’ problems or providing social
w ork services f or them to a d justthemselves to society free from drugs.

The OPC provided a budget to the VTS
2 times per year (6 months per time) for
management and administration of the
VTS. For special projects the VTS gets a
special budget, which is separate fromthe fiscal budget.

C. Establishing a Case File/Record
System and Linking it to an
Offender Database and Statistical
Compilation System
In Thailand, the OPC has just started
to develop a computer programme for ajuvenile database 2000. This database is
separated into 6 parts as follows:
1.
2.
3.
4.
5.
6.

Part 1 remand homePart 2 criminal investigation
Part 3 supervisionPart 4 guardian supervisionPart 5 family affairs
Part 6 training school

A t present, this databa se is being
tested and improved.

In my o pinion, the fiscal budge t
provided by the government is limited in
its ability to develop the VTS. Strategic
utilization of limited financial resources
and maximizing cost-effectiveness of the
VTS is as follows
1. Set up priority for works and projects.
2. Set up criteria for works and budgets.
3. Distribute each budget for the priorityof works and projects, respectively.
4. Emergency works or projects will beespecially considered b y the VTS
committee and special expenditure
will be paid by the VTS foundation.
B. Staff Training: Designing
Training Systems and Curricula
to Enhance Skills and Integrity
The OPC don’t ha ve sta ff training
course institutions. For staff training the
OPC provides 3 types as follows:
1. The curriculum that is conducted bypersonnel, the sub-division which is247

RESOURCE MATERIAL SERIES No. 59
changed year by year depending on
the budget
2. Sending staff to attend outsidecourses.
3. Request for training by each staff.
In Thailand we don’t have speciallydesigned training systems and special
curriculums especially for theenhancement of integrity.
C. Managing Public Relations andObtaining Public Trust in
Correctional Services
The OPC and the VTS maintain good
public relations by keeping good
cooperation and collaboration from GOs
and NGOs. Those GOs and NGOs provide
many kinds of activities for juveniles
during institutional treatment and after
release.
III. CONCLUSION
Some lessons are to be drawn from thebefore-mentioned Thai experiences in thedevelopment of institutional treatment
for juvenile offenders. First, the basic
defects in the non-institutional treatment
and institutional treatment systems,
whether potential or not, such as the lackof intensity in the continuance ofprotective and innovative measures or
the lack of diversity in treatment andrehabilitation terms and programmes are
crucial to the effective management andadministration of juvenile treatment
systems. This kind of defect cannot berectified by an effort of a single school orcenter, however hard it might try. It
needs concerted action of all schools or
centers and related agencies throughout
the country following the model systems
approach.
Second , developm ent can beundertaken on managem ent andadministrative matters to some extent

248

w i th i n t h e b a si c f r a m e w o r k o f t h edevelopmental systems. Although the
new model system may make a school orcenter more effective, the new model
systems alone might not produce
expected results unless and otherwise allschools or centers and related agencies
are determined to affect the necessary
following.
Third, development needs some
e xp e rim en tal at te m p t to v e rif y t hedirection o f d evelop me nt, suf ficie nt
prep aration particularly in terms ofcomplete understanding among staff ofall schools or centers and related agencies
and, of course, courage in their decision tocarry them out.
However, the above-mentioned
development is certainly not a panacea
for juvenile problems. It will be a help,
but it should anticipate well planned,b e tt e r c o o p e r a te d a n d c o o r d in a t e dmeasures with the wider participation of
all schools or centers and related agencies
throughout the country so as to meet all
j uv e ni l e i ns t it u t io n s ’ d e v e lo p m e n tsystems.
For development of a model treatment
programm e of the VTS and the
Ayudthaya T herapeutic Com munity
Center, though they have the mechanismand synergy for continuous efforts injuvenile treatment and rehabilitationfrom the moment of enrollment in theschool or center until discharge, there arealso impediments to the desired gold.
Implementation of th e treatment,
rehabilitation, and aftercare programmes
are greatly a ffected due to a lack oftechnical knowledge, and the increasing
nu m b e r o f ju ve n ile d ru g a d d ic ts i ncontrast to the shortage of social workers,
psychologists and others who are
involved in treatment rehabilitation andaftercare. Due to the shortage of qualified

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
officers and the restriction of resources,
the quality of treatment, rehabilitation
and aftercare services are impaired andthis places a heavier demand on qualified
professional personnel.
In
recognizing
professional
specialization as the basic requirement
for social workers, psychologists, andother concerned officers, whether in theinstitutional treatment or communitybased treatment programmes, there is aneed to put more emphasis on careful
recruitment and training of staff and also
to update their technical knowledge andtechnical know-how through researchand development.
REFERENCE
Annual report of the Juvenile and Family
Court, 1996–2000.
Guide to the Juvenile and Family Courta nd t he Ob s erva t ion a nd Protection
Center, 1996
Juvenile Justice and a Model for Drug
Addicts, Programme for Juvenile Drug
A d d i c t s in T h a i l a n d , I n s t i t u t e f o rJuvenile
andFamilyJustice
Development, 1998
The Act for the Establishment of and theProcedure for the Juvenile and Family
Court B.E. 2534 (1991)
Sudjit, J., (2000). The Assessment andClassification of Juvenile Delinquents.
Report. Thailand

249

RESOURCE MATERIAL SERIES No. 59
Appendix 1
The Number of Juveniles Sent to the Observation amnd Protection Center
1996–2000
No. of offenders
1996

1997

1998

1999

2000

Male

21,382

27,90635,18133,93432,270Female

2,209

2,762

3,291

3,454

3,169

23,591

30,66838,47237,38835,439Total

Juveniles Cases Classified by Types of Offences
1996–2000
Type of offence

No. of offenders
1996

1997

1998

1999

2000

Offence against property

6,277

7,782

9,196

8,325

8,090

Homicide and other violent
offence

1,396

1,985

1,919

2,304

1,946

Sex related offence

823

964

947

1,004

961

Offence relating to public
peace and security

314

288

203

218

111

Offence relating to drug
abuse, gambling, counterfeiting, carrying firearms,
etc.

14,781

19,64926,20725,537

24,331

Total

23,591

30,66838,47237,38835,439250

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Appendix 2
Organization Chart of the Juvenile and Family Court and the Observation
and Protection Center
The Central Juvenile andFamily Court••

Judiciary
Registrar

The Juvenile andFamily Court ofProvince

The Juvenile andFamily Section ofProvince Court

The Central
Observation andProtection Center

The Observation
and Protection
Center of Province• Judiciary• Registrar(9 provinces)• Judiciary• Registrar(25 provinces)••

Administrative
Division• Remand Home
• Probation
Division• Medical
Division(Bangkok)Administrative
Sub-Division• Litigation SubDivision• Technical
Service Group• Training
school(25 provinces)

251

RESOURCE MATERIAL SERIES No. 59
Appendix 3
Structure of Ministry of Justice(after separation from Court)

Ministry of Justice

MinisterOffice of the Secretary

Permanent Secretary

Office of the Permanent
Secretary
•
•
•
•
•
•
•
•
•
•

252

Legal Execution
Department

General Affairs Div.
Personnel Div.
Finance Div.
Design and Construction Div.
Policy and Planning Div.
Computer center
Justice Planning InstituteInternal Auditing Unit
The Central Observation andProtection Center
The Provincial Observation andProtection Center

Department of Probation(Adult Offender)

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Appendix 4Juvenile Case Proceedings
PoliceInjured Person••
Under the permission of the
Director of the Observation
and Protection Centre

Arrest
Notice to OPC
within 24 hours

Report sent to theprosecutor

Observation and Protection Centre•••

Pre-hearing investigation report
Physical, mental and psychological examination
Observation report

Remand home

Report sent to prosecutor,
prosecution

Bring
Trial, adjudication and order

Measures(treatment in freedom)

Order

Institutional treatment• Admonition cautioning
parents/guardians• Placement under careof person ororganization• Release on probation• Fine• Forbidden to enter
certain places• Forbidden to leave
residence at night• Forbidden to associatewith a person• Forbidden to do certain
acts• Order to report toprobation officer• Order to take up
education or occupation• Training school• Annex training school• Imprisonment(age not below 14)

253

RESOURCE MATERIAL SERIES No. 59
Appendix 5
Chart of Juvenile Cases Proceedings and Treatment Process
Before adjudication
Arrested bypoliceTransmission of the report to the Central Observation and Protection Centre

PublicProsecutor

The Central Observation andProtection Centre

Sue

Probation DivisionInterview,
Investigation,
Codification of fact

Medical Division
Physical and mental
examination, Urine
test, Treatment,
AdviseRemand Home
Division, Keeping thechildren and young
persons in custody,
Observation ofjuvenile’s behaviour,Classification,
Occupational andeducational therapy

Collecting
together all
juvenile’s reports
and submitting tocourt

The Central
Juvenile andFamily Court
Trial/Sentence

After adjudication
Released on :• Admonishment• Probation• Substitute corporalpunishment forfine• Caution parents or
guardians
1. Forbidding the child or young
person to enter any place or
locality which might corrupt
him or her
2. Forbidding the child or young
person to leave his residence atnight-time save in case ofnecessity
3. Forbidding the child or young
person to associate with any
person or persons of such kindas deemed undesirable by theCourt
4. Forbidding the child or young
person to do any act whichmight corrupt him or her
5. Order the child or young person
to present himself or herself
from time to time to the court,
probation officer or social
worker who was assigned by the
Director of the Observation andProtection Centre
6. Order the child or young person
to take up education or carry on
any substantial occupation

254

Release on
probation

Probation
Division

Supervision
Sub-Division

Training

Administrative
Division• Regular release• Pre-release• Released on shortterm sentence• Released on longterm sentence

Take upeducation
Evaluation
Substantial
occupation

Fine

Imprisonment

Training• Academic
education• Vocational training
such as printing,music training,
automobile repair,art, agriculture,etc.

Discharged from probation order
Revocation of probation
Termination of probation

Follow-up (6 months to 1 year)
Juvenile’s report proceeding
Juvenile’s case proceeding

Evaluation

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Appendix 6
Organization Chart of the Vocational Training School

Superintendent

Administrative
Section

Vocational
Training
SectionRehabilitation
Section

MedicalSection• Chief of
Administrative
staff• Finance staff• Typist• Register• Cook• Driver• Janitor• Librarian• Chief ofVocational
Section• Vocational
instructors• Social Worker• Psychologist• Housemaster• PhysicalInstructor• Technical
Nurse• Chief of Security• Security Guard

255

RESOURCE MATERIAL SERIES No. 59
Appendix 7
Organization Chart of the Drug Addict Treatment Center

Superintendent

General Affairs Section

Treatment and Rehabilitation Section• Registration• Finance• Social worker• Psychologist• Vocational instructor• Physical education instructor• Nurse• HousemasterBehavioral Development• Living guidance• Individual and group treatment• Group activities• Recreation• Dormitory treatment• Health education• Self-supporting work
• Physical education
etc.

Vocational Therapy• Woodwork• Welding• Printing• Art• Hair cutting• Agriculture

256118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Appendix 8
Expenses of the Juvenile and Family Court and the Observation andProtection Center
Year

1998
Government
budgetSalary1999
Others278,166,600

Salary for temporary staff

Government
budget2000
Others301,924,674.16

14,339,138.19

Government
budgetOthers216,208,169.15

15,291,969.64

10,383,479.43

4,101,521.88

Expenses onmaterials

118,334,500

34,785,597.93

121,842,760.86

28,162,375.55

131,846,255.35

10,052,803.73

Public Utilities

13,277,000

10,289,243.07

10,657,611.10

10,780,094.05

17,894,943.02

2,531,140.71

Construction

12,970,000

7,945,874.10

116,302,198.00

3,163,774.85

50,346,612.54

1,801,031.50

Support budget

Others

540,200

319,800.00

2,151,500

938,769.00

425,439,800

67,359,853.29

551,985,813.12

18,332,410.29

57,398,214.09

445,011,869.50

18,486,497.82

Total
492,799,653.29

609,384,027.21

463,498,367.30

40 bahts = 1$US

257

RESOURCE MATERIAL SERIES No. 59
Appendix 9
Expenses of the Sirindhorn Vocational Training School
Categories
Government officer salary

1996

1997

1998

1999

2000

1,435,920.00

2,206,320.00

2,119,870.00

2,443,170.00

2,270,290.00

Permanent employees

169,200.00

739,540.00

1,051,690.00

1,472,180.00

1,561,820.00

Temporary employees

1,682,400.00

1,722,000.00

336,360.00

113,220.00

223,550.00

26,500.00

122,400.00

18,000.00

4,500.00

38,600.00

Overtime
Other allowances
Per diem, accommodation, transportation

1,636.00

Vehicle repairs

15,871.00

7,367.16

18,765.00

37,150.20

4,403.00
18,618.00

Repair and maintenance

6,801.00

70,900.17

38,005.83

161,486.52

218,024.19

Service expenses

2,975.00

Office supplies

31,405.28

15,093.95

15,552.83
1,401.00

3,315.00

35,000.00
779.00Fuel, lubricant and gas

150,407.12

164,190.93

245,588.84

195,229.75

245,401.44

Household and kitchen materials

31,005.00

7,180.50

3,737.22

17,595.50

26,945.22

Science and medical materials

570.0017,876.15

19,509.42

Education materials

10,801.00

55,073.67

Juvenile uniforms

135,718.00

160,470.00

19,790.00

23,700.00

9,765.00

Juvenile food

594,000.00

848,306.00

1,016,568.00

1,191,263.00

924,180.00

1,352.50

1,939.00

5,000.00

Supplies and materials for training COV

2,600.00

17,175.00

43,090.25

57,119.20

71,936.90

Supplies and materials for training
machinery

4,421.80

1,051,00

15,621.00

832.0027,033.46

Supplies and materials for training automobile maintenance

36,613.21

4,727.00

8,601.00

5,313.80

33,288.25

Supplies and materials for training printing

4,695.00

12,208.10

22,974.17

7,115.28

12,478.50

Supplies and materials for training sheet
metal and welding

4,244.00

15,583.70

29,385.96

29,805.69

20,542.62

Supplies and materials for training woodwork

41,318.00

8,980.00

36,966.50

30,199.15

22,609.13

Supplies and materials for training electric wiring

2,230.00

57,797.55

10,473.00

13,754.00

31,326.74

18,657.30

15,371.60

19,632.07

Sport materials

Supplies and materials for training air
condition repairing
Electricity expenses

717,006.24

803,884.28

749,485.67

613,177.11

1,025,532.60

Telephone expenses

129,782.00

80,756.00

60,824.83

46,712.62

71,745.21

Postal service

4,806.00

5,242.00

4,882.00

5,348.69

5,898.75

Juvenile rehabilitation activities

3,093.28

113,654.00

17,106.10

56,049.50

Newspapers

3,919.00

Expressway
Visitor catering
Agriculture

30,654.00

46,181.00

36,234.28

33,290.50

20,241.00

Project Code 900-03

263,952.91

Project Code 900-05
OthersTotal

258

3,904.00
2,590.00

214,505.25
11,546.00

143,541.00

27,386.25

21,369.25

33,300.00

5,257,564.93

7,383,442.01

5,962,789.25

6,672,586.51

7,514,233.94

118TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Expenses of the Sirindhorn Vocational Training School (From 1996–2000)

8,000,000
7,000,000

Total Cost

6,000,000
5,000,000
4,000,000
3,000,000
2,000,000
1,000,000
0

1996

1997

1998
Year

1999

2000

259

REPORTS OF THE COURSEGROUP 1
BEST PRACTICES IN DELINQUENCY PREVENTION
Chairperson

Mr. Fernando Rabello Mendes Filho(Brazil)

Co-Chairperson

Mr. Shousuke Kuwabara(Japan)Rapporteur

Mr. Ambati Siva Narayana(India)Co-Rapporteur

Mr. Takahito Shimada(Japan)Members

Mr. Chen Hao(China)Mr. Sambas Somawidjaja(Indonesia)

Visiting Experts
Advisers

Mr. Acharya Binod Mohan(Nepal)Mr. Naoyuki Fukushima(Japan)Ms. Kae Sakuma(Japan)Dr. Tracy Harachi(U.S.A.)

Mr. Rob Allen(U.K.)

Prof. Toru Miura(UNAFEI)

Prof. Yasuhiro Tanabe(UNAFEI)

Prof. Hiroshi Tsutomi(UNAFEI)

I. INTRODUCTION
Juvenile delinquency is a pressing
issue in developing countries where many
children are on the verge of starting acriminal way of life. In those countries,
resources for the treatment of juvenile
delinquents are sometimes too limited tor einte grate them back into so cie ty.
Offender institutions are ofteno v e rc r o w d e d a n d co m m un ity - b a s e dtreatme nt is yet to be provided.
T he re f or e , de linq u en cy p re ve ntio n,
sa ving children b efo re the y co me inco ntact w ith la w , is e xtra ordinarily
impo rtant. The gro wth of a yo unger
p opula tio n a ggrava tes the s it uation
because these countries are not equippedwith sufficient national economic andsocial capacity to bring up the children in
non-criminogenic environment.
The United Nations has taken its leadin its sup p or t f or th e p rev en tion o fdelinquency. For example, Article 37(b) of260

the Convention of the Rights of the Child
states that, “the arrest, detention or
imprisonment of a child shall be... used
only as a measure of last resort.” Also,
Rule 1.3 of the United Nations Standard
Minimum Rules for the Administration ofJuvenile Justice (“The Beijing Rules”)
says that, “sufficient attention shall begiven to positive measures that involvethe f ull m obilizatio n o f all p oss ib lere sources, including the f amily,
volunteers and other community groups,
as well as schools and other community
institutions, for the purpose of promoting
the well-being of the juvenile, with a viewto reducing the need for intervention
under the la w.” Further, the United
Nations Guidelines for the Prevention of
J uvenile De linq ue ncy (“Th e R iya d hGuide lines”), wholly devoted todelinquency prevention, stressprevention of juvenile delinquency as an
essential part of crime prevention insociety (in its Guideline 1), the118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
responsibility of society to ensure theharmonious development of adolescents( in its G uid e lin e 2 ) , ch ild - c e nte r e dorientation (in its Guideline 3), the wellbeing of young persons from their earlychildhood (in its Guideline 4), progressive
delinquency prevention policies (in its
Gu ideline 5) and the avoidanc e ofutilization of the formal agencies of social
control (in its Guideline 6). At the turn ofthe century, the Tenth United Nations
Congress on the Prevention of Crime andthe Treatment of Offenders adopted “theVienna Declaration.” In Paragraphs 24
and 25, the importance of prevention isagain emphasized.
In these few decades, developed
countries, such as the United Kingdom,F r a n c e , S w e d e n , th e N e t h e r l a n d s ,Canada and the USA have developed
good practices in the field of prevention
facing the failure of their penal systems
to stop the high tide of crime. Based upon
experien ces accu mulated in th es ecountries, crime prevention has gradually
been conceptualized into three types:s itu a t io n a l p r e ve n ti o n, c o m m u ni ty
prevention and developmental prevention(Tonry and Farringron, 1995). However,situational prevention, which is an effort
to reduce the opportunity of crime, forexample, by locking doors, installing
alarms, and purchasing dogs and so on,
h a ve o nly sho r t- liv e d e f f e ct s. A l so ,community prevention which is an effort
to reduce crime by organizing a watchfulc o m m u ni ty p r o v id e s o n ly a p a r ti a lsolution.
In contrast, developmental prevention
has been shown to be effective, especiallyin terms of cost-effectiveness. One of themost well-known results of the evaluation
research of developmental prevention
programme showed that every dollar
invested in the programme resulted in asaving of seven dollars in cost such as

payment to crime victims, in welfare
benefits as well as costs to the criminal
justice system (Schw einha rt, et. al.,
19 9 3) . I n a ny case , the d elinq uency
prevention approaches are known forhigh returns especially culled from its
beneficial effects on youth’s well being(e.g. he alth, aca de mic perf orma nce,
employment and reproductive behavior)(cf . International Ce ntre for thePrevention of Crime, 1997;1999).
Developmental prevention is based onwhat is called the risk factor prevention
paradigm (Farrington, 2000a), whichaims to identify risk factors for offending
an d im p le m ent pre ven tio n m etho d s
designed to counteract them. In addition,
protective factors a re identified andenhanced. Programmes are chosen and
imp lem ented to target these factors
a r r a n g e d a lo n g th e d e v e l o p m e n t a l
trajectory.
Among the comprehensive delinquency
prevention frameworks developed upon
the risk factor prevention paradigm, the“Communities That Care (CTC)” model
developed by a research team of the
University of Washington (Seattle, U. S.
A.) stands out. The model is evidenceba se d and syste m atic: the cho ic e o f
in te rve ntions de pe nd s o n e mp irica levidence about what are the importantrisk and protective factors in a particularcommunity and on empirical evidence
about “What works”. The CTC model has
principally two attractions as a model tobe applied to developing countries.
First, it is quite flexible and applicableto various situations because it does notargue for any particular programmes, butallows prog rammes to be s electedaccording to the needs and resources ofeach particular community. As a result,
the CTC model has been the most widely
replicated strategy of this kind: it has

261

RESOURCE MATERIAL SERIES No. 59b een implemented in more than one
hundred communities in the U. S. A.
F urther, it is being implem ented inseveral sites in England. Scotland, The
Netherlands and Australia are joining
them in near future. A similar model isapplied even in an African country (i.e.,
the Ivory Coast) by the International
Centre for the Prevention of Crime inMontreal, which also testifies to the wide
applicability of this model in developing
countries.

S ea ttle S o cia l D eve lo pm e nt P ro jec t
showed that teacher training inclassro om m a na gem ent, inte rac tive
teaching, and cooperative learning given
to elementary school children led to analmost 20% decrease of lifetime violent
delinquent behavior at age 18 (Hawkins,
J. D., Catalano, R. F., Kosterman, R.,
Abbot, R. D., and Hill, K. G. (1999) citedin McCord, Widom and Crowell (2001)
a nd Wa shingto n S ta te I nstitu te f or
Public Policy (1999)).

Second , it is the delinquency
prevention framework most prepared tobe disseminated because it has b een
officially disseminated by the Office ofJu venile Ju stice an d Delinqu en cy
Prevention of the U. S. Department ofJustice (Catalano et. al., 1998) and, in theprocess, the training package and them e th o d of te c hn ica l a ssis tanc e has
become now standardized.

T he b a sic c o nce p t o f d e linq ue nc y
prevention is simple. We have to savechildren before they fall off the cliff by
setting up inexpensive fences rather thantreat wounded children after they fall off
th e c l if f b y e s t a b li sh in g e x p e n s iv e
hospitals. This philosophy should and canb e a p p li e d t o d e ve lo p in g c o u n tr ie s
although risk/protective factors may bedifferent depending on the situations ofeach country and also the strategies totackle these factors may be different
depending on the available resources ineach country.

However, this model is not without
problems. First, as is the same as otherdelinquency prevention models, it may
stigmatize at risk children. However,
because the CTC model strongly
emphasizes protective factors, it is more
attractive to communities than tacklingrisk factors. Also, since the CTC stressesc o m m u n i t y m o b i l i z a t io n , i t a v o i d s
stigmatization by focusing upon high-riska re a s in ste a d o f h igh- r isk ch ild re n
(Farrington, 2000b).
Second, the overall effectiveness of the
CTC model has not yet been
demonstrated. Precisely because the CTC
advocates for multiple component
interventions, it is difficult to figure out
the elements of the package which are
more or less effective (Farrington, 2000b).
N o n e t he le s s , th e S e a t tl e t e a m h a s
already demonstrated the effectiveness of
its component programme. Their schoolintervention programme known as the262

W e h o p e th a t th i s r e p o r t w il l bebeneficial to all readers working toward
the reduction of delinquency and the wellbeing of children in many parts of theworld.
II. DESIGNING A MODEL
A. Delinquency Prevention
Framework
We designed a model framework ofdelinquency prevention based on the risk
factor prevention paradigm, relying on
the CTC model. The ideas of theparadigm itself are applicable to any
context because it simply advocates forthe choice of programmes upon identified
risk /p ro tec tive f a ctor s. Ho w e ve r, it
re quires some modification in its

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
practical application, depending on social/economic conditions. In the remaining
part of this report, we will examine its
applicability from every aspect.
T he C TC mo del is an overa rchingmodel linking preventive efforts targetingrisk/protective factors found at multiple
levels of society: individual, family, school
and community (refer to Guideline 11 of
the Riyadh Guidelines which emphasizes
the importance of socialization by family,
school, community and mass media).
Risk factors are precursors associatedwith delinquency, and protective factors
are those which protect the children fromthe ne gative e ff e cts of r isk f ac tor s.
Accordingly, this multi-domain nature of
risk/p rotective fa ctors calls forcollaborative multi-agency approach todelinquency prevention. According to Dr.
Harachi, visiting expert to the 118th
UNAFEI International Training Course,
the principles of prevention in this model
are:a. Preventive interventions should focus
both on reducing risk and enhancing
protection;b. Preventive
interventions
shouldtarget individuals exposed to higher
levels of risk, lower levels ofprotective factors;c. Address risk and protective factors at
developmentally appropriate stages
and w henever possible, intervene
early;
d. Use data to select priority risk andp r ot ec tiv e f a c to r s in d e sig na t e dcommunities.
Risk/protective factors in each society
should be carefully identified because
social/economic situations differ fromcountry to country.

Another knowledge base of thisapproach is effectiveness of component
programmes/policies to address risk/
protective factors. In short, the CTC
model provides a framework in whichrisk/protective factors are systematicallytargeted by programmes/policies withknown efficacy (see Table 1). Participant
countries in this group carry out similar
program mes in respective co untrie s(Table 2). However, the efficacy of thosep r o g r a m m e s i s ye t to b e e x a m i n e dscientifically.
Actual strategies which are effective inrespective countries may be different
depending upon their social/economic
conditions. For example, governmental
services are sometimes inadequate indeveloping countries to meet basic humanneeds. Accordingly, basic social services(e.g., health, education and employment
programm es) often provided by nongovernmental organizations may carry
more importance.
B. Putting the Delinquency
Prevention Framework into
Practice
1. Delinquency Prevention Process
T he p re ve n tio n o f d e lin q u en cy i scarried out through the following steps.
Step 1
Step 2

Step 3
Step 4
Step 5

Mobilization of the key leaders
Assessment of the prevalence of risk, protection andprob lem behaviors in thecommunity
Prioritization of risk factors
and protective factors forpreventive action
Selection of tested interventions to address priority risk
and protective factors
Effective implementation oftested interventions

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RESOURCE MATERIAL SERIES No. 59
Step 6
Step 7

Monitoring changes in targeted risk and protective factors and problem behaviors
Adjustment or modificationof interventions as indicatedby performance monitoringdata.

2. Actors in Delinquency Prevention
As is pointed out, delinquency
preventive action cannot be effective
without adopting a multi-disciplinary
collab orative app roa ch. In the sam e
sp irit, G uide line 9 (g) o f the R iya dh
Guidelines states that comprehensive
prevention plans should include:“Close interdisciplinary co-operation
between national, state, provincial
and local governments, with the
involvement of the private
representa ti ve citiz ens of th ecommunity to be served, and labors,child-care, health education, social,law en forcement and ju dicial
agencies in taking concerted action
to prevent juvenile delinquency andyouth crime.”
The CTC model can be initiated locallywithout a national level system.
However, following the lead of the Riyadh
Guidelines which emphasize theimportance of comprehensive prevention
plans at every level of Government (seealso Paragrap h 24 of the V ienna
Declaration), this three-level structure issuggested as a model.
There are three main actors in theprevention of delinquency: the nationalboard, the comm unity board andprogramme implementers. The nationalboard is responsible for carrying out Step
1 of the delinquency prevention process.
Before the national board is formed,
the key leaders at the national level (e.g.

264presidents, prime ministers, ministers,
permanent
secretaries,
policecommissioners, directors of influential
NGOs, etc.) should be activated. It has
been often the case in many countries
that the process was initiated by nongovernmental organizations interested inchildren’s rights or individuals committed
to the causes for delinquency prevention.
T he y ha v e b ee n o f te n su cc e ssf u l i nchanging the political will to assign toppriority to delinquency prevention. The
importance of technical assistance givenby the United Nations relatedo r g a n iz a t i o n s a n d i n t e r e s t e d n o n governmental organizations should beemphasized in this regard.
The community board is in charge ofcarrying out steps 2–4, 6 and 7 in each
community. Programme implementerscarry out Step 5 (programme
implementation) under the direction/
support of the community board.
1. National Board (Step 1)
The national board is responsible formobilizing and coordinating local
delinquency prevention initiatives in the
country. The board is ideally a coalition ofmultiple governmental agencies in chargeof areas relating to delinquency
prevention such as criminal justice, social
welfare, health services, education, andcommunity services. The national board
may have representatives from
nongovernmental agencies and otherinflu en tial org anizat ions as th eir
members. An excellent example of thenational board is the Youth Justice Boardof England and Wales which is in chargeof juvenile justice policy making.
Participating countries have similar
structures such as Inter-Ministerial
Committee,
N ational
Narcotic
Coordination Board, Central Welfare
Committee and the Youth Development
Promotion Council (see Table 3), but the118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
function of the national boards in thosec o u n t r i e s i s s u b s t a n t i v e l y li m i t e dcompared to that of the Youth Justice
Board.
2. Community Board (Steps 2–4, 6 and 7)
The principal actor is the community
board which is responsible for putting
delinquency prevention framework into
practice under the guidance and with thes up p o rt o f th e na tio n a l b o a r d . T h ecommunity board consists of people who
collaborate together such as principals of
the local schools, active parents, Lions/Rotary members, programme manager of
local social service agency, local probation
officer, local police chief and local publichealth nurse. The board is often
coordinated by juvenile justice officials
such as probation officers/social workers.
In some d eveloping countrie s where
governmental resources are relatively
limited, non-governmental organizations
should be invited to play vital roles in thismultidisciplinary collaborative board.
Exam ples of organizations in ourparticipat ing cou ntries which are
expected to act as community boards arefound in Table 4. They include Social
Welfare Activities Group, District Child
Welfare Committee, Municipal Wards,
and Crime Prevention Conference.
Assessment (Steps 2 and 3)
One of the key jobs of the community
board is to conduct a risk and protective
factors assessment as well as resources intheir community. The board may create atask force or sub-committee to be
responsible for assessment. In short, thecommunity board will gather data on
three are as: risk fa ctors, pro tective
factors, and delinquent behaviors. An
example of making a community profile iss h o w n in A p p e n d ic e s 1 a n d 2 . T h eassessment system shown in theapp endices needs not be followed bycommunity board members in developing

countries where statistical technicalassistance is not readily available. The
basic idea here is that the collection ofsome form of data is recommended before
p rio r iti z ing f a c to rs . A s to re so u rc e
assessment, the community board will
examine existing programmes or services,
capabilities, funding, etc. in thecommunity.
After the d ata is collected, thecommunity board will analyze it to findpriority risk and protective factors to beintervened. At the same time, based on
the results of resource assessment, thebo ar d w ill lo ok fo r the ga p be tw een
factors to be intervened and the current
provision of services. For example, there
ma y exist pro gra m me s only serving
limited people or no programmes focusing
specific priority factors.
Selection of Strategies (Step 4)
N e x t, t he co m m u n ity b o a r d t he nmatches prioritized factors with effective
programmes to fill the gap, taking thereso urce constra ints in mind. A list
linking risk factors and effective
programmes like Table 5 will aid theidentification of the prom isingprogrammes. Selected interventions are
expected to decrease delinquency, by
working upon risk-protective factors
which in turn are expected to influencedelinquency.
Monitoring/Evaluation (Steps 6 and 7)
Monitoring or process evaluation isimportant to ensure that the programmes
are i mplemented as pl anned. The
community board usually asks service
providers to send performance reports
regularly while they are encouraged tocarry out direct observation bythemselves.
Evaluation or outcome evaluation looks
at the change in risk/protective factors

265

RESOURCE MATERIAL SERIES No. 59
and delinquency utilizing the pre-postd e s ig n. D e p e nd i ng o n t he r e su lt o fe va lu a ti o n , p r o gr a m m e s sh o u l d b e
modified accordingly.
3. Programme Implementers (Step 5)
Direct service providers implement
programmes under the guidance of thecommunity board. The providers include
criminal justice professionals, nurses,
school teachers, social workers, drug
therapists, sports organizations, citizen
volunteers etc. The community board
m ay a lso implem ent programmes bythemselves.
Programmes are designed to targets p e c if ic ( so m e t im e s m ul tip l e ) ri sk /protective factors. In general, the law
e n f or ce m e n t a ge n cie s a r e b e tte r a t
targeting community risk factors such as
the availability of drugs and firearms
while social service agencies are better attargeting family/individual risk factors
(see
Table
1).
Bearing
thiscomplementary relationship in mind, theU. S. Department of Justice started theWeed and Seed Programme in which law
enforcement and social services agencies
are working together at neighborhood
level.
In any case, the synergetic
relationships among strategies should be
strengthened b y the develo pment ofinterd epend ence among different
strategies. Examples are found in Japansuch as its community policing (e .g.
Koban system) and overlapping networksof volunteers organize d by dif ferent
governmental agencies (e.g. probation,
welfare and police).
Also, the use of restorative justiceapproaches as delinquency prevention
p rogr am m es m a y b e pro mising. F or
example, social workers can use family
g ro up c onf e re nc in g to re so lve ch ild

266

protection cases and school teachers canuse family group conferencing to stopbullying. The use of restorative justiceprogrammes is expected to encouragecommunity members to own the task ofdelinquency p revention. That is,
restorative justice programm es ma y
strengthen the community ties
fundamental to the prevention ofdelinquency.
III. OPERATIONAL ISSUES
A. Training
In the previous section, a three-levelstructure was proposed which will enablea country to prevent delinquency
efficiently. Accordingly, the training
needs of persons engaging in delinquency
prevention are different depending on thelevel s/he belongs to (see Guidelines 9(i)and 58 of the Riyadh Guidelines).
Consequently, the following discussion isdivided into the training of nationalboard memb ers, of community board
members
andofprogramme
implementers. Appendix 3 gives general
topics to be covered in their training.
1. National Board Members/Key
Leaders
The members of the national board are
key leaders in the country, who havela r g e d is cr e t io n a r y p o w e r o ve r th e
distribution of budgets. Therefore, theyneed to be informed of and recognize theimportance of delinquency prevention totheir country. Key leaders need to beprovided with the overview of the riskfocused prevention framework and learn
the need to support and financeprogramme implementation of risk andprotective factors. The length of training
can be as short as 1 or 2 hours.
In case that prevention initiatives are
not yet on the national agenda and are

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
initiated locally at the community level,
key leaders of the community should go
through the same type of training.
2. Community Board Members/
Prevention TeamAt community level, community boards
should be formed which will be a key
instrument to get delinquency prevention
into motion. If not formalized , acommunity board can be replaced by ateam of persons interested in working
together to reduce delinquency in thecommunity, which is termed a prevention
team.
They have to go through the sa me
overall prevention framework trainingthat the national board members receive.
Ho we ve r, be cause com munity b oa rd
members are not as busy as nationalb oa rd me mb ers, these to pics ca n b e
covered in more depth.
After being provided with general ideas
on risk-focused prevention framework,board members should learn how to be ateam to confirm group rules and assign
roles and responsibilities. Next, the board
members should learn general rationale
for risk and protective factor assessment
and resource assessment since the maintask of the community board is to develop
comprehensive delinquency prevention
plans that reflect their own unique risk
r ed uctio n nee d s. The le ngth o f thistraining may be 3 days.
A f te r r ec eiving this training, th ecommunity board needs to form a subcommittee or task force which will be incha rge of risk a nd pr otective f a ctor
assessment and resource assessment of
the community. The members of the task
force should learn the detailed process ofassessment. The length of training can be
2 days, b ut the follow -up tra ining isrequired. An additional technicalassistance on a case-by-case basis byexperts will b e also useful. Training
focused on the specific problem in each
community will be more advisable.
3. Programme Implementers
Programme implementers are direct
service providers who need to be trainedin specific programme a reas such a s
prenatal, pre-school, school, family andcommunity programmes. The community
boar d can implemen t programmes
directly, but usually need to find others
w h o im p le m e n t p r o gr a m m e s i n th ecommunity such as a social agencies or
the local schools. An example of trainingof programme implementers in the U. S.
is found in Table 6 while those of otherco un t ri es a re de s cri b e d i n T a b l e 7 .
Programmes implementers thus trained
can be utilized as valuable resources forcommunity-based treatment of offenders.
B. Reducing Costs and Finding New
Resources
It is needless to say that enough funds
an d re so ur c e s a r e p r e r e q u i si te s t oimplement the programmes. This is why
Guideline 45 of the Riyadh Guidelines
requests that the government agencies
should provide sufficient funds and otherresources for the effective delivery ofservices to benefit young persons.
At present, it is not realistic to discussho w t o r e d uc e co s ts o f d e lin q ue n cy
prevention because resources used forprevention efforts are quite limited evenin developed countries. Prevention needs
to be a llocat ed more resources byidentifying new funds/resources, which
are currently used for other purposes.
With the understanding that prevention
is the necessary and rewarding
investment to reduce costs to be incurredin future, more assistance can be afforded
to preventive efforts as long as
delinquency prevention programmes are

267

RESOURCE MATERIAL SERIES No. 59
shown to be acceptable, budgetable andcost-effective.
The assistance can be broadly
categorized into monetary assistance (i.e.,
funding) and the provision of free services(i .e., volunteers). The d iscuss ion
concerning the form er is divid ed
according to the levels of funding sources,
namely, national/international orc o m m unit y. E xa m ple s o f s ugg es te dmeasures are found in Table 8.
1. Provision of Funding
National/International Level Funding
Sources
Not only governmental agencies but
a lso n o n- g o ve r nm e n ta l ( es p e ci a lly ,inte rna tiona l) organiza tions will b e
partners. The list of promising donors isfound in Appendix 4. Long-term funding
which may last 5 or 10 years will be only
available from governmental sources.
Therefore, prevention experts should beequipped with the capacity to persuade
and report to those governmental funding
agencies. Private donors may be morefavorable to f und pilot projects/
programmes than governmental
agencies. In any case, the efficient use of
the allocated money is a precondition to
get continuous funding.
Community Level Funding Sources
Local businesses sometimes sponsord e l in q u e nc y p re v e nt io n p ro j e c ts t oheighten their image as well as to reduce
crime (e.g. shoplifting in the shoppingmall) in the community. Also, businesscircles such as Lion’s clubs and Rotary
clubs can be prospective benefactors.
Individual Level Funding Sources
Even mutual assistance at individuallevels can be facilitated if thecoordinating structure is introduced. For
example, many foster parents
p ro gra m m e s r un by N GOs to assist

268

children of poor families are in place.
P hi la n t hr o p ic a c t s o f g o o d he a r t e dindividua ls should be a cknow ledged
accordingly. Charity shows or bazaars
soliciting donations from local residents
are other alternatives. Donations fromindividua ls should be encouraged byintroducing special incentive schemes.
2. Provision of Free Services from
Private Sectors
L o c a l m e d ia s uc h a s r a d io o r T V
st a t io n s c a n b e go o d p a rt n e r s. F o r
example, they can offer a spot for an
NGO/governmental agency which looks
after parents of children who are unable
to know their parent’s address.
Also, local individuals such as small
business owners and recreation leaders
who are willing to work with juveniles
may be useful as direct service providers.
The former can provide employment
opportunities for at high risk youth while
the latter can offer constructive leisuret i m e a c t i v i t i e s . V o lu n t e e r s c a n b e
attracted even on a national basis if theircontribution is recognized, for example,
by a royal family.
3. Sharing of Services of Governmental
Sectors
The collaborative/multidisciplinary
a p p r o a c h i s a k e y t o d e l in q u e n c yprevention and if governmental agencies
can work together, the outcome will be
fruitful. For example, the local school can
ask community health services and thepolice to hold a seminar on drugs for theirstudents. Probation officers can contributeto such programmes by providing theirexpertise. Social workers can help streetc h il d r e n w it h o u t j o b s if t h e p u b li c
vocational training scheme run by thelabor administration opens its doors tothese children.

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
IV. ACCOUNTABLITY ANDEVALUATION

pre-test scores. This is a ta sk of thecommunity board.

A. Evaluation
Evaluation serves two purposes. First,
it gives information necessary to refine
and improve practices as Guideline 48 of
the Riyadh Guidelines states. Second, it
tells whether the objectives are realized
besides ensuring accountability. In any
sense, procedures of evaluation should beplanned at the initial stages of planningand the resources to be used fore va lua tio n sho uld b e r ese rve d . Th e
Guideline 9(d) of the Riyadh Guidelines
states that strategies need to becontinuously monitored and carefully
evaluatedinthecourseofimplementation.

Comparison against the target scoresindicat es w hether the targ ets areachieved or not. Usually, target scores are
set by using average risk/protective factor
scores of the communities in the same
area as a benchmark. However, if nocomparison communities are available,
target scores are established simply as an
outcome of agreement of the community
board members after the initialassessment. When the target score is
attained, another risk/protective factor
will be targ ete d by s ele ct ing a n ew
programme/policy to influence it.

Corresponding to these two purposes of
e v a lu a t i o n , t h e r e a r e t w o t y p e s o fe va lua tio n: outco me evaluation a ndprocess evaluation. Outcome evaluation,
conducted at the community board level,
is a periodical repetition of risk/protective
factor assessment including thereassessment of delinquent and otherproblem behaviors. Process evaluation,
conducte dattheprogramm e
implementer level, is a carefully designed
monitoring of the programm e
implementation process while it is in
p ro gre ss. E xa mp le s o f ou tcom e a n d
process evaluation are found in Table 9.
A s Ta ble 10 illustra tes, results o foutcome and process evaluation should ber e p o r t e d to o v e r se e in g b o d ie s . T h eoverseeing body may review the results if
necessary.
1. Outcome EvaluationTheoutcomeevaluationisreassessment of delinquent and otherproblem behaviors, and risk andprotective factors against their target/

Comparison of the post-test score (i.e.,scores at the reassessment) against the
pre-test score (i.e., scores at the initialassessment) reveals whether progress isbeing made on the targeted/non-targetedfactors. When no substantial progress ism a d e o n a ta r g e te d f a c to r , c u rr e n t
strategy needs to be refined or anotherstrategy needs to be adopted to target
another factor. When a factor nottargeted by the current strategy is foundto become more complicated than thetargeted factor itself, the alternative is totake path of reprioritization of factors.
The interval of (re)assessment depends
on the total length of the intervention andthe cost of reassessment. In any case,outcome evaluation should take place not
only at the end of the project but also
regularly during the implementation
process.
The result of the outcome evaluation,
especially change in delinquent behavior
as a consequence of the strategy, should
be reported to the national board. The
result should be provided to programme
implementers also to review theeffectiveness of their efforts.

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RESOURCE MATERIAL SERIES No. 59
The community board may establish
an evaluation task force/sub-committee tocarry out outcome evaluation. There are
two ways in organizing the evaluation
task force: internal and external. Internal
evaluation refers to evaluation carriedout by commun ity board members
themselves. External evaluation refers toevaluation conducted by an outside body,such as the national board or a research
associate. The former is usually lesscostly and m ore likely to engage
community board members in solving
problems arising from implementation
processes. The latter is usually moreobjective and sophisticated because ito f ten a llo w s the u se o f e xp er tise o foutside specialists.
2. Process Evaluation
Process evaluation is conducted tom onitor programm e implementa tion
while it is in progress, to maintain its
integrity. The data collection for processevaluation should be built in as a part ofprogramme implementation (e.g., service
record keeping system). Processevaluation is directed at questions suchas the following:a. Whether the programme is reaching
the appropriate target population;b. Whether the delivered services is
consistent with designed specification
and;c. Whether the programme has been
p r o v id e d w it h s u f f i c i e n t f u n d s /resources.
Thus, process evaluation involves
identifying faults and deficiencies inp r o gr a m m e im p l e m e nt a tio n , w hi chprevents programme implementers fromdelivering the intended services to thetarget population. Surveys of programmeparticipants and community members
should be conducted to learn whether the
programme reaches the target

270

population. A data collection scheme
unique to individual programmes should
be developed because the specific content
of the service differs from programme toprogramme.
T he resu lts of p ro cess evaluatio nshould be reported to the community
board. The community board may also
report the results to the national board, if
necessary.
B. Information Provision to
Stakeholders
The community board should remain
accountable to stakeholders by providingthem with relevant information. The
info rm a tio n ca ref ully p re pa re d a ndtimely communicated, taking their needs
and interests into consideration, willbring continuous and stable support tothe community board activities.
Guideline 61 of the Riyadh Guidelinesemphasizes the importance ofi n f o r m a t io n e x c h a n ge a t n a t io n a l,regional and international level.
1. National Board/Key Leaders
National board/key leaders should befurnished with results of both process andoutcome evaluation. Particularly, there port should point out possible
congruence with other governmental
policies/progra mmes so tha t further
collaboration can be pursued.
2. Funding Sources
Funding sources should be informed ofresults of b oth p rocess and outcome
e va l ua t io ns . P a r tic ula rly , t he y a reexpected to appreciate the result of costeffectiveness/cost-benefit evaluation since
they are interested in more efficient
allocation of their budget.
3. Taxpayers/Philanthropists
Taxpayers/philanthropists aresupporters of funding sources and118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
funding sources are obliged to justify totheir supporters the allocation of theirbudget to delinquency prevention. Even
though funding sources are primarily
responsible for the information provision
to their constituents, efforts of respective
community boards to inform people inother communities should be appreciatedbecause the reduction of delinquency in
any area will enhance nationwide support
for delinquency prevention.

are volunteers and other citizens who
voluntarily commit themselves to theproject. They need to be informed of theircontribution to the entire project.

4. Community Members
L oca l re sid ents of the com mu nity
where the delinquency prevention projectis being carried out are entitled to be
informed of what is happening in theircommunity. They include not only
potential participants to the programme
and potential service providers. The
number of persons who have participatedin programmes and the change in thecrime trends will be interesting to them.

1. Types of Communication Strategies
Delinq uency prevention ca nnot be
carried out without good communication
strategies. Roughly speaking, there are
four types of communication strategies:
mass media (TV, radio and newspaper),in-house materials (e.g. newsletters,posters, pamphlets, billboards, videos,etc.) prepared by delinquency prevention
bodies, and meetings/gatherings (e.g.
seminarsandeventswithentertainment), web pages and personalcommunication.

5. Programme Targets
P ro gr a m m e p a r t ic i p a n t s s u c h a sjuveniles and parents who are exposed tothe strategy should be informed of thep ur p ose a nd ef f ec ts ( inclu din g sid ee f f e c ts) o f p r e ve n tiv e p r o gr a m m e s .
Appropriate words need to be used while
explaining the programmes offered to theprogramme participants without causing
any stigma. For example, the title of the
programme delivered to at high riskfamilies/youths should be frame dpositively, not to imply anything related
to crime reduction. In the same vein, theimpact of community projects on crimeshould be publicized as one of the range ofimpacts on health, education and social
well-being.
6. Service Providers
While service providers themselves are
responsible to report to the community
board, they should be counted as one of
the stakeholders, especially when they

C. Communication Strategies
Communication strategies should be
carefully selected because different typesof commu nic ation str ategies h ave
different merits and demerits (see Table
11 for model communication strategies).

Mass MediaThe Riy adh Guidelin es 40 to 44
explicate the role to be played by mass
media in juvenile delinquency prevention.
Mass media is good at disseminating
information to a large number of people
at relatively low cost although the quality
and quantity of information has to becompromised. Their influence is so strongthat their way of reporting delinquency
can greatly affect public attitudes toward
delinquency prevention. The effectivenessof media depends on the situation of thecountry, especially the diffusion ratio ofthese media. The role of mass media will
be limited when the target groups cannot
afford to access it.
In addition, the high costs involved
have to be considered; in some countries
the broadcasting under the government

271

RESOURCE MATERIAL SERIES No. 59
can be mobilized with ease. In others, thebroadcasting is more difficult and costly.
In case the mass media is hard to use
although there is a need to reach thelargest number of people in the nation,
government agencies such as tax
collection, army, postal service and police
can be mobilized.
In-House Materials
In-house materials can carry more
information of better quality with focusedrecipients in mind. Technical materials
are relatively costly and take time toprepare. Because of their cost restraints,
they are used to disseminate information
to local residents or people involved indelinquency prevention activities.
Ne wsletter s loc ally pro du ced bya gencies such as community boards,
schools or Kobans are vital to sensitize
the local residents.
Meetings/Gatherings
Meetings/gatherings such as seminars
and entertainment events (especiallythose inviting movie stars and athletes;
co nte sts; a w ard ing cerem onies; a nd
traditional entertainment such as puppet
shows) are good at involving participantsby direct communication. However, they
are relatively too costly to reach the
public in general and are usually utilized
to communicate with local residents on
delinquency prevention activities.
Web Pages
Web pages on the Internet have thesame merit as in-house materials becauset he y ca n c a r ry inf o r m a t io n o f g o o dquantity while maintaining thepossibility of reaching a wider audience.
The technology is fairly new and needssome time to be widely used in developing
countries.

272

Personal Communication
Verbal co mmunication is still
important, especially in local settingsb e ca us e p e o p le ha rd ly tr ust ot he r s
without face-to-face interaction.
Delinquency prevention activities call fora h i gh d e g r e e o f co m m i t m e n t f r o mparticipants and local service providers
and definitely need to be supported bypersonal communication.
2. Purposes of Communication
Strategies
Communication strategies should be
carefully selected depending upon the
purpose of communication. There arebasically four purposes of communication:
resource mobilization, involvement oftar get p o pulatio n, disse mination of
i n f o r m a t io n to p e o p l e e n g a g i n g i ndelinquency prevention and attitudinalchange of community.
Resource Mobilization
A d e lin q uen cy pre ve ntio n p ro jec t
requires sizable monetary and humanre sou rce s. E spe cia lly in d ev elo pin gcountries where resources are limited,
com munication to a ctiva te potential
donors and service providers are
essential. Sometimes, local residents
themselves are asked to take actions suchas forming self-help groups or building
loca l schools. The mobiliza tion of
resources is usually carried out by jointly
using m ultip le str ate gies includ in gnational and local mass m edia,
d is tr ib u ti o n o f in - h o us e m a te r ia ls,
meetings/gatherings a nd web pa ges.
Furthermore,resourcesforcommunication (e.g. media) themselves
should b e marshaled to work for the
project. In the U.K., journalists a nd
media that have made responsible andpositive reporting of youth crime (policy)
are awarded by the Youth Justice Board.

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Involvement of Target Population
The project should reach and motivate
i ts p o te n t ia l b e n e f i c ia r ie s b e c a u s eparticipation in delinquency prevention
programmes is voluntary. Without being
motivated, the programme will not beable to attract its target population.
To reach target population, local mass
media, distribution of in-house materials
and meetings/gatherings are jointly used.
However, the importance of personalcommunication cannot be emphasized in
the recruitm ent of participa nts. For
example, to recruit parents into school
programmes, school social workers who
have direct contact with students haveplayed a key role in CTC projects.
Dissemination of Information to People
Engaging in Delinquency Prevention
People directly involved in delinquency
prevention should be kept informed ofpolicies and other practical information.
Because their number is limited and theyneed more detailed information than thegeneral public, more costly and focusedcommunication tools such as in-housematerials, seminars and web pages are
more likely to be used. Communicatingwith these people can be considered as aform of training.
Community Attitude Change
The success of community projects
depends on the perception of community
members regarding delinquency andother problem behaviors. If thecommunity members have permissive
perceptions of drug use, it is difficult to
reduce drug abuse among local juveniles.
Also, favorable attitudes towa rd thep roject sho uld be fe rmented so that
community members may be willing tocooperate with its activities. Mass media,
distribution of in-house materials andmeetings/gatherings are jointly used tochange community attitudes.

V. CONCLUSION
Delinquency prevention has been a
global endeavor for decades, and it is still
to be a critical challenge worldwide. In
this report, we have strived to explore thebest practices in delinquency prevention,
which was primarily adopted from aleading model called the C TC model
developed by the Social Development
Research Group of the University ofWashington (U.S.A). Needless to say, thispaper revealed that more considerationneeds to be taken when the model isapplied in developing countries.
Referring to the Riyadh Guidelines, wedeveloped a d elinquency prevention
f ra m e w o rk w hi ch e m p h a s iz e s r isk /protective factors at multiple levels of
so c i e ty : in d iv i d ua l, f a m i ly , sc h o o l,community and nation. It is strongly
advised that these factors in each society
should be carefully identified based on
their own situation. To put theframework into practice, we suggested amodel delinquency prevention processc o n s i st i n g o f 7 s t e p s s u p p o r t e d b ycollaborative structure. We also discussed
how to make component programme/
policies addressing the risk/protective
factors as effective as possible.
It is also highlighted that the training
needs of people engaged in delinquency
prevention differ depending upon theroles they play, and general training
topics were given as a reference so thatthey can be modified.
We also s how ed concern for th eimportance of evaluation of component
pro gram m es a s well a s de linq uency
prevention projects as a whole. We may
e s ta b li s h a ta s k f o r c e i n c h a r g e o f
evaluation. Both process evaluation andoutcom e evaluation should be
im p le me nted . I n the m eantim e , the273

RESOURCE MATERIAL SERIES No. 59
importance of the information provision
to stakeholders was also stressed in orderto ensure accountability.
Considering the overall situation ofdeveloping countries, we stressed theim portance of finding new resourcesr a th e r th an th at o f re d uc in g co st s,
especially for pilot project/programme.
Ho w ever, the prud ent cost- effe ctive
budget plan is also essential toadminister the delinquency prevention
process.
To reiterate, the basic principles ofdelinquency prevention are:
•

•

•
•
•

•

To assess risk/protective factors anddevise strategies to reduce risk factors
and enhance protective factors in
multiple domains (e.g. individual,family, school and community);
To design intervention strategies
a l o n g t h e d e ve l o p m e n t a l st a g es ,s ta r ti ng w it h p re gna n t m o th er s,
infants, preschoolers, school children
and adolescents in order to facilitate
successful socialization;
To develop cooperation between
national, state, provincial and localorganizations;
To facilitate the collaboration of
governmental and non-governmental
agencies;To
consolidate
effortsofm u l t i di s ci p l i n a ry o r ga n iz a t i o ns
rangin g from hea lth services,education, labor, child-care, welfare tolaw enforcement; andTo vitalize the main actors ofsocialization, namely, family, school
and community.

We do hope the p rinciples ofdelinquency prevention we mentioned
above are utilized in their application.
R is k a nd p ro te ctiv e f a cto rs v a ry in
different societies. It is strongly advised274

t h a t o u r m o d e l s h a l l b e t e s te d a n dd e v e l o p e d to su i t t h e s it u a t io n s o f
different societies.
REFERENCES
Catalano, R. F., Arthur M. W., Hawkins,
J. D., Berglund, L. and Olson, J. J. 1998.
“Comprehensive Community and SchoolBased Interventions to Prevent Antisocial
B e h a v io r ” . I n R . L o e b e r a n d D . P .
Fa rrinton (E d s.), Ser io us & V io lent
Juvenile Offenders: Risk Factors andSuccessful Interventions. (pp.248–83).
Sage: Thousands Oaks.
Farrington, D. P. 2000a. “Explaining andPreventing Crime: the Globalization of
Knowledge—The American Society of
Criminology 1999 Presidential Address.”
Criminology 38: 1–24.
Fa rrin gt o n, D . P. 2 0 0 0 b . “ E f f ec ti ve
Programm es to Counter Juvenile
Delinquency”. Paper Given at
I nte r na ti on a l C o nf e re n ce o n Y o ut h
Justice 2000 in Singapore, September
2000.
Haw kins, J. D ., C ata la no, R. F.,
Kosterman, R., Abbot, R. D., and Hill, K.
G. 1999. “Preventing Adolescent HealthRisk Behaviors by Strengthening
Protection During Childhood”. Archivesof Pediatric and Adolescent Medicine
153(3):226–34.
International Centre for the Preventionof Crime. 1997. Crime Prevention Digest
I. [http://www.crime-prevention-intl.org/
english/prevention/chap2.htm].
International Centre for the Preventionof Crime. 1999. Crime Prevention Digest
II. [http://www.crime-prevention-intl.org/
Telechargement/digestII-summary].

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
M cC ord , J ., Wido m , C . S . and N . A .
Crowell. 2001. Juvenile Crime, Juvenile
Justice. Nation al Academy Press :Washington, D. C.
Schweinhart, L. J., Barnes, H. V. andWeikart, D. P. 1993. Significant Benefits:
The High/Scope Perry Preschool Study
T hro ugh Age 2 7 . Hig h S c op e P re ss:
Ypsilanti, Michigan.
Tonry, M. and Farrington, D. P. 1995.
“Strategic Approaches to Crim e
P re ventio n”. In M . T onr y a nd D . P .
F arringto n (E d s.) , B uil ding a Saf er
Society: Strategic Approaches to Crime
Prevention. The University of Chicago
Press: Chicago.
Washington State Institute for Public
Policy. 1999. The Comparative Costs andBenefits of Programmes to Reduce Crime:
A Review of National Research Findings
with Implications for Washington State:
Version 3.0. [http://www.wa.gov/wsipp/crime/pdf/costbenefit].

275

RESOURCE MATERIAL SERIES No. 59
Table 1Prevention Strategies to Target Risk Factors

School Domain

Community Domain

Risk Factors
Availability of Drugs
Availability of Firearms

276

Community Laws andNorms Favorable Toward
Drug Use, Firearms, and
CrimeMedia Portrayals ofViolence
Transitions and Mobility

Programmes and Policies
Community/School Policies
Community/School Policies
Classroom Curricula for Social CompetenceCommunity Mobilization
Community/School Policies
Policing Strategies

Age
all
all
6–14
all
all
all

Media Policies

all

Organizational Change in Schools
Community Mobilization
Low Neighborhood
Policing Strategies
Attachment and Community
Organizational Change in Schools
Disorganization
Classroom Curricula for Social CompetencePrenatal and Infancy Programmes
Extreme Economic
Deprivation
Youth Employment with Education
Classroom Organization, Management andInstructional Strategies
Classroom Curricula for Social Competence
Academic Failure
Promotion
School Behavior Management Strategies
Youth Employment with Education
Early Childhood Education
Organizational Changes in Schools
Classroom Organization, Management andLack of Commitment toInstructional Strategies
SchoolSchool Behavior Management Strategies
Mentoring with Contingent Reinforcement
Youth Employment with Education
Early Childhood Education
Parent Training
Family Therapy
Classroom Organization, Management andInstructional Strategies
Early and Persistent
Antisocial Behavior
Classroom Curricula for Social Competence
Promotion
School Behavior Management Strategies
After-school Recreation Programmes
Mentoring with Contingent Reinforcement
Prenatal/Infancy Programmes
Academic Failure Beginning Early Childhood Educationin Late Elementary School
Parent Training
Organizational Change in Schools

6–18
all
all
all
11–14
prenatal–3
all
6–18
6–14
6–14
15–21
3–5
6–18
6–18
6–14
11–18
15–21
3–5
prenatal–10
6–18
6–18
6–14
6–14
6–10
11–18
prenatal–10
3–5
prenatal–10
6–18

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Table 1 (continued)
Prevention Strategies to Target Risk Factors

Family Domain

Risk Factors
Family History of the
Problem Behavior
Family Management
Problems

Family Conflict

Favorable Parental
Attitudes and Involvementin the Problem Behavior

Individual/Peer Domain

Rebelliousness

Friends Who Engage in
Problem Behavior

Favorable Attitudes Toward
Problem Behavior

Early Initiation of the
Problem Behavior
Constitutional Factors

Programmes and Policies

Age

Prenatal/Infancy Programmes

prenatal–2

Prenatal/Infancy Programmes
Early Childhood Education
Parent Training
Family Therapy
Marital Therapy
Prenatal/Infancy Programmes
Parent Training
Family Therapy
Prenatal/Infancy Programmes
Parent Training
Community/School Policies
Family Therapy
Classroom Curricula for Social Competence
Promotion
School Behavior Management Strategies
After-school Recreation
Mentoring with Contingent Reinforcement
Youth Employment with Education
Parent Training
Classroom Curricula for Social Competence
Promotion
After-school Recreation
Mentoring with Contingent Reinforcement
Classroom Curricula for Social Competence
Promotion
Community/School Policies
Parent Training
Classroom Organization Management andInstructional Strategy
Classroom Curricula for Social CompetenceCommunity/School Policies
Prenatal/Infancy Programmes

prenatal–2
3–5
prenatal–14
6–14
prenatalprenatal–2
prenatal–14
6–14
prenatal–2
prenatal–14
all
6–14
6–14
6–14
6–10
11–18
15–18
6–14
6–14
6–14
11–18
6–14
all
6–14
6–10
6–14
all
prenatal–2

Source: Dr. Harachi’s handout at the UNAFEI 118th International Training Course© 1998 Developmental Research and Programmes

277

RESOURCE MATERIAL SERIES No. 59
Table 2Strategies for Juvenile Crime Prevention at the Developmental Stage
Developmental
stage
Prenatal

National Level
Comprehensive Family
Planning
SocialManagement

Community Level

Infant Preschool
Preadolescent,
SchoolCommunity Child
Law
Guidance
Awareness Policing
CenterCampaign

Adolescent,
School,YouthCampaign
againstSexualAbuse
Campaign
againstViolationof Child
RightsCampaign
of Helping
StreetChildren

278

Control of
after
SchoolHours
Club
Activities
Clean upCampaign

Family Individual
Level
Level
Parental Parents
Program Supportme

PublicHealthNursing
SystemChild Care
Guidance

Establish
Specialfoundation
for support
financialissuesCampaign
against
Child
Labor

SchoolLevel

Moral
Education

Mother
HealthCare
IncomeSupport

Periodical
HealthCheckSpecial
Education

Guarantee
forEducation

Prevention Family
Mentalof TeenPregnancy Support
Programme

Vocational Drug
Education
Training
Regulation Clubof Movies Activities
and Books
Antietc.
Dropout
CounterWorking
measures
Juvenile
Center

Guidance orCounseling118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Table 3
Examples of National Boards
Name

Members

FunctionInter-Ministerial
Committee

Vice Ministers of 10 or moreministries such as justice,
public security, education, civil
affairs, health and so on. State
councilor acts as the president.

Promote crime prevention
and rehabilitation of
offenders. All related
agencies work under its
leadership.

The National
Narcotic
Coordination
Board (interministerial board)

Ministries of Justice andHuman Rights, Home Affairs,
Health, Social Affairs,
Religious Affairs, andInformation, State Ministry for
Women’s Role, police
department, statistic central
bureau and NGOs.

Promote prevention of thejuvenile delinquency, drug
abuse and drug trafficking.

Central Child
WelfareCommittee

Prime minister, ministers,social workers, medical
practitioners, childpsychologists, teachers, etc.

Protect children’s rights,
promote children’s welfare
and raise awareness ofjuvenile crime prevention.

The Youth
Development
PromotionCouncilBureau chiefs of more than 10
related ministries such as
justice, police, education
science, etc.

Promote measures related
to youth development andprevention of delinquency.
Coordinate works of related
government offices.

279

RESOURCE MATERIAL SERIES No. 59
Table 4
Examples of Community Boards
Name

Members

Level

Function

Social
WelfareActivities
Group

Community leader,religious leader, youth
leader, retired
professionals,
businessmen, teachers,
etc.

District

Discuss and solve
various social issues inthe district.

DistrictChild
WelfareCommittee

District officers, social
workers, local elected
representative, childpsychologist andrepresentative ofrelated NGOs, etc.

District

Protect children’s
rights, promote thechildren’s welfare andraise awareness ofjuvenile crime
prevention.

Municipal
Wards intowns orvillages

Town or village
president members,
councilor, village
development officers,
etc.

Neighborhoodor Community

Implement, monitor
and evaluate various
development andpoverty-alleviation
programmes, child/
women’s health andnutritional education
issues.

Crime
Prevention
Conference

Local police chief, local
post master, mayor,
president ofneighborhood
association. etc.

City

Discuss crime issues inthe district, promotecrime prevention andexchange information.

280

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Table 5
Sample of Risk Factors and Protective Factors
Risk Factors
Community Risk Factors
Availability of Drugs (Substance Abuse)
Availability of Firearms (Delinquency and Violence)Media Portrayal of Violence (Violence)
Transitions and Mobility(Substance Abuse, Delinquency, and School Dropout)
Low Neighborhood Attachment and Community Disorganization(Substance Abuse, Delinquency, and Violence)
Extreme Economic Deprivation (Substance Abuse, Delinquency,
Violence, Teen Pregnancy, and School Dropout)
Family Risk Factors
Family History of the Problem Behavior (Substance Abuse,Delinquency, Teen Pregnancy, and School Dropout)
Family Management Problems (Substance Abuse, Delinquency,
Violence, Teen Pregnancy, and School Dropout)
Academic Failure Beginning in Elementary School (Substance
Abuse, Delinquency, Violence, Teen Pregnancy, and School Dropout)
Lack of Commitment to School (Substance Abuse, Delinquency, Teen
Pregnancy, and School Dropout)
Individual/Peer Risk Factors
Alienation/Rebelliousness(Substance Abuse, Delinquency, and School Dropout)
Friends Who Engage in the Problem Behavior (Substance Abuse,Delinquency, Violence, Teen Pregnancy, and School Dropout)
Favorable Attitudes Toward the Problem Behavior (Substance
Abuse, Delinquency, Teen Pregnancy, and School Dropout)
Early Initiation of the Problem Behavior (Substance Abuse,Delinquency, Violence, Teen Pregnancy, and School Dropout)Constitutional Factors (Substance Abuse, Delinquency, and Violence)Protective Factors
Individual characteristics
Bonding
Commitment
Healthy beliefs and clear standards
Source: Dr. Harachi’s handout at the UNAFEI 118th International Training Course

281

RESOURCE MATERIAL SERIES No. 59
Table 6
List of Training of Programme Implementers in the U.S.A.

TargetPersons

Prenatal
Programme
Visiting nurse
programme

Purpose ofTraining

Targets
pregnant low
income mothers
Increaseprenatal

Pre-school
Programme
Parents andchildren who are
pre-schoolers
focused on goodfamilymanagement
Learn
curriculum

FamilyProgrammes
Parents andschool aged
children focusedon schoolreadiness

SchoolProgrammes
Teachers

Learncurriculum

Improveclassroom
management
teachings

Increase skills of
big brothers andsisters

2~3 days andcoaching followup
Skills to set
clear rules andexpectations

2~3 days andcoaching followup
Skills to set
clear rules andexpectations

3 days andcoaching followup
Skills to set
clear rules andexpectations in
the classroom

2 days andfollow-up
supportHow to develop
a relationshipwith a young
child

Appropriate
discipline
practicesManaging
television
watching

How to set
limits with theyoung childWays to increase
positive
reinforcement
for good
behavior

Helping withhomework

Strategies toreduce time inwhich children
have nothing to
do in the classInfant health

Duration oftraining
Subjects

Imposedmaternal carebehavior
1 weekGoal settingwith mothers
How to increasemother andchild
attachment
through positive
responsivenessHow to teachgood healthhabitsHow to build apositive
relationshipwith the mother

How to recruit
parents into theprogramme

Young children

How to monitor
behavior of theWays to increase Skill to reinforce child and torecognize good
good behavior
positive
behavior
reinforcement
Skills tofor good
increase student
behavior
participation in
the class

How to teachpositive coping
skills to counter
depression
How to recruit
mothers into theprogramme
Source: Dr. Harachi’s contribution to the UNAFEI 118th International Training Course

282

Community
Programmes
Big brothers andsisters

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Table 7
List of Training of Programme Implementers in Participating Countries
Programme
Training &Education
Programme forSocial Workers

Trainees
Social workers

Purpose of Training
Duration
Subjects
To improve their knowledge 5 to 7days Law and regulationand skill in preventing
concerning delinquency
delinquency and drug abuseand drug
Technical guidelines of
preventing juvenile
delinquency
Technical guidelines ofrehabilitating juvenile
delinquents

Hope Project

Thousands ofSchool &Millions ofPeopleYouthOffendingTeams

Local related
government
officers andcommunity
leaders

To implement this project
effectively

Principals andteachers ofschools

Make school management
more effectively andsmoothly

1 weekGuide for cooperation/
coordination
Overview of whole strategyof the programme
Administrative knowledge

1 to 2days

Financial issues
Overview of whole strategyof the programme
Schooling arrangement

YOT members[mostly alreadytrained as social
workers orprobation
officers]

Part-time
To train YOT managers
for 1 year
how to manage a multidisciplinary team and about
effective practiceSupplementary law
knowledge
Management budgeting/planning
Managing performance/
target setting
What works in reducing
crimeConnexions

Adolescents

Personal
advisers to atrisk young
peopleTeachers,
medicalprofessors, andart educators

To train newly recruited
personal advisers to engage
with disaffected young
people and set team into
education, training or
employment

Prepare staff to work withadolescents on such issues
as teen pregnancy and drug
abuse

Not sure

How to monitor/evaluate
Working with young
peopleResponsibility of different
departments/agencies

1 monthThe criminal justice andwelfare systems
How to speak toadolescents
How to help adolescentssolve problems concerning
family relationships, drug
abuse and sex

283

RESOURCE MATERIAL SERIES No. 59
Table 7 (continued)
List of Training of Programme Implementers in Participating Countries
Programme
Street Kids
Programme

Trainees
Social workers
andpsychologists

Purpose of Training
Equip community people sothat they can cooperatewith the police

Duration
Subjects
2 months
How to speak to kids
How to speak to families
How to use arts to workwith children

MentoringMembers of theTokyo Family
Court Student
Volunteer Club
Community
Convergent
leaders,
Community
Institutional
Actionworkers
CommunityProtection Of
people, social
Girls
workers,
Trafficking/Street Children municipal
representatives,
Programme
ordinary citizens,and students
Comprehensive Medical officers,
health workers,
Healthsocial workers,
Programme
extension[Covering
officers,
prenatal,community
adolescent,infant mothers health workers
from NGOsand early
childhood]
Child
Institutional
Protection
officers, workers
Programme
for health, social
welfare, childwelfare depts.,
and NGO/
volunteerorganizations

284

To educate volunteer
students so that they canbefriend with and mentor
juveniles
Expand various processes
for community development
awareness in community
board leaders
Equip community people sothat they can cooperatewith the police

To educate trainers to learn
about skills necessary to
educate and bring aboutchanges in attitudes withregard to care of health,nutritional needs,
protection of children andparents
To educate trainers to learn
about skills necessary tobring about awareness andattitudinal change among
parents/community people
in child labor, childtrafficking, educationalneeds

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Table 8
Measures to Find New Resources for Delinquency Prevention
Measures Already Taken in the U.K
Name of Programme
Local Crime andDisorder Partnership

Neighborhood Watch
Crime Prevention
Awards Scheme
Mentoring
Community Mediation
Schemes

Brief Description of
the Programme
Collaboration of a wide
range of governmental
and non-governmental
partners
Neighborhood watch

New Resources
Found/Shared
Services of collaboratingorganizations

Resource Providers/Sponsors
Collaborating
governmental and nongovernmental agencies

Funding

Insurance companies

Mentoring at risk youth
Resolution neighbordisputes rather than
expensive police andcourt system

Volunteers
Volunteers Trained

Volunteers Themselves
Volunteers Themselves

New Ideas to Find New Resources Suggested by Mr. Rob Allen (Visiting
Expert)Name of Programme
Collaboration ofGovernmental Agencies
Local Crime Resolution
Programme
Youth Offender PanelCampaign for Business

Recreation Programmes

Brief Description of
the Programme
Use various
governmental services toprevent crime
Resolve crimes and antisocial behavior without
reporting to courts
Making decisions
concerning thetreatment of juvenile
offenders
Investment in crime
reduction as a matter ofsocial responsibility
Providing at risk/delinquent youth withrecreation programmes

New Resources
Found/Shared
Health, education,
welfare and povertyreduction services
Local people

Resource Providers/Sponsors
Other governmental
agencies
Local people themselves

Community residents

Volunteers themselves

Funding

Local business andinsurance companies

Programme provision

Youth clubs, sports,societies and churches

285

RESOURCE MATERIAL SERIES No. 59
Table 8 (continued)
Measures to Find New Resources for Delinquency Prevention
Measures Already Taken in Countries of the Group I ParticipantsName of Programme
Solidarity
Community

Drug Abuse
Prevention

Brief Description of The
Programme
Income generation andprovisions of job

Education about the causes
and consequences of drugs
abuse, enhancing of family
dialogue and promotion ofsports and leisure practiceLocal Crime Control Selected volunteers in urban
areas and village leaders in
Squads In
rural areas perform duties as
Partnership withspecial police officers to
Policemaintain good neighborhood
watch
Community Policing Chosen community leaders
act as bond between
community and police to help
resolve small/unimportant
issues of crime and criminals
in the community; help
provide necessary
information on terrorists, badcharacters, etc.
After School Club
Physical and cultural club
Activities
activities for students after
school hours

Community
Association

Collaboration ofGovernmental
Agencies

Drug Education by
Police Officers

New Resources
Resource Providers/Found/Shared
Sponsors
Services of governmental Governmental agencies
agencies
Volunteers
Voluntary work ofcommunity volunteers
Funding for humanBusiness community
resources training
Funding for media
mobilization
Voluntary work by
volunteers

Non-governmental
agencies

Donations by nongovernmental agencies

Volunteer leaders
themselves

Voluntary work by
volunteers/community
leaders

Volunteers/community
leaders themselves

Voluntary work of school
teachers

School teachers
Neighbors

Voluntary work ofneighbors who are goodat those activities
Voluntary services byLocal community volunteer
volunteers/community
organization which provide
services for local people under leaders (in security,social, welfare, healththe guidance of local
services and law
governments and police
awareness campaign)
agencies.
Services of other
Governmental agencies atgovernmental agencies
national/provincial/local(e.g. education, security
levels collaborate with each
and welfare services)other to provide services forcrime prevention without
additional budget.
Police officers visit school and Expertise of police
offer drug education.
officers
Working hours of police
officers

286

Volunteers
Community leaders

All related governmental
agencies which are in
charge of education, civil
affairs, health, security,
etc.
Police agencies

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Table 8 (continued)
Measures to Find New Resources for Delinquency Prevention
New Ideas to Find New Resources Suggested by Group I ParticipantsName of Programme
Collaboration ofGovernmental Wings/
Agencies

Involvement of Youth(Recreation
Programmes) Groups

Community Preventionof Delinquency

Brief Description of
the Programme
Utilization of various
services by government
for effective preventionof crime

Youth groups mentor incommunity schools,
taking care of street
children to help themsettle down rather thanallowing them to offend

Staff of offenderinstitution discuss thebest delinquency
prevention strategies
with the community
members.

New resources Found/
SharedFunds earmarked toother departments suchas health, education,
welfare and poverty
reduction programmes
can be utilized
Voluntary work of youth
groupsResources Providers/Sponsors
Other government
agencies and sometimes
by international agencies
for specific prevention
programmes
YMCAs
Youth clubs
Semi-governmentalorgans (Yuva Kendras(=youth centers))

Voluntary and nongovernment bodies
Expertise of institutional Offender institutions
staff

287

RESOURCE MATERIAL SERIES No. 59
Table 9
Examples of Process and Outcome Evaluations in the U. S. A.
Prenatal andInfancy
Programmes

Early Childhood
Education

Parent Training

Process Evaluation% of pregnant women receiving prenatal
care prior to the third trimester.
Availability of prenatal and postpartum
educational classes.
% of the “At-risk” population served withoutreach and follow-through contacts.
Content of prenatal and parentingclasses to ensure that material on
relationship.

Number of hours of contact high-riskchildren and their parents have with theprogramme or center.
Number of home visits.
Number of high-risk children andparents involved.
Number of types of parent meeting heldand parent attending them.
The contents of actual lessons.
The contents of interaction between
home visitors and parents.
Participant’s skill, knowledge, attitudes
and satisfaction.
How often parents actually use thetechniques they have learned.

School Organization Participation in management andand Management
governance teams.
Number of new programmes initiated or
implemented.
Levels of parent involvement.
Surveys designed to assess teachers’ andparents’ attitudes toward the school andtheir role in school management and theeducational process.
Regular observation of the participating
Instructional
teachers.
Improvement in
Schools

288

Outcome Evaluation
95% of pregnant women receive earlyprenatal care.
Less than 7% of infants are born
preterm.
Less than 25% of couples expecting
children report marital distress.
Less than 50% of pregnant women use
alcohol.
Less than 10% of pregnant women use
illegal drugs.
Establishment of positive parent-childinteraction.
Low rates of child abuse.
75% or more of children have secureattachment.
Improvements in children’s conduct
problem.
Increases in children’s language skills.
Increased clarity and consistency of
discipline practices.
Increased child self-management skills.
Increased family bonding.

Use of problem-solving andcommunication skills.
Use of behavior reinforcement
mechanisms.
Positive parent-teacher interaction.
School records and self-reports of grades,
numbers of students kept back in a
grade, absenteeism, tardiness,disciplinary referrals, suspensions, andexpulsions of students.
Survey instruments designed to assess
student’s levels of bonding to school andteachers and their school behaviors,
including drug use.
Standardized achievement test scores.
Disciplinary records.
Referrals to the school office.
Attendance records.
Retention at grade level.
Dropout rates.

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Table 9 (continued)
Examples of Process and Outcome Evaluations in the U. S. A.
Drug and Alcohol
Prevention
Curricula

Community and
School Drug Use
Policies

Process Evaluation
Number of teachers trained and the typeof training provided.
The extent to which the whole
programme was delivered.
The integrity of the implementation.
How often teachers use the programmeor techniques in the classroom.
Annual consumer satisfaction
evaluations by students and teachers.
Participation of key representative ofdifferent sectors of the community.
Number of breadth of policies being
assessed, revised, or developed.
Occurrence of public events focusing on
policy.
Consistency of school policy enforcement.

Outcome Evaluation
The extent to which students acquireand actually use the skills being taught.
School records and self-reports of grades,
absenteeism, tardiness, and disciplinaryreferrals.

Decrease in the number of alcoholic
beverage outlets near schools andbillboards advertising tobacco or alcohol.
Change in patterns of drug use andattitudes toward drug use.
Improvements in school attendance,
lateness, dropout rates, and student
achievement.
Number of alcohol-free events.
Number of Neighborhood groups
working with local police to deter drug
selling.
Decrease in the alcohol- or drug-related
car crashes.
Decrease in alcohol sales to minors.

Source: Hawkins et al. (1992), Community That Care, Jossey-Bass Publishers, San Francisco

289

RESOURCE MATERIAL SERIES No. 59
Table 10Evaluation Process
e.g. 6 months

e.g. 12 months

Report Feedback
Pre-test
Assessment

Post-test 1
Outcome Evaluation

Post-test 2
Outcome Evaluation

Delinquent Behaviors

Delinquent Behaviors

Delinquent Behaviors

Risk Factors

Risk Factors

Risk Factors

Protective Factors

Protective Factors

Protective Factors

ReportStrategy 1
Strategy 2

290

Report Feedback

Process
Evaluation

Feedback

Strategy 1
Strategy 2Strategy 3

ReportProcess
Evaluation

Feedback

Strategy 1
Strategy 3

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Table 11
Model Communication Strategies
Title

PurposeYouth Justice
Board News

Inform police,
courts, and Youth
Offending Teams

Referral Order Promote referralVideo
order and youth
offender panels

AnnualPressed PR
awardsCommunity
Newsletter

Encourage
responsible andpositive reportingof youth crime
policyImprove theawareness of crime
prevention

Media ofCommunication
Newsletter

VideotapesAward ceremony atannual convention

TargetPopulation
Practitioners (e.g.
Youth Offending
Teams, police,
interested public,
and key leaders)
Professionals(Youth Offending
Team members or
potential Youth
Offending Teams)
National and local
media

Newsletter, posters
and pamphlet
circulation

Local residents

SchoolVolunteerCampaign

Recruit parents
work as volunteers
at school

Local TV, radio andnewspaper

Parents andcommunity

SOS Children

Find lost children

TV, Internet andpamphlets

Local residents

Drugs
Prevention

Prevent the use of
drug

Lost children

National
campaign
thousands ofschools &millions ofpeopleLaw
Awareness

Provide legal
knowledge,
common sense andinformal schoolingTV, radio,
newspaper,
pamphlets, andseminars bycelebrities among
juveniles
National,
provincial and local
radio, TV andnewspaper

Puppet play
Increaseawareness, social
responsibility andencouragement
toward delinquency
prevention

Contents
Features and News

Merits of referral orderAward for journalists
and media companies

Current situation ofcrime, measure toprevent crime such assnatching andresidential burglary anddelinquency prevention
activities
Asking for the parent’s
presence in theirchildren’s school,
participation to theschool tasks, discussing
education troubles, etc.
Request for information
on lost children with
their photos
Information on the effectof drug on the family,
body and society

Transiting children Request to set up bothformal and informal
mainly from ruralschools. Request for
and remote areas
donation and othercooperation to theproject.
Local residents
Religious teaching,
general knowledge about
penal law and penalty
against delinquency

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RESOURCE MATERIAL SERIES No. 59
Table 11 (continued)
Model Communication Strategies
Title

PurposeConvergent
Community
ActionInvolve rural
residents in childdevelopment andprotection ofchildren’s rights
Promote publicawareness ofchildren’s well
being

Child
Programme

292

Media ofCommunication
TV, radio, press,
pamphlets, posters
and bill boards

TargetPopulation
Rural residents inpoor area

Radio, TV andnewspaper

All the public

Contents
Request to form self-helpgroups in rural areas.
Recruitment ofinterested individuals in
the interest of the child.
Programmes help
healthy development ofchildren (e.g. education,
drama, quiz contest, andpoem). Information on
child health.

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSEAppendix 1. Example of Community Assessment
1.
2.
3.
4.
5.
6.

Collect data on risk/protective factors in the community.
Collect data on risk/protective factors in nearby communities.
Standardize the scores on risk/protective factors. (The mean will be zero).
Summarize the results into a community profile.
Analyze the profile and prioritize the risk/protective factors to be targeted.
Set the mean of prioritized factors as benchmarks or targets.

Source: Dr. Harachi’s handout at the UNAFEI 118th International Training Course

Appendix 2. Example of Community Profile
1.00
0.80
Z-Score Value

0.60
0.40
0.20
0.00
-0.20
-0.40
-0.60
-0.80
Sensation Seeking

Rebelliousness

Peer Rewards for Antisocial Behavior

Peer Antisocial Behavior

Early Initiation of Antisocial Behavior

Attds. Favorable to Antisocial Behavior

Antisocial Behavior

Low School Commitment

Low Academic Achievement

Family History of Antisocial Behavior

Favorable Family Attitudes

Family Conflict

Poor Family Discipline

Poor Family Management

Laws and Norms

Perceived Availability

Transitions and Mobility

Low Neighborhood Attachment

Community Disorganization-1.00

Source: Dr. Harachi’s handout at the UNAFEI 118th International Training Course

293

RESOURCE MATERIAL SERIES No. 59
Appendix 3. List of Training Topics
1.

The importance of prevention
a. Provide motivation and reason why prevention efforts are needed.
b. For example, show continuum of care and the need to provide prevention in
addition to treatment and maintenance2.

Overview of the Risk Focused Prevention Frameworka. Explanation of the Public Health Framework(i) Problem definition(ii) Identification of risk and protective factors(iii) Selection of intervention strategies(iv) Evaluationb.

Explain how you can use this framework to focus on delinquency prevention(as w ell a s other a dolescent problem behaviors such as drug a buse
prevention)(i) Define juvenile delinquency prevention(ii) Provide the knowledge base for risk and protective factors associatedwith delinquency(iii) Provide the knowledge base of effective prevention strategies to reducerisk factors and enhance protective factors(iv) Introduction of other prevention principles
1. More risk, less protection >> greater likelihood of delinquency
2. Intervene early
3. Target interventions at developmentally appropriate areas
4. Use data to prioritize risk and protective factors
5. Use interventions with demonstrated effectiveness3.

Need to support and financing of risk and protective factor assessment

4.

Need to support and financing of effective interventions

5.

Development of Teama. Activity to facilitate “getting to know each other”.
b. Roles and responsibilities of team members(i) Designation (how the person will be chosen, length of time they willserve) and responsibilities of the chairperson(ii) Designation and responsibilities of secretary(iii) Designation and responsibilities of treasurer (if appropriate)(iv) Designation of responsibility for training new membersc. How to encourage equal participation for all membersd. How decisions of the Team will be made (for example voting majority orconsensus)e. How to deal with disagreement or conflict on the team294

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
6.

General rationale for Risk and Protective Factor Assessment and Resource
Assessmenta. The importance of gathering empirical data for decision making.
b. Tie information that the Team received in the initial Prevention Framework
training to assessments. For example, by conducting an assessment the Teamcan identify priority risk and protective factors for its community. By
conducting a resource assessment, the Team can identify gaps in services in
its community.
c. This training will help the Team create a sub-committee whose responsibility
it will be to conduct the assessments. So part of the training will help theTeam identify human and financial resources that are needed to complete theassessment tasks.

7.

In-Depth training on conducting the Risk and Protective Factor Assessment andResource Assessment. [This training should be for the Prevention Team’s subco m m itte e w hich is r esp o nsib le f or th e a ctua l imp le m en tat io n o f theassessments.]
a. Identify the topics that should be included in the Risk and Protective Factor
Assessment and Resource Assessment(i) What are the outcome behaviors that should be assessed, for example,
arrest rates, school suspensions, etc.
(ii) What are the risk factors that should be assessed?
(iii) What are the protective factors that should be assessed?
b. Identify methods to collect the Risk and Protective Factor Assessment andResource Assessment(i) For example, self-report survey by studentsc. Identify questions for each topic.
d. Identify process for collecting the data(i) For example, distribute a survey to students at their school
1. This method would increase representation of respondents assuming
the majority of the target children are still in schoole. Identify process for tabulating the data
f. Identify process for creating a report on the data
g. Identify any potential barriers to conducting the assessment

8.

Selection of Intervention Strategies
a. Review of Prevention Principles
b. Examination of the process that will be used to select programmes(i) How to use information from the Risk and Protective Factor Assessment
and Resource Assessment(ii) Prioritization of factors(iii) Identification of existing programmes that target the priority factors(iv) Identification of programmes that are NOT currently existing that could
be implemented in the community(v) Create a short (and long) term Prevention Plan of which programmes tobe recommended for implementation on a specific time schedule
1. How often should the programme be delivered?

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RESOURCE MATERIAL SERIES No. 59
2.

c.
d.
9.

What is the goal of how many people will receive the programmeeach time it is delivered?
Identification of partners who will actually implement the selected
programme
Identification of funding sources to help with programme implementation

In-Depth Training to Deliver Specific Programmes [Remember, the Prevention
Team may or may NOT be responsible for the actual implementation of a specificprogramme. It may designate this responsibility, for example, to a social service
agency or to the local school]a. Determine the specific training needs of the selected programme. Here aresome examples:(i) Parent training programme: Workshop leaders will need to be trained in
how to deliver the specific curriculum.
(ii) Mentoring programme: Mentors will need to trained on the specificprogramme, for example, how to build rapport and a relationship with ayoung person; effective communication; appropriate social skills to teachthe young person.
In either example, it’s possible to use a “train the trainer” model. For
example, a lead counselor can first be trained in a specific parent training
programme. Then the lead counselor can be responsible to train others(maybe volunteers) who will be the workshop leaders who deliver the
programme.
b. Identify ways to effectively recruit the necessary programme participants(i) Who is the best person to recruit the target of the intervention, forexample, parents of high risk children?
(ii) What are possible barriers to effective recruitment?

10. Evaluation [Here the Prevention Team needs to decide if only the overall
framework will be the focus of the evaluation or if individual programmes will
also be evaluated]
a. Methodology for evaluating the overall framework.
(i) How often will the Risk and Protective Factor Assessment be conducted;
on what time schedule?
(ii) What kind of report will be provided to the Prevention Team regarding
the implementation of specific programmes?
(iii) What kind of report will be provided back to the Key Leader Group interms of the activities and accomplishments of the Prevention Team?
b. Methodology for evaluating individual programmes.
(i) Determine if the specific programmes already has an established preand post-test that can be used.
(ii) Identify consultants who can help with creating some type of pre- andpost-test if it needs to be created.
(iii) Identify who will be responsible for conducting the programmeevaluation.
(iv) Identify financial resources that will help with conducting the
programme evaluation.

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118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Source: Dr. Harachi’s handout at the UNAFEI 118th International Training Course
Appendix 4.
National/International Level Funding Sources Suggested by theParticipants of the UNAFEI 118th International Training Course
Governmental
Probation Services
Child Care Services
Social Services
Social Welfare Services
Non-Governmental
Plan International
World Vision
Redbana (Swedish NGO)
Save the Children Fund
Community Service Organization (UVA)
UNICEF
UNDP
IRDP (Integrated Rural Development Programme)
ABGEP (Area Based Group Equity Programme)
Business/Private
Lion’s Club
Rotary Club
Horse Racing Association (and other gambling organizations)Power Company
Local Businesses

297

GROUP 2
BEST PRACTICES IN COMMUNITY-BASED TREATMENT OFJUVENILE OFFENDERS
Chairperson

Mr. Amin Ali Ibrahim Inabi(Palestine)

Co-Chairperson

Ms. Rajapakshage Sunethra
Gunawardhana(Sri Lanka)

Rapporteur

Ms. Phyllis Yolanda Beckles(Barbados)

Co-Rapporteur

Ms. Yukiko Kudou(Japan)Ms. Bitsang Joyce Matshego(South Africa)

Mr. Martin Tongamp(Papua New Guinea)

Mr. Masamichi Noda

(Japan)Mr. Hideo Yoshioka(Japan)Ms. Chomil Kamal(Singapore)

Mr. Rob Allen(United Kingdom)

Members

Visiting Experts

Advisers

Dr. Alan W. Leschied(Canada)Prof. Kei Someda(UNAFEI)

Prof. Sue Takasu(UNAFEI)

Prof. Mikiko Kakihara(UNAFEI)

I. INTRODUCTION
Globally, the latter half of the lastcentury has found those of us responsible
for the care, protection, andrehabilitation of juvenile offenders, facedwith phenomenal challenges, vis-a-vis anincrease in criminal activity as well as
the d an gero us nature of them . It is
recognized that stiffer penalties are notnecessarily the required response at thistime, despite the public call for such.
Empirical research has shown thatstiffer penalties do not reduce crime(Andrews et al.,1990). Research suggeststhat community-based treatment is am ore effe ctive w a y to me et the be stinterests of the juvenile and increase
community safety (Lipsey and Wilson,
1998).

298

The Convention on the Rights of theChild indicates that the deprivation ofliberty of children should only be used asa measure of last resort, and when used,
only for the shortest appropriate duration(Article 37). The group agrees that inco n sid e rin g ho lis tic r eh abilit atio n,
c o m m un i ty - b a s e d tr e a tm e n t i s th e
pre fe rred op tio n, w ith institutiona ltreatment being a last resort.
Institutional treatment is not an
e co n o m ica lly v ia b l e o p ti on a n d t hestresses and other disruptive elements
which it brings to family life are lessdesirable.
Several countries—Barbados, Papua
New Guinea, South Africa and Sri Lanka
to mention a few—still have been unable
to comply with the Convention on the
Rights of the Child and the Standard
Minimum Rules for the Administration of

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Juvenile Justice, and with the United
Nations Standard Minimum Rules for
non-Custodia l Mea sures (The Tokyo
Rules). This has been partly a result of
economic and political reasons amongst
others. Whatever the barriers to full
implementation, the group recognizes theneed to urgently meet the challenge of
decreasing youth crime and supporting
the United Nations agreement.
The group agreed that goo dmanagement systems (individual andorganizational) are imperative to promote
success from rehabilitative efforts. Staff
training and programme developmentm u s t b e o n a c o nt i n uo us b a s i s a n dresearch to cater to changes in both of thea b ov e w he n e ve r n e ce ss a ry m ust b e
conducted.
The group considered too that thecommunity consists of invaluabler es o urc e s w hi ch c a n b e ta p p ed a n dutilized to enhance rehabilitative efforts.
Success of the goals of prevention offurther crime and recidivism demands
vibrant public relations endeavours.
II. DESIGNING A MODELIn deliberating on the preferred model
for community-based treatment ofoffenders, mem bers of group 2
un a nim ou sly a gre ed on the ne ed to
identify a few guiding principles. These
principles were themselves guided by anappreciation of the multidimensional andcomplex nature of youth offending andthe need to draw on the expertise of abroad base of knowledge in thecommunity, if accurate assessments andappropriate treatme nts are to bedelivered.

A. Principles
T h e p ri nc ip l e s u n d e rp in nin g o ur
prop osed mod el of community-based
treatment are as follows:(i)

The preferred option, in as many
instances as possible, is to divert
youth at the pre-court or at the court
stage;(ii) That there should be a Multidisciplinary Team to work on the besttreatment options that will address
the needs of the juvenile to help him
or her to remain in the community;(iii) That the Multidisciplinary Teamshould leverage on the availability ofcommunity resources to support thejuvenile in conflict with the law;(iv) That the system should be one ofthrough care for continuity of careand supervision of the juvenile.
The group also discussed how to define
a juvenile. The minimum age of criminal
responsibility varies from country tocountry. We have in part concluded thatdefinition should be considered not only
by age but by their developmental stage.
B. Multidisciplinary Team
1. The Purpose
The purpose of the Multidisciplinary
Team is to assess and decide upon thebest interests of the juvenile through them a xim um u tilization o f co m m unity
resources by drawing on the expert views
and opinions of professionals from diverse
backgrounds. The overall goal of the teamis to identify programmes that decreasecriminal behaviour and increase personal
responsibility.
The Multidisciplinary Team treats ajuvenile consistently in the communitybased treatment through all the formal
and informal judicial stages. This will
include pre-court diversion, court

299

RESOURCE MATERIAL SERIES No. 59
diversion and court d ispo sition(probation, community order and othertypes of disposition implemented in thecommunity), as well as following releasefrom correctional institutions (parole,
aftercare and so forth) . The
M ultidisciplinary Team provides
supervision and support at all of theabove-mentioned stages based on the ideaof through care.
Figure1 illustrates the model system ofcommunity-based treatment and the roleand functions of the participants.
2. Composition of the TeamMe mb ers of the Multidiscip linary
Team may vary based on the needs of thejuveniles, the stage of juvenile justicesystem a nd d iversity of the juvenile
justice system and child welfare systemin the relevant countries. The probation
officer (child welfare officer) ought to bethekey
personnelintheM ultidiscip linary Te am throu ghoutcomm unity-based treatment. A
comprehensive example of thecomposition of the M ultidisciplinary
Team could be: Probation Officer, Welfare
Officer, Psychologist/Psychiatrist, Social
W orker, G uida nce Co unselor/School
Teacher and Religious Worker.
3. Function of the Multidisciplinary
Team
The
basic
function oftheMultidisciplinary Team is to collectively
assess the juvenile, to devise a treatment
plan which meets the best interests of thejuvenile, as reflected in the knowledge ofa w i d e r a n ge o f p r o f e s si o na ls f ro m
relevant areas.
The team plays a central role in thecommunity-based treatment of juveniles
in terms of assessment of needs and risksof a juvenile, planning of treatment or
programme,monitoring
the

300

im p le m e nt a tio n o f su p e rv isio n a nd
support throughout the juvenile justicesystem.
4. Role of the Probation Officer
The Probation Officer serves as thecare manager of the Multidisciplinary
Team reporting to the court the progressof the juvenile.
C. Informal Procedure (Diversion)
All juveniles at a certain age should bediverted to an informal procedure formeeting the needs of care and protectionof juveniles. Some juveniles also may bediverted from police, prosecution and thecourt stage based on the seriousness of
their offence.
V a rio us k inds o f pr ogra m me s a re
a d m in is te r e d b y t he P o lic e , C o u r t,
Probation Service, NGOs and the private
secto r. The M ultid iscip lin ar y T ea massesses needs and risks of a juvenile andtries to find the available programme
which best fits the juvenile’s needs.
The group proposes a m odel ofprogramme designed for inform alprocedure such as a six-month period
programme, w ith flexibility for earlytermination for juveniles who show good
progress and are not in need of further
supervisio n base d o n the Singap ore
system. Flexibility of term is to reward
good behaviour and render an
opportunity for juveniles to leave theprogramme early. The key elements tosuccessful completion are regularattendance, punctuality, progress, anddeportment and full participation in theactivities.
If a juvenile fails to make good on his/her chance given to attend the informal
programme, there will be recourse tobring him or her to court.

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
D. Treatment Programme
1. Types of treatment programmes
Each community has various kinds oftreatment programmes. Actually, in our
gro up discussion, many typ es ofprogra mmes w ere introduced b y theparticipants of the respective countries.
There is a range and number ofprogrammes available in the respective
countries.
The following are some examples of the
programmes. The community resourcesthat provide each of them areparenthesized.
(i)empirical evidence of sufficienteffectiveness for the juve nile’s
rehabilitation.
In this regard, we referred to the metaanalysis on effectiveness of different
treatment types by Lipsey and Wilson(1998). According to their findings, theeffective types of treatment are
individual counseling, interpersonal
skills training, behavioral programmes,
multiple
services,
restitution,
em plo yme nt/a ca d em ic p rogr am m es,
advocacy/caseworkandfamilycounseling.
Most of the programmes that we arerecommending are consistent with thefindings from the meta-analysis.
However, adventure/sports, mentorshipand fo ste ring a re excep tions. Thesepr og ra m me s ne ed to b e e mp iric a lly
evaluated in the future.

Individual Counseling (NGOs, Clinic,
Health Center, Private Psychologist)(ii) Cognitive Behavioral Therapy ((NGOs,
H e alt h C e nt e r, C l in ic , Pr iv at e
Psychologist)(iii) Family Therapy ((NGOs, HealthCenter, Clinic, Private Psychologist)(iv) Drug Treatment (NGOs, HealthCenter, Clinic, Private Psychologist)(v) Literacy Skill Training (NGOs,
Public School, Volunteer Probation
Officer)(vi) Vocational Training (NGOs)(vii) Promotion of Employment (Cooperative Employer, Volunteer Probation
Officer [VPO])(viii) Restorative Programmes such as
Victim Offender Mediation, Victim
Impact Panel, Family Group
Conferencing (NGOs)(ix) Community Service Work (NGOs)(x) Adventure/Sports (NGOs, Sports
Bodies)(xi) Mentorship (VPO)(xii) Supervision (VPO)(xiii) Fostering (NGOs)

3. What works best for whom?
Although there are many generally
effective programmes, none of them work
equally well with all juveniles. While forcertain juveniles, some treatments work,
but they will not work for others, and fora third group, they may even get worse asa result. Therefore, it is crucial to adopt
programmes that are empirically related
to the juvenile’s risks and needs. Suchprogrammes have a stronger likelihood of
successful rehabilitation of the juvenile.

2. What Works?
W h en se le ctin g a p ro gr a m m e, w eshould consider its effectiveness. That is,
we should adopt a programme that has

It is important to emphasize that thistable is not all-inclusive and therefore it
sh o u ld n o t b e a p p l i e d w i t h o u t d u econsideration to the complex situations

We identified the relevancy between
ri sks /needs and program mes, inaccordance w ith Visiting Expert D r.
Leschied. Table1 shows whichp r o g r a m m e s a r e l ik e l y t o t a r g e t ajuvenile’s specific risk and need.

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RESOURCE MATERIAL SERIES No. 59
th at m ost juve niles fa ce . R is k/ne e dfactors of juveniles are multidimensional
and influence the extent and the type ofprogrammes that should be used.
4. The role of the Multidisciplinary
Team at the Court Stage
The Multidisciplinary Team adopts a
broad perspective for assessment. The
team gathers information from various
sources, considers them from all aspects,
and identifies a juvenile’s risk and need.
Secondly, the team selects ap r o g r a m m e t h a t i s m o s t c l i n i c a ll y
relevant to the juvenile’s risk and need.
The team must have knowledge of theavailable programmes in the region. In
t h is r e g a r d , t he t e a m ha s a st ro n gconnection with community resources,and naturally knows what programmes
are available. This is one of the greatest
a dvantages of the Multid isciplinaryTeam.
5. The Legal Framework
These programmes are carried out in alegal framework, namely dispositions
such as Probation, Intensive Supervision
Probat ion , Fines/Restitu tion, an dCommunity Service Orders. The Judgedecides upon the disposition in which thetreatment programme is expected to mosteffectively function. Probation officers
supervise and manage the programme.
E. Limitations to Implementation
The group agreed on the usefulness oft he M ultid is cip lin ary T e am f o r th e
through care of juvenile delinquency.
However, limitations to implementationof the team vary from country to country.
The two most common barriers in all ofo u r c o u n tr i e s a re : a tt it u d e s o f t h ejudiciary, lack of cooperation and support
among ministries/departments, internal
departments, divisions and sections of302

ministries/departments, that are charged
with the care of the juvenile.
Especially in developing countries, thelack of training for professionals andhuman resources as well as geographicaland transportation problems also present
as diffic ulties. To overcome thesebarriers, conscious reform is not onlya g e nc y r e la te d , b u t sh o u ld e q u a ll y
involve the community. It is to be hopedthat in the near future, implementationo f the m o d e l w ill b e r e al ize d in a ll
countries.
III. OPERATIONAL ISSUES
A. Staff Training
1. Objects
T he gro up d iscusse d the tr ain in g
systems for Probation Officers and others
involved in community-based treatmentof juvenile offenders as practiced in the
UK, Singapore, Japan, Palestine,
Barbados, PNG, South Africa, and Sri
Lanka.
A model system for community-based
rehabilitation of juvenile offenders needs
to be supported with a training systemthat will equip each officer with corecompetencies to execute proper care andsupervision of juveniles according to bestpractice standards.
To achieve this, it is important
the refo re that staf f b e given p ro per
training, instruction and guidance to:(i)Clarify their responsibilities withr e g a r d t o t h e r e h a b i l i ta t i o n o foffenders and to ensure that theoffenders’ rights as well as that ofsociety’s are protected;(ii) Understanding the vital need tocooperate and coordinate activities
with all the other agencies concerned

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
w it h th e re h a b il it a t io n o f e a c hjuvenile;(iii) Continually maintain and improvetheir knowledge and professional
capacity by attending relevant inservice and other training
programmes.
2. Model Training System
It was noted that the entry point for
Probation and other community-based
corrections staff vary from country tocountry. Thus, the Group proposed that amodel of in-service training programmes
should be co mpetency-based inaddressing the training needs ofProbation Officers in stages starting fromfoundation or basic training for Probation
Officers to specialized training aimed at
helping the worker to achieve higher
levels of competency. The training would
be designed to foster the development ofskills in the 4 major areas of a Probation
Officer’s core functions, namely:(i)Collecting information, i.e. interviewing & conducting psychological tests(ii) Analyzing the information and making an assessment(iii) Report writing(iv) Coordination and working with key
constituents (elements) of thejuvenile justice system including
forging effective partnerships withvolunteers a nd other comm unity
resources.
3. Mode of Training
From the sharing among participants
and Visiting Experts, it was clear that
there was merit in a training programmethat combines formal learning with groupw ork and experiential lea rning. The
training should also be an opportunity for
officers to go back to their jobs to apply
the knowledge and skills learned. There
should also be a recall after training for
officers to return to the training instituteor o the r a ge nc y re sp on sib le f o r the
training, to reflect on their practice. Also
evident was the need for formal training
to be supported by mentorship at thewo rk pla ce to reinfo rce lea rning andsharing of best practices.
In some countries, the adoption of a
one-to-one supervision policy was felt tobe a good mechanism for staff supportand development in this very challenging
area of work.
Due to the emphasis on a through care
concept for the model system ofco m m u n it y- b a s e d r e h a b il it a t io n o fjuvenile offenders, the Group saw meritin the UK system of having staff fromboth community and institution-based
corrections to have their training (or atleast part of the training for institution
staff) side by side w ith counterparts
working on community-based treatment.
The group also noted the difficulties
arising with the designed training model.
In some countries (e.g.: Sri Lanka, South
Africa, Papua New Guinea), the officers
or v olu nte e rs se rve in und e ve lop e dvillage areas, and travel long distances tothe city, to participate in the training
programm es. Due to the poortransportation facilities, communications
problems in those areas, the participation
may be low, therefore the effectiveness ofthe training courses will not b e a t asatisfactory level. However, if we design
programmes for implementation in rural
areas, finding resource persons (trainers)
is a ls o v e r y d if f i c ul t . I n d e s ig n i ng
training programmes, all these factors
mu st be taken in to consideration.
Counter-measures will be discussed in
section 5.
4. Training Curricula
Basic or Initial Training

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RESOURCE MATERIAL SERIES No. 59
The Group proposed the following forthe basic or initial training:(i)Community-based corrections theories and philosophy(ii) The legal framework of communitybased corrections(iii) The relevant laws, statutes andinternational human rights
instruments, e.g. Convention on the
Rights of the Child, Tokyo Rules etc.
(iv) Motivational interviewing(v) Needs and risk assessment, diagnosis and risk management(vi) Preparing reports for Court(vii) Case recording and case management(viii) Rehabilitation
programmes
andresources(ix) Relationship with other elements of
the juvenile/criminal justice system,
including court work skills, working
with other law enforcem ent
agencies, etc.
(x) Skills in forming effective partnerships with VPOs including volunteer
support, recognition and development
strategies(xi) Policies and procedures in relation
to PO’s job description(xii) Authority,
accountability
andresponsibilities associated with theoffice practice(xiii) Skills required to work with clients
including special groups within the
Probation Service(xiv) Communication and interpersonal
skills(xv) Code of ethics and professional liability(xvi) Boundaries or parameters setting;e.g. where Probation Officers cansafely say he/she has done his/herb e s t f o r a j u v e n i le a n d t h e
responsibility ends there(xvii) Professional and personal relationships with persons under supervision304(xviii)Relationships
withcolleagues(peers and subordinates)(xix) Creation and maintenance of a safeand harassment-free workplace(xx) Victim’s rights(xxi) Offender’srightsandresponsibilities

Specialized Training
Besides the generic training at a basic
level, the Group also saw the need forfurther training depending on the area(s)of specialization and specific treatment
issues that a community-based
corrections staff needs to address beyond
his/her early years in Service.
Programmes that have demonstrated
effectiveness will require personnel to begiven proper training and guidance inp r o g r a m m e d e li v e r y t o e n s u r e t h e
integrity of the program mes arepreserved. Thus, for staff involved in thedelivery of cognitive behavioral
programmes, multi-systemic therapy etc.,
will require specialized training.
Training for Supervisory Staff
The training system should also allow
for the gradual phasing in of technicallycompeten t P robation Officers to a
manager if she/he has been identified ashaving the capacity and willingness toperform at a higher level.
Such training should cover the
expan ded role, res pon sib ility a nd
accountability that come with the higher
office. Management development
programmes, which include financial andhuman resource management, skills in
staff support and development, projectm a n a ge m e n t e tc. a r e n e ce ss a ry f or
supervisory and managerial staff
involved in community-based corrections.

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
For more senior level staff, the training
would have to also focus on topics such as
performance benchmarking, conducting
service audits, developing and evaluating
programmes and services for clients, staff
a nd other sta kehold ers. Policy
developm ent and review are alson e c e s s a r y sk i ll s f o r s e n io r s ta f f i nprobation practice.
In its discussion, the Group also agreed
that besides in-service training, there
cou ld als o be pre-service train ing
programmes aimed at attracting lifeexperienced personn el from ot her
disciplines to make mid-career switch toprobation w ork. This could provide asolution to some countries facing thechallenge of having young andin e xp e rie n ce d of f ic e rs o r f in di ng it
difficult to attract and/or retain suitablestaff in probation work due to the natureof the job and the often comparatively low
remunerations accorded to Probation ando the r c om m u nity- b a s ed co rr ec tio ns
officers.
5. Executive Exchanges
The Group also felt there was room to
explore the potential of having executive
exchange programmes among probationand other community-based corrections
staff to inject dynamism and exchanges ofideas among probation practitioners andmanagers. Where possible and practical,
there should also be a leveraging on theadvancement of information and othertechnology to d evelop best practices
across jurisdictions. Examples cite dinclude:(i) Video conferencing(ii) Virtual contacts with experts(iii) Distance learning to complete a
diploma, degree in probation studies,and so forth.

It was observed that, increasingly,
countries with the expertise in training,e.g. UK, Canada, US, and Australia areoffering distance-learning programmes
for this area of specialization.
6. Volunteer Probation Officer (VPOs)
Training
Volunteers Probation Officers (VPOs)
to be engaged in the rehabilitation ofjuvenile offenders should be carefully
selected and screened to weed out thosewith serious c onvictions e .g. sexual
offenders, and others whose intentions
may not meet the best interests of therehabilitation of juveniles.
Training for VPOs should at the very
least cover:(i)

Active listening and communication
skills(ii) Legal framework of communitybased corrections(iii) Ethics and professional liability
In addition, the training should also
briefly cover the core areas of training forProfessional Probation Officers (PPOs). It
is f e lt th at th e e xte nt and d e pth o fcoverage of training for VPOs would varydepending on the nature of assistancerequired of the VPO in each country.
However, no matter the variation, it isimportant that the role of VPOs vis-a-vis
that of PPOs be clearly spelt out to ensurerole clarity on both parties. This is vitalfor effective partnerships between PPOs
and VPOs to exist.
B. Finding New Resources
The group identified a number of areasin which new resources are needed if therehabilitation needs of young offenders
are to be effectively met, risks properly
m a na g ed a nd tre a t me n t e f f e ctiv ely

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RESOURCE MATERIAL SERIES No. 59
o r g a n iz e d . T h e p a rt ic u la r n e e d s o foffenders include:(i) Basic Education(ii) Vocational Training(iii) Employment(iv) Accommodation(v) Health(vi) Family relationships(vii) Sports and leisure
The organizational needs of treatment
agencies include:(i)

The development and evaluation ofeffective programmes(ii) Business planning and organization
The gro up id entifie d a num b e r o fpotential sources of help. These include:(i) Cooperative individuals(ii) Neighbors and peers(iii) Schools, public and private(iv) Academic institutes(v) Business—the private sector(vi) NGOs(vii) Government ministries and departments(i)

Examples from Neighborhood/Peers:school equipment, special education
classes, vocational trainingo p po rtun itie s, w or k exp e rien ce,
employment to parents, shelter care,
Volunteer Probation Officers,
community health centers/clinics,
sports clubs, local friendly societies,
camping trips, pocket money, family
counseling and support.
(ii) Examples from NGOs: Out of school
programmes, Volunteer Probation
Officers, street children education,school aid, special education, staff
training, vocational training,equipment and tools, employmento p p o r t u n it i e s t o o f f e n d e r s a n dparents, shelters for orphans andhomeless, medical facilities, healthed ucation and clinics, drug
prevention and rehabilitation, sports
clubs youth associations, confidencebuilding measures, financial help,
guida nce, counseling and fam ily
support, awareness raising regarding
problems and solutions.
IV. ACCOUNTABILITY ANDEVALUATION

Table 2 is a table describing the ways
in which these different sources meet there habilitation n eed s o f o ff end ers invarious countries. The marked boxes
show these are currently found in South
Africa, Papua New Guinea, Sri Lanka,
Barbados, Palestine, the UK, Singapore
and Japan.

A. Offender Information
Management System

The organizational needs of agencies
c a n b e m e t b y ac ad e m ic in st itut e s,businesses, NGOs and governments.

(i)

The following are practical examples oft he k ind o f re s o ur ce s w hic h c a n b eprovided by two of the sources;306

1. Guiding Principles for Offender-based
Information System
T h e f o l lo w in g gu i d in g p r in c ip l e sunderpin the Group’s proposal for an
offender-based information system:
Special consideration should be given
to facilitate the active involvement ofth e “m a ny he lp ing ha nds”. T his
includes:a. Proper support, consultation andtraining by professional staff;
b. Adequate
andappropriate
information sharing with persons
to be engaged in f orm al or118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSEc.

informal supervision and support
to young offenders;Developing a mechanism for
information sharing and feedback
which
poses
the
least
administrative burden tocommunity partners.

(ii) It is important that tracking ofoffenders’ performance should be
driven pr imarily by a focus on
helping the offender to address risks
and needs issues and strengthening
the prospect of community-based
treatment. Hence, in cases of noncompliance by offenders, appropriate
a lt e r n a t iv e c o m m u n i t y o p t i o n sshould be explored.
(iii) There should be strict rules
go verning confid entiality of
information on offenders and families(exception should only be on a need toknow basis).
2. Outline of Case Management System
T he sta rting point of involvement
differs somewhat with a few countries
having Professional Probation Officers(PPOs) being involved right from the timeof arrest and police investigation, whileother countries’ Probation Services only
come in after the defendant has made a
guilty plea or is found guilty as charged.
Regardless of the starting point of
involvement of the Probation Service, thepractice is universal in that the Court
requires a pre-disposition report to makethe most appropriate determination for ajuvenile offender.

(iii) the juvenile is given a community
order(s); or(iv) the juvenile is committed to an institution.
The outcome of the court disposition ofeach case is registered by the Probation
Service even where the juvenile is given a
committal order. The Probation Service
w ould then o pen a case file on e ach
offender.
The case file would have a copy of the
pre-sentence report, court order, consent
forms (for certain countries), summary
shee t e tc . I t w o uld a lso inc lud e thesupervision plan for the offenderconcerned. If the offender goes to an
institution, a second case file is opened by
the institution while the Probation Officeholds on to its own file for continuation ofsupervision once the juvenile is releasedon license or parole after a period of stayin the institution.
It is noted that in most countries, thecase reviews are done internally throughmechanisms such as checks by seniorprobation officers, Assistant Directors,
Chief Probation Officer, or provisional
commissioners and so forth. It was notedthat the Singapore system ischaracterized by a very active
involvement of the Juvenile Court which
review s e ac h pro b ation case a fter 6
months of the date of the probation order.
In this system, the PPO puts up a review
report which details the progress of thejuvenile while o n probation andperformance in programmes or activities
to which the PPO had referred him/her.

There are several possible outcomes:(i)the juvenile is released with or without condition;(ii) the juvenile is released with supervision;

Such a system also requires the PPO toprovide a status update of the casework
intervention undertaken by the PPO or
Volunteer Probation Officer (VPO) to
add ress the risks a nd needs of ea choffender as spelled out in the supervision

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RESOURCE MATERIAL SERIES No. 59
or treatment plan contained in the predisposition report.
For all the countries represented inGroup 2, there is recourse to bringing ajuvenile back to court if he/she breaches
h is / h e r p r o b a t io n c o n d i t i o n b y r e offending or failing to comply with theterms of probation. The outcome may
take any or a combination of thefollowing:(i)continuation of probation after awarning or fine or both;(ii) variation of the probation conditions(more stringent conditions); or(iii) revocation of probation.
It was observed that regardless ofwhether the offender information
ma na gemen t sy stem is performed
manually or computerized, there is asystem of recording actions taken by the
PPO (or VPO as the case may be for somecountries), the juvenile’s response tothese actions and the outcome of court
action if the violation requires bringing
the case back before the court.
It was observed too that in systems
which are managed manually, probation
officers are required to provide monthly
progress reports which are collated bysenior officials for workload accounting,other statistical analysis or for evaluationof the impact of programmes or casework
intervention on offending behaviour.
More and more countries are going intosome form of computerization of data on
offenders to enable better operational
planning and analysis of the probationo u tc om e s , im p a ct o f su pe r vis io n o r
treatment plans in an attempt to movetowards evidence-based practice.

3. Development of Offender-based
Information System
I n attem p ting to d e velop a mo de lsystem for community-based treatment ofjuvenile offenders, the Group is mindfulthat due consideration has to be given to
the development of an offender-based
information system; one that starts fromrisk and needs assessment at the predisposition investigation stage. This has
to be followed closely by a process of
formulatinganindividualized
supervision or treatment plan to address
the risks and needs of each juvenile tosteer him/her from offending.
In the Group discussion, it was notedthat de spite slight variations inindividual countries’ practices, there is acommonality in the framework used forassessing risks and needs. There is also a
recognition that risks and needs have tobe re-assessed from time to time to factor
in the dynamic variables that may impact
on a juvenile in rehabilitation.
Risks and Needs Assessment
For many of the participating
countries, there exists som e form ofstandardized risk assessment tool which
is usually a form or format. During thecourse, participants were also introduced
to the systematic risk assessment
instruments used by UK, i.e. ASSET and
the Canadian Youth Level of Service
Inventory (YLSI). The risk and needs
assessment instrument is a vital tool for
offender-based information management
system. For one thing, it helps w ithclassification of a juvenile in terms of thedegree of supervision and level of service
he/she needs to strengthen the prospect of
successful rehabilitation in thecommunity.
The Group noted from the sharing ofp r a c t ic e s i n e a c h c o u n t r y t h a t t h e308

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
assessment of risks and needs cover thefollowing areas:(i) Family, criminal and care history(ii) Offending behaviour(iii) Living arrangements(iv) Family and parental relationships(v) Education(vi) Neighborhood(vii) Life cycle(viii) Health(ix) Perceptions of self and others(x) Attitudes(xi) Motivation to change(xii) Positive factors (that can be tappedon to strengthen the communitybased treatment)(xiii) Recommendations
Formulation of an Individualized Careand Treatment Plan
The formulation of an individualizedcare and treatment plan is based verymuch on what is uncovered during thepre- disposition social investigation.
Additional information that comes tol ight a fte r t his stage s hould a ls o b e
considered to ensure the treatment planis responsive to the changing needs andcircumstances of each juvenile.
The care and treatment plan is thedescription of the objectives ofsupervision and the activities or casework
intervention that will be carried out
during the process of supervision. The
p la n sh o uld f a c to r in th e f o llo wi ng
objectives:

Stage
Reception of Case

1. Risk objectives—which aim to reduceor control the effects of a risk factor orneed factor on juvenile’s adjustment
to the community.
2. Need and support objectives—aimed
at add ressing care issues to help
support the juvenile to complete hiscomm unity-based
treatment
suc cessfully. T his would includ emeasures and help by the Probation
Officer and/or the Volunteer
Probation Officer (whether directly or
through other agencies) to increase
the protective factors that would
prevent the juve nile fro m f utureof fe nding or b re ac hing his cour torder.
3. Punitive
objectives—designedtoim p o se so m e f o r m o f p e n a l ty o r
restrictions, to symbolize theco mm unity’s cla im that crim ina lbehaviour is not acceptable).
4. Management objectives—designed tomaintain effective supervision for thecases and this includes items such as
regular reporting to the Probation
O f f ic e r ( o r V o lu n te e r P r o b a t io n
Officer), keeping a job, leading anhonest and industrious life,
maintaining a suitable living
situation, keeping away from criminal
associates, staying away fromundesirab le places like gambling
establishments, etc.).
4. Development of Forms for Individual
Files
T he ta b le b e lo w d e p i cts the d a t acapture on offenders at the various stagesof entry into the system:
Information Gathered

Name, date of birth, age, sex, offence information,family information, address, contact number etc.

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RESOURCE MATERIAL SERIES No. 59
Stage

Information Gathered

Disposition of Court

Pre-sentence report
Basic information
Court order
Risk and needs assessment
Recommended care and treatment plan

Supervision or Treatment
Stage

Date, time and other contact details; office contacts,
home visits, employment community work, attitude,
conduct and performance at community work; etc.
Evaluation of community-based treatment
Risks and needs assessment and subsequent reassessments if there are any changes in dynamic
factors
Supervisor’s modification and evaluation
Records of case discussions/conferences
Details of warning or any court action taken during
supervision and outcome of the court review/action.
Monthly progress reports

It is wor th no ting that the m od elsystem proposed is one that emphasizes
the active engagement of community
resources in the informal and formal
supe rvision and sup port to juve nileoffenders. It therefore follows that theoffender-based information system must
be designed to allow for appropriate andtim ely sharing of info rm ation andfeedback between VPOs, schools, NGOs,
faith-based organizations, sports andrecreational bodies, employers etc. This isnecessary for effective and integrated
management of juvenile offenders in thecommunity.
It is also important that the method of
feedback or reporting of progress updates
on each case between the various agentsof supervision and support be done inways that facilitate effective partnerships
b e tw e en P rob a t io n O ff i cers a nd t he310

“many helping hands” engaged in the
rehabilitation process.
The flow of information on offenders in
integrated case management system isshown in Figure 2.
B. Public Relations: Gaining Public
Confidence
1. Overview
In general, the public is reluctant toaccept offenders in their community.
H o w e v e r , so c ia l s up p o rt is vi ta l to
reintegrate juveniles into the community.
Furthermore, the community has a lot of
resources tha t contrib ute to prevent
recidivism. Social support, including
financial assistance and technical aid, isprecisely essential for community-based
treatment.

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
In fact, there is a mutual relationshipbetween social support and successful
rehabilitation of a juvenile delinquent.
That is, social support enhances theeffectiveness of community-based
treatment programmes; on the otherh and, successful reh abilitation of
offenders brings public confidence to thecommunity-based treatment system.
Therefore, strategies to address publicconcerns, promote public support, form
partnerships and build confidence bycourts and probation services have to be
formulated. The strategies must be basedon scientific evaluation. Juvenile justice
has to provide the public with empiricalevidence that comm unity-base dtreatment programmes are effective toref orm a juvenile de linquent a nd tosecure the community against crime.
In this regard, recently, some empiricalresearch has been conducted in North
A merica. The finding of research
indicates that for juvenile delinquents
severa l com munity-ba se d trea tment
programmes such as cognitive behavioral,s k i l l - o r ie n t e d , a n d m u l ti s y s t e m i ctreatment result in positive effects.
Th is kind of res earch sh ould bedesigned in respective countries. Whenthe research confirms the effectiveness ofprogrammes, it gives the community
empirical evidence that juvenile justice isaccountable to the community.
2. How to Gain Public Confidence
As noted above, in order to gain andenhance the public confidence, promotionof com munity involve ment is ofparamount importance. In general, theProbation Service coordinates various
agencies and groups and plays a majorrole in the promotion of rehabilitation.
Then, we mainly discussed the strategies

for this target. Some examples of them
are as follows.
(i)

Public Participation in the Juvenile
Justice System
It is useful to obtain public
understanding about community-based
treatment, set up consultative committee
and involve the public. The committee
considers the public’s opinion about theplanning and evaluation of treatment
programmes. Juvenile justice should bemanaged not only by authorized
specialists but also by the public. This
contributes to raising comm unity
awareness.
(ii) Volunteers in community-based
treatment programmes
In several countries, Volunteer
Probation Officers (VPOs) complement
the w or k o f P ro f e ss io na l P r o b a ti on
O f f ic e rs . V P O s a ss ist a j uv e n il e torehabilitate as a mentor in thecommunity. They also play an importantrole to promote crime prevention andmobilize social resources. Through these
activities, they show the public how ajuvenile can rehabilitate themselves in
the community.
BBS (Big Brother and Big Sisters) inJapan act as a confidant of a juvenile andplay the similar role to a VPO in thecommunity.
It is also worth asking ex-offenders andtheir parents to a ssist the juvenile’s
reintegration into the community. They
can become a good advocate for a juvenile
in obtaining employment, as well as beinga good model of reform.
(iii) Avoiding stigmatization
When a juvenile is given theopportunity of education such as
vocational training and literacy
education, it is desirable to use

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RESOURCE MATERIAL SERIES No. 59
institutions that are not traditionallyassociated with offenders. Otherwise,
stigmatization is likely to become the
obstacletoobtainingsocialunderstanding.
(iv) Providing services to the community
Many juveniles are regarded as uselessto the c om m un ity du e to th eir p a st
misconduct. Hence, measures to regain
the trust of the public are essential.
C o m m u n i ty s e r v i c e w o r k is a g o o dexample of regaining the public’s trust. If
the planner or practitioner of treatment
programmes can grasp the needs of theco mm unity in ad vance and de vise a
programme that meets them, completionof community service work can providev i s ib l e a n d t a n gi b l e e v id e n c e t h a t
j u v e n il e s c a n b e c o m e c o n tr i b u t in gmembers of the community.
It is also important that the Probation
Service provides the community withsome resources such as counseling. The
Probation Service should also berecognized by the community as a usefulorganization.
(v) Providing security to the community
Pub lic sa fety is very importa nt ingaining social confidence. It is important
to not m isle ad the public regardingg uaran tees of the effectiv eness ofcommunity-based treatment, but it ishoped that the realistic education will
provide the basis of the community’s
support for treatment.
Some countries have developed strictmeasures such as Home Confinement,
electronic Monitoring, and Intensive
Sup ervision. I n combining thesem easures with comm unity-based
tr ea tm e nt pr ogr a m me s, the re is anincr ea sed like lih oo d of succe ssfu lly
tre a ting a high- risk j uvenile in thecommunity.

312(vi) Public Relations
Mass media often report juvenile crime
so sensationally that the public lose theirconfidence in juvenile justice. Therefore,
giving objective information to both mass
media and the public is crucial.
I n fo r m a t i o n a b o u t t he e f f e ct a nd
efficiency of community-based treatment
based on scientific research is one of themost important elements. Usually thesefindings are provided only in technicaljournals or books for specialists;
moreover, they use difficult technicalte r m s. S uc h i nf o r m a tio n sh o u ld b etranslated into more user-friendly terms
and provided in more accessible ways.
Tha t is, i nf orm a t i on a b out juveni l ejustice should be popularized throughpublishing, videos, TV programmes, websites, and so on. Information andexa mp les ab out how to live w itho ut
violence should be provided to the publicthrough the materials such as posters,newspapers and brochures. This
information will help children tounderstand the differences that exist
between their values and real life values.
T h e m a ss m e d i a c a n p r o vi d e th e
co mmunity with media educatio nresources for youth, violence prevention
programmes, parent w orkshops, andvolunteer staff training. Thus, mass
media is one of the most useful resources
for public relations.
Governmental sectors that organizeand promote th e abov e-men tioned
activities should involve mass media withthem.
Crim e Prevention Aware ness
Campaigns and Street Drama are also
useful. The governmental sector ca nappoint celebrities to a number of thesecampaign activities.

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
C. Summary
An offender-based information system
is a vital step in the move towards bestpractices in community-based treatmentof juvenile offenders. It allows for:(i)

A systematic assessment of the risks
and needs of each juvenile and theextent to which these needs are met
through a com prehensive andintegrated management of juvenile
offenders on c ommun ity-based
treatment;(ii) Objective benchmarking of progress
made by each offender;(iii) Analysis of the impact of treatment
programmes and other casework
intervention by Probation Officers,
volu nt eers an d ot her a gen cies
working in partnership to achieve
successful outcomes for the juvenile.
This will enable a more effective andefficient use of resources to target
high completion and low recidivism
among juveniles on community-based
treatment.
While the Group recognises theimportance of an effective and efficiently
managed offender-based information
system in effective case management in
the interests of the juvenile, we aremindful that there should b e a highpremium on confidentiality o f all
information on offenders and families. To
this end, there has to be a clear policy on
d e stru ctio n o f j uve nile re co rd s a nd
judicious use of such information outside
the framework of supervision.
Programmes to gain public confidence
i n c o m m u n i ty - b a s e d t r e a t m e n t f o r
juv enile s sho uld be ge are d toward s
providing communities with theunderstanding that community-basedt r e a t m e n t i s n o t a b o u t a d d r e s si n gemotions, but rather to apply practicalmeasures in the effective rehabilitation ofthese juveniles within their communities,
to the benefit of the community at large.
The goal of community safety is best
achieved through the delivery of effective
com munity- based intervention as
expressed through a well-managed casemanagement system.
Public relations is all aboutcommunicating to the public (in ways
they can understand and appreciate)what they need to know to dispel
unneces sa ry fea rs a bout com munity
safety is sues , effectiv e t reatmen t
methods in reforming juvenile offenders
while they are allowed to remain in thecommunity.
V. CONCLUSION
Having examined all the risk factors
and conducted needs assessments, thismod el ha s b een d esigne d a s the one
which is practicable to all participating
countries. Although some countries may
find som e aspe cts im practical to
implement immediately, the wish is for asystem that is as similar as possible indesign and which will be implemented in
the not too distant future.
S uccessful re sp onse to this mode ldepends on the unveiling and gallant
public relation efforts of practitioners.
The re i s no rea s o n w hy a ny a nd a l l
av enue s sho uld be spared. We are
cognizant of the fact that consistentvigilance for changes of the mood andatt itu d e s o f th e co m m u n ity wil l benecessary. However a keen eye must be
kept for any new or additional resources
which might manifest from time to time.
Continuity of community based
rehabilita tive trea tment also means
continuous research and evaluation of

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RESOURCE MATERIAL SERIES No. 59
programmes
thatcaninformpractitioners. While we appreciate that
resources are scarce, we must ensure thatwhat resources are available are being
appropriately distributed to those youth
most in need.
Above all, staff training must be given
a high priority if professionals are to beequipped to provide effective service.
Finally, we ca nnot e mp ha siz e to ostrongly that the needs of the youth arec o m p le x a nd r e q ui re th e i np u t a n d
supportofmany
community
professionals. We have advanced theconcept of the Multidisciplinary Team,w hich we fe e l is th e best veh icle tosupport such evidence-based practice.
REFERENCES
Mark W. Lipsy and David B. Wilson,
1998, “Effective Intervention for Serious
J uv e n ile O f f e nd e rs , ” in “S e ri o us &Violent Juvenile Offenders, Risk Factors
and Successful Interventions,” edited by
Rolf Loeber and David P. Farrington,
Sage Publications, pp.313–345.
D.A. A nd rews et al, 1990, “Does
C orrectional Treatment Work? A
Clinically Relevant and PsychologicallyInformed Meta-Analysis,” 28 Criminology
369.
Leschied, A.W. “Effective Correctional
Treatment.” UNFAEI, 118th Course, July
2001, Fuchu, Japan.

314

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Figure 1
Model System of Community-Based Treatment

Community Resources

Community-based Treatment

Multi-disciplinary Team

PolicePublicProsecutor

Court

Correctional
Institution

315

RESOURCE MATERIAL SERIES No. 59
Figure 2
Integrated Case Management System
Reception of caseProbation Service

Risk and Needs
Assessment

Resources(Governmental bodyand Private body(NGOs))

Coordinating
Community
Resources

Planning Treatment
TargetReferralRe-assessment of
Effectiveness ofTreatment

Feedback

HealthCommunity healthcenter, Hospial, etc.
Accommodation
Half-way house,
Foster home, etc.
LeisureBBS, Sport andCultural Societies

Termination
Planning

Employment
Employer, etc.
OthersFaith-based
Organizations, etc.

Termination

SUCCESS

Education
Schools, etc.

FAILURE

Back to Court
Early
Discharge

316

Revocation of
Probation

Custody

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Table 1Treatment Programme in the Context of Risks and Needs
Programme
Literacy
Skill
Training

Vocational
Training

SchoolLow
Achievement

DD

Truancy

D

D

Employment

Unemployment

D

D

IndividualCounseling

FamilyRisk/Need

FamilyCounseling

Familyrelationships

D

Inadequate
SupervisionD

Disruptive
Behavior

Peers

Cognitive
Behavioral
Counseling

D

D

Delinquent
Group

D

D

Few Positive
FriendD

D

Drug

Substance Use

LeisureMaking Better
Use of Time

Drug
Treatment

D

D

Resiliency
Self Esteem
Individual

Attention
Deficit
Antisocial
attitude

D
D
D

D
Programme

Community
Promotion of
RestoringService
Employment Programmes
Work
FamilyAdventure/
SportsMentorship

Fostering

Familyrelationships
Inadequate
Supervision
Disruptive
Behavior

SchoolLow
Achievement

Employment

Unemployment

Peers

DelinquentGroup
Few Positive
FriendD

Risk/Need

Truancy

D
D
D
D

Drug

Substance Use

D

LeisureMaking Better
Use of TimeD

Resiliency

D
D

Attention
Deficit
Antisocial
attitudeDD

Self Esteem
Individual

D

D
D

317

RESOURCE MATERIAL SERIES No. 59
Table 2
Rehabilitation Needs and Resources
Resources
Needs

Basic
Education
Vocational
Training

Cooperative Neighbors
Individuals
Peers

Schools
Public&PrivateAcademic
Institutes

Business:
Government
Private NGOs Ministries &Sector
Departments

D

D

D

D

D

D

D

D

Employment

D

Accommodation

D

HealthD

FamilyRelationships

D

Sports/Leisure

D

D

D
D

D

D

D

D
D

“D” means that the resources are currently used in participant’s countries.

318

D

D

GROUP 3
BEST PRACTICES IN THE INSTITUTIONAL TREATMENT OFJUVENILE OFFENDERS
Chairperson

Mr. Mohammed Azizul Haque(Bangladesh)

Co-Chairperson

Mr. Yasuhiro Hosoi(Japan)Rapporteur

Mr. Zaka-Ur-Rab Rana

(Pakistan)

Co-Rapporteur

Ms. Duangporn Ukris(Thailand)Members

Mr. Waliki Naiseruvati Satakala(Fiji)

Mr. Teh Guan Bee(Malaysia)

Mr. Kazuhito Hosaka(Japan)Ms. Tomoko Yoshida(Japan)Visiting Expert

Ms. Pamela Phillips(New Zealand)

Advisers

Prof. Yuichiro Tachi(UNAFEI)

Prof. Kenji Teramura(UNAFEI)

I. INTRODUCTION
The task of the group was to explore
best practices to overcome the challenges
facing organizations in relation to thetreatment of juvenile offenders. The
group was made of individuals from anumber of professions, including Prison
O f f ice r s f ro m B a ng la d e sh , F ij i a n dMain Topic

Pakistan; Social Welfare Officers fromThailand and Malaysia, and two
Psychologists and a Public Prosecutor
from Japan.
Our group’s assignment was to discussand prepare a report on the following
main and sub topics:
Sub-Topic

1. Designing a Model System

Development of Model System Gearedat Through Care
• Framework for Individualized
Treatment: Case Management
System• Effective Programmes/Interventions

2. Operational Issues

Staff Training• Development of Training System/
Curricula
Efficient Management• Reducing Costs• Finding New Resources

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RESOURCE MATERIAL SERIES No. 59
Main Topic

Sub-Topic

3. Accountability and Evaluation

Offender Information Management
System• Development of Offender-BasedInformation System• Development of Forms of Individual
Files
Public Relations• Gaining Public Confidence

II. DESIGNING A MODEL SYSTEM

The group agreed that the principles
expressed in the United Nations
Standard Minimum Rules for the
Administration of Juvenile Justice “TheBeijing Rules” (especially numbers 26, 27,
28, 29 and 30); the United Nations Rules
for the Protection of Juveniles Deprivedof their Liberty (especially rule nos. 17–80), should govern the development of themodel system.

A. Development of Model System
Geared at Through Care
The group discussions covered a wide
range of issues including there ha b ilitation, re-socia liza tion, a nd
reintegration of juveniles offenders. It
was determined that positive results byproviding such services and treatments
can be achieved in an institution.
It was also agreed that all children
requiring institutional care andtreatment should be assessed, observedand classified before having an individual
treatment plan developed. To affect thisprocess the skills of a variety of
specialists such as psychologists,
psychiatrists, social workers, doctors,
teachers and sociologists are required.
During our discussio n common
p roblem s we re identif ied acro ss theparticipating countries. These were:
•
•

•
•

320

Overcrowding in institutions
Non availability of technical andprofessio nal staff such as,
psychologists, sociologists and social
case workers, etc.
Non existent or non-functional parole
staff
Non-existent juvenile/family courts,
classification and juvenile training
schools.

1. Framework for Individualized
Treatment
It was agreed that there should beinstitutions with 4 distinct functions.
••••

Juvenile Classification Home (JCH)
Juvenile Training School (JTS)
Juvenile Medical Training School(JMTS)
Juvenile Prison (JP)It was also agreed that each country
needed an institution such as a Minor
Children Re-socialization Centre. Thisinstitution should be run by the social
welfa re departm en t a nd ai med a t
preventing the behaviour of juveniles
progressing to offending.
(i)Juvenile Classification Homes (JCH)
According to the Beijing Rules 13,
detention in an institution should be usedas the last resort and for the shortest
possib le time. The developm ent of aJuvenile Classification Home is seen as

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
one way of achieving the aims of theserules.
The following criteria are proposed togovern these Homes:
•
•
•

•

The length of stay in the juvenileclassification home is as prescribed by
the juvenile laws in each country.
Boys and girls are accommodated inseparate sections of the home.
Dormitory placement is assigned by;age, personal history, previous historyof confinement and personality of theyoung person.
The method of classification should bebased on the needs and strengths of
the juvenile. T his info rm atio n isgathered through a variety ofm e t h o d s i n c lu d i n g : i n t e r v i e w s ,analysis of care history andpsychological tests to assess
intelligence and character. Diagnosis
is consid ered from the results o fclinical psychology and psychiatry,
medical examination, behavioural
observation, analysis of personal
history and life environment, caseconference and treatment. Various
types of psychotherapy, counselling,
and behavioural observations areu s e d t o e x a m i n e p r o b le m s. T h eresults of this classification form thebasis for developing the treatment
plans and determining the type of
institute where the juvenile should beplaced.

(ii) Juvenile Training Schools (JTS)
A cc o r d ing to B e i jin g R u le 26 th e
objective of institutional treatment is toprovide care, protection, education andvocational skill, with a view to assisting
the juvenile to assume a sociallyconstructive role in society.
Juveniles in institutions must receive
care, protection and all necessary social,educational, vocational, psychological,
medical and physical programmes andservices. Adult a nd young offenders,males and females, should be detained
separately. The parents or guardians ofjuveniles must have the right of access tothe ir child ren; this ca n b e a chie ved
through phone calls, letters and visits tothe institution. Co-operation between
organizations is particularly important inenhancing the quality of institutionaltre a t m e nt a n d t ra i nin g. O ur gr ou p
c o n s i d e r e d th a t J u v e n i le T r a i n in g
S c h o o ls sh o u l d m e e t t h e f o l lo w in g
criteria:
•

•
•
•

•

Institutions should be divided into 2
types, depending on the duration oftreatment; short-term institutions
and long-term institutions.
- Short-term institutions will provide
the basic course and rehabilitation
for juveniles who are assessed ashaving a low level of delinquenttendencies, and as being able to ber e h a b i li t a t e d w i th in t e n s i v e
training.
- Long-term institutions will provide
f or those w ho are assessed a s
h aving relatively advanced
delinquent tendencies and, as
being difficult to re-socialise in ashorter period of time.
Individual treatment plans should be
developed according to individual
needs.
Methods of treatment should beflexible and specified according torehabilitative needs of each juvenile.
Maintaining close contact between
the c o rr e ct io na l ins tit ut io n a n d
co m m u n it y o r g a n i z a t io n s h o ul dencourage the re-socialization
process.
Major methods of treatment are as
f o llo w s; ad m iss io n , o ri e nt ati o n,dormitory placement, living guidance,a c a d e m ic e d u c a t i o n , v o c a t i o n a l

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RESOURCE MATERIAL SERIES No. 59
training, moral education, treatment,
med ical care, sport/physicale d u ca t io n/ re c re a tio n, d o rm it o ry
activities, special activities/annuala ctivitie s/fe stiva ls/ca m ping/c lub
a c t i v it i e s, ex t r a cu rr i cu la r ( e . g.
Lecture by volunteers), progressive
grade system, and community
services.
(iii) Juvenile Medical Training Schools(JMTS)
In our discussion around the model ofJuvenile Medical Training Schools, weconsidered the United Nations Rules for
The Protection of Juveniles Deprived of
their Liberty, rules numbered 49–55. A
juvenile who is suffering from mental
and/or physical illness should be treatedin a specialized institution under
independent medical management. It isalso important to ensure that thejuveniles continue to receive mental andphysical health care after their releasefrom the institution.
Juvenile M edical Training Schools
should be established for juveniles whoare physically or mentally diseased andneed medical and psychologicaltreatment. Methods of treatment are as
f o llo w s; m e d ic a l ca re , m e n ta l ca re ,a cad em ic edu ca tion , occu pati onal
therapy, social skills training, sport,
recre ation, special activity andcommunity services.
(iv) Juvenile Prisons (JP)Our group agreed that imprisonment
could serve as a small, though importantpart of the whole process of treating
juveniles. While there is a general belief
that imprisonment should be utilized as alast resort, there will always be juveniles
for whom this kind of alternative cannot
be avoided. At this juncture, the group
unanimously supported that correctional
philosophy for the treatment of juveniles322

at this stage m ust be geared toward
re form ing and rehabilitating thejuveniles.
The inmates of juvenile prisons arethose cla ssif ied a s ha ving ad vanced
c r im in a l t e n d e nc y ( r e c i d i v is t s , r e offenders, hardened criminals, age wised
separation), and are not suffering fromany serious physical and mental
conditions which need intensive medicalcare.
Basic treatment programmes in thejuvenile prison will include intensive
treatment, vocational training, academic
education, rehabilitation, re-socialization,
discipline, prison labour and security.
(v) Minor Children Re-Socialization
Centers
All group members generally agreed thata Minor Children Re-Socialization Center
should be available for uncontrollable
juveniles. These juveniles will demonstrate
the following characteristics: disrespect,m i sc h i e vo us n e s s a n d m is b e ha v io r ,homelessness, and juveniles who needguidance and supervision. The major
method of treatment are as follows; care,
control, parental love, affection and respect,
guidance and academic education.
The services provided to the juveniles
in the Centre will help them to gain achanged outlook towards a moreconstructive purpose in life and enrichtheir sense of respect and confidence tosteer them away from crime.
The Minor Children Re-Socialization
Center should be under the control of thes o cia l w e l f a re or ga niz a t ion i n e a c hcountry, and not part of the juvenile
justice system. It is mentioned in thisreport as a valuable home for preventing
the behaviour of juveniles fromprogressing into offending.

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
2. Case Management System
To implement the function of the CaseManagement System, our groupconsidered that we should apply a set ofconcepts.
T h e s e c o n ce p ts i nd i ca te th at th efollowing principles should be applied toCase Management:

for the ease of management within theinstitution.
The treatment plan offered should beperiodically reviewed and adjusted tomeet changes in the juvenile’s behaviour.
The following is the case management
process that will be used.
(i)

•
•
•

•

•
•
•

•
•

Risk differentiation provides intensive treatment for the higher risk
group.
Intervention efforts must be targeted
towards criminogenic needs (dynamic
risk factors).
Clarify the treatment goals andobjectives along with most effective
treatment model in proper sequence(Individual Treatment Plan).
Multimodal treatment programme
wo rk s be tter th an tho se u se d inisolation (Treatment should address
all of the needs).
Responsivity Principle: Treatment
should be matched with learner’s
style and staff’s teaching style.
Utilize skills orientation and cognitive behaviour treatment.
Intervention should be comprehensive
and of sufficient duration. Continuityof care must be secured for treatment
integrity.
The same people deliver all treatment
for the same group of programmes.
Monitor the progress of evaluationand monitor the programm eeffectiveness in term of recidivism(outcome evaluation).

The group agreed that all juveniles
referred to an institution should have
Individualized Treatment Plans (ITP)
rather than receiving stereotypical grouptreatment, however this does not prevent
group work with juveniles. Programmes
should be designed for the individual, notAssessment and Classification
In order to im plement effective
treatment, we have to understand theprob lem s of juveniles. So we sho uld
investigate underlying problems andcriminogenic factors in the juvenile. The
main functions of assessment belong toJuvenile Classification Homes. However,classification functions are also necessary
for juvenile training schools, juvenile
medical training schools and juvenile
prisons to make effective ITPs. Major
elements of assessment are as follows:a. Psychological interview and testingb. Behavioral observationc. Physical/mental examination
Clinical assessment is often conductedby special experts (e.g., psychologists,
psychiatrists, social workers, instructors,
doctors, etc.). In addition to such clinicalassessment, the utilization ofstandardized assessment tools would
enhance the identification of risks andst r e n g th s o f i nm a t e s e x a c tl y ( e . g . ,ASSET, LSI-R, etc.).
Objective and systematic assessments
enable us to precisely classify various
type s o f de linq ue nts into re lative ly
homogeneous subgroups of juveniles interms of criminogenic risks and required
p ro g r a m m e s . S e le c ti o n o f th e m o s t
appropriate institution and the mostappropriate treatment course together
with successive reclassification to assess
the juveniles’ progresses and changes in

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RESOURCE MATERIAL SERIES No. 59
risks and needs would lead to further
enhancements of offender-rehabilitation.
(ii) Individualized Treatment Plans(ITP)
The individualized treatment plan isthe description of the goals to be soughtfor the juvenile and the activities to be
carried out at the institution. At the sametime, it is necessary for juvenile
institutions to understand each juveniles
background and the information andrecommendations from the family court
and JCH. By integrating informationfrom all these sources, juvenile
institutions can develop the juveniles
ITP. The process is as follows:a. Set individualized treatment goals
b. Set sub-goals at each stage (e.g.,orientation stage, intermediate stage,
pre-release stage)c. Make educational targets and measures
At the same time, we have to consider
the sched uled trea tme nt period andp r i o r i t is e s t r a te g i e s d e p e n d in g o n
inm ates’ needs and the nature of
criminality.
(iii) Programme Implementation
The group discussed and agreed todivide the stages of treatment in juvenile
institutions into 3 stages; i.e., orientation
stage, intermediate stage and pre-releasestage. The objectives in each stage are set
to solve problems or needs of individual
juveniles by following an individualized
treatment plan. The following are thede scriptionsofprogramm e
implementation at each stage.
a. Orientation stage programmes: theobjective of this stage is to help thejuvenile recognize their own problems
that led to delinquency, and the needto carry out tasks designed in the324juvenile training school with positive
attitudes and to ref lect therelationship with the family. Staff ofthe institution are responsible fordesigning individual treatment plans
during this stage. Programmes
provid ed at this stage include
orientation,interviewing,in t ro sp e c ti ve m e d it a t io n, e ss a ywriting, individual counselling, rolelettering and parent meetings.
b. Intermediate stage programmes: theobjectives of this stage are divided
into 2 parts; the first part is aimed atdeveloping the young persons
emotional control so they do not get
upset when facing a problem, and tohelp them to recognize the value ofwork, to carry o ut daily tasks
patiently and to recall past behaviourin the family and understand how
they were wrong. The second part is
aimed at teaching the young person to
be considerate of the feelings andstandpoints of others, to participate
actively in vocational training andacquire reliable working attitudes
and to understand the way of family
and the roles of persons in it.
Intermediate programmes include
such programmes as individual andgro up co un selling, intr osp e ctivem e d itat io n, d a il y k e e p ing , r o le lettering, role-playing, group
discussion, aggression replacement
tr ai ni ng m e th o d s , p o si tiv e p e e rculture methods, family visits,
academic examination, vocational
examination, and case conferencewith significant persons who would
assist rehabilitation after juveniles
are released.
c. Pre-release stage programmes: theobjective of this stage is to sympathizewith other inmates, to cooperate withthem voluntarily, to develop a
co ncrete plan of p ost-release life
firmly founded on work, to118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
comm unicate closely w ith fa mily
mem bers and maintain goo drelationship s. The pre-releaseprogrammes include individual andgroup counselling, essay writing,c a re e r d e v e lo p m e nt, so c ia l sk ill
training, fam ily counselling,
overnight stay with parents, home
visit and continuing case conference
w ith parole officers or VPOs who
w ould a s sis t re ha b il it a tion a ft er
release.
(iv) Monitoring (Evaluation, Feedback,Improvement of ITP)
Monitoring and evaluation oftreatment processes are very importantfor individualized treatment plans. By
monitoring changes and progress after
programmes, educational targets andmeasures can be adjusted flexibly towardfurther improvement of the juvenile. If ajuvenile does not achieve theirindividualized goals at the intermediatestage, juvenile institutions may need toprovide more intensive programmes inorder for the juvenile to achieve theirgoals.
Our group considered the methods toevaluate the progress/improvement ofj u v e n il e s a n d a g r e e d t o d e v is e t h efollowing methods:
a. Interviewing: the purpose of interviewing is for the evaluation of attitudinal changes of each juvenile and to
give guidance to support the juvenile
in improving behaviour.
b. Essay: specific tasks for essay writing
will be p ro vid ed f or the ju venile
depending on juvenile’s problems orneeds. The essay writing is intended
to improve juvenile thinking andd e v e lo p in g a n u n d e rs ta n d in g o fthemselves through writing.
c. Diary keeping: the objective of diary
keeping for evaluation is tounderstand the juveniles thinking,feelings, attitudes and problems aswell as his/her self-monitoring.
d. Academic and vocational examination:in order to re-socialize andrehabilitate
theinmates,
improvements made throughacademic and vocational training
should be measured.
e. Behavioral observation: in order tounderstand the real attitudes,
thinking and feelings of the juvenile,staff have to observe how juveniles
behave in the dormitory, whether
juveniles have good relationship withothers or not, how juveniles havechanged their attitudes, thinking andfeelings. Behavioral observation isundertaken in various situations.
f. Evaluation after group activity:
juvenile delinquents are not usually
good a t maintaining constructive
interpersonal relationship. Theirrelationships are often damaged byviolence, selfishness, and antisocial
activities. In juvenile institutions, weshould establish group discussion,
problem-focused programmes (Drug
Abuse, Familial Problems, Sexual
Abuse, etc.) and role-taking activities
in dormitories.
g. Evaluation after parents visit: a lot ofj u v e n i le d e l i n q u e n t s h a v e p o o rrelationships with their parents andguardians. In order to improve therelationship with them, the staff haveto make approaches to the juveniles,
parents andguardiansbyinterviewing them individually andimplementing family counselling.
S ta f f t he n n e e d to e va lua te a ny
change in the juveniles’ attitudes
af te r f a m i ly v is its to d e te r m in ewhether there is any improvement inth e r elatio nship with the fa m ily
member.

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RESOURCE MATERIAL SERIES No. 59
3. Effective Programmes/Interventions(i) To utilize group-based treatment
method specialized for juveniles
Juveniles often have antisocial, selfcentred and harmful attitudes. If staff injuvenile institutions don’t control thejuveniles external environment, theycannot im plement programmes
effectively. If staff don’t control andunderstand the relationship between
different groups of individuals, the moreantisocial juveniles will adversely effectthe other juveniles. On the other hand, inorder to equip the juveniles with social
skills, the staff need to teach and model
pro-social behaviour for juveniles. This
will include developing good relationships
with each other not only individually but
also collectively. From these points ofview, we should utilize group approaches.
a. The Positive Peer Culture
According to the available materials,
youth can learn to help each other ingroup sessions. They can learn to do
this through regular meetings andvarious programmes. Throughmeetings, discussions, activities andeffective programmes such as Positive
Peer Culture (PPC), peer groups candevelop better moral judgment ands oc ial sk ills s uch as le arn ing toe xp re ss c om p lain ts a nd f e e lings
constructively, caring for one another,
keeping out of fights, responding
constructively to failure, etc. Hence,these attempts to help one anotherwill be strengthened.
The peer-helping approach is alsoe vid e nt in t he e x pe r ie nce o f th e
Japanese in its rehabilitative
programmes of Juvenile Training
Schools, where group work and groupsessions have brought about positive
results. Group work can be effective,
it is therefore suggested that Groupwo rk activities an d pro gra m m es

326

where juveniles learn to help one
another should be carried out.
b. Aggression Replacement Training(ART)
Aggression Replacement Training(ART) method is a multimodal
psy cho -e d uca tio nal inte rve ntio nwhich has been developed andevaluated in response to the behavior
deficit perspective, such as
ne go t iatin g d if f e re n ce s, d e alin gappropriately with accusations, andre sponding effectively to f ailure,
te a s ing , r e je c ti on o r a ng e r. T heintervention of this method has thefollowing three components; i.e., skill
streaming, anger control training(ACT) and moral education.
The effectiveness of ART programmes
from efficacy evaluations demonstrate
a significant decrease in aggressive
incidences. It is an im pact
intervention to p rom ote skills
acquisition and performance, improveanger control, decrease the frequencyof acting out behaviors and increase
the frequency of constructive,
prosocial behaviors.
(ii) Aftercare Programme
During the group discussion the issueof maintaining changes in the juvenile
following their release from theinstitution was considered very
i mp or ta nt . I t w a s a gre ed t ha t mo s t
countries have two forms of release frominstitutions:a. Released finally, on the expiry ofsentenceb. Released conditionally, when somepart of his/he r sente nce is yet tofinish.
In the first case the released juvenile,soon before his/her release is given some

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
sort of guidance and knowledge focussing
on their adjustment into the community.
In the second case, planning for theconditionally released juvenile should beundertaken by the agency responsible forresocialization and reintegration of theo f fe nd e r in the so cie ty. T he a gen cy(parole officer) will be responsible for thecare and adjustment of the juvenile in thecommunity with constant liaison(feedback) to the institution from which
the juvenile was released. The parole
officer will acce ss social welfare,education and health institutions in orderto get specialized services for the juvenile
like education, job placement, recreation,individual counselling etc. These efforts
will be helpful in achieving the objectiveof through care for juveniles.
III. OPERATIONAL ISSUSES
A. Staff Training
1. Development of Training System/
Curricula
The effective and efficient working ofstaff in any organization or institution
depends on the knowledge, motivationand expertise of the staff. This can bee nh a nce d by p ro vid ing or ien tatio n,knowledge and skills, in the shape oftraining to every member of the staff.
This should be viewed as a continuing
process and as one of the key factors in
m a in t a i n in g th e m o t i v a t i o n o f t h ecorrectional staff working with young
offenders. Similarly this can beconsidered as a stepping stone for any
p r o m o ti o n f o r s ta f f o n c e th e y h a v eacquired the necessary knowledge, skills
and competence.
(i)

U. N. Standard Rules for Training
T h e f o llo wing s tand a r d r ule s ar eframed by the United Nations forequipping the staff with most appropriate

and up to date training. In the Standard
Minimum Rules for the Administration ofJuvenile Justice (The Beijing Rules), RuleNo.22.1 and rules No.81 and 85 of United
N a ti o ns ru le s f o r t he P r o te c tio n o fJuveniles Deprived of their Liberty deal
with training of the staff.
(ii) General Situation
Most of the countries have their own
training system a nd curricula b eingd e live r e d b y t he T ra ini ng C e ntr e s,
Training Institutions or Academies andthese institutions are responsible forproviding training skills and knowledge
for offender treatment, proposing suitable
treatment plans and implementation of
those plans and programmes.
While the importance of training andfurthering knowledge is important in any
field of life, some of the underdevelopedor developing countries do not have theirown staff training system. After induction
to some posting, the official sometimes
receives OJT (On the Job Training) under
the supervision of experienced staff. He/
she does not usually study the relevantla ws and rules and this ca n lead toproblems.
It is proposed that in such countries
where opportunities for staff training areabsent, assistance may be sought fromthe nea rby d evelop ed countries a nd
request for help in this regard may bemade to the UN and its affiliatedagencies like UNAFEI.
(iii) Enhancement of Knowledge
There is a continuous need to establish
and develop new strategies for modern
treatment. Therefore staff should be
provided with opportunities to attend
seminars, conferences and be offered
training and scholarships forinternational training to update their327

RESOURCE MATERIAL SERIES No. 59
knowledge and enhance their skills in theproper treatment of juvenile offenders.
It was unanimously agreed that soonafter induction to any position everybody
should receive basic orientation training.
This should include the stand ard
operating procedures of the institutions,p rogram me s and se rvices, the b a sic
psychology of working with offenders andtheir characteristics, legal procedures,etc.
After completion of basic orientation,
the staff should be placed in OJT. New
recruits should be placed under the close
supervision of experienced staff for acertain period of time to enable them tobecome acquainted with the functions
and carry out such functions effectively
by putting into practice what they havelearned during training. On thecompletion of the specific period theyshould be evaluated with regard to theirperformance in order to determine theirstrengths and areas for further
development.
Follow up or refresher training should
also be provided to all staff involved in
the trea tm ent and reh abilitatio n o foffenders to further e nrich theirknowledge and enhance their skills inworking with offenders. Performance
evaluation will be one of the bases inconsidering the possible content of the
training. Current techniques andm ethodology in the treatment ofoffenders should be taken into
consideration and the curriculum should
be revised, taking into consideration thechanging need s brought about bypractice, experience and research.
The faculty responsible for delivering
training should be selected with greatcare. They should be practice focused andtransferred from juvenile institutions to328

staff training institutes and vice versa, inthis way they can learn about gaps, ifany, between theory and practical work.
(iv) Training Needs
Training should be provided as perneeds of the staff in the institution. Ast h e s t a f f t r a i n i n g in st i t u t i o n s a r e
providing training to all positions (junior,middle and senior ranks) it should betarget or goal oriented. Every post should
be provided training as per his/her job
req uirem ents a nd need s, beca use ofvariation in nature of duties. Training
subjects and materials should bestandardized, yet delivered in a flexibleway.
(v) Proposals for Cost Reduction in the
Field of Training
Some of the measures to be adopted
can help in cost reduction of the staff
training institutions, such as one or two
staff members from the juvenile
institution being selected and provided
comprehensive training to make them
master trainers (Training the Trainer).
These trainers can provide training to thewhole of the juvenile institution staff aswell as nearby juvenile institutions. In
other words without sending 30 or 40
people to the training institution, they
can be provided training at their
institution where they can carry out theirofficial duties as w ell as ca n receive
training without leaving their place ofposting.
Distant learning programmes can also
be offered such as correspondence, CAI(Computer Assisted Instruction), videos,training brochures and kit etc. The main
training division or academy can provide
tra ining instructions and education,
throughtheabove-mentioned
programmes.

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(vi) Development of Training Curricula
It is proposed that some curricula,which are suitable to member countries
but flexible according to needs, is to be
designed. This can then be remodelled,
redesign ed or res tructured as perchanging needs. The model designed isgiven in chart 1 and table 1.
In chart 1, it has been shown that after
induction in the correctional service,everybody should receive training for thephase, which we call “BASE”. In the“BASE” course essential subjects, basic
laws, rules, case studies, etc. are to begiven. The more advanced information/knowledge should be given according to
the needs and requirements of the job
and similarly specialized training is to beprovided to the experienced staf f
according to the demand s andresp onsibilities of the p osts. The
performance of each participant can beevaluated periodically by reviewing theirperformance through exams/assessments
and evaluations as given in the chartunder the heading “MONITOR”. At thesa me tim e t he tr a inin g re co rd s a r emaintained so that their participation inadvanced or refresher courses, will bemonitored and assessed to determine
what further subject and expertise is tobe provided. This idea is based on thetheory of RPL (Recognized Prior
Learning).
T he gro up pro pose d the fo llow ing
curricula for the training of the juvenile
staff as given in table 1 . It has b een
agreed that everybody who joins thecorrectional service for the juveniles
should undergo some basic training in thesubjects like basic behavioral sciences( e.g. , child psyc hology, cor rectionalsociology, etc.), criminology, child welfare
and case study etc. so that they learn
about the different needs and treatment.

B. Efficient Management
1. Reducing Cost
Due to economic depression the world
over, most countries are striving hard toachieve their targets of development byusing minimum resources and achievingb e s t r e su l ts i n th e m a n a ge m e n t o fjuvenile institutions. The following steps
are proposed which will be helpful in
reducing the cost.
(i)A lot of the allocated budget for eachin stitution is con sumed in thepayment of salaries of the staff. It isa gr ee d tha t to red uc e cos t, it isnecessary that some clerical naturejobs shou ld be replaced by the
introduction of I.T. (Information
Technology). The I.T. will not only
help in reducing cost but will also
provide a more rapid and confidential
service. Similarly some of the jobs
may be restructured in such a waythat one person may be assigned
some of the tasks at one time. Ino the r wo rd s two task s are to be
carried out by one person. At thesame time advanced systems of close
circuit TV monitor should be
introduced, replacing the old systemof watch and ward staff. The
c o m p u te r iz e d s yst e m sh o ul d b einterlinked between the juvenile
institutions, for cost effectivenessand to avoid delays in acquiring up todate knowledge.
(ii) Another step that can be taken ischanging the structure of the juvenile
institution. The juvenile courts,
juvenile classification ho mes,
juvenile training schools, juvenile
m edical training schools andeducational set up (both formal andvocational) could be set up on thesame campus with separate blocks(like in Bangladesh). The whole ofthe e sta b lish me nt c a n ha ve o ne

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RESOURCE MATERIAL SERIES No. 59
kitchen and the same senior, middle
management and professional staff.
The lower level supervisory staff canb e d if fe re nt f or e a ch b lo ck . Th e
juvenile medical training school will
provide treatment to all sick inmates.
With the introduction of juvenile
courts in the same campus, we can
avoid transportation cost as well as
security problems. The educational
set up for juveniles may be run by
N G O s u nd e r th e s up e r v is io n o f
education department. The books,
writing materials for the juvenile
m a y b e p r o v id e d b y th e N G O s .
Sim ilar ly b oo k f o und atio ns an d
pub lish ers may b e in volved inestablishing a well-stocked library inthe campus.
If it is not applicable in somecountries b eca use of estab lishedstructure, the vocational and formal
e d u c a t io n c a n b e g iv e n in sh if tsystems, with less number of staff.
F o r e x a m p l e g r o up A r e c e i v in gformal education in the morning will
go to v oc a tio nal train ing in th eevening and group B, in the morning
r ec e ive vo c a tio n a l tra inin g a n dformal education in the evening. This
will help in reducing the manpower
costs. Changes in layout ofeducational set up will be useful tosave manpower costs.
(iii) The proposed treatment plan should
not be generalized to save costs. It isnecessary for every programme to be
designed according to the individual
needs and suitability of the juvenile,
so that limite d resources can b e
allocated and utilized effectively.
(iv) The primary objective of juvenile
institutions is to provide thejuveniles with education and training
to build their confidence andstrengths so that after their release
they do not re-offend. For this it isnecessary that in addition to formal

330

education they must be provided
w i th vo cat io na l educa ti on. The yshould be taught some skills, so thatafter their release they can adopt thesame or similar trade or career insociety. The skill that he/she has
acquired in the institute can also be
used as a source of income by thejuvenile but it should alw ays betreated as a secondary objective to
avoid stigmatization of child laborbecause the juvenile institutions are
not the commercial organization. In
acquiring the skills, the products/
crafts made by juveniles can be soldout in the m arket. Sim ila rly thev eg et ables , fodders and crops,
cultivated at the land of institution
can also be used as a source ofincome. At the same time if baking
and cooking skills are provided in theinstitution, it will also be helpful in
re-socialization and re-integration of
the offender after his/her release.
Moreover the juveniles can consume
the food which they have prepared inacquiring the skill, and it can also be
sold out in the community togenerate an income.
2. Finding New Resources
To meet the expenses of treatment
programmes, rehabilitative activities aswell as betterment and welfare of thejuveniles, w e have to search for new
resources, from within the community inaddition to relying on the government for
implementation of such programmes. In
every community there are a large numberofNGOs,
privatecompanies,
manufacturers and philanthropists who
are willing to extend every support for thewelfare of juveniles because they are thehope a nd future o f to morrow . These
resources can be utilized in different areas
after proper planning and mobilization.
The exp ense s of the institution w ill
obviously be cut down if shared by above-

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
mentioned organizations/persons. The
following are some of the areas, which are
identified as areas where the services
could be utilized. In table 2, target areas,
focal needs, available resources and effectare given. For example, if we identify theneed of imparting formal education as well
as vocational training, we can involve
NGOs, private manufactures, privatecompanies like publishers, printers etc.
and education department in helping thej uv e n ile in st it ut io n s f o r im p a r t ing
educa tion, extending expertise, withp r o v i s io n o f c o u r s e b o o k s , w r i ti n gmaterial, books for the library of theinstitution. The services of the trainedteaching staff, trade masters as well as
raw material, are also provided by NGOs,
manufacturers, etc. By the involvement of
the community in the areas of human,m ateria l a nd monetary reso urces indifferent projects of juvenile institution,
we will be able to reduce manpower aswell as material cost. The details of target
areas and focal needs, etc. are given intable 2.
IV. ACCOUNTABILITY ANDEVALUATION
A. Offender Information
Management System
Our group considered a wide range ofis sues ar oun d t he dev elopmen t ofO f f e nd e r I nf o r m a tio n M a n a g e m e nt
S ystems. We agreed that developing
information management systems are
im p o rt a n t f o r p l a nn in g, p o li cy a n dpractice development, as well as forreporting on the work of the institution at
both the case individual (juvenile) andsystem (institution) level.
It was acknowledged that many of theparticipating countries did not have thet e c h n o lo g y o r f i n a n c e a v a i la b l e t ointroduce computerised systems, however

it was agreed that all countries needed to
be working tow ards developing such
systems to help facilitate and improve themanagement of juveniles andinstitutions. A suggested cost effective
strategy for developing a computerised
system is for countries to work together
in deve loping the system, w ith ea chcountry contributing either financially orwith technological expertise.
One of the key advantages of acomputerised system was seen as having
the potential to provide ready access to“Best Practices in InstitutionalT r e a t m e n t o f J u ve n il e O f f e n d e r s ”.
Realising this potential could address
many issues identified in the Operational
Issues section of this paper, particularly
sta ff development a nd training. The
system should be designed to gather anddisseminate information on best practicefor the treatment and management ofjuvenile offenders. Professional staff
would be able to use the system as asource of ideas, practical advice a nd
support.
A computerised system would also
provide a ready link to the Internet for
the latest research about the treatment ofy o u n g o f f e n d e r s a s w e ll a s o n li n e
training courses for p rofessional
development of staff.
It was also considered important thatth e sy s t e m sh o u l d b e d e v e l o p e d t o
promote best practice at a system, or
institute management level. This will
enable the institutions to monitor theeffectiveness of their overall programme
as well as managing and reporting on key
strategies.
B. Development of Offender-BasedInformation System (OBIS)
A diagra mma tic representation of
OB IS is attached in chart 2. The

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RESOURCE MATERIAL SERIES No. 59
information to be contained in OBIS is
described as follows;
1. Individual case management
A system of individual casemanagement is necessary for the use byprofessionals working in the institution
to develop and monitor Individualized
Treatment Plan (ITP).
Before developing ITP, an assessment
must be made of the individual young
persons “needs” and “strengths” (Refer
rule number 12 and 49 of the United
Nations Rules for Protection of Juveniles
Deprived of their Liberty) . While
treatment within institutions will usuallyfocus on the needs and strengths of theindividual, it is important to work closelywith our community partners who will
f o c u s th e ir w o r k o n t h e n e e d s a n dstrengths of the young persons’ family
and within the community that the young
persons will return to on their releasefrom the institution. This process will
ensure effective after care for the young
person.
In order to develop the ITP,
information must be gathered on eachindividual young person, their family
background, case history, and offending
history as well as information on theyoung person’s needs and strengths. The
informa tion ga thered will provide a
co mp rehensive picture of the young
person’s situation and will be used todevelop the ITP.
A wide variety of staff may benecessary to develop, implement andmonitor the ITP. These will include forexam ple educators,
vocational
instructors, counsellors, social workers,
psychiatrists and psychologists (Refer toRule 81 of the United Nations Rules forProtection of Juveniles Deprived of their
Liberty).

332

T he ind ivid ua l c a se m a n a ge m en t
section of the OBIS is used to enter the
result of the individual young persons
assessment, their treatment plan and tomonitor the effectiveness of the plan.
In addition to monitoring the cases at
the individual level, information will becollated to provide information on theeffectiveness of the programmes acrossall individual young people. In this way
there is a continual cycle of evaluation of
the effectiveness of programmes, andinformation gathered will be used todevelop and improve the programme.
2. System level management
System level management is necessary
for managers and administrators of theinstitutions to ensure the efficient andeffective management of the institutions.
We have called this part of OBIS,“Institutional Management”.
The institutional management system
will have a number of key components.
These will include:(i)

Admission register
Information entered here will include
the elements necessary to comply withinternational conventions as w ell as
individual countries legal and policy
require me nts. They will include forexa m ple ; the yo ung p er sons d a te ofcommittal, and date of discharge from theinstitution (Refer to Rule 20 of the United
Nations Rules for Protection of Juveniles
Deprived of their Liberty), as well as
examination by physician on admission to
the institution (Refer to Rule 12 of theUnited Nations Rules for Protection ofJuveniles Deprived of their Liberty).
(ii) Daily activity register
Information entered here will assist inth e d a y- to - d a y m a n a g e m e n t o f th einstitution and requirements will vary

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
a mong the different countries. S uch
information will include records of all
major activities or events in theinstitution, for example, visitors to theinstitutions, number of young people in
the institution and movements of young
people to and from the institution.
(iii) Security and emergency management
plans
The system will be used to record andmonitor the institutions comprehensive
security and emergency management
plans. These plans will includ e
procedures to be put to place to manage asecurity or emergency crisis, as well as
the location of, and monitoring of them aintenance of security eq uipme nt.
(Refer to Rules 32 & 33 of the United
Nations Rules for Protection of Juveniles
Deprived of their Liberty).
(iv) Human resource management
T h is w ill in cl ud e all in f o rm a tio nrequired for efficient and effective staff
management. The following records will
be included:••••

Staff rosters
Timesheets, sick leave, annual leave,
length of service, etc.
Training records for all staff
Performance and development plans
for all staff(v) Public relations management
The public relations strategy will also
be entered onto the system. This will
include full details of the informationthat formed the strategy, the strategy
itself, as well as providing for monitoringof the strategy.
Reports that are relevant to the Public
R e la tio ns S t r a t e gy s uc h a s o v e ra lleffectiveness of the programme will beobtained from both the Individual CaseManagement and Institutional
Management parts of OBIS.
C. Development of Forms for
Individual Files
In order to effectively ma nage thein fo rm atio n to be e ntere d on to theIndividual Case Management section of
OBIS it is important to develop a form
that will cap ture consistent data
elem ents. In this w ay everyo ne who
undertakes assessments will gather thesa me elements, altho ugh the a ctua linformation gathered will be different foreach individual young person.
The form developed by our group forthis purpose has bee n a da pted fromASSET (Assessment tool by the Youth
Justice Board [UK]). Table 3 (Assessment
Information) contains the elements andcontent of the form to be used to gather
the relevant information.
D. Public Relations—Gaining Public
Confidence
One of the most important issues for
public relations in correctional
institutions is that of gaining publicconfidence. The public are concerneda b o ut t he ir s a f et y a nd t h e h um a netreatment of their young people. They arealso concerned about the high cost of
institutional treatment of young people
and require information of theeffectiveness of such programmes inpreventing re-offending.
In general, the public is unaware of theactivities of institutions and often form
their views from individual cases that arereported in a sensational way in them e d ia . I t is t he r ef o r e im po r ta n t to
explore all avenues of providing
information to the public to promoteawareness of the work of the institutions.
Ensuring that effective programmes ared e liv e r e d a n d p r o vi d in g t h e p ub lic

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RESOURCE MATERIAL SERIES No. 59
r e g u la r r e p o r t s o n t h e p r o g r a m m eoutcomes will go a long way in developing
public confidence.
We considered that it is necessary for
all countries to undertake a consistentand methodical approach to developing a
Public Relations Strategy.
1. Developing a Public Relations
Strategy(i) Getting Started
De fine the p ro blem o r issue s that
relate to public confidence. This w ill
include undertaking research an dsurveys to find out how confident the
public are about the institution.

(vi) Measure the Results
As with any strategy it is important tomeasure its effectiveness. Information
gained should be d etailed into a
co mprehensive report for use indeveloping the next plan.
2. Target and Strategy
Although our group did not have thein f o r m a t io n a va il a b le to d e v e lo p acomprehensive public relations strategy
for each country, we identified from ourexperience, the target groups necessary
to gain public confidence. These are:••(ii) Planning and Developing theStrategy
Identify the target groups, establish
the goals and objectives, identify thebenefits to the institution and target
groups. Select the techniques to be used
to assess progress against the plan.
(iii) Develop Materials and Activities
Decide what the key messages are thatthe institution wants the public to hear.
Then plan activities, special events andother pro motions that will help
communicate the message.
(iv) Write the Communications Plan
This must include the issue, goa l,objectives, target group, benefits, delivery
methods, resources, indicators of success,and assessment methods. Timeframes
are then assigned for implementing thestrategy. The strategy is then recorded in
the Institutional Management section ofOBIS.
(v) Implement the Plan
Work with community leaders to help
ensure the message is at least consideredby the people who count.

334

•
•

The families of the juveniles in theinstitution.
The immediate neighbours of theinstitute.
The general public.
The media.

Table 4 identifies our target groups inthe community and their areas of concern
about juvenile treatment andreha bilitation. It also identif ies our
strategies.
In order to improve our strategies togain public confidence, the overall resultsof public participation and effectivenessof the strategies will be monitored andevaluated. The evaluation will include
questionnaires and surveys.
V. CONCLUSION
In the field of Juvenile Justice, theUnited Nations has played a key role ine st a b l i s hin g S t a nd a r d P ra c t i ce s b y
preparing international instruments (UNRules). A number of Member States haveundertaken special efforts to administer aJuvenile Justice System in line w ith
these instruments. In the process of these
efforts for Juvenile Justice reforms, theneed for technical assistance has become
evident and led to various activities. This

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
course at UNAFEI is an example of these
activities of conducting a training course
focusing upon the treatment of juvenile
offenders.
Recently the organisations in charge ofthe treatment of juveniles in conflict withthe law are facing many challenges. In
some countries, the treatment system isoverw helmed by the sheer volume ofoffenders supplied by the criminal justiceadministration. In some countries, thepressure from society to redefine the mosta p p r o p r ia te m e a s ur e s to d e a l w it h
J uve nile Of fe nd ers ha s in tensif ied ,resulting in many legal andadministrative changes. Equally, in somec o u n tr i e s , t h e in t r o d u c ti o n o f n e w
technologies, such as information
technology is craved, but barred by thetrem endous am ount of hum an an dmonetary resources required. In othercountries, the costs of offender treatment
is under pressure to be reduced so that
offenders and the rest of society get areasonable share of the national wealth.
Considering the above facts, UNAFEI
aims through this training course, tocome up with strategies to overcome
recurrent and newly raised challenges inthis are a, fo cussing m anagem ent o foffenders and management of treatment
organizations.
We, all members of the group work,
serving in the criminal justiceadministration discussed our countries’situations and shared our experiences to
explore the best practices in thei ns tit ut io na l tr e a t m e n t o f ju ve n il e
offenders. Newly emerging ideas such as‘risk management’, restorative justiceand multi-systemic approaches, which
gives impetus to the integration of thevarious treatment systems at theinstitutions, have be en studied a ndsuggested as an integrative approach indesigning a model system.

In the group we exchanged our views
concerning the introduction, development
and utilization of offe nder data
management systems in each country
and agreed that the introduction of anindividual case file/record system with asophisticated database, utilizing
information technology will help to study
the trends of changing characteristics ofjuveniles and their crimes.
There is no alternative to training.
Although the training of staff has been of
pere nnial concern to correctional
treatment providers, many countries
have had difficulty in equipping theirtreatment officers with the knowledge
and skills necessary for working with
juv en ile o ff e nd e rs. G ro up m em b e r s
discussed in length and designed bestpractices for training of their officers. The
idea in designing the curricula is basedon t he th eory of Recognized Prior
Learning (RPL).
Since juvenile criminal justice haschanged dramatically in recent years,
managing public relations is becoming
more and more difficult for thecorre ctional institutio n officers andgaining public confidence is becoming
crucial to the correctional institution
services. Keeping in mind the urgency inth is re g a r d t he g r o up s h a r e d th e ir
experiences and developed a strategy,
linking up with the Of fend er B a sed
Information System (OBIS) for obtaining
feedback through conducting research/evaluation.
In the end we hope that the proposedmodel will be practically applicable inevery participant’s country, of coursewith some of the modifications keeping in
mind the nature, resources andcircumstances. At the same time, it will
be helpful in achieving a framework forindividualized treatment with effective

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RESOURCE MATERIAL SERIES No. 59
training programmes and intervention
with standard ized staff training
programmes and OBIS and suggestions
for gaining public confidence.
ACKNOWLEDGEMENT
The endeavours and deliberations of all
the participants of Group 3, areappreciated and acknowledged as all
have contributed a lot through theirshared knowledge and experiences todevelop this paper as a useful model of“B est Practice s in the I nstitution al
Treatment of Juvenile Offenders”.
The acknowledgement is also dedicatedt o th e v is it i n g e x p e r ts t o U N A F E I
especially Ms. Pamela Phillips whose
valuable contribution was an asset to thegroup discussion. Credit also goes to the
distinguished faculty members,
particularly Professor Kenji Teramura
a nd Professor Y uichiro Ta chi whoseknowledge and expertise on the subject ofcriminal justice have supported andguided the group from the discussion
stage to the development of this paper.
W e w i s h to e x t e n d o u r p r o f o u n dgratitude to the Programming Officer forthis course Professor Hiroshi Tsutomi
and the Director of UNAFEI Mr. Mikinao
Kitada for their invaluable contributions
during our deliberations. We are also
g r a te f u l t o o u r in t e r p r e t e r s w h o s eexpertise and efforts made deliberations
possible and successful.
Finally, we want to acknowledge thework of UNAFEI, and offer our sincere
thanks for the know led ge ga ined byparticipating in this course. This will bein valu able wh en we ret urn t o ourrespective countries and organisations.

336

REFERENCES
John C. Gibbs, Granville Bud Potter And
Arnold P. Goldstein, The EQUIP
Programme—Teaching Youth to Think
and Act Responsibly Through a PeerHelping Approach, 1995.
Correction Bureau, Ministry of Justice,Japan, Correctional Institution in Japan,
1999.
Rob Allen, Children & Crime—Taking
Responsibility, 1996.
Gerald G. Gaes et al., C orrectio nTreatment, 1999.
UNAFEI, Resource Material Series No.
40. December, 1991.
UNAFEI, Resource Material Series No.
42. December, 1992.
UNAFEI, Resource Material Series No.
45. December, 1994.
UNAFEI, Resource Material Series No.
46. March, 1995.
UNAFEI, Resource Material Series No.
51. December, 1997.
UNAFEI, Resource Material Series No.
52. January, 1998.

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Chart 1
FOCUS
Development
Management

MONITORADVANCED
FOCUS
Specialized
Supervision

CORE

FOCUS
Specialized
Supervision

Include current
needs into theTraining
Programme (ormodule) to
upgrade

FOCUS
Classification

FOCUS
Security

FOCUS
Treatment

Review by OJT

Psychological
Assessment,
Psychiatry,
Report Writing

Securiy Practice,
The Art of SelfDefense

Case Work,Group Approach,
Couseling

Review by Exam

Criminology, Case Study
Basic Knowledge on Institutional Operation and I.T.
BASE

Basic Behavior Studies
Law, UN Standards

RPL Keeping
Training Record

EthicsJuvenile Classification
Home

Juvenile Training School,
Juvenile Medical Training
School,Juvenile Prison*RPL is theabbreviation for
Recognized Prior
Learning.

337

RESOURCE MATERIAL SERIES No. 59
Chart 2
Offender-Based Information System

OBIS
Offender-Based Information System

1. Individual CaseManagement
2. System Level
Management• Impact ofProgramme• Evaluation
Research• Monitoring
TrendsIndividual Case Management

FamilyBackground
Case History
Needs
Strength

Individual
Data

Individual
Data

Individual
Data

Treatment

Treatment

Treatment

Evaluation

Evaluation

Evaluation* Statistical Standardized Procedure

3. Monitoring ofCompliance with
Policy,Regulation, Legal
Issues (Finance)

IMS
Institutional Management Systems

4. Staff
Development andTraining

Admission register
Daily activity register
Security and emergency management
Human resource management
Public relations management

Statistics
Monitoring

Research

PublicRelations

Evaluation(Review
Programme)

338

Accountability

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Table 1
Proposed Curricula for the Staff Training

Advanced
CourseCore
Course

Focus
Specialized
Supervision

Focus
Development
Management

Focus
Specialized
Supervision

Focus
Classification• Psychological
Assessment• Psychiatry• Report Writing• Interview
Method• Psychological
Test• Classification
Practice• Case Study

Focus
Security• Security Practice• The Art of Self
Defense• PhysicalTraining• Crisis
Management• Law (TheConstitution,
Criminal Law,
Juvenile Law,
Prison Laws andLegislation etc.)• Behavior
Sciences

Focus
Treatment• Case Work• Group Approach• Counselling• Treatment
Practice• Protective
Detention
Practices• Outline of
ProblemBehavior••
Base
Course

•
•
•
•
•
•

Occupation Ethics
Law (The Constitution, Criminal Law, Juvenile Law, Prison
Laws and Legislation etc.)
UN Standards
Basics Behavior Sciences (Correctional Psychology, Correctional
Pedagogy, Correctional Sociology, Child Psychology)
Child Welfare
Basic Knowledge on Institutional Operation and I.T. (Outline of
C orr ec tio n, S e curity Pr a ctice , T he A rt of S elf -D ef en se,
Information Processing etc.)
Criminology
Case Study

339

RESOURCE MATERIAL SERIES No. 59
Table 2Finding New Resources
TargetArea

Human
Resources

Material/
Monetary
Resources

340

Focal Need

Available
Resources

Effects

Vocational
education, Formal
Education

NGO/Relevant
Company,
Governmental
AgencyReduce manpower cost
after achieving skill andlicense, certificate, thechances of rehabilitation
and reintegration
community care enhanced

Counselling, Group
work, and other
Psychological
Services

University
Internship
Programme

Reduce recruitment costand initial training

Extra Curricula,Special Activities(camping, study
tour, concert,
cultural activities)

NGO/Relevant
Organization

Reduce the cost incurredon these programmes andit will also help in the
personality developmentof juveniles.

Medical Services

NGO/Relevant
Organization

Reduce recruitment cost
as well as initial training
cost with high quality
service

Staff Development

UN, other JJS
agencies

Reduce recruitment cost
as well as initial training
cost with high quality
service

Facilities andvarious materials(e.g., clothes, officematerial, sports
goods, newinstitution)

Official
Development
Aid, Privatecompanies,
NGO

Reduce operational costand invest budget for more
important area

Cash

Donation, Fundraising
campaign
Public/Eachpeople/BusinessCommunity

Reduce operational costand invest budget for more
important area

118TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Table 3Form for Assessment Information
Element

Content

1

Personal Information

Name, Gender, Date of Birth, Address, Number

2

Care History

Probation, JCH, JTS, JP etc.

3

Living Arrangements

Current Living Arrangements

4

Family and Personal
Relationship

Family Members and Cares, Family Members(Criminal Activity, Alcohol Abuse, Experience ofAbuse etc.)

5

Statutory Education

Regular Truanting, Under-Achievement,
Bullying

6

Employment, Training
and Further Education

Lack of Qualifications, Skills or Training,
Negative Attitude towards Employment

7

Neighbourhood

Rural Area, Metropolitan Area (Crime “hot spot”)

8

Lifestyle

Friendships, Reckless Activities

9

Substance Use

Tobacco, Alcohol, Amphetamine, LSD etc.

10Physical Health

Physical Immaturity / Delayed Development

11

Emotional and Mental
HealthMental Illness, Emotional Psychological
Difficulties

12

Perception of Self andOthersConfused Sense of Identities, Lack ofUnderstanding for Other People

13

Thinking and Behaviour

Poor Control of Temper, Aggression,
Inappropriate Activities

14

Attitudes to Offending

Lack of Remorse/Understanding of the Effect ofTheir Behaviour on Victims

15

Motivation to Change

Stop Offending, Co-operate with Others (JCH
other agencies)

16

Needs

•

Summarize key Needs

17

Strengths•

Summarize key Strengths

18

Progress Record

Result of programme (ITP), priority of
programme

341

RESOURCE MATERIAL SERIES No. 59
Table 4
Public Relations Strategy

Family ofjuvenile

Well being ofjuvenile
EscapeNeighbours

Strategy•

Involve family
participation (ex. Family
conference)•••

Security
Minimize noise levels
Provide facilities free ofchargeCommunity services

Noise
•
•
Safe/Secure
GeneralpublicHumanetreatment
Lack ofinformation

•
•
•

Media

342

The right ofjuvenile•

The society toknow the roleof theinstitution in
relation totreatment ofjuvenile•

Monitor

Their
Concern

Invite public
participation- Board of visitors- Spiritual counseling& moral education,etc.
Community services
Dissemination of official
information
Internet/website
Invite media to cover
special activities ofinmates
New development

Evaluate

TargetGroup

PART THREERESOURCE MATERIAL SERIES
No. 59Work Product of the 119th International Training Course“CURRENT SITUATION OF AND COUNTERMEASURES AGAINSTTRANSNATIONAL ORGANIZED CRIME”

UNAFEIVISITING EXPERTS’ PAPERS
INTERNATIONAL COOPERATION AGAINSTTRANSNATIONAL ORGANIZED CRIME:THE GENERAL DEVELOPMENT
Matti Joutsen*
I. CRIME: FROM A DOMESTIC TO
AN INTERNATIONAL PROBLEM
Before World War II, crime was almost
solely a domestic issue. Few persons wereconcerned with what happened beyond
their borders, since this had little effecton day-to-day life. This scenario has now
changed fundamentally.
Some of the changes have been due totechnology. Faster air service for people
and goods means that it is easier to getaround, and also easier both for offenders
to move from one country to the next,
keeping more than one step ahead of thelaw enforcement authorities, who mustr e s p e c t ju r i sd i c ti o n a l li m i ts . M o r esophisticated telecommunications makethe planning and directing of crimes
p o s s i b l e f ro m a d is ta nc e, a l s o f r om
abroad. Electronic fund transfer meansthat the profits from crime can be rapidly
m oved be yo nd the rea ch of natio nal
authorities.
A mong the politica l a nd economicchanges have been the establishment ofregional trade groupings such as theNorth American Free Trade Associationa nd the Europ ean U nion, which a reremoving barriers to the movement ofpeople, goods, services and capital. The
opening of formerly closed economies anddisruptions in economic development
have contributed to an enormous increasein crime, crime which has had an impact* Director, International Affairs
Ministry of Justice, Finlandeven outside the region. And because ofpolitical developments and corruption in
many countries around the world, somegovernment officials have shown their
willingness to collude with offenders in,for example, terrorism, drug trafficking,money laundering and economic crime.
The social changes have included theimpoverishment of people, in particularin developing countries and the countries
in transition. Although informal social
control still operates effectively in large
parts of the developing world, m any
developing countries have undergone
massive rural-urban migration, with the
new arrivals in the cities faced with analm ost total lack of prospects foreducation and employment. In many
countries, attemp ts at economic
development have failed, leaving a legacy
of a growing external debt. War andinternal conflict have not only had adisastrous effect on persons caught in
the ir gr ip , the y ha v e inc re a se d thenumber of internally displaced persons
and the international flow of refugees.
Given the scale of such problems, it isunderstandable that the criminal justicesystem in many developing countries isunder-resourced and under-trained.
According to one dominant explanation
for changes in the structure and level ofcrime, the routine activity approach, theamount and structure of crime is affectedby three factors: the number of suitabletargets for crime, the number of likely
and motivated offenders, and the absenceof capable guardians to prevent would-be

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RESOURCE MATERIAL SERIES No. 59
offenders from committing crime. 1 In all
three respects, the potential for crime andfor organized crime is expanding worldwide and the technological, political,
economic and social changes just referredto have intensified this expansion.
The number of suitable targets forcrime has increased. The increase in
ind ustria l pro d uctio n a nd , in m a ny
c o u n tr i e s, t h e c ha n ge f r o m a st a t ee co nom y to a m a rke t e co nom y ha ve
increased the amount of consumer goods
a vailab le. R adios, televisions, vid eo
recorders, compact disk players, brandname clothing, cosmetics and other goodsa r e n o w b e i n g p ro d u ce d in g r e a t e r
numbers domestica lly. These factors
i n cr e a se th e n u m b e r o f ta r ge ts f o rproperty crime.
In a somewhat parallel manner, fore xa mple the introduction of m odernt e le c o m m u n i c a ti o n s a n d c o m p u t e rsystems, the proliferation of privatecompanies, and the wide use of new forms
of non-ca sh payment (such as credit
cards) have increased the number oftargets for economic crime.
The number of likely and motivatedoffenders has increased. Throughout thewo rld, m illions of pe op le have be en
willing or unwilling participants in what
has been called the “shadow economy” or“underground economy”, which grew outof the iron laws of supply and demand.
What the legal market could not produce
and distribute in sufficient quantities
and/or of adequate quality (which inmany countries often seemed to be justa b out anything and everything) the
shadow economy sought to supply. This1

See in particular Cohen, L. and Felson, M., Social

leads, among others, to smuggling, illegal
migration, and prostitution.
The borderline between the legitimate
economy and the shadow econom y isoften im possib le to d raw , a nd ma ny
people received their indoctrination into
crime in this way. Where economic times
have been bad, the standard of living has
dropped, unemployment has spread andinflation has increased. As a result, more
and more persons have turned to theshadow economy and to crime as a meansof sup plem enting their inco me . The
reality (and perception) of increased
crime has contributed to the readiness tocommit crime.
T h e p o o l o f lik e l y a nd m o ti va te doffenders is also being expanded by theprison system. The prison population inma ny c ountries ( pa rticula rly in the
United States, the Caribbean, Central
and Eastern European and Central Asia)
is quite high, and has been expanding
during the 1990s. 2 Conditions in such
prisons appear to be very poor by UN
standards, and these prisons can thus dolittle to rehabilitate the offenders. On thecontrary, the time spent in prison can
provide the prisoners with information on
ne w cr im e te ch ni que s and su ita b letargets, as well as supply them w ith
willing partners in crime.
The readiness and ability of society to
i n t e r v e n e i n c r i m i n a l a c t iv i t y h a s
weakened. The current resources andapproach of the criminal justice systems
in many countries cannot provide aneffective response to the increase incrime. There are shortages in personnel,
facilities and equipment. Training and2

Roy Walmsley, World Prison Population List.

change and crime rate trends: A routine activity

Secon d ed ition. Home Of fice Res earch ,approach, American Sociological Review, 1979,

Development and Statistics Directorate, Research

vol. 44, pp. 588–608, passim.

Findings No, 116, London 2000.

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119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
the level of knowledge among
practitioners in many cases is woefully
inadequate. With the recent economicchange s, the relative sa lary level o f
criminal justice professionals has often
deteriorated, making it difficult to recruitand retain competent individuals. The
poor economy also means that criminal
justice agencies are often unable to obtainor upgrade their facilities and equipment.
For example, many officials in Central
and Eastern European countries havesadly noted that they are trying, both
figuratively and literally, to use Ladas
and Moskvitches to catch criminals whoare speeding away in BM Ws andMercedes-Benzes.
The developments reviewed briefly
above have contributed to the growth ofordinary crime as well as to the growth
and the internationalisation of organizedcrime. Organized crime as such is notnew. For exa mple I talian, Nigerian,
Chinese and Japanese organized crime
has long roots, and organized criminalgroups from these countries have had
mem bers or cells even in foreigncountries, as well as the international
conta cts needed to exploit em erging
markets for illegal goods (such as drugs,
but also illegal firearms, pornography,
smuggled alcohol and cigarettes,
counterfeit currency, counterfeit goods
and stolen goods) as well as for illegal
services ( such as pro stitutio n, slave
labour, loan-sharking, money launderingand illegal immigration). What is new is
the degree to which they are prepared to
expand their activities internationally,
supplementing their traditional criminal
areas with new areas, and networking
with other criminal organizations.

II. THE EVOLUTION OF
INTERNATIONAL CRIMINALJUSTICE
A. From Strict Territoriality to the
Recognition of the Need forInternational Cooperation
A nd ho w h a s the cr iminal justicesystem responded to the grow th andinternationalisation of crime? As long as
cr im e w a s d e f ine d a s ( a n d, in m os t
respects, actually was) a local or at mostnational issue, criminal law remained
almost wholly territorial, concerned onlywith acts or omissions that had beencommitted in the territory of the forum
state. This was the approach taken inparticular by the common law countries:
offences committed abroad were not theirconcern, and their authorities would nottend to be willing to assist the authorities
of another State in bringing offenders tojustice.3
Where formal cooperation in criminalcases is impossible, informal cooperation
may arise. This began to emerge in law
enforcement during the 1700s and early
1800s, when the major international law
enforcement concerns were related to3This attitude was not limited to criminal law, but
could also be seen in civil cases. It is true thatprivate international law began to evolve already
du r ing the 1 20 0s . T hi s d is ci pl in e se e ks todetermine what law should govern a transaction
or occurrence that has a connection with two or
mo re juri sdi ctions. H ow eve r, inter national
cooperation even in civil cases was almost nonexistent up until the 1800s. A person who wanted
to summon a person in another country or enforce
a civil court judgment in another country often
found this to be impossible. It was not until the
mid-1800s that growing interest was expressed ininternational cooperation in civil matters. One of
the earliest treaties on service of process for civil
cases was signed in 1846 by France and by theGrand Duchy of Baden (later, part of Germany).

347

RESOURCE MATERIAL SERIES No. 59
piracy, the slave trade, smuggling andcross-border forays by bandits. At thattime, the tendency was for States to takeunilateral action to make arrests andbring the offenders to justice. This could
take the form of blatant incursions into
foreign territory (with or without the
support of law enforcement colleagues on
the other side of the border), such as
seizures of suspected pirate or slave-trade
ships even when they lay in the
territorial waters of a foreign state, orwhere posses rode across the Rio Grande
from the United Sta tes to Mexico inpursuit of bank robbers or cattle rustlers.
Such informal and unilateral actions,c olou rfu l as they may be, w ere an
unsatisfactory response to a growing
problem. Unilateral action could create
unnecessary tensions between nations.
For the police to be able to work acrossborders, arrangements had to evolve on
three different levels: the political level,
the structural level and the practicallevel.
On the political level 4 (what Benyon
calls the macro level), governments must
create the legal and political possibilities
for international police cooperation. Thisis the level that deals with thec o ns t it u t io n a n d le g i s la ti o n o f t h e
individual countries, and within te rna tion a l agre e m e nts. It is th epolitical level that determines the legal
issues relating to police opera tional
powers across borders. Countries that
had many cases in common graduallyb ega n to enter into more formalised
arrangements for cooperation, including
bilateral treaties. In 1919, Belgium and4

Benyon, John (1997), The Developing System ofFrance even agreed on allowing theirrespective police forces limited crossborder authority. In its most ambitious
form, the political level seeks to unify andharmonise the way in which criminal
justice and law enforcement is carried out
in two or more countries.
The second level, the structural level(referred to by Benyon as the meso level),d e a l s w it h o p e r a t io n a l s t r u c tu r e s,
p r a c ti ce s a nd p ro c e d u r e s . I t is th e
structural level that provides the tools forco operatio n. These tools include
information systems, common data bases,m e t h o d s o f c o o rd in a ti o n , a c c e s s to
information, and where necessary theestablishment of specialist organisations
dealing, for example, with counterfeitingor fraud.5
One
expandingele mentofinter national wor k on the second,
structural level consists of training andte chnica l co ope ra tio n. Co nsidera b lebilateral and multilateral efforts havebeen made to develop police skills andtechniques, through joint training andjoint exercises, and through the provisionof direction, training and resources. Sucha s si st a n ce i s p r o v id e d n o t o nl y f o r
altruistic reasons of helping the police inother countries to deal w ith serious
problems, but also for understandable
reasons of national interest, such asefforts to stabilise a re gim e in aneighbouring country, or to assist in
preventing and controlling crime thatmight otherwise spread internationally.
The third level is the practical level(referred to by Benyon as the micro level).
5

As Benyon points out, cooperation on this second

Police Cooperation in the European Union, inlevel often takes place between different law

McDonald, William F. (1997) (ed.), Crime and

e n f o r c e m e n t o r g a n i s a t i o n s e ve n w i t h o u t

Law Enforcement in the Global Village, Anderson

go v e r nm e n ta l i n it i at iv e o r pa r l i am e n ta r y

Publishing Company, Cincinnati, pp. 103–121.

approval.

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119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
It is this level that is concerned with theinvestigation of specific offences and withthe prevention and control of particularforms of crime. Where the specific case athand has points of contact with a foreign
State, the practical steps may involvet ur n in g th e m a tt e r o ve r t o p r iv a t e
investigators, turning the foreign aspectsof the case over in full to the foreign law
enforcement body (or bodies), or granting
law enforcement authorities the power toact on foreign territory.6
J u d ic i a l c o o p e r a t i o n i n c r im i n a lmatters was even slower in emerging
than was cooperation in law enforcement.
Once again, it was cooperation in civil
matters that evolved first, and in someways paved the way for cooperation inc rim inal m a tte rs. 7 E xtrad itio n an dmutual assistance in criminal matters
lagged behind. Some work was done on
the subject by the League of Nations
Committee of Experts for the Progressive
Codification of International Law, and adraft convention was prepared in 1928,
covering “m easures of enquiry”, thesummoning of witnesses and experts toattend in the requesting S tate (w ith
6

immunity from prosecution in respect ofearlier conduct), the transfer of persons
in c ustody to appear as w itnesses(available only on the basis ofreciprocit y), and the s urren der of
exhibits. Assistance could be refused if
the relevant offence was notextraditable.8 The Harvard Draft
Convention in 1939 dealt with service ofprocess, obtaining evidence abroad andsupply of certain records relating toconvictions and to convicted offenders(McClean, ibid.). In respect of extradition,
the f irst multila tera l trea ty d id no t
emerge until 1933; this was theConvention on Extradition preparedwithin the framework of the Organizationof American States.9 In respect of mutual
assistance in criminal matters, even more
years had to pass until a multilateraltreaty was drafted: the Convention on
Mutual Assistance in Criminal Matters of
1959, prepared within the framework of
the Council of Europe.
This is not to say that judicial
cooperation did not exist in criminal
m atter s be for e the 1933 and 1959
treaties. A few bilateral treaties wereNadelmann notes that today, this third type of cooperation, where law enforcement authorities from two
or more countries work directly together on specific cases or types of activities, is increasing. He observes
that lower-level officials tend to regard international politics as a hindrance, and that they therefore seek
to establish working relationships with foreign colleagues based on a common professional culture andobjectives. Ethan A. Nadelmann, in McDonald, op.cit, pp. 107–108.

7

Many bilateral treaties on the service of process and the taking of evidence abroad were made during the1800s. At the end of the 1800s, multilateral initiatives emerged. In 1889 and 1890, a Latin American
Congress on Private International Law was held in Montevideo. It produced the 1889 Convention on Civil
Procedure. Only a few years later, the first permanent intergovernmental structure for progressive
unification of the rules of private international law was set up: the Hague Conference on Private Law
began regular meetings in 1893. The Hague Conference meets every four years, and brings together
official delegations from a wide spectrum of legal systems around the world. It not only develops draft
conventions, but follows their implementation and, as needed, updates them. Already in 1894, the Hague
Conference produced a draft Convention on Civil Procedure, which was signed one year later. It was thisConvention that created the system of central authorities, which supplemented the existing network of
consular authorities.

8

David McClean, International Judicial Assistance, Clarendon, Oxford, 1992, p. 125.

9This has subsequently been replaced by the 1981 Inter-American Convention on Extradition.

349

RESOURCE MATERIAL SERIES No. 59
made already during the 1800s, and inrespect of drug trafficking, which has
l o ng bee n the co re o f tra n s na tiona lo r ga ni z e d c rim e, e ve n m ult ilat e ra ltreaties were made at the beginning of
the 1900s. 10 The International Opium
Convention was completed in 1912, and as e c o n d C o n v e n t i o n o n th i s s u b j e c t
appeared in 1925. This was followed, in
1931, by the Convention for Limiting theM anufacture and Regulating theDistribution of Narcotic Drugs,11 and in
1 9 5 3 b y t h e P ro to co l L im it in g a n dRegulating the Cultivation of the Poppy
Plant, the Production of, Internationala nd Wholesale Tra de in, a nd U se o f
Opium.
Bringing these multilateral treaties up
to the present, the 1961 Single
Convention established new mechanisms
a nd o bl i ga t io ns. I t as s igned certa infunctions to the Commission on Narcotic
Drugs and to an International Narcotics
Control Board. It also required States toprovide annual estimates of drugs usedfor various purposes, to abide by
restrictions on manufacture, production
and import, to criminalise the possession,
supply and transport of drugs, and makethem extraditable offences.
The main drug treaty today is the 1988
United Nations Convention against Illicit
Traffic in Narcotic Drugs andPsychotropic Substances, which enteredinto force in 1990. The 1988 Convention
calls for criminalisation of a range ofcriminal offences, including theorganisation, management or financing ofdrug offences, and the laundering of theproceeds (art. 3). If two States have acted
in th is r e sp e c t , t h e re s h o ul d b e n o
problem w ith the double criminality
requirement in extradition. According toarticle 6, the offences criminalised by the
1 9 8 8 C o n v e n t io n a r e b y d e f i n i t io n
extraditable offences, and the convention
itself can be regarded as providing thenecessary legal basis for extradition andm u t u a l a s s i s t a n ce . A rt . 5 c o n ta in sprovisions on confisca tion, a rt. 7 o n

10 Many countries have long preferred bilateral agreements over multilateral agreements. The advantage ofbilateral agreements is that they can be tailored to the specific needs of the two countries in question, andthey can be expanded, amended or terminated relatively easily, as required by the situation.
Furthermore, the two States will obviously have greater control over the planning, implementation andfollow-up of the cooperation.
Multilateral agreements, in turn, require that the States in question commit themselves to certain
common rules agreed upon by all the States involved. They are more difficult than bilateral agreements
to draft, amend and terminate. The infrastructure that is often required for the implementation ofmultilateral agreements calls for the investment of resources. At the same time, however, multilateralagreements provide a greater degree of stability to international cooperation. They represent an intention
to create lasting institutions based on mutual solidarity and shared responsibilities. Moreover, accession
to a multilateral agreement relieves the State of the responsibility for entering into a number of different
bilateral agreements, each of which may require different procedures. Finally, the extension ofmultilateral agreements lessens the possibility that offenders can seek to evade justice by operating in orfrom, or escaping to, States that are not parties to such agreements. (A list of multilateral treaties on
criminal law issues is provided in Bassiouni, M. C., A Draft International Criminal Code and Draft
Statute for an International Criminal Tribunal, 1987, pp. 355–475.)
Several countries (in Europe, these include Austria, Finland, Germany and Switzerland) have adopted
national legislation on international cooperation, which makes cooperation possible with those countries
with which there is no bilateral or multilateral agreement in force.
11 The 1925 Convention has subsequently been amended many times with protocols.

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119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
mutual assistance,12 art. 8 on the transfer
of proceedings, and art. 11 on controlled
delivery.
Asides from the topic of drugs, before
the United Nations Convention against
Transnational Organized Crime (thePalermo Convention) was opened forsignature at the end of 2000 there werea lmost no m ultilateral treaties thatwould have defined aspects of organizedcrime.13 During the 1970s, in response toa rash of sky-jacking and other hostagetaking, treaties w ere signed on thist o p ic . 1 4 I n 1 9 8 0 , a C o n ve n t i o n w a scompleted on the physical protection of
nuclear material, ten years later theCouncil of Europe completed the
C onve ntion on L a unde ring, S e ar ch,
Seizure and Confiscation of the Proceeds
f ro m C r i m e, a n d i n 1 9 9 6 t he I nt e r American Convention against Corruption
was com pleted. As this scattere dexamples show, it has taken a long time
for the w orld to rea liz e the need for
12 One notable aspect of the 1988 Convention is thata State Party may not refuse to render mutual
legal assistance on the grounds of bank secrecy.
13 Among

the few exceptions are treaties on theslave trade, the trade in women and children, theforgery of currency and terrorism. See Roger
C l a r k ( 1 9 9 4 ) , T h e U n i t e d N a ti o n s Cr i m ePrevention and Criminal Justice Programme.
Formulation of Standards and Efforts at Their
Implementation. University of Pennsylvania
Press 1994, p. 201, fns 10 through 21.
14 The1970 Convention for the Suppression of

Un lawfu l Seiz ure of A ircraft, th e 1971
Convention for the Suppression of Unlawful Acts

agreeing on the rules for international
coop erationin respondingtotr an sn ationa l o rga nize d crime . T he
Palermo Convention can well be said torepresent a significant and welcomechange in this respect.
B. Moving On to the Next Stage: The
Emergence of International
Criminal Policy
Bilateral and multilateral treaties only
establish the framework for international
cooperation. In many respects, even thisframework remains very incomplete.
Responding to transnational organizedcrime requires more than the capacity to
extra d ite fu gitive s o r pr ovid e b asic
mutual legal assistance. During the postWorld War II period, countries aroundthe w o rld ha ve show n a n incr ea se dreadiness to go beyond treaties, and seek
to a g r e e o n a c o m m o n a p p r o a c h t ocriminal justice issues—in effect, they are
seeking to develop international criminal
policy.15
O ne elem ent in this e mergence ofinternational criminal policy has been thestrengthening of international academic
and profe ssion al co ope ration. T he
International Penal and PenitentiaryCommission was established already in
1846, and began to organize international
congresses. The International Associationof Penal Law was established in 1924.
Many other international academic andprof essiona l a ssocia tions ha ve b een
established since then.16 The early workof the United Nations crime prevention
and criminal justice programme can beagainst the Safety of Civil Aviation, the 1973
Convention on the Prevention and Punishment of

15 The term “international criminal policy” is used

Crimes against Internationally Protected Persons

here to refer to the mutual alignment by several

including D iploma tic Agents, and the 1 979

c ountri es of thei r c rim inal po lic y. It is no t

International Convention against the Taking ofinten ded to su ggest th e exist en ce of a

Ho sta ge s. I n 1 9 88 , the Co nve nti on for th es u pr a n a t io na l b o dy w i th t h e a u th o r it y to

Suppression of Unlawful Acts against the Safety

establish its own “international criminal policy”

of Maritime Navigation was completed.

independent of the will of sovereign nations.

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RESOURCE MATERIAL SERIES No. 59
readily described as being based on a
networking of individual academics andprofessionals, with a focus on research,and gradually also on norms andstandards.17
Three develop ments in pa rticular
contributed to international alignment of
national criminal policy. One, of course,
w as the practical reality: during theperiod since the Second World War, crossb order crime ha s become a practicalproblem, and countries realised thatdomestic or unilateral efforts alone were
not enough. At the same time, crime was
becoming a political issue that forced
som e co untries to re consid er ho w it
should be approached. This was mostcle arly e viden t w ith the ca se of theUnited States and its “war on drugs”,
which fo cused attentio n also o n the
16 Among

the

more

widely

known

such

organizations, in addition to the International
Association of Penal Law and the International
Penal and Penitentiary Foundation, are the Asianinternational aspects. The emergence ofinternational terrorism during the 1960s
served to enforce this internationalisationof criminal policy.
A se cond development was theintensifying cooperation among certain
neighbouring countries, such as thec o o p e ra ti o n a m o n g th e f iv e N o r d ic
countries (Denmark, Finland, Iceland,
Norway and Sw eden) and among theth r e e B e n e l ux c o u n tr i e s ( B e lg iu m ,Luxembourg and the Netherlands). The
Nordic countries, for example, organizedregular meetings among their respective
ministers, at which also criminal policy
issues were discussed. Cooperation was
also close in the drafting of legislation, so
close that in 1960 , all five countries
e n a c t e d s i m i l a r l e g i s l a t io n o n t h e
extradition of offenders, and in 1963 on
the enforcement of sentences. As a resultof this and other harmonized legislation,
extradition and mutual legal assistancewithin this group of countries becamevery simple and effective.

Crime Prevention Foundation, the International
Criminal Police Organization (Interpol), Amnesty
International, Defence for Children International,
the H o w a r d L ea gu e fo r Pe na l Re fo r m , th e
International Association of Juvenile and Family
Court Magistrates, the International Commissiono f Ju r is ts, the I nte r na tio na l So ci e ty fo r
Criminology, the International Society for Social
Defence, and Penal Reform International.
17 Although thedelegations at the sessions of theUnited Nations Committee on Crime Prevention
and Control and at the quinquennial Congresses
represented Member States, the discussions
maintained a strong fla vour of i ntel lectual
disco urse and the exchange of pr ofessi onal
experience. It was not until the reform of thestructure of the United Nations programme at the
beginning of the 1990s that Governments clearlybegan taking an active interest in the decisionmaking process. See, for example, Clark (op.cit.),and Manuel Lopez-Rey (1985), A Guide to United
Nations Criminal Policy, Cambridge.

352

The third and perhaps most importantf a c to r le a d in g t o t h e e m e r g e n c e o finternational criminal policy was theestablishment of inter-governmentalorganisations that provided theframework for the development of suchpolicy. These organisations took various
forms.
•

the United Nations has already been
mentioned. As noted, during its earlyyears the UN crime prevention andcriminal justice programme focusedmore on academic and professional
issues. Over the past fifteen years,
however, it has become very active in
mobilising international cooperation,a s sho w n b y the d ev e lop m e nt o f
several mode l trea ties, a nd mostclearly in the drafting of the United119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Nations Convention against
Transnational Organized Crime.18••

a second form is represented by the
Commonwealth
Secretariat(established in 1965), that provides alink among countries that share a
sim ila r cultur a l he rita ge . O the rexamples of similar cooperation canbe found among the Francophonecountries, and between Portugal andPortuguese-speaking Africancountries.
a third form is represented by thevariousintergovernmentalorganisations for general regional andsubregional cooperation, such as theCouncil of Europe and the European
C o m m un ity ( late r the E uro p e anUnion), the Economic Community ofWest A frican States, the Arab
League, the Organisation of African
Unity (to be replaced in 2002 by theAfrican Union), the Organisation ofAmerican States, and by cooperation
am ong the Southern Africancountries, and among the Mercosur
countries (A rgentina, Brazil,
Paraguay and Uruguay).

The types of cooperation carried out
within these structures vary considerably.
The main forms include the developmentof n ew internat ion al ag reements,
internatio na l legal assistance , nonbinding recommendations, resolutions
and guid elines, a nd the e xcha nge of
information and experience.
To da y o ne ca n a lrea d y spe a k o f a
problem with a proliferation of actors andagencies in international cooperation incriminal justice: various Government
agencies (not always working in harmony
ev e n w it hin a c o unt ry ), a ca de m ic s,Interpol, Europol, regional bodies for
Africa, Europe and Latin America, theCustoms Co-operation Council, the Groupof Seven (which established the Financial
Action Task Force), the Commonwealth
Secretariat, the Organisation of Economic
C oo p e ra tio n a nd D e ve lop m e nt, a nd
various bodies with the United Nations.
Asides from the practical difficulty of too
19 In

the Asian and Pacific region, for example,

regional cooperation has developed perhaps moststrongly among Australia, New Zealand and other
South Pacific jurisdictions, for example in theform of the annual Pacific Island Law Offices
Meetings. Perhaps the premier recurring theme•

a fourth form is the organisations
that focus on specific issues. Thesemay be interregional, such as the
Financial Action Task Force. On theregional level, there are many
examples.19

at these meetings has been law enforcement cooperation and development. Essentially the samegroup of countries is brought together by theS o u th Pa c if ic Fo r u m o n L a w En fo r c e me n t
Cooperation. The heads of government of the
Sou th P aci fi c Foru m i s su ed a “Hon i ara
Declaration” in 1992 that dealt with such basic

18 Prior to the 1980s, the only significant organizedissues as mutual assistance in criminal matters,

crime issues addressed in the United Nations

forfeiture of the proceeds of crime, extradition,

related to organized crime were trafficking in

the Financial Action Task Force, customs, police

women, and drugs (see, for example, Lopez-Rey

and drug issues, and training.

1985 an d Clark 1994) . T he spread of

The Asian-African Legal Consultative Committee

transnational organized crime, the establishment

meets regularly, as does the Asian and Pacificof the United Nations Commission on Crime

Conferences of Correctional Administrators. The

Prevention and Criminal Justice, and the model

Asian and Pacific Economic Community appearsof the 1988 Convention all contributed to theto be taking tentative steps towards including

activation of the UN also in this area.

criminal justice-related issues on its agenda.

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RESOURCE MATERIAL SERIES No. 59
many meetings, the agencies may end up
p u r su in g d if f e r e n t a p p ro a ch e s a n d
instruments. Already now, some aspectsof existing treaties (especially in relation
to the proceeds of crime) are technicallydifficult for the legislator and the court.
Multiplying them could well increase
these difficulties.

A. International Cooperation isStrengthening with Increasing
Rapidity
The first trend is clear enough:international
coop erationhas
str e ng th e ne d , a nd is d oi ng s o w it hincreasing rapidity.
This can be seen on a number of levels:

III. THE DYNAMICS OF
INTERNATIONAL COOPERATIONIN CRIME PREVENTION AND
CRIMINAL JUSTICE
Section II above has outlined some ofthe historical develop ment ofi n te r n a t io n a l c o o p e r a t io n i n c r im e
prevention and criminal justice. It is time
to put some flesh on the bones, and lookat how the system works in practice. This
will be done by presenting five trends,
w ith special reference to the need torespond to transnational organized crime:
•
•

•

•

•

international cooperation is strengthening with increasing rapidity
theintensityofinternational
cooperation varies , and we are
increasingly seeing the emergence ofsmall groups of “fast track” countries,
among which coop eration isdeveloping very rapidlyinternational cooperation is becoming
formalised and “deeper”, with “soft”
resolutions and recommendations
being increasingly supplemented bytreaties and joint decisions
international cooperation is developing from an ad hoc (thematic) focus oni nd i vi d ua l o f f e n ce c a te g o ri e s o r
issues, to a more general international criminal policy
international cooperation is becoming
increasingly politicised.

•

•
•
•
•

the increase in arrangements for
inform al cooperation betwee n
individual agencies, including theestablishment of formal and informal
networks;
the growing mesh of liaison officers
around the world; 20
the growing interest in the exchange
of information in different fora;
the increase in the number ofinternational cooperation projects;
the increase in the number ofoffenders extradited;

20 TheUnited States has been the most active insending out liaison officers and legal attaches. On
the European experience with liaison officers, seefor example Malcolm Anderson and Monica Den
Boer (eds.), Policing Across National Boundaries,
London 1994.
The magnitude of this work can be seen for
example in the fact that the United States Drug
Enforcement Administration alone has some two
hu ndre d agents s tation ed ab ro ad. Ano ther
example is that the United States Embassy inRome has forty persons working full-time on
operational cooperation in criminal justice related
matters; many of them have a regional mandate.
The five Scandinavian countries have developed au ni qu e form of coopera tion : th eir pol ice
authorities have established a joint network ofliaison officers in Austria, Cyprus, Germany,G r e e c e , H u n ga r y, I ta l y, th e N e th e r l a nd s ,Pakistan, Poland, Spain, Thailand, Turkey andthe United Kingdom. Information collected bythese liaison officers is then shared directly withth eir colleagues back h ome in all f ive
Scandinavian countries.

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119TH INTERNATIONAL TRAINING COURSE
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the increase in the number ofrequests for mutual legal assistance,and so on.

Mere expansion of activity, of course, isno measure of its effectiveness. Much
operational cooperation remains
frustrating and bureaucratic, with forexample requests for assistance often notleading to the desired results. Similarly,
much cooperation in institution-building
is of doubtful effectiveness for a numbero f r e a s o n s: th e p r o j e c t s a r e p o o rl yp la n ne d a n d im p le m e nte d , the r e isneedless overlap with other projects, little
or no attention is devoted to follow-up,
and so on.21
Nonetheless, the growth in the amountof activity reflects the growing concern
over crime, and the increasing hopes
being placed on the capacity ofinternationa l coop eration to help inproviding a suitable response.
B. The Emergence of Groups of“Fast Track” Countries
As a general rule of thumb, the wider
the geographical scope, the looser thecooperation in crime prevention andcriminal justice.
At one extreme, the United Nations
includes some 190 member States, andhas traditionally worked on the basis ofconsensus—something which has provento be difficult to achieve in respect of suchcontentious criminal justice issues as theuse of capital punishment, the use of
mutual evaluation or the establishmentof joint investigative teams.

21 See,At the other extreme, as already noted,
b ilate ra l f or ms o f co o pe ra tio n ha veconstituted and will doubtless continue toconstitute the mainstay of international
coopera tion in crime prevention andcriminal justice.
Somewhere between the globality of
the United Nations on one hand andbilateral cooperation on the other isregional cooperation. For example theCouncil of Europe is a much sma ller
entity than the United Nations, and has
arguably had considerably more impact
on the development of the criminal policyof its member States. When establishedin 1949, it brought together ten Western
European countries which—despite thed if f e r e nc e s b e tw e e n th e G e rm a ni c,
French and common law legal systems
and certain other differences in criminal
justice—shared fundamental values andgoals.
Th e Cou ncil of Eu rope h as been
expanding at a ra pid rate. From ten
original members in 1949, it grew to 21
M emb e r S ta t es t e n yea rs a go, to 4 3Member States today. This expansion has
been largely towards the East, with theRussian Federation the most significant
new member (January 1996). In joining,
the new Member States have implicitly
and expressly endorsed the same values
and goals.
An even smaller unit, the European
Union with its fifteen members at present
has a lso been expanding. Currently,
discussions are underway with twelve
co un t ri e s o n th e i r a p p l ic a t io ns f o r
membership in the European Union, 22
and the possibility exists that some mayfor example, Matti Joutsen, International

Cooperation. T he Development of Crim e

22 Bulgaria,

Cyprus, the Czech Republic, Estonia,

Prevention and Criminal Justice in Central and

Hungary, Latvia, Lithuania, Malta, Poland,

Eastern Europe. HEUNI Papers no. 2, Helsinki

Romania, Slovakia and Slovenia. Negotiations

1994.

are at an earlier stage with Turkey.

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become members in 2003 or 2004. Within
the EU, in turn, there are even smaller
units of more intensive integration, andagain these are expanding. For example,
the current parties to what are known ast h e S c h e n g e n a c c o r d s a r e A us t r ia ,Belgium, Denmark, Finland, France,
Germany, Greece, Italy, Luxembourg, theNetherlands, Spain and Sweden.23 The
Schengen accord countries have agreed
among themselves on such highly
developed forms of cooperation and hot
pursuit across borders, trans-bordersurveillance (i.e. surveillance carried out
b y l a w e nf o r c e m e n t o f f ic e r s i n t h eterritory of another state) and controlled
delivery (following the internationaldelivery of, e.g., narcotics in order toascertain the source and the destination).
Perhaps even more importantly in theelectronic a ge, la w enforcem ent andb o rd e r a uth o ritie s in t he S c he nge n
co untrie s sha re certain info rma tionsystems.
Continuing with the example of theE urope an U nion, o ne of the current
f a shio nable te rms is “flexibility” indecision-making. In a speech given in
June 2000 in Berlin, Mr. Jacques Chirac,the President of France, suggested that a
new “pioneering group”, self-evidently led
by France and Germ any, would
henceforth guide developments in theEuropean Union. Other countries might“join forces” with France and Germany ins u c h a gr o u p . 2 4 H e s u g g e s t e d t h a t
flexibility would allow groups of countries
t o g o a h e a d w i th n e w p r o j e c ts a n dinstitutions whether the countries leftoutside those ventures liked it or not. And

if flexibility was not enough, said Mr.
Chirac, France and Germany should cooperate outside the framework of the EU
treaties entirely.
The conclusion here is that there is an
obvious need f or m ore intensive
coopera tion in crime prevention a nd
criminal ju stice. If this cannot be
achieved within a larger entity, smallergroups of countries with the greatest
interest in cooperation may well form a
sub-group that moves onto the fast track.
O thers, rea li si ng the b enef it s b ei ng
achieved, may soon seek to join thissmaller group—but this at the same time
may complicate the problems involved infinding a common approach.
C. “Soft” Resolutions andRecommendations are Being
Increasingly Supplemented with
Treaties and Joint Decisions
Reference has already been made to
the fact that cooperation in criminal
justice usually begins with law
enforcement, and only then expands toinclude judicial cooperation. Law
enforcement cooperation tends to be
based on direct contacts and a pragmatic
approach, while judicial cooperation often
requires a legal framework. For thisr e a so n , o n e tr e nd i n in t e r n a ti o n a lcooperation is towards formalisation.
T his tre nd to ward s f orm alisation
appears for example in the increasing use
made of treaties and binding decisions. As
h a s b e e n n o t e d , u p u n ti l r e c e n tl y ,relatively few multilateral treaties havebeen signed in the crime prevention and

23 Although Norway and Iceland are not members of

24 Mr. Chirac did not refer to any other country by

the Eur o pe a n Un io n , the y a r e i nvo l ve d inname in this connection, just as he did not refer to

Schengen cooperation. This is due to the fact that

the Commission. Past experience suggests that

they, together with three EU members (Denmark,Belgium, Luxembourg, Italy and the Netherlands

Finland and Sweden), form a passport-free zone

might wish to associate themselves with such aof their own.

group.

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criminal justice field, and only a few
countries have been active in draftingb i la t e r a l t r e a t i e s . A s a r e s u l t,intergovernmental cooperation has long
relied almost solely on “soft” resolutions
and recommendations, in which states are
merely requested to adopt certain policies.
For example the United Nations has
produced a large number of non-binding
statements of principles in the form of
r e s o l u ti o n s,
r e c o m m e n d a ti o n s,
declarations, guidelines, and standards
and norms.25 Also other intergovernmental
and even non-governmental organizations
have produced statements of principles
which are designed to guide the work of
their membership, but which have nobinding effect.
It is true that even “soft,” non-binding
instrum ents ca n b e influentia l. Fo r
example the Standard Minimum Rules
for the Treatment of Prisoners adopted by
the United Nations have clearly guided
national practice in corrections and, inseveral cases, helped bring about legal
reform. However, states havetraditionally been quite protective of
their sovereignty in this field, as can beseen in the protracted negotiations thatare required when such instruments arebeing drafted or when there is discussionof possible m onitoring of theimplementation of these instruments. 26
25 Foran analysis of the legal nature of United

Nations instruments, see Clark 1994, pp. 141–144
and passim.
26 Discussions

on

the

monitoring

of

the

implementation of standards and norms haveoften run up against different understandings ofwhat exactly “monitoring” involves. Currently thepreference is to use different terminology. The
Secretary-General of the United Nations does not“monitor implementation” of standards andnorms, but for example “promotes their use andAs a result, the wording in resolutions
and recommendations tends to allow
different interpretations of how theyshould be applied.
Today, “soft” resolutions andrecomm endatio ns continue to be
produced, but there has been a clear
increase in the drafting of “hard” bilateraland multilateral treaties world-wide. On
the regional level, several multilateraltreaties have been prepared for example
in Europe and in Latin America. On the
global level, the United Nations 1988
Convention Aga inst Illicit Traffic in
Narcotic Drugs and Psychotropic
Substances was a decisive step in thisdirection. One of the weaknesses withmost multilateral agreements has beenthat they have been offence-specific, andhave presumed (often, incorrectly) theprior existence of workable arrangements
for extradition and mutual assistance.
The 1988 Convention was innovative inincluding provisions on, for example,
extradition and mutual assistance. As aresult, the Convention has proven to beworkable. It has, for example, contributed
to the relatively rapid spread of thecriminalisation of money laundering, andto the revision of le gisla tion o n theforfeiture of the proceeds of crime.
The 1988 Convention was followed by
the United Nations Convention against
Transnational Organized Crime.
Reference should also be made to themodel treaties prepared by the United
Nations, on extradition, m utual
assistance, the transfer of proceedings incriminal matters, the transfer of foreignprisoners, and the transfer of supervisionof offenders conditionally sentenced or
conditionally released. Currently, work
has begun on a United Nations
convention against corruption.

application”. See, for example, Clark 1994, pp.
229 ff.

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A parallel development—one that is so
far limited to some parts of the world—
has been the develop ment of newm e cha nism s to e nsure the e ff e ctive
implementation of treaty obligations
related to criminal justice. One model hasb een th e 1 950 Con ven tion for th eProte ction o f Human Rights andFundamental Freedoms, prepared by the
C ou n cil of Eu rope. Accept an ce bysignatory states of the jurisdiction of theEuropean Court of Human Rights meansthat even individual citizens can turnultimately to the Court when they believethat their human rights (as defined by
the Convention) have been violated. Since
this provides considerable protection
a gainst such viola tions, the various
articles of the European Convention on
Huma n R ights ha ve clea rly affected
na t i ona l l e gis l a t io n a nd p ra ct ice i ncriminal procedure, for example on issues
r ela ted to to rture o r to inhum a n or
degrading penalties or treatment (art. 3);
conditions of arrest and charges, transfer
before a magistrate and right to recourse(art. 5), the right to a fair trial (art. 6),
and the legality of punishment (art. 7).27

Accordingly, home and justice issues
form what is called the “third pillar” of
the European Union.28 In areas defineda s b e i ng o f “ c o m m o n i n t e re s t ,” t h eEuropean Council may adopt frameworkdecisions and joint positions, and draw up
conventions. Once a framework decision
has been adopted, member states are
required to amend their laws and practiceto bring the se into lin e. 29 Onc e theEuropean Union has adopted a joint
position, member states are required toabide by it in international organisations
and at the international conferences theyattend. This means that even in respectof contacts with non-member states, EU
members must “toe the line” adopted on
an international level.
Overall, “soft” methods of cooperation
will remain an important element ofinternational criminal policy. These allow
individual states considerable leeway todecide on how best to realise the goals set
in the resolutions or recommendations.
However, in particular the response to
28 In

EU jargon, the “first pillar” is essentiallye co no mi c co ope r atio n thr o ugh the or i gi nal

The tenor of international cooperation
changed once again in Europe with the
1992 Maastricht Treaty, by which theEuropean Communities metamorphosed
into the European Union, and by the 1997
Treaty of Amsterdam. Having previously
focused more on economic integration, themember states of the European
Communities realised that also home andjustice affairs must be placed on theagenda for European integration.

European Communities, the second is foreign
relations and security, and the third is home andjustice issues.
29 One example of obligations on member states inrespect of criminal justice relates to Community
law. The European Court of Justice has foundthat Member States have an obligation to act
against violations of Community law as if thesewere violations of national law (Commission v
G reece, ECR 1979, p. 2965). In Germ any v.
Commission C-240/90, the Court ruled that the
Eur ope an Com munity has the author ity to

27 The European Convention on Human Rights has

require that a Member State enact appropriate

al so h ad an im pact on the use of capi tal

sanctions against violations of Community law.

punishment (protocol no. 6 from 1983, and theNote, however, that this is an indirect obligation:

possibility allowed under the 1957 European

Community law cannot dir ectly change theConvention on Extradition to refuse extradition if

c r i m in al l a w o f a M em b e r Sta te . A ny

the requesting country could impose the death

amendments or reforms would have to be made bypenalty).

the Member State through domestic legislation.

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transnational organized crime isrequiring “harder” methods, and at leastin Europe states are agreeing torelinquish part of their sovereignty tothis end. Although no other regions haveintergovernmenta l political entities
comparable with the European Union,
the “European model” may point the way
to multilateral development also
elsewhere.
D. From an Ad Hoc Focus to a More
General International Criminal
PolicyThe
traditional
patternininternational cooperation in this field has
been for states that find that they share acommon concern to agree among
themselves, on a case-by-case basis, on
the appropriate mechanism and response.
The existing international treaties thatdeal for example with criminal justiceissues have all been signed by quite
different sets of states.
S uch a ca se- by-ca se a ppro ach has
undeniable benefits, in that the states
can focus on a specific issue and find theappropriate response. It nonetheless does
not promote a more integrated and longterm policy in international cooperation.
Theoretically, each state, as it were,
continues to act entirely on its own,
without any reference to the interests ofother states in crime prevention andcriminal policy.
The alternative would be for groups ofstates to agree on certain priority issues,and develop an integrated strategy for
dealing with these issues.
T he Council of Europe ha s been af orerunner in this. The C ouncil ha sregularly organiz ed meetings on
Eu ropean crimin al policy, and its
C o m m it te e o n C r im e P r o b le m s h a soffered a forum for discussion on further
action.
M ore re cently, a lso the Euro pe anUnion has been identifying priority areas.
I n J un e 1 9 9 7 , t he E u r o p e a n U ni o nadopted a “Plan of Action” to combat
organized crime. This plan of action was
drawn up following discussions about
what types of measures in general wereneeded to respond to organized crime
nationally and internationally. In effect,the 1997 decision embodied an agreedup on inte rnatio nal crim inal po licy.
Moreover, instead of being presented as a
resolution, recom mendation orde claration that ha ve so o ften been
adopted in other fora, regrettably oftenwith little practical impact, the European
Union decided on specific action, with aclear division of responsibilities, a clear
timetable and a mechanism for
implementing the action plan. The strong
consensus reached by Member States on
the 1997 Plan of Action helped to create
the political and professional climate
required on both the EU level and thenational level to take and implement thenecessary decisions.30 In the year 2000,
the Plan of Action was replaced by a new
integrated EU strategy to prevent andcontrol organized crime, “The Prevention
a nd C on tro l o f O rga niz e d C r im e : A
European Union Strategy for the
beginning of the new Millennium.”
The shift from an ad hoc approach toattempts to formulate a more coherent
and general international criminal policy
can also be seen in the work of the United
Na tio ns. F or me rly, the re w a s little
30 The model for this was taken from the “European

Plan against Narcotics” adopted by the European
Union in December 1990, and updated several
times since then, most recently in December
2000, when a strategy was adopted for the years
2000–2004.

359

RESOURCE MATERIAL SERIES No. 59
evidence of an over-all strategy in thework of the United Nations Committee on
Crime Prevention and Control. Although
the Committee dealt with a large numberof important issues, this was almost
invariably done on a piece-meal basis.
At the beginning of the 1990s, twodevelopments took place that ensured
that organized crime would become acentral issue in the United Nations crime
prevention and criminal justiceprogramme, and that a strong attempt
would be made to move from an ad hoc
approach to the setting of policy.
The first development was that thestructure of the United Nations
P ro gr a m m e w a s r e f o r m e d . T h e 2 7 member Committee on Crime Prevention
and C ontro l, which consisted ofindividual experts, was replaced by a 40m ember Com mission on Crim ePrevention and Criminal Justice. Thesem e m b e rs w e re M e m b e r S ta te s. Th ere form also ca lled for the se tting o fpriorities in the programme.
At its second session in 1993, theUnited Nations Commission decided ont h e p r io r it y th e m e s f o r t he U n it e dNations crime prevention and criminal
justice programme. Organized crime was
identified as part of one of three priority
themes. The formulation of this priority
theme is “national and transnational
crime, including organized crime,
economic crim e (including money
laundering), and the role of criminal law
in the protection of the environment”.31“strategies to deal with transnational
crime”. Only five months later, a seminar,
co-organized by HEUNI, was held in
Suzdal, Russian Federation. This
international seminar brought together
leading law enforcement officers andex p er ts fr om f ift ee n co un trie s. T heseminar prepared a report which soughtto d e scrib e the p ro f ile o f o rga n iz e dcriminal groups, and went on to provide alarge number of recommendations on
sub sta nt ive l eg isla tio n , p ro ce d ur a llegislation, law enforcement methods,
organisational structures, international
cooperation, and evaluation. Both sets ofrecommendations were forwarded to thene wly e stablishe d U nited Nation s
Commission. The Commission annexed
the tw o sets to a brief resolution o norganized crime, which was subsequently
adop ted b y the E conom ic and Socia lCouncil.32
The third and most important meeting
was the World Ministerial Conference on
Organized Transnational Crime, held in
Naples, Italy on 21–23 November 1994.
Delegations from 142 countries agreed on
the broad outlines of cooperation in theprevention and co ntrol of o rga niz ed
transnational crime. The agreement was
31 Theother two priority themes are (ii) crime

prevention in urban areas, juvenile and violent
cri m e; a nd ( ii i ) effi ci en cy, f ai rn es s an di m pro ve me n t i n th e m a na gem en t an dadministration of criminal justice and related
systems with due emphasis on the strengtheningof national capacities in developing countries forthe regular collection, collation, analysis andutil isa ti on o f data i n th e de ve lo pm en t a nd

The second development was a series ofthree meetings, culminating in a major
conference at the end of 1994. First, an
expert g roup meeti ng was h eld in
Bratislava (Czech and Slovak Federal
Republic) in 1991. The meeting developed
a set o f fifte en re co mme nd ations on360

implementation of appropriate policies.
32 E/CN.15/1992/7,

draft

resolution

II.

The

Commission also adopted a resolution entitled“Control of the Proceeds of Crime”, which ing e ne r a l c a ll e d o n M e m b e r S ta t e s a n d t he
Secretary-General to take action to prevent andcontrol money laundering; ibid, resolution 1/2.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
embodied in a draft resolution for the
G en er a l A sse m b ly e ntitle d “ Na ple s
Political Declaration and Global Action
Plan against Organized Transnational
Crime.” This was approved by th e
General Assembly by its resolution 49/
159.
T h e N a p le s P ol itic a l D e c la ra tio nconsists of ten paragraphs that express
the intention of the countries represented
at the Conference to join forces to develop
co-ordinated strategies and other forms ofi n t e r n a t io n a l c o o p e r a t io n . S p e c i a l
ref erence w as m ad e to the 19 88 UN
C onvention a ga inst Illicit Traffic in
Narcotic Drugs and Psychotrop ic
Substances. States which had not yet
done so were urged to become parties tothis Convention, and to fully implement it
as well as other relevant ex isting
agreements.
The same document also expresses thewish of the participants to strengtheninternational cooperation, in particular in
relation to closer alignment of legislation
on organiz ed crim e, operational
cooperation in investigation, prosecution
and judicial activity, the establishment ofm o d a l itie s a nd b a sic p rin c ip le s f o r
regiona l and glob al coopera tion, theelaboration of international agreements,and measures and strategies to preventand control money-laundering.
The G lobal Action Plan consists ofseven sections:a. the definition and description of transnational organized crime,b. specific issues in national legislationand guidelines,
c. operational cooperation,d. regional and international cooperation,e. the feasibility of international instruments on organized transnational
crime,
f. the prevention and control of moneylaundering, andg. follow-up and implementation.
The Naples Political Declaration and
the Global Action Plan led, in time, to theUnited N a tio ns C onve ntio n a ga inst
Transnational Organized Crime, andthus their significance has to a large
extent been overtaken by events. Even so,they, together with the Vienna
Declaration adopted at the Tenth United
Nations Congress in the year 2000, arefurther illustrations of the trend towards
adopting broad statements on
international policy regarding criminal
justice issues.
E. International Cooperation is
Becoming Increasingly
Politicised
Although all states are undoubtedly
agreed on the necessity of determining
priorities and establishing policy, thisprocess has not run smoothly. Different
states will continue to have different
priorities. Furthermore, if too m any“priority issue s” a re accep ted into a
programme, or if these priority issues aredefined too broadly, they do not assistde c isio n- m a kin g on th e n a tio na l orinternational level.
These difficulties are clearly
perceptible in the work of the United
Nations. One of the fundamental reasons
for restructuring the United Nations
Crime Prevention and Criminal Justice
Programme was that the Programme had
become inundated with a large number of
mandates, and the Secretariat as well as
the other implementing bodies had notbeen provided with the resources
required to implement anywhere near allof these mandates.

361

RESOURCE MATERIAL SERIES No. 59
T h e f o u r t re nd s i n in t e r na ti o n a lcooperation described above—theincreasing rapidity of its strengthening,the development of groups of “fast track”
countries, the supplanting of “soft” formsof cooperation with treaties, and the shiftt o w a r d s t h e f o rm u la ti o n o f a m o r egeneral international criminal policy—
are all in themselves welcome features. It
is the fifth trend—the increasing
politicisationofinternational
cooperation—that raises questions.
Furtherm ore, the po liticisa tion ofinternational criminal policy (a process
which is perceptible at least in the workof the United Nations Commission, butalso for example in the European Union)
raises the spectre that international
criminal justice forums will be used as atool in national and international politics.
One illustration of this danger can betaken from the recent global debate overmoney laundering. In July 2000, theFinancial Action Task Force on Money
Laundering published a so-called“blacklist” of 15 jurisdictions that, in its
v ie w , h a d n o t b e e n s u f f ic ie nt ly c o operative in preventing and controllingmoney laundering.33 Since the blacklist
appe ar ed, m any if not all o f the sejurisdictions have been more active in, forexample, reforming their legislation andfiling suspicious activity reports (SARs).
Some, however, have regarded this public
blacklisting and the related measures asa violation of their sovereignty, and as an
attempt to steer their economy, to thea dva ntage of the wea lthi er FA TF
members.

T he neg otia tions ove r the U nited
Nations
Convention
againstTransnational Organized Crime provided
a few examples of the politicisation ofinternational criminal policy. Amongthese were the debate over whether or not
to include a specific reference to therecommendations adopted by the FATF,34
how to address the interrelationshipbetween terrorism and organized crime,35
how to d eal with the issue ofso vereignty, 36 and w hethe r or not amechanism should be created to monitor

34 The solution adopted was to delete references to

the FATF resolutions or any other resolutions,a nd re fe r o nly to usi ng a s a guide line “therelevant initiatives of regional, interregional andm u lt il a te r a l o r ga ni za ti o ns aga i n st m o ne ylaundering”. References to FATF as well as tos e ver a l o the r r egi o na l o r gan i zat io n s w er einserted into the travaux preparatoires.
35 The issues involved here are complex. Essentially,

several States are convinced that terrorism is one
form, and indeed a particularly dangerous form,of organized c rime . The majority of State s,
however, were of the view that a distinction
should be made between terrorism and organizedcrime, not least because including terrorism inthe scope of the Convention would raise vexatious
political problems with the definition. The view ofthe majority was that terrorism ultimately had
p o li ti c a l a i m s, w h i l e o r ga ni z ed c r i m e h a dmaterial aims. Having said that, it was explicitly
recognized that terrorists may commit acts (suchas murder, arson, extortion and robbery) to which
the Convention would clearly apply.
36 One source of tension in the discussions was theconcern of some States that, when transnationalorganized crime is at issue, some States may

33 FATF

updated the list in June 2001. It now

engage in actions that violate the sovereignty ofi n c l u d e s C o o k I s l a n d s , D o m i n i c a , Eg y p t,o the r Sta tes . T hi s c o nc e r n w a s ra is e d, fo r

Guatemala, Hungary, Indonesia, Israel, Lebanon,

exampl e,

Marshall Islands, Myanmar, Nauru, Nigeria,

investigations (art. 19) and special investigative

Niue, Philippines, the Russian Federation, St.

techniques (art. 20). The issue was resolved by

K i t ts a n d Ne v i s, a n d St . V i nc e n t a nd th e

including in the Convention a separate article

Grenadines.

entitled “Protection of sovereignty”.

362

when

sp ea kingabout

join t119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
impleme ntation
obligations.37

of

the

treatyIV. CONCLUSIONSCrime has evolved considerably overthe past few years. Economic, social andpolitical fa ctors have contributed tochanges in the amount and structure ofcrime. Theories that are based on theconcept of a weakening of self-control andon the opportunity for crime help us tounderstand what has happened.
The background factors—economic
in te gr atio n, po lit ical an d e c o no m ic
reform s, w ide- sprea d w ars and civil
disturbances, and demographic
changes—are factors that either cannot
be changed (or will not be changed solely)in the interest of crime prevention. For
example, although economic integration
leads to a greater opportu nity foreconomic crime, this is the cost we seemt o b e p r e p a r e d t o p a y f o r a h i gh e rstandard of living. And although there
are loud calls in many countries for a
return to the “good old da ys” bef oree conom ic and p olitical ref orm , such
reform will presumably not be halted—
and certainly not on the grounds that theprocess appears to increase the amount ofcrime.

37 For example European Union countries advocatedthe inclusion in the Convention of arrangements
for mutual evaluation. According to this system,in te r na ti on a l e xpe r ts as se s s ho w w el l th e
authorities of a State are implementing their
responsibilities. Several States were sceptical ofsuch a system, for example on the grounds that it
amounted to interference with State sovereignty.
Ultimately, the reference was modified to a rather
vague “information provided ... through suchsupplemental review mechanisms as may beestablished by the Conference of the Parties.”

The effects of these changes on crime
and the control of crime, however, can be
influenced in order to lessen the amountand seriousness of crime, and provide afair allocation of the costs of crime and ofcrime control. The strengthening fear ofcrime in many countries, fanned by the
media and by political rhetoric, calls forattention—in particular since this fear is
influenced by false or misleading
information, and the rhetoric may lead tocounterproductive policy decisions, or atworse, to the spread of hate crimes.
Many states are responding to theirnational crime problem by reviewing theeffectiveness of their criminal policy andby setting up a varie ty of crime
prevention councils and projects. Becauseof the growing ties between countries, it
is not surprising that information onsu c c e ss f ul i n it i a t i v e s is s p r e a d i ng
internationally. Although each country’s
situation is unique, and projects thathave worked elsewhere can rarely betransplanted as such, they can lead tomodified approaches that are successful
in this different environment.
The response to the international
aspects of crime has also been notable.
International cooperation is broadening
and strengthening to the extent that, ins u ch a r e a s a s d r u g t ra f f i c k i n g a n dorganized crime, we can speak of broad
agreement on the general goals. However,even with such regional initiatives (inEur ope) as the Council of Europe,
Schengen, Maastricht and Europol, we
are a long way from developing a truly
international crime policy, much less aninternational criminal justice system.
The different states will continue to havedifferent view s of the general role ofcriminal law in society. Integration canhelp the different states in responding totheir crime problems, but it can neverreplace national and local action.

363

INTERNATIONAL COOPERATION AGAINSTTRANSNATIONAL ORGANIZED CRIME: EXTRADITION AND
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
Matti Joutsen*
I. EXTRADITION AND MUTUALLEGAL ASSISTANCE: THE BASIC
TOOLS OF INTERNATIONAL
COOPERATION IN CRIMINAL
MATTERS
Investigating and prosecuting cases
against p ersons susp ected ofparticipation in organized crime is often
notoriously difficult. It is all the moredifficult to try to bring a case together
w hen the su spect, the v ictim, key
evidence, key witnesses, key expertise or
the profits of crime are located outside
one’s jurisdiction. D ealing with suchcases can be so daunting that the file may
be placed aside and “forgotten”, perhaps
with the fervent hope that the authorities
i n o th e r c o un tr ie s w ill t a k e u p th ematter.
This, of course, is w ha t organiz ed
criminals acting across international
borders very much hope will happen. By
fleeing to another country and inparticular by sending the profits from
crime beyond the reach of the domestic
authorities, offenders seek to frustrate
the purposes of law enforcement. If law
enforcement remains passive in the faceof transnational crime, this will only
e n c o ur a ge o f f e n d e r s t o c o nt in ue t ocommit crime. For the investigator andp r ose cu to r co nf ro nte d w ith m od e rnorganized crime, relying on international
cooperation has become a necessity, andextradition and mutual legal assistancein criminal matters have become two key
tools.1
Extradition and mutual legal
assistance, however, are not tools thatcan simply be taken down from the shelf.
T h e l e g a l b a s is ( w h e t he r tr e a ty o rlegislation) must exist, the practitioners
must know how (and if) this basis can beapplied to the case at hand, and above all
the practitioners in both the requesting
and requested country must be able towork together to achieve the desired
result.
Furthermore, as tools, extradition andmutual legal assistance can take manydifferent forms. The possibilities depend
n o t o n ly o n th e e x is te n ce , a g e a n d
co ntents of a valid international
agreement, but also, for example, on thetype of offence and on the legislation andpractice in a country. The new United
Nations
Convention
againstTransnational O rganized Crime (the“Palermo Convention”) is a case in point.
It does, indeed, set out detailed provisions
on how extradition and mutual legal
assistance should be provided. In many
ways, it has expanded the possibilities
available. However, these possibilities
must first be implemented in domestic
law and practice.
This presentation looks at the extent towhich the new Palermo Convention can
1* Director, International Affairs
Ministry of Justice, Finland364

The terms mutual assistance, mutual legal
assistance and mutual assistance in criminal
matters are often used interchangeably.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
improve the basic tools available to thepractitioner. Even though the focus is on
extradition and mutual legal assistance,
the Palermo Convention also requires
S ta tes Pa rtie s to m a ke oth er ma jo rchanges that can facilitate international
cooperation. Examples of this are thecriminalisation of four specific offences,provisions on joint investigations, special
investigative techniques, protection of
victims and witnesses, improving thereadiness of suspects to cooperate withlaw enforcement authorities, cooperationa m ong law enf or cem ent a uth orities
themselves, confiscation and seizure, thetransfer of proceedings and the transfer
of sentenced persons, the collection,exchange and analysis of information ono r g a n iz e d cr i m e , a nd t r a i n in g a ndtechnical assistance. As noted by Mr. Kofi
Annan, the Secretary-General of theUnited Nations, the Palermo Convention
i s a m il e s to ne in t h e f i g h t a g a i n st
Transna tiona l O rganized Crim e. He
emphasised that “we can only thwart
international criminals throughinternational coope ration.” I t is thePalermo Convention that provides astrong framework for this cooperation.

courtesy or subservience, applied in therare cases where not only did a case haveinternational dimensions, but also therequesting and the requested states wereprep ared to coope rate. I n short,
extradition was rarely required, evenmore rarely requested, and even more
rarely still granted.
In the absence of effective treaties on
extradition and on mutual legal
assistance, some States have engaged inunilateral actions. This, however, is aviolation of international law. According
to universally accepted and wellest a b li s he d pr inc ip les, s t a te s e njoy
sov ereign equality and territorial
integrity. States should not intervene in
the domestic affairs of other states. In
particular,“a party has no right to undertake
law enforcement action in the
territory of another party without
the prior consent of that party. The
principle of no n-intervention
excludes a ll kinds of territorial
encroachment, including temporary
or limited operations (so-called “inand-out operations”). I t also
prohibits the exertion of pressure ina manner i nconsistent wi thinternational law in order to obtainfrom a party “the subordination of
the exercise of its sovereign rights”(Com mentary to the 1988
Convention, para. 2.17).2

II. EXTRADITION
A. The Evolution of the Extraditionof Offenders
Extradition is the process by which aperson charged with an offence is forciblytransferred to a state for trial, or a person
c on victed of an offence is for cibly
returned for the enforcement ofpunishment (see, for example, Third
Restatement, pp. 556–557).
F o r a lo ng tim e , n o p r ov isio ns o rinternational treaties existed on theco nd ition s fo r e xtradition or on th eprocedure which should be followed.
Extradition was largely a matter of either

2

The

Commentary

cites

as

authoritytheDeclaration on Principles of International Law
concerning Friendly Relations and Co-operation
among States in accordance with the Charter of
the United Nations (General Assembly resolution
2625 (XXV), annex), and the principle concerning
the duty not to intervene in matters within thedomestic jurisdiction of any State, contained inpara. 2 of the Charter.

365

RESOURCE MATERIAL SERIES No. 59
The principles of sovereign equality,
territorial equality and non-intervention
in the domestic affairs of other States are
explicitly noted in art. 4(1) of the Palermo
Convention. To further clarify the point,art. 4(2) of the Palermo Convention states
specifically that “Nothing in thisConvention entitles a Sta te Party toundertake in the territory of anotherState the exercise of jurisdiction andperformance of fun ctions that arereserved exclusively for the authorities ofthat other State by its domestic law.”

In addition to these general treaties on
extradition, provisions on extradition
ha ve a ls o b e e n i nc lu d e d i n s e v e ra linternational conventions that deal withspecific subjects. Perhaps the best-known
exa mple is the 19 88 United Nations
Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic
Substances; the twelve paragraphs ofarticle 6 deal with extradition. Article 16of the Palermo Convention was largely
drafted on the basis of this 1988
Convention.

Bilateral extradition treaties did not
b e gin to e me rge until t he 1 8 00 s . In
particular the common law countries andthe (former) USSR have made wide use ofbilateral treaties. The first multilateralco nvention w a s the Or ga niza tion o f
American States Convention on
Extradition in 1933. 3 It was followed
twenty years later by the Arab
Extradition Agreement in 1952, and thenby the influential European Convention
on Extradition in 1957 a nd the 1966
Commonwealth scheme for the renditionof fugitives.4 The most recent multilateraltreaties have been the 1995 European
U nio n Convention on simp lified
extradition within the European Union,
and the 1996 European Union
Convention on the substantive
requirements for extradition within theEuropean Union.

B. The Conditions for Extradition
Am ong the comm on conditions
included in agreements are the double
cr im inalit y re qui re m e nt ( ge ne ral ly
accompanied by the definition of the levelof seriousness required of the offence
before a State will extradite), a refusal toextradite nationals, and the politicaloffence exception.

In order to promote new extradition
treaties and to provide guidance in theirdrafting, the United Nations prepared aModel Treaty on Extradition (GAresolution 45/116 of 14 December 1990).

1. The Principle of Double Criminality(Dual Criminality)
Th e grea t m a jo rity of e xtra ditio n
tre a tie s r eq u ire th a t th e o ff e nce inquestion be criminal in both therequesting and the requested State, andoften also that it is subject to a certain
minim um punishm ent, such as
imprisonment for at least one year.5 Even
where a State allows extradition in theabsence of an extradition treaty, thisprinciple of double criminality is
generally applied.6
5The

PalermoConvention

does

not

directly

stipulate a certain minimum punishment as acondition for extradition, since art. 16(1) provides
only that the article applies to extradition for the3

4This has subsequently been replaced by the 1981

offences covered by the Convention. However, theInter-American Convention on Extradition.

entire Convention is drafted to cover serious

As amended in 1990. The Commonwealth scheme,

crime, which is defined by article 2 as “conduct

al th ough not a form al trea ty, h as b een

constituting a criminal offence punishable by aunanimously approved by all members of the

maximum deprivation of liberty of at least four

Commonwealth.

years or a more serious penalty”.

366

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The double criminality principle may
cause legal and practical difficulties.
L e g a l d i f f i c u lt i e s m a y a r is e if t h erequested State expects more or lesssimilar wording of the provisions, which
is often an unrealistic expectation inparticular if the two States represent
d iff ere nt le gal traditions. Pr ac tica ldifficulties may arise when therequesting State seeks to ascertain how
the offence in question is defined in therequested State.
Double criminality can be assessedboth in the abstract and in the concrete.
In abstracto, what is required is that theoffence is deem ed to constitute ap unisha ble of fence in the req ueste dState. In concreto, only if the constituent
elements of the offence in both Statescorre sp ond with ea ch other w ill theoffence be deemed extraditable.
The United Nations Model Treaty on
Extradition clearly favours the simpler
approach, an assessment in abstracto.
A ccording to article 2(2)( a), “Indetermining whether an offence is anoffence punishable under the laws of both
Parties, it shall not matter whether ... thela ws of the Parties pla ce the acts oromissions constituting the offence within
the same category of offence ordenom inate the offence by the sam eterminology.”
A n exa mple from Finland cited by
Korhonen7 is that during the summer of
2000, the Ministry of Justice of Finland
was informed that a former high Kremlin
6See, for example, article 15(1) of the Palermo
Convention.

7

Juhani Korhonen, Extradition in Europe, paper
prepared for the Phare Horizontal Project forDeveloping Judicial Cooperation in Criminal
Matter s i n Estoni a, La tvia and Li thuani a,
November 2000.

official who is wanted by the Swiss formoney laundering offences had been
granted a visa to Finland. The Finnish
authorities were prepared to take him
into custody pending a formal request for
his extradition. The suspected money
laundering offence related to the takingof bribes in M oscow from Swiss
construction companies in return for
granting them lucrative contracts in therenovation of the Kremlin, and to thedepositing of the money in Swiss banks.
The problem faced in Finland is that hewas suspected of laundering the proceedsof his own crime, which is not separately
punishable according to Finnish law. On
the basis of the in concreto approach,Finland would have had to turn down apossible Swiss request for extradition.
On th e ot her ha nd, th e Fi nn ish
authorities could take into account all of
the facts that were provided in the Swisswarrant of arrest. Clearly, some offence
which was punishable also according to
Finnish law had been (allegedly)
committed in the Russian Federation.
Since those facts were included in the
Swiss warrant, which implied that the
Swiss had considered them in issuing thewarrant, the Finnish authorities
concluded that double criminality had
been sufficiently established in abstracto.
(Ultimately, the Finnish authorities did
not have to take any more action, since
the person in question never showed up
in Finland.)The q uest io n may a ls o a rise a s t owhether double criminality should beassessed at the time of the commission of
the offence, or at the time of the request
for extradition. This problem arose in a
recent and notorious case in the United
Kingd om, w he re the House of Lo rd s
rejected most of the Spanish claim for thesurrender of the former head of Chile,
General Au gusto Pinochet, on the367

RESOURCE MATERIAL SERIES No. 59
grounds that his alleged offences had notbeen criminalised in the United Kingdom
at the tim e of their commission( K o rho ne n, p . 4 ). ( Ul t i m a t e ly, J a ck
Straw, the UK Home Secretary, decided
that Pinochet was not fit to stand trial
and therefore would not be extradited toSpain. Pinochet thereupon returned to
Chile.)
Yet another special problem in theapplication of the principle of double
criminality is if the law of the requesting
State allows extraterritorial jurisdiction
for the offence in question, but the law of
the requested State does not. 8 This isincluded as an optional ground for refusal
in art. 4(e) of the UN Model Treaty on
Extradition.
Finally, in practice it is possible thatextradition is sought for several separate
offences, and some of these do not fulfil
the conditions of double criminality. The
general rule expressed in art. 2(4) of the
UN Model Treaty on Extradition and art.
2(2) of the Council of Europe Extradition
C o n v e n t io n i s t h a t th e o f f e n c e s i n
q u e st i o n m u s t b e c r i m i n a l i n b o t hcountries; however, the condition of theminimum punishment can be waived forsome of the offences. Thus, for example, if
extradition is sought for a bank robbery
as well as for several less serious offences
fo r which the minimum punishm ent
would not otherwise meet the conditions
for extradition, all of them cannonetheless be included in the request.
8

Blakesley, Christopher and Otto Lagodny (1992),
Competing National Laws: Network or Jungle?,in Eser, Albin and Otto Lagodny (eds.) (1992),
Principl es an d Proced ures for a N ew
Transnational Criminal Law. Documentation of

The corresponding provisions of thePalermo Convention are constructed
somewhat differently. Art. 16(1) lays
down the basic rule that extradition isp o s si b l e o n ly w h e r e t h e o f f e n c e i nquestion is punishable under thedomestic laws of both States. Art. 16(2)states that as long as the request refers to
at least one offence that is extraditable
under the Convention, the requested
State may grant extradition for all of theserious offences covered in the request.
The purpose of art. 16(2) is two-fold. It
limits extradition only to serious offences.
At the same time, however, it allows
extradition also for additional offenceswhere these do not as such (necessarily)
involve an organized criminal group.
Recent trends in extraditio n haveattempted to ease difficulties with double
criminality by inserting generalprovisions into agreements, either listing
acts and requiring only that they bepunished as crimes or offences by thelaws of both States, or simply allowing
extradition for any conduct criminalised
to a ce rtain degre e by each State(Blakesley and Lagodny, pp. 87–88).
2. The Rule of Speciality
The requesting State must not, without
the consent of the requested State, try or
punish the suspect for an offence notreferred to in the extradition request andco mmitted before he or she was
extradited.9
This rule does not prevent anamendment of the charges, if the facts ofthe case warrant a reassessment of thecharges. For example, even if a person
has been extradited for fraud, he or she
may be prosecuted for embezzlement as

an International Workshop 1991. Beitrage undMaterialien aus dem Max-Planck-Institut fur
auslandisches und internationales Strafrecht,
Freiburg im Breisgau, pp. 47–100, at 88–98.

368

9See, for example, art. 14 of the UN Model Treaty
on Extradition.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
long as the facts of the case are the ones
referred to in the request for extradition.
The rule of speciality is universallya ccepted, but in pra ctice it does not
automatically rule out all possibilities ofbringing an offender to justice even foroffences not referred to in the request.
This, however, would require separate
c on sen t f ro m the a ut hor itie s o f th erequested State (Korhonen, p. 8). Let us
assu me that the sus pect has been
e xtradite d, and in the course of theproceedings it is found that he or she hasapparently committed another offence notreferred to in the extradition request.
Since the fugitive is already in custody inthe requesting State, the authoritiesu s u a l l y h a v e t h e t im e t o s u b m i t a
supplementary request to the State fromw h ic h th e f u g it iv e w a s e x tr a d ite d ,requesting permission to proceed also inrespect of these newly uncovered offences.
S u ch sup ple m en ta ry req u ests m ust
usually be accompanied by a warrant ofarrest. It should be clear, on the other
hand, that the authorities should notdeliberately delay the initial proceedings
in anticipation of receiving consent to thebringing of the new charges.
If, following extradition, the person inquestion is released in the territory of therequesting State, he or she may not be
prosecuted for an offence that had beencommitted before the extradition took
place until after this person has had areasonable opportunity to depart fromthis State.10
3. The Non-Extradition of Nationals
As a rule, States have long been willingto extradite nationals of the requesting
State, or nationals of a third State. Whenit comes to extraditing their own citizens,

however, most States have traditionallybeen of the opinion that such extradition
is not possible. Some States have evenincorporated such a prohibition into theirConstitution. Furthermore, the principleof the non-extradition of nationals is often
expressly provided for in treaties. The
rationale for such a view is a mixture of
the obligation of a State to protect its
citiz ens, a la ck of conf id ence in thefairness of foreign legal proceedings, themany disadvantages that defendants facewhen defending themselves in a foreign
legal system, and the many
disadvantages of being in custody in aforeign country.11
The United States, the U nited
Kingdom and most other common law
countries, in turn, have been prepared to
extradite their own nationals. This may
have been due in part to the fact thatthese States have been less likely than for
example civil law countries to assert
jurisdiction over offences committed bytheir citizens abroad—and thus, failingextradition, the offender could not haveb e e n b r o u gh t to j u s ti ce a t a l l. T h ecommon law countries have also beenaware of the advantages of trying thesuspect in the place where the offence
was alleged to have been committed.
There is, for example, the greater easewith which evidence and testimony canbe obtained in the forum delicti, and thed if f i c ul ti e s i n s ub m i tti n g e v id e nc e
obtained in one country to the courts ofanother country.
In cases where the requested State
does in fact refuse to extradite on the
gro und s tha t the fugitive is its o wn
11 Ethan A. Nadelmann, Cops Across Borders. The

I nter nati ona liza tio n of U. S. Cr i min al L aw
Enforcement, The Pennsylvania State University

10 See,for example, art. 14(3) of the UN Model

Treaty on Extradition.

Press, University Park, Pennsylvania, 1993, p.
427.

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RESOURCE MATERIAL SERIES No. 59
national, the State is generally seen tohave an obligation to bring the person tot ri a l. T hi s is an i llu st ra tio n o f th e
principle of aut dedere aut judicare—“extradite or prosecute”, “extradite or
adjudicate”.12 Such adjudication,
however, w ould presuppose tha t ther e q u e s t e d S t a t e a p p li e s t h e a c t i v ep e rso na lity p rincip le, i.e . ex erc ises
j uris dic tion ov er offences that its
nationals have committed abroad(Korhonen, p. 5).
Such a provision is conta ined , forexample, in article 16(10) of the Palermo
C o nve ntion . 1 3 Jur isdictio n fo r suchoffences is covered by article 15(3) of thePalermo Convention. Paragraph 16(12) ofth e P a le rm o Co nv en tion co nta in s aparallel provision on enforcement of asentence imposed on a national of therequested State, by a court in a foreign
State.
In practice, some States that haverefused to extradite their nationals havea lso been relucta nt to prosecute. To
address this issue, art. 16(10) of thePalermo Convention has a new feature incomparison with art. 6(9)(a) of the 1988
Convention and art. 4(a) of the UN Model
Treaty on Extradition. It states that theauthorities of such a State “shall taketheir decision and conduct theirproceedings in the same manner as in thecase of any other offence of a grave nature
under the domestic law of that State
Party.” The emphasis here is that, since
the offence is by definition a serious caseof transnational organized crime, theState in question should make an earnest
effort to bring the suspect to justice. The
provision goes on to enjoin the two States
Parties to cooperate in order to ensure
the efficiency of prosecution.
Especially in E urope, the distaste
towards extradition of nationals appears
to be lessening. The Netherlands, forexample, has amended its Constitution
and drafted legislation to allow such
extradition, as long as the national will
be returned to the Netherlands for theenforcement of any sentence passed.14
The Palermo Convention incorporates
a provision that reflects thisde velo pm ent. 1 5 Acc ord in g to ar ticle
16(11),“Whenever a State Pa rty ispermitted under its domestic law to
extradite or otherwise surrender oneof its nationals only upon thecondition that the person will be
returned to that State Party to serve
the sentence imposed as a result of
the trial or proceedings for which
the extradition or surrender of theperson was sought and that State
Party and the State Party seeking
the extradition of the person agreewith this option and other terms
that they may deem appropriate,such a conditional extradition or
14 Germany is currently in the process of making acorresponding amendment to its Constitution.
15 The 1988 Convention does not contain a similar

provision. Article 12 of the UN Model Treaty
speak s o bliquely of the po ssibility tha t the

12 The principle of aut dedere aut judicare can, ofrequested State may “temporarily surrender thecourse, be applied also to other cases where thep e r s o n s o u gh t to th e r e q u e s ti n g S ta te i nrequested State refuses extradition. See, foraccordance with conditions to be determinedexample, art. 4(f) of the UN Model Treaty on

between the Parties”; this, however, is in the

Extradition.

context of possible proceedings for offences other13 See also art. 6(9)(a) of the 1988 Convention andart. 4(a) of the UN Model Treaty on Extradition.

370

tha n th e one m e ntio ne d i n the r e que st f or
extradition.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
surrender shal l b e suf fi cient t odischarge the obligation set forth inparagraph 10 of this article.”Thus, under the Palermo Convention anational can be extradited on condition
that he or she be returned to serve out
the possible sentence. Such a guarantee
th at th e ac tu al e nf o rc e m en t o f a ny
p u n i s h m e n t w i ll t a k e p l a c e i n th e
person’s home country can well be helpful
in overcoming any reluctance to extradite
one’s nationals.
4. The Political Offence Exception
During the 1700s and the early 1800s,
extradition was used very much on an ad
hoc basis primarily in the case of politicalrevolutionaries who had sought refuge
a broad (Third Restatement, p. 558 ).
However, during the 1830s, the idea
developed in France and Belgium thatsuspects should not be extradited forpoliticallymotivated
offences(Nadelmann, p. 419).
T h e r e is no u n ive r s a ll y a cc e p te ddefinition of what constitutes a “politicaloffence”. In deciding whether an offence
qualif ies as “po litical”, re fe rence isgenerally made to the motive and purposeof the offence, the circumstances in which
it was committed, and the character ofthe offence as treason or sedition underdomestic law. One of the leading casesinternationally is In re Castione ([1891] 1
Q.B. 149), where the refusal to extradite
the suspect was based on the view that
alleged offences that had been committed
in the course of, or incident to, arevolution or uprising are political (citedin Nadelmann, p. 420).16

Terrorism has barred a large number ofo f f e n c e s f r o m t h e p o l it i c a l o f f e n c e
exception. He balances this by noting atendency to “enlarge” the definition of apolitical offence in cases where there is adanger of persecution or an unfair trial.
On the other hand, it may be noted thatthe danger of persecution or unfair trial is
now emerging as a separate grounds forrefusal in its own right (see below).
A ltho u gh it m a y we ll be th at theexistence of such an international conceptof a politica l offence “should now be
accepted”, recent developments suggestthat attempts are being made to restrict
its scope or even abolish it (Korhonen, p.
4) . This is the ca se, f or e xam ple, in
extradition among the European Union
countries. The recent Palermo
C o n v e nt io n d o e s n o t m a k e sp e ci f ic
reference to political offences as grounds
for refusal, even though the UN Model
Treaty on Extradition, adopted only ten
years earlier, had clearly included this asa mandatory ground for refusal.
The failure to specifically include thepolitical offence exception in the Palermo
Convention is significant. One of thereasons that the scope of the politicaloffence exception has been lessening isthat States have tended to avoid entering
into extradition treaties with those Stateswith whom such political problems mightarise in the first place. This is not the
16 In respectof the United States, Nadelmann (p.

426) sees two trends: one trend is towards a
nar ro we r defini ti on of the poli tic al o ffe nce
exception, and another, somewhat opposing,trend is towards greater consideration of foreign
policy interests and its bilateral relationship with

Gully-Hart argues that “Theemergence of an international concept ofa political offence should now be
accepted”.17 He notes that the European
Conven tion on the Suppression of

the requesting Government.
17 Gully-Hart,

Paul (1992), Loss of Time ThroughFo rm al an d Proce dural Re qu irem en ts inInternational Co-operation, in Eser and Lagodny(op.cit.), pp. 245–266, at pp. 257–258.

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RESOURCE MATERIAL SERIES No. 59
case with the Palermo Convention, which
has been signed by over 120 States. Withso many signatories, it is quite likely thata need for extradition may arise between
States that are on less than friendly
term s with one another. In thediscussions on the Convention in Vienna,
it was argued that the political offence
should not be specifically mentioned,
since the Convention itself was limited toserious transnational organized crime.
On the other hand, article 16(7) of thePalermo Convention provides States
Parties with a built-in escape clause. It
states that
“Extradition shall be subject to theco nd i t i o n s p r o v i d e d f o r b y t h edomestic law of the requested State
Party or by applicable extradition
treaties, including, inter alia, . . . thegrounds upon which the requested
State Party may refuse extradition.”
Thus, if the domestic law of therequested State allows for the possibilityof the political offence exception (as would
almost inevitably be the case), this option
remains, even if not specificallymentioned in the Palermo Convention.
One factor behind the restriction or
abolition of the political offence exception
is the growth of terrorism, a subject thatwas raised many times (both directly andobliquely) during the drafting of thePalermo Convention. A distinction iscommonly made between “pure” politicaloffences (such as unlawful speech anda ssembly), and politically motiva ted
violence (Third Restatement, p. 558). If
the offence is serious—such as murder,
political terrorism and genocide—courts
in different countries have (to varying
degrees) tended not to apply the politicaloffence exception. Examples include theextradition from the United States of372

several persons suspected of being Nazi
war criminals or I RA terrorists(Nadelmann, pp. 421 and 424). Violationo f in te rn atio nal c on ve nt ion s is o ne
criterion in determining suchs e r i o u s n e s s ; a c a s e i n p o in t is t h ereadiness of many countries to extradite
persons suspected of skyjacking.
An exam ple in w hich the politica loffence exception arose in Europea npractice, cited by Korhonen (p. 5), is when
the Kurdish leader Abdullah Öcalan was
taken into custody in Rome in November
1999 on the basis of a German warrant
for his arrest. However, Germany, which
was clearly concerned with the possibilityof domestic unrest if Öcalan would be
extradited to Germany to stand trial,withdrew its warrant and did not proceedwith the request for extradition. At thesame time, Turkey had also issued awarrant for the arrest of Öcalan. In theextradition hearings, the local court inRome decided that since Germany had
withdrawn its warrant and there was arisk that Öcalan would face the death
penalty if he were to be extradited toTurkey, the court had no legal grounds toproceed in the matter. (Apparently the
Italian court had not considered thepossibility of extraditing Öcalan underth e co n d it io n t ha t h e w o u ld n o t b e
sentenced to death if found guilty. Upon
accepting such a condition, Turkey would
have be en b ound by i t .) Ö ca la n w a sconsequently expelled from Italy andmoved from one country to another inEurope, with no country willing to allow
him in. He finally ended up in Nairobi,
Kenya, where he was kidnapped andtransported to Turkey to stand trial. He
was eventually sentenced to death by aTurkish court, a sentence which on 25
November 1999 was upheld by a court ofappeal.18

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
5. The Refusal to Extradite on the
Grounds of the Danger of Persecution
or Unfair Trial, or of the Expected
Punishment
Originally, extradition treaties
between States were seen to be just that,treaties between sovereign and equalState s as p ar ties. A ccord ing to thisapproach, other parties, in particular the
fugitive in question, had no standing tointervene in the process, nor was thenature of the proceedings or expected
treatment in the req uesting Sta te asignificant factor. Recently, however, also
the individual has been increasingly
regarded as a subject of internationallaw. This has perhaps been most evident
in extradition proceedings. Democratic
countries have been increasingly
reluctant to extend full co-operation tocountries which do not share the same
democratic values, for example on the
grounds that the political organization of
the latter countries is undemocratic, or
because their judicial system does notaffor d sufficient pr otection to th eprosecuted or convicted individual (GullyHart, p. 249).
In line with this reassessment in thelight of the strengthening of international
human rights law, many of the more
recently concluded treaties pay particularattention to the nature of the proceedingsor the expected treatment in therequesting State. States will generally
refuse to extradite if there are grounds tobelieve that the request has been madefor the purpose of persecution of theperson in question, or that the person
would not otherwise receive a fair trial(Gully-Hart, p. 249–251, 257).

Refusal on the grounds of expected
persecution is dealt with in, for example,
article 16(14) of the Palermo Convention:“Nothing in this Convention shall beinterpreted a s imposing an
obli gation to extradite if therequested State Pa rty has
substantial grounds for believingthat the request has been made forthe purpose of prosecuting or
punishing a person on account ofthat person’s sex, race, religion,
nationality, ethnic origin or politicalopinions or that compliance with therequest would cause prejudice tothat person’s position for any one ofthese reasons.”19
The question of fair trial and treatment
is in principle distinct from the questionof persecution. Art. 3(f) of the UN Model
Treaty on Extradition gives as amandat ory groun d for refusal t hepossibility that the person in question
would be subjected to torture or cruel,inhuma n or degra ding trea tment or
p u n i s h m e n t, o r t h e a b s e n c e o f t h eminimum guarantees in criminal
proceedings, as contained in art. 14 of theInterna tional Covenant on Civil andPolitical Rights.20
The issue of fair trial and treatment isdealt with in article 16(13) of the Palermo
Convention:

19 This wording is taken from art. 3(b) of theUN

Model Treaty on Extradition (see also the United
Nations Convention Relating to the Status of
Refugees).

18 According to “The Economist” (11 January 2001),

Within the European context, such refusal would

the death sentence passed on Mr. Ö calan has

be h igh ly u nu su al, s in ce th e Eu ropean

been stayed pending a review of his case by theConvention on Extradition is based on mutual

European Court of Human Rights, a process thattrust in the administration of criminal justice ofcould take years.

one another’s State.

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RESOURCE MATERIAL SERIES No. 59“Any person regarding who mproceedings are being carried out in
connection with any of the offences
to which this article applies shall be
guaranteed fair treatment at allstages of the proceedings, including
enjo ym ent of al l t he rights andguarantees provided by the domestic
law of th e State Pa rty i n th eterritory of which that person ispresent.”
This provision is a new one in UN
Conventions. No similar provisions are to
be found in the 1988 Convention or in the
UN Model Treaty on Extradition.
Perhaps the most notable andinfluential case concerning fair treatment
is the transatlantic case of Soering v. theUnited Kingdom (ECHR 1/89/161/217).
Soering had been charged with murder in
Virginia, where murder was a capitaloffence. Following a request for
extradition from the United States, he
was arrested in the United Kingdom andhis extradition was prepared. He
a p p e a l e d th e e x t r a d i ti o n d e c is i o n ,h ow ev er . A rtic le 3 o f the E u ro pe a n
Convention prohibits torture or inhumanand degrading treatment or punishment.
ECHR unanimously found thatextradition would be a violation of this,since circumstances on death row—6–8
y e a r s o f is o la t io n , st re s s, f r u itl e ss
appeals, separation from family and otherdamaging experience s—would beinhuman and degrading. (The follow-up
20 Furthermore, art. 3(g) of the UN Model Treaty on

Extradition cites as mandatory gr ounds forrefusal the rendering of the judgment of therequesting State in absentia, the failure of theto this case is that Soering was
extradited, after the Attorney General
had pro mised no t to see k the de ath
penalty.)
Another recent example is the case of
Ira Einhorn, who was arrested in 1981 fort he 1 97 9 mur de r o f his l o ver i n t heUnited States. Before being brought totr ial , h o we v e r, he j um p e d b a il an ddisappeared. He was convicted in the US
in absentia. In 1997, he was finally foundliving under an alias in France. The US
called for his extradition. The French
Court of Appeals ruled in 1999 that hecould be extradited provided that hewould be allowed to have a new trial andwould not face the death penalty. Afterthe United States agreed to this, and his
appeal all the way to the European Courtof Human Rights was denied, he was
finally extradited to the United States atthe end of July 2001.
Follow ing the a doption in 19 83 ofProtocol No. 6 to the E uropean
Convention for the Protection of Human
Rights a nd Funda mental Freedom s,
whic h a b o lishe d the de a th pe na lty,
European countries have been reluctant
to extradite suspects to countries where
the death penalty might be imposed. 21
One common outcome is that, as in the
Soering case, the requesting State agrees
to waive the death penalty or, if this is
imposed by the court, the requesting
State agrees to ensure tha t it is notenforced. Another option is to agree thatthe suspect, if convicted, will be returnedto the requested State for enforcement of
the sentence. This latter option has been
fo l l ow ed i n a rt . 1 6 ( 1 1 ) t he P a le rm oConvention, already referred to above.

convicted person to receive sufficient notice of thetrial or the opportunity to arrange for his or her
defence, and the failure to allow him or her theopportunity to have the case retried in his or her
presence.

374

21 Seealso art. 4(d) of the UN Model Treaty on

Extradition.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
6. Other Grounds for Refusal toExtraditeSome extradition treaties specificallyrule out extradition for military offences
or fiscal offences, or extradition when the
person in question has alrea dy been
judged for the offence.22
Art. 16(15) of the Palermo Convention
makes specific reference to fiscal offences:“States Parties may not refuse a request
for extradition on the sole ground that theoffence is also considered to involve fiscal
matters.”
One of the fund amental legal
principles of the rule of law is that no one
should be subjected to double jeopardy(non bis i n idem ). C onsequently,
extradition will generally be refused if
the person requested has already beenprosecuted in the requested State for theacts on the basis of which extradition isrequested, regardless of whether thep r o s e c u ti o n e nd e d in c o n v ic ti o n o racquittal (Third Restatement, p. 568).
According to art. 3(d) of the UN Model
Treaty on Extradition, extradition shallnot be granted “if there has been a final
judgment rendered against the person in
the requested State in respect of theoffence for which the person’s extradition
is requested.”
Some States may also deny extraditioni f t h e p e r s o n i n q u e s ti o n h a s b e e nprosecuted in the requesting State or in athird State (ibid.). The UN Model Treaty
o n E x t r a d i t i o n a l s o i n c lu d e s , a s amandatory grounds for refusal, the factthat “the person whose extradition isrequested has, under the law of either
Party, become immune from prosecution

22 Art.

3(c)referstomilitary

offencesasamandatory grounds for refusal, and art. 3(d)refers to double jeopardy.

or punishment for any reason, including
lapse of time or amnesty.”
A ground for refusal that is becoming
increasingly rare is that the proof of theguilt of the person in question supplied by
the requesting State does not meet theevidentiary standards of the requested
State. According to Korhonen (pp. 6–7), at
le a s t w it h in th e E u r o p e a n c o n t e x t
requiring additional proof of the guilt of
the p e r so n in q ue s tio n w o uld b e inviolation of the principle of mutual trustin o n e a n o t h e r ’ s a d m in i st r a t i o n o fcriminal justice.
C. The Extradition Procedure
Provisi onal a rrest. T he process of
extradition may be lengthy. In order toensure the continued presence of theperson in question, the requesting State
may request that the fugitive be taken
into custody pending the outcome of theproceedings (see, for example, art. 9 of the
U N M o d e l T r e a t y o n E x t r a d i t io n ) .
According to article 16(9) of the Palermo
Convention,“subject to the p rovi sions of its
domestic law and its extradition
treaties, the requested State Party
may, upon being satisfied that thecircumstances so warrant and areurgent and at the request of therequesting S tate Party, take aperson whose extradition is sought
and who is present in its territory
into custody or take otherappropriate measures to ensure hisor her pre sence at extrad ition
proceedings.”
O ne i ss ue t h a t m a y a r i s e i n t h i sconnection is who determines the urgencyof the request: is it the requesting Stateor the requested State (Korhonen, p. 9)?
Although the Palermo Convention isphrased so that it is the requested State

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RESOURCE MATERIAL SERIES No. 59that is to be “satisfied that thecircumstances ... are urgent”, it should infact be left to the requesting State todetermine the urgency of the matter.
The Palermo Convention and many
extradition treaties do not require thatp r o v i si o n a l a r r e s t b e u s e d in s u c hcircum stances, as long as “otherappropriate measures are taken ”.
Korhonen (p. 9) has argued that it can bereasonable to assume that there is apresumption that the fugitive is indeed
placed under provisional arrest, sinceo the rw ise there is the risk tha t the
fugitive will attempt to flee from justice.
This, of course, very much depends on theeffectiveness of the “other appropriate
measures”.
“Disguised extradition” and abduction.
A State generally has the right to expel a
foreign national who is deemed to be“undesirable”, for example on the basis of
his or her criminal activity. Occasionally,
the authorities of the State in question
have expelled the foreign national not tohis or her home State or to the State fromwhich he or she arrived, but to the State
which has requested extradition. The useof such “back-door” procedures instead of
the normal extradition procedure has
rightfully been criticized as a violation ofinternational comity and internationallaw.
An example of how this can operate inpractice is provided by a case involving
the return of a Chinese national from
Canada to China. The same person was
wanted in the United States on charges
r e l a te d to a l le ge d o r g a ni z e d c r im ea ctivity, b ut the extradition p rocess
appeared to be becoming quite complex
and time-consuming. Ultimately, Canada
placed the person on a flight back to
China—knowing that the flight toucheddown in San Francisco for refuelling. At

376

S a n F r a n c is c o , t h e U S a u t h o r i t ie sboarded the plane and took the person
into custody.
The case of United States v AlvarezMachain ((91-712), 504 U.S. 655 (1992))
raises another type of imp roper
extradition, that of abduction. A Mexican
physician, Humberto Alvarez-Machain,
was susp ected o f taking p art in the
torture and murder of a US narcotics
agent in Guadalajara, Mexico in 1985.
Alvarez-Machain was seized by Mexican
bounty hunters in Mexico and flown to
the United States. The defendant argued
that the US court had no jurisdiction to
try the case because he, a Mexican citizena c cu se d o f a m ur d e r t ha t ha d b e e n
a l l e ge d t o h a v e b e e n co m m i t t e d i n
Mexico, had been improperly brought to
the United States by a US-sponsoredabduction. The defendant further argued
that such an abduction was a violation of
the extradition treaty between the UnitedStates and Mexico. The majority on theSupreme Court ruled, however, that theforcible abduction of the defendant does
not prohibit his trial in a United States
court for violations of this country’s
criminal laws. (This is an application of
the doctrine of “male captus, bene
detentus”, which essentially holds thatthe court need not look at how adefendant was brought before it.) The
Supreme Court also held that there wasno violation of the treaty, since this treaty
did not expressly say that the two States
Parties were obliged to refra in fromforcible abductions of persons from one
another’s territory.23
Suppleme ntary in formation an dconsultation. Many agreements provide
that, if the information provided by there questing State is found to be
insufficient, the requested State may (oreve n “shall”) requ est the ne cessar y
supplementary information (for example

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
art. 8 of the UN M odel Treaty on
Extradition and article 13 of theEuropean Convention on Extradition).
A cc ord i ng t o a rt i cle 1 0( 1 6 ) of t h e
C o n v e n t i o n a g a i n s t T r a n sn a t io n a l
O r g a n i z e d C r i m e , “b e f o r e r e f u s in g
extradition, the requested State Party
shall, where appropriate, consult with therequesting State Party to provide it with
ample opportunity to present its opinions
and to provide information relevant to its
allega tion.” This is a new provision,
wh ich has no par allel in the 1988
Convention or in the 1990 UN ModelT r e a t y . T h e p r o v i s io n c a n t h u s b e
u nd e r sto o d a s a r e f le c tio n o f “g o o dpractices” as they have evolved during
the 1990s.
Si mplification of extrad ition
proceedings. As noted, extradition can bea long, drawn-out and expensive process.
During recent years, many efforts havebeen made to expedite and simplify theprocess, in particular by eliminating
grounds for refusal.
Art. 16(8) of the Palermo Convention
calls for the simplification of extradition:“States Parties shall, subject to theirdomestic law, endeavour to expedite
23 New York Times, 15 and 16 June 1992. See also

Nadelmann, pp. 449–450 and Heymann, Philip B.
and Ian Heath Gershengorn (1992), Pursuing
Justice, Respecting the Law, in Eser and Lagodny(op.cit.), pp. 101–147, at pp. 132–135.
In December 1992, the defendant was acquitted

extradition procedures and to simplify
evidentiary requirements relating thereto
in respect of any offence to which thisarticle applies.”
In 1995, the European Union adopted a
Convention on simplified extradition
within the EU. Essentially, theConvention focuses on the many cases
where the person in question consents to
extradition.24
In 1996, the EU adopted a convention
that supplements the 1957 Council ofEurope Convention, and is designed tofacilitate and speed up extradition. The
1996 Convention widened the scope of
extraditable offences, restricted refusals
on certain grounds (the absence of double
criminality, or the nationality of theoffender) and eliminated the politicaloffence exception as well as refusals on
the grounds that the prosecution orpunishment of the person in question
would be statute-barred in the requested
State.25
Th e E uro pe an U nio n is cur ren tly
considering various options for “fast-track
extradition”. These discussions have been
held within the context of the discussion
on mutual recognition of decisions andju d g m e n t s i n c r im i n a l m a t t e r s . I n
regards to extradition, the goal is to havea warrant of arrest issued by theco m p e t e nt a uth o r itie s o f o n e S ta terecognized as such by the authorities ofanother EU State, establishing a basis for
extradition.

by the U.S. District Court in Los Angeles of all
charges on the grounds that the Government had
not produced any credible evidence linking him to
the torture and murder of the narcotics agent.
In a somewhat Kafkian follow-up to the case, on
his release by the court, the defendant wasarrested by the US Immigration Service and held

24 This1995 Convention has been ratified byAustria, Denmark, Finland, Germany, Greece,
the Netherlands, Portugal, Spain and Sweden.
25 The1996 Convention has been ratified byfor several hours on the grounds of “illegal entry

D e n m a r k , F i nl a n d, G e r m an y, G r e e c e , th e

into the U.S.”

Netherlands, Portugal and Spain.

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RESOURCE MATERIAL SERIES No. 59
III. Mutual Assistance in Criminal
Matters•

A. The Evolution of Instruments on
Mutual Assistance in Criminal
Matters
The purpose of extradition is to get aforeign State to send a fugitive to therequesting State so that he or she can beplaced on trial, or so that any punishment
imposed can be carried out. The purposeof mutual assistance, in turn, is to get aforeign State to assist in other ways inthe jud icial p rocess, fo r exa mple bys e c u r i n g th e te st im o n y o f p o ss i b l e
victims, witnesses or expert witnesses, by
taking other forms of evidence, or bychecking judicial or other official records.

•

Generally, mutual legal assistance isb a s e d o n b i l a t e r a l o r m u l t i la t e r a ltreaties. No global mutual assistancetreaties have been drafted that would
apply to a broad range of offences. Efforts
to smooth international cooperation byde velop ing such a global mutual
assistance treaty had long been thwarted
in particular by the United States andt h e U n it e d K in g d o m , w h i c h p r e f e rbilateral treaties that would take into
consideration the idiosyncratic features of
their common law systems.
Instead, over the years, som einternational treaties have been draftedthat deal with specific offences. These
instruments generally include extensive
provisions on mutual legal assistance as
w e l l a s o n e x tr a d i ti o n . T h e s e t s o fprovisions included in some of these
agreements are so extensive that they
have been referred to as “mini-treaties”
on mutual legal assistance.
Such is the case, for instance, with thefollowing conventions:

378

•

•

•
•

the Convention for the Suppression of
Unlawful Seizure of Aircraft of 16
December 1970 (article 10),
the Convention for the Suppression of
Unlawful Acts against the Safety of
Civil Aviation o f 23 Septem ber
1971(article 11),
the Convention for the Suppression of
Unlawful Acts against the Safety of
Maritime Navigation and the Protocol
for the Suppression of Unlawful Acts
against the Safety of Fixed Platforms
Located on the Continental Shelf, of
10 March 1988,
the UN Convention against Illicit
Traffic in Narcotic Drugs andPsychotropic Substances of 19
December 1988 (article 7),
the International Convention against
the Taking of Hostages of 17
December 1979 (article 11), and
the Palermo Convention, opened forsi gn a t u re o n 1 2 D e c e m b e r 2 0 0 0(article 18).

In addition, there are two influential
multilateral arrangements that apply toa wide spectrum of offences, a Convention
prepared by the Council of Europe, andan instrument applied within the context
of the British Commonwealth (the socalled “Harare Scheme”).
The oldest, most widely applied andarguably most influential is the Councilof Europe Convention on Mutual
Assistance in Criminal Matters. This was
opened for signature in 1959, and enteredinto force in 1962.26
The Council of Europe Convention
focuses on assistance in judicial matters(as op posed to investigative andprosecutorial matters). Furthermore,since it has been in force for almost 40
ye ars, it h a s in so m e re sp ec ts be e n
bypassed by practice. In order to improvethe effectiveness of the Convention, the119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
fifteen European Union countries have
prepared their own Mutual Assistance
Convention of 29 May 2000. This
supplements the 1959 Council of Europe
convention and its protocol in order toreflect the emergence of “good practices”
over the past forty years.

“there is reasonable cause to believe thata n o f fe nc e in r esp e ct of w hich suchproceedings could be instituted have beencommitted”. Thus, it effectively a lso
allows mutual assistance when certain
serious offences, such as terrorism, could
potentially be prevented.

The Commonwealth Schem e for
Mutual Assistance in Criminal Matters
does not create binding international
obligations; instead, it represents morean agreed set of recommendations. 27 It
d e als with id en tify in g an d lo ca tingpersons; serving documents; examining
witnesses; search and seizure; obtaininge v i d e n c e ; f a c il it a t in g t he p e r s o n a la ppeara nce of witnesses; effecting atemporary transfer of persons in custody
to appear as a witness; obtaining
production of judicial or official records;
and tracing, seizing and confiscating theproceeds or instrumentalities of crime. A
model Bill to assist countries in preparing
legislation has been developed by the
Commonwealth Secretariat.

Th e U nited Na tio ns, in turn, h a s
prepa red a Mod el T re at y o n M utua lAssistance in Criminal Matters (General
Ass emb ly res olution 45 /1 17 of 1 4
Decemb er 1 990 ). The purpo se of theModel Treaty is to provide a suitablebasis for negotiations between states that
do not have such a treaty. The Model
Treaty is by no means a binding
template. The States can freely decide on
any changes, deletions and additions.
However, the Model Treaty does
represent a d istillation of theinternational experience gained with theimplementation of such mutual legal
assistance treaties, in particular between
S ta t e s re p r e se n tin g d if f e re n t le ga lsystems.

The Commonwealth scheme extends toboth “criminal proceedings that havebeen instituted in a court” and when

Competing international treaties. Overthe years, several multilateral treaties
have been drafted that deal with mutual
legal assistance. In addition, many states
have entered into bilateral treaties withother countries. This raises thepossibility that two or more treaties may
be applicable to the same facts. Since
there may be differences between thesetreaties (for example in relation to theconditions under which mutual legala s s i st a n c e c a n b e p r o vi d e d , o r t h eprocedure used), the question arises ofwhich treaty should be applied.

26 At present, the following 40 States are parties tothe 1959 Convention: Albania, Austria, Belgium,
Bulgaria, Croatia, Cyprus, the Czech Republic,
Denmark, Estonia, Finland, France, Georgia,
Germany, Greece, Hungary, Iceland, Ireland,Israel, Italy, Latvia, Liechtenstein, Lithuania,
Luxembourg, Malta, Moldova, the Netherlands,
Norway, Poland, Portugal, Romania, the RussianFederation, Slovakia, Slovenia, Spain, Sweden,
Switzerland, the former Yugoslav Republic ofMacedonia, Turkey, Ukraine and the United
Kingdom. In addition, it has been signed by
Armenia and San Marino.
27 David

McClean,International

Judicial

Assistance, Clarendon, Oxford, 1992, p. 151. The
Harare Scheme was originally adopted in 1983. It
has been amended most recently in 1999.

General conflicts between treaties canbe decided on the basis of the Vienna
Convention on the Law of Treaties, which
was concluded on 23 May 1969. Amongthe principles applied are that, otherthings being equal, a later treaty replaces

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RESOURCE MATERIAL SERIES No. 59
an earlier one, and a treaty dealing witha specific issue replaces a treaty dealing
only with general issues.
In addition, some new treaties containspecific provisions on the resolution of
possible conflicts between treaties. For
example, article 18(6) of the Palermo
Convention stipulates that “theprovisions of this article shall not affectthe obligations under any other treaty,bilateral or multilateral, that governs orwill govern, in whole or in part, mutual
legal assistance.” (Article 7(6) of the 1988
Convention is similar.)This provision means in practice thato bliga tions unde r other a gre eme nts
remain in force. The Palermo Convention(or the 1988 Convention) does not in any
w ay diminish these obligations. The
practitioner should exam ine theagreements side by side, and identify
which provisions of the different
agreements would, in combination, resultin the highest possible level of mutual
assistance.
Despite the network of international
instruments, cases will continue to arise
between States that are not linked by amutual legal assistance treaty. If the
S ta tes in question a re, nonetheless,Parties to the Palermo Convention, andthe case involves transnational organizedcrime, the Palermo Convention can form
the basis for mutual legal assistance.
According to article 18(7) of the Palermo
Convention, paragraphs 16(9)–(29) of the
C o nve ntion ap ply to suc h r eque sts.
(A rticle 7(7) of the 1 988 C onvention
contains a similar provision.) Even if theStates in question are bound by a treaty,
they ca n decide to apply paragraphs
1 6 ( 9) – (2 9 ) , a nd i nd e ed t he P al e rm oConvention strongly encourages them toapply the corresponding provisions of thisnew Convention. As noted in the380

Commentary to the 1988 Convention(para. 7(23)), “this enables pairs of States
to follow the procedures with which theyha ve become familiar in the generalcontext of mutual legal assistance”.
B. The Scope of Mutual Legal
AssistanceIn arti cle 18 (1), the Pa lermo
Convention calls for States Parties toafford one another the widest measure ofmutual legal assistance (see also art. 1(1)of the 1959 Council of E urope
Convention). The scope of measures thatcan be requested under mutual legala s sis ta n c e is r a t he r la r g e , a nd t hepractice appears to be moving towards aconstant expansion of this scope.
According to art.18(3) of the Palermo
Convention, which in this respect is basedon the 1988 Convention, mutual legal
assistance can be requested for any of thefollowing purposes:
a. taking evidence or statements frompersons;b. effecting
serviceofjudicial
documents;c. executing searches and seizures, andfreezing;
d. examining objects and sites;e. providing information, evidentiary
items and expert evaluations;f. providing originals or certified copies
of relevant documents and records,
including governme nt, bank,f ina nc ia l , c o rp o r a te o r b us ine s srecords;
g. identifying or tracing proceeds ofcrime, property, instrumentalities orother things for evidentiary purposes;
h. facilitating the voluntary appearanceof persons in the requesting State
Party; andi. any other type of assistance that is
not contrary to the domestic law of
the requested State Party.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Most of the items on the above list aref a m i l i a r f r o m a rt . 7 ( 2 ) o f t he 1 9 8 8Convention, art. 1(2) of the UN Model
Treaty and para. 1 of the Commonwealth
Scheme, as well as from many bilateral
Conventions. There are, however, four
new elements in the Palermo Convention
that reflect the evolution of thinking on
mutual assistance.
•

point (c) also includes the freezing ofassets, and not just sea rches andseizures. The freezing of assets has
bee n found to be particularly
im portant in preventing andcontrolling organized crime. (Para.
1(i) of the Commonwealth Schemese pa ra te ly r ef er s to the tr ac ing,
seizing and confiscating of theproceeds of criminal activities.)•

point (e) includes the provision ofexpert ev aluations; th e earlier
multilateral treaties had not specified
this form of assistance.

•

point (f) specifies that originals or
certified copies can be obtained also ofgovernment records; again, this was
not clearly noted in the 1988
Convention or the UN Model Treaty.
The Commonwealth Scheme, on theother hand , does re fer to the“productio n of judicial or official
r e c o r d s ”. ( S e e a l so b e l o w u nd e r“Provision of documents”.)

inv ol ve d , o f te n a s t he f ro nt f o r t heactivities of the actual offenders, and inpa rticular f or the laund ering of theproceeds of crime. The situation may
arise where State A, which recognizes thepossibility of corporate criminal liability,
requests assistance from State B, which
does not recognize such a possibility.
Since art. 10 of the Palermo Convention
requires that corporate bodies be held
liable for serious crime in some manner(no matter whether criminal, civil oradministrative), art. 18(9) requires States
Parties to provide mutual legal assistanceto the f ullest e xtent po ssible und er
relevant laws, treaties, agreements andarrangements. Ab sence of corpora tecriminal liability in the requested State isthus not a bar to providing mutual legal
assistance.
Video conferences. Art. 18(18) of thePalermo Convention adds the possibilityof the hearing of witnesses or experts bymeans of video conference. 29 This is acom plete ly new provision in UN
conventions; no thing similar wascontained in the 1988 Convention or in
the 1990 UN Model Treaty. Its newness,of course, is a reflection of the rapid
28 Mutuallegal assistance is distinct from thetransfe r of proc eedings and the tr ansfer o f
persons in custody to serve sentences, which
w ould thus not be covered by point (i). The
Palermo Convention deals with these subjects
separately in articles 17 and 21.

•

point (i), which is a catch-all reference
to “any other type of assistance that is
not contrary to the domestic law of
the requested State Party”, provides
considerable flexibility to thelisting.28

Some commentators and even courts have heldthat mutual legal assistance treaties are general,and can apply to forms of a ssistance notspecifically mentioned in them. For example, in
the United States, the Re Sealed Case (1987; 832
F.2d 1268. US Court of Appeals for the District ofColumbia) determined that the existence of a

Requests related to offences for which a
corporate body may be liable. One featureof (transnational) organized crime is that
corporate bodies (legal persons) may betreaty does not limit evidence gathering to theprocedures stipulated in the treaty; indeed, thispoi nt i s ge ner all y e xpl ici tl y stated i n suchtreaties.

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RESOURCE MATERIAL SERIES No. 59
de velop ment of communications
technology. Even though this possibility
requires an initial investment in thenecessary equipment, video technology
can considerably facilitate the hearing of
witnesses and experts, since they would
no longer have to travel from one country
to another. It can also serve to protect
witnesses or experts, if they fear to reveal
their location or fear travelling to a court
hearing in the requesting State.
Having a “direct” connection between
two countries, how ever, raises so meinteresting issues. A normal situation
would be when an attorney or a judge
located in the requesting State uses avideo link to hear a witness located in therequested State. In order to forestallconcerns that the requested State may
have about p ossible violations of its
s o ve re ig nty , o r c o nc e rn s a b o ut d u eprocess, art. 18(18) specifies that theStates may agree that a judicial authorityof the requested State may attend thehearing.
Th e sp o n t a n eo u s t r a n sm i ss i o n o f
information. In the investigation and
29 According

to article 18(18) of the Palermo

Convention, wherever possible and consistent
with fundamental principles of domestic law,when an individual is in the territory of a State
Party and has to be heard as a witness or expert
by the judicial authorities of another State Party,
the first State Party may, at the request of theprosecution of offences, now and then thelaw enforcement authorities of a country
re c e ive in f o rm a tio n t hat m a y be o finterest to the authorities of anotherc o u n t r y . A r t. 1 8 ( 4 ) o f t h e P a le r m oConvention allows the authorities, evenwith o ut a pr io r re qu es t, to pa ss o n
information to the competent authorities
of another State. 30 Again, this is a newelement in U N co nventions. Its
usefulness has been demonstrated inpractice in, for example, Europe.
Provision of documents. Art. 18(3)(f) of
the Palermo Convention states in generaltha t mut ua l lega l a s sis ta nce ca n be
requested in the provision of originals or
certified copies of relevant documents andrecords. A practical question that was notaddressed in the 1988 Convention was
the scope of application of this provision.
Does it, in particular, extend to
documents that are considered secret in
the requested State? The matter wasconsidered in art. 16 of the UN Model
Treaty, which served as the basis in thedrafting of art. 18(29) of the Palermo
Convention. This provision requires thatthe requested State provides copies ofg o v e r n m e n t r e c o r d s , d o cu m e n ts o r
information in its possession that under
its domestic law are available to thegeneral public, but leaves the requested
State with discretion over whether or not
to provide any other government records,
docum ents or information in its
possession.

other, permit the hearing to take place by videoconference if it is not possible or desirable for theindividual in question to appear in person in the
territory of the requesting State Party. States
Parties may agree that the hearing shall be

Transfer of persons in custody. In theinvestigation and prosecution oftransnational organized crime cases, asituation may well arise where a person

con du ct ed by a judi cia l a uth ori ty o f th erequesting State Party and attended by a judicial

30 Thisspontaneous exchange of data is provided

authority of the requested State Party.

under article 10 of the 1990 European Convention

See also article 10 of the 2000 European Union

on Laundering, Search, Seizure and Confiscation

Convention. Art. 11 of the 2000 European Unionof the Proceeds from Crime. See also art. 7 of theConvention also permits teleconferences.

2000 European Union Convention.

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119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
held in custody in one State can provide
key testimony in a case in another State.
Art. 7(4) of the 1988 Convention statesquite generally that States Parties shall
facilitate “to the extent consistent with
their dom estic law a nd practice, thepresence or availability of persons, who
consent to assist in investigations orparticipate in proceedings”. Art. 18(10)–(12) of the Palermo Convention provide
more detail on the transfer of persons incustody for this purpose. 31 Transfer ispossible only if the person in question
consents, and the competent authoritieso f th e tw o S ta te s a g r e e ( s u b j e c t t opossible conditions). The person is to be
kept in custody in the State to which heo r s h e is t r a n s f e r r e d , a n d is t o b e
returned without delay as agreed by thetw o S ta te s. I n a d ditio n , the p e rso ntransferred is to receive credit for serviceof the sentence being served in the State
from which he or she was transferred fortime spent in the custody of the State towhich he or she was transferred.
W hen persons in custody aretransferred from one State to another
under art. 18(11) of the Palerm oConvention, a form of the principle ofspeciality applies (art. 18(12)). Thus,
unless the requested State agrees, theycannot be prosecuted, detained, punishedor subjected to any other restriction ofliberty in the territory of the State towhich such persons are transferred inresp ect of offences committed orc o n v i c t i o n s im p o s e d p r i o r t o t h e i rtransfer.
The concept of “internationa l
subpoenas”. One, albeit rare, feature ofsome mutual legal assistance treaties isthat they allow for the issuing of
31 Parallel detailed provisions can be found in para.

24 of the Commonwealth Scheme.

subpoenas “backed up” by compulsion,
such as penalties for failure to obey. This
concept is applied for example in the
United States-Italian Mutual Assistance
Treaty, which provides for compulsory
appearance of a witness in the requesting
S ta t e (M cC l ea n 1 9 9 2, p . 1 5 8) . A l s o,Australia has such an arrangement withNew Zealand and Fiji, and Malaysia hassuch an arrangement with Singapore andBrunei (ibid.).
A s n o t e d a b o ve , a rt . 1 8 ( 7 ) o f t h e
P a l e r m o C o n v e n ti o n r e f e r s o n l y t ofacilitating the presence of persons who
consent to assist in investigations orparticipate in proceedings. Witnesses andexperts are thus completely free not to go
to the requesting country. The Palermo
Convention thus does not allow the use ofcompulsion against witnesses or experts
in another State. This same approach isused in, for example, art. 8 of the 1959
European Convention, paras. 15(5), 23(4)and 24(3) of the Commonwealth Scheme,
and art. 7(4) of the 1988 Convention.
C. Grounds for Refusal
T h e r e a r e se v e r a l b a s i c c o m m o ngrounds for refusal for granting a request
for mutual legal assistance:••••

the absence of double criminality;
the offence is regarded as a politicaloffence;the offence is regarded as a fiscal
offence; andthe granting of mutual legal
assistance would be counter to thevital interests (ordre public) of therequested State.32

Absence of double criminality.
According to art. 18(9) of the Palermo
Convention, a State may decline mutual
legal assistance if the offence in question
is not an offence under its laws. However,the Palermo Convention specifies that383

RESOURCE MATERIAL SERIES No. 59
this is not a mandatory ground. Thus, theS tate may decide at its discretion toprovide mutual legal assistance even if
the condition of double criminality isabsent.
A l so t h e C o m m o n w e a l th S c h e m eincludes a “discretionary double
criminality rule” (art. 7(1)). According to
the author of the scheme (McClean 1992,
p p. 1 55 – 1 5 6) , t hi s w a s t o pre vent asituation arising whe re mutuala ssistance is requested in respect ofcertain acts that are heavily punished insome Islamic law jurisdictions are nots e e n a s a p p r o p r ia t e f o r a n y p e n a lsanctions in other jurisdictions.
Politica l offences. In respect of
extradition, the political nature of theoffence is generally a mandatory cause forre fusa l. In the field o f m utual legal
assistance in criminal matters, in turn,this is generally only an optional reason
for refusing cooperation. Moreover, over
the years the possibility or obligation torefuse assistance in such considerations
has in general been curtailed, inparticular with a view towards the needto combat terrorism. See, for example,
a rt . 2 of the 1 959 Council of Europe
Convention, when read together with art.
8 of the European Convention on the

Suppression of Terrorism of 27 January
1977.
Fiscal offences. Under the 1959 Councilof Europe Convention, legal assistance
may b e refused where the requested
party considers the offence to be a fiscal
offence. In order to restrict the scope ofthese grounds of refusal, an additional
protocol to the European Convention was
drawn up at the same time, in 1959.
Signatories to this additional protocol
undertake not to refuse assistance on the
grounds that the offence in question is a
fiscal offence
A cco rd ing to a rticle 1 8 ( 22 ) o f thePalermo Convention, States Parties may
not refuse a request for mutual legal
assistance on the sole ground that theoffence is also considered to involve fiscal
matters.
Violation of the vital interests of therequested State (ordre public). Generally
speaking, conventions on mutual legal
assistance on criminal matters provide
tha t t he req uest ed Sta te ca n refus e
assistance which it deems might
endanger its sovereignty, security, law
and order or other vital interests. Thissame “escape clause” is maintained evenby the 2000 European Union instrument
on mutual legal assistance.

32 Art. 4(c)–(d) of the UN Model Treaty on Mutual

Assistance in Criminal Matters and para. 7(1)(d)and 7(2)(b) of the Commonwealth Scheme provide
as additional optional grounds for the refusal ofassistance the presence of substantial grounds forbelieving that the request for assistance may leadto prosecution or punishment, or cause prejudice,o n a c co u nt o f ( for exa mp le ) r a c e, r e li gio n,nationality or political opinions, or that the

The same principle is embodied in art.
18(21)(b) of the Palermo Convention,according to which the requested State
Party may refuse to grant mutual legal
assistance if it considers that execution of
the req uest is likely to prejudice its
sovereignty, security, ordre public orother essential interests.

prosecution in the requesting State would lead to
double jeopardy. The UN Model Treaty adds as afurther optional ground the fact that the offence isalready under investigation or prosecution in therequested State.

384

Conflict with the laws of the requested
state. According to art. 18 (2 1) of the
P a le r m o C o n v e n t i o n , m ut u a l l e g a l
assistance may be refused:119TH INTERNATIONAL TRAINING COURSE
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if the request is not made inconformity with the provisions of thisarticle;if the authorities of the requested
State Party would be prohibited by its
domestic law from carrying out theaction requested with regard to any
similar offence, had it been subject toinvestigation, prosecution or judicial
proceedings under their own
jurisdiction; andif it would be contrary to the legal
system of the requested State Party
relating to mutual legal assistance forthe request to be granted.

Bank secrecy. One relatively common
ground for refusal is that granting ther e q ue st w o u ld b e c o n tr a ry t o b a n k
secrecy. The scope of this ground forrefusal has been restricted during recent
years. In line with this development, art.
7(5) of the 1988 Convention and article
18(8) of the Palermo Convention stipulatethat States Parties shall not decline torender mutual legal assistance on the
ground of bank secrecy.
The need to indicate the ground forrefusals. Good practice in mutual legal
assistance requires that the requested
State, if it refuses to grant assistance,
should indicate the grounds for suchr e f us a l. A rt. 1 8 ( 2 3 ) of th e P a le rm oConvention requires that reasons b egiven for any refusal of mutual legal
assistance. Art. 19 of the 1959 Council ofEurope Convention and para. 6(3) of theCommonwealth Scheme are similar.
Reciprocity. As noted above, art. 18(1)of the Palermo Convention requires that
States Parties afford one another thewidest measure of mutual legal
assistance in investigations, prosecutions
and judicial proceedings in relation to thetype of offences covered by theConvention. States are not allowed torefuse assistance unless they have a clear
ground to do so.
However, in the drafting of thePalermo Convention, the re wasconsiderable discussion over at whatstage it should be evident that the offencein question is covered by this Convention.
After all, the requested State can simply
say that, in its view, the requesting State
has not shown that the offence is in facttransnational; this may well be difficult
to prove especially at the earlier stage ofthe investigation.
The solution adopted was innovative. If
State A has met with refusals from State
B to provide assistanc e un der thePalermo Convention even when State A
has reasonable grounds to suspect thatthe offence in question falls under theConvention, then State A canlegitimately refuse, in turn, to help State
B should it happen to come forward witha corresponding request.
D. The Mutual Legal Assistance
Procedure
Letters rogatory. The traditional tool ofmutual legal assistance has been lettersrogatory, a formal mandate from the
jud ic ia l a ut h or i t y o f o n e S t a t e t o ajudicial authority of another State toperform one or more specified actions in
the place of the first judicial authority(see, for example, chapter II of the 1959
Council of E urope C onvention). The
concept of letters rogatory had been takenfrom civil procedure, and focuses on
judicial action in the taking of evidence.
More recent international instruments
simply refer to “requests”.
I n in te rna tio nal p ra ctic e , le tte r s
rogatory have typically been transmitted
through diplomatic channels. The request
for evidence, almost always originatingfrom the prosecutor, is authenticated by

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RESOURCE MATERIAL SERIES No. 59
the com petent national court in therequesting State, and then passed on by
tha t S tate’s Foreign M inistry to theembassy of the requested State. The
embassy sends it on to the competentjudicia l authorities of the req uested
State, generally through the Foreign
Ministry in the capital. Once the request
has been fulfilled, the chain is reversed.
Central authorities or direct contacts?
Increasingly, treaties require that States
Parties designate a central authority(generally the Ministry of Justice) to
w hom the requests ca n b e sent. The
judicial authorities of the requestingS t a t e c a n t h e n c o n t a c t th e c e nt r a lauthority d irectly. Tod ay, to anin cre a sin g d e gre e e ve n m o re d ire ct
cha nnel s are b ei ng use d, i n t ha t a n
official in the requesting State sends therequest directly to the appropriate official
in the other State.33
In the drafting of the Palerm o
C onvention, there w as co nside rab lediscussion regarding whether or notdirect channels could be used. S ome
states, which were not familiar with thispractice, had a clear preference for theuse of central authorities. The basic rulelaid out by art. 18(13) of the Palermo
Convention (see also art. 7(8) of the 1988
Convention and para. 4 of theCommonwealth Scheme) is that eachState Party designate a central authority.
Such a central authority has in effect
33 One of the earliest bilateral treaties to allow for

three roles: (1) to receive requests formutual legal assistance; (2) to executesuch requests; and (3) to transmit such
requests to the competent authorities for
execution.
Where a State Pa rty has a special
region or territory with a separate system
of mutual legal assistance (as is the case,for example, with Hong Kong in China), it
may designate a distinct central
auth or ity that sha ll h a ve th e sam efunction for that region or territory. Thisis a new feature of the Pa lermo
Convention; art. 7(8) of the 1988
Convention and art. 3 of the Model Treaty
only contain a general reference to thedesignation of “an authority or whennecessary authorities”.
Direct requests may be possible also
under some treaties in case of emergency.
Fo r e xa m ple , a rt . 1 5 ( 1 ) o f t h e 1 9 5 9Council of Europe Convention allows the
judicial authority of the requesting Stateto send the letter of request directly to theco m pe te nt jud ic ia l a ut ho rity of there q ue s te d S ta te . A r t. 1 8 ( 1 3 ) o f t hePalermo Convention allows thepossibility that, in urgent cases and when
the States in question agree, the request
can be made through the International
Criminal Police Organization, if possible.
The form and contents of the request.
The Palermo Convention contains several
provisions on the procedure to be followed
in sending a request for mutual legal
assistance.

this was the additional protocol to the 1959
Co unc il o f Europe Conventio n draw n up by
France and Germany on 24 October 1974.
The 1990 Schengen agreement in the frameworkof the European Union specifically allows the useof direct contacts between judicial authorities(art. 53). The same concept is embodied in theeven more recen t Eu ropea n Uni on 2 00 0
Convention on Mutual Legal Assistance.

386

A cco rd ing to a rticle 1 8 ( 14 ) o f thePalermo Convention (cf. art. 7(9) of the1988 Convention), “requests shall bemade in writing or, where possible, by
any means capable of producing a written
record ... under conditions allowing that
State Party to establish authenticity. ...
In urge nt circum stan ces and w h ere

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
agreed by the States Parties, requests
may be m ade orally, but shall be
confirmed in writing forthwith.”
The Palermo Convention, by referring
to requests made “where possible, by anymeans capable of producing a written
record ... under conditions allowing that
State Party to establish authenticity”,
opens up the possibility of for example
transmission by fax or electronic mail.
This was not possible under, for example,
the 1988 Convention.34
The minimum contents of a request formutual legal assistance are listed inarticle 18(15):35
a. the identity of the authority making
the request;b. the subject matter and nature of theinvestigation, prosecution or judicial
p ro ce ed ing to w h ich the r eq ue st
relates and the name and functions of
the authority conducting theinvestigation, prosecution or judicial
proceeding;c. a summary of the relevant facts,
except in relation to requests for the
purpose of service of jud icial
documents;
d. a description of the assistance soughtand details of any particular
procedure that the requesting State
Party wishes to be followed;
e. where possible, the identity, locationand nationality of any person
concerned; and34 Recommendation

R(85)10 of the Council of

Eu rope (w hic h is no n-bindin g) in pr inci pleen courages th e accep tance of th e u se of
telephones, teleprinters, fax and similar means ofcommunication in the transmission of lettersrog atory in the a ppl ica ti o n o f the 1 95 9f.

the purpose for which the evidence,
information or action is sought.

Article 18(16) notes that the requested
Sta t e Pa rty m ay req uest a d dit io na linformation when it appears necessary
f o r th e e xe cu t io n o f th e r e q u e st inaccordance with its domestic law or when
it can facilitate such execution.
The formulation used in the Palermo
Convention re fers to “a language
acceptable to the requested State Party”.
This is a deliberately wide formulation. It
includes the national language of therequested State Party, but the special
circumstances of the relations between
the two countries may suggest the use ofother languages. For exa mple, many
countries around the world are preparedto accept requests in English and/or
French.
E. Execution of the Request for
Mutual Legal Assistance
La w gov erning the ex ecuti on. The
p ro c e d u ra l la w s o f co u n tr ie s d if f e r
considerably. The requesting State may
require sp ecial p roce dur es ( such as
notarized affidavits) that are notrecognized under the law of the requested
State. Traditionally, the almost
immutable principle has been that therequested State should follow its own
procedural law.
This principle has led to difficulties, inparticular when the requesting and therequested State represent different legal
fa milies. F or e xa m ple, the evid encetransmitted from the requested Statemay be in the form prescribed by the lawsof this State, but such evidence may beunacceptable under the procedural law of
the requesting State.

Convention.
35 The list is word for word the same as in article

7(10) of the 1988 Convention.

The 1959 Council of Europe
Convention is one international

387

RESOURCE MATERIAL SERIES No. 59
in strument that applies t o Stat es
representing two quite different legal
families, the common law and th econtinental law systems. Although art.
3 ( 1 ) o f thi s C o n ve n tio n f o llo w s th e
traditional principle referred to above,
the Com mentary notes that therequesting State can ask that witnesses
and experts be examined under oath, aslong as this is no t p ro hibite d in therequested State.36
According to art. 7(12) of the 1988
Convention, a request shall be executedin accordance with the domestic law of
the requested State Party and, to theextent not contrary to the domestic law of
the requested State Party and wherepo ssible , in accordance with theprocedures specified in the request. Thus,
although the 1988 Convention does not go
so far as to require that the requested
State comply with the procedural form
required by the requesting State, it does
clearly exhort the requested State to dos o . T h i s s a m e p r o v i si o n w a s ta k e nverbatim into art. 18(17) of the Palermo
Convention.
Promptness in fulfilling the request.
One of the major problems in mutual
legal assistance world-wide is that therequested State is often slow in replying,a n d su s p e c t s m u s t b e f r e e d d u e t oabsence of evidence. There are many
understandable reasons for the slowness:a shortage of trained staff, linguistic
difficulties, differences in procedure thatc o m p li c a t e r e s p o n d i n g , a n d s o o n .
Nonetheless, it can be frustrating to findthat a case must be abandoned becauseeven a simple request is not fulfilled intime.

36 Explanatory

14.

388

Report to the 1959 Convention, p.

The 1988 Convention does not makeany explicit reference to an obligation on
the part of the requested State to beprompt in its reply. The 1990 UN Model
Treaty (art. 6) does require that requests
f or a ssist a nce “ sha ll b e ca rr ied ou t
promptly”. Para. 6(1) of theCommonw ealth Scheme ca lls for therequested country to grant the assistancerequested as expeditiously as practicable.
The Palermo Convention is even moreemphatic about the importan ce ofpromptness, and makes the point in two
separate provisions. Art. 8(13) of thePalermo Convention provides that, if thecentral authority itself responds to therequest, it should ensure its speedy andprompt execution. If the central authoritytransmits the request on to, for example,
the com petent court, the central
authority is required to encourage thesp ee d y a nd p ro p er e xe cu tio n of therequest. Art. 18(24) provides that therequest is to be executed “as soon as
possible” and that the requested State is
to take “as full account as possible of any
deadlines suggested by the requesting
State Party and for which reasons are
given”.
G oo d p racti ce i n ex ecutio n. O therelements of “good practice” in mutual
legal assistance also worked their way
into the Palermo Convention, making thelife of the practitioner easier than under,f o r e x a m p l e , th e 1 9 8 8 C o n ve nt io n.
According to art. 18(24) of the Palermo
Convention,37•

the requested State should not only
execu te the requ est as s oon as
possible but also “take as full accountas possible of any deadlines suggestedby the requesting State Party”;

37 Cf.

Art.

4

Convention.

of

the

2000

European

Union

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
the requested State should respond toreasonable requests by the requesting
State for information on progress of
its handling of the request; andthe requesting State should promptly
inform the requested State when theassistance sought is no longer
required.

problem, art. 18(20) goes on to providethat the State receiving the information
is not prevented from disclosing it in its
proceedings i f th is informati on i s
exculpatory to an accused person. (Theprovision also deals with the necessity to
inform and, if requested, consult with theother State prior to such disclosure.)

Art. 18(25) of the Palermo Convention
states that mutual legal assistance may
be postponed by the requested State
Party on the ground that it interfereswith an ongoing investigation,prosecution or judicial proceeding. Art.
7(17) of the 1988 Convention is in thisrespect similar.

Art. 18(19) of the Palermo Convention
embodies the rule of speciality: the State
receiving information may not transmit
or use it for investigations, prosecutions
or judicial proceedings other than thosestated in the request without the priorconsent of the requested State Party.
Again, however, exculpatory information
may be disclosed.

••

Art. 18(26) of the Palermo Convention
states that, before refusing a request formutual legal assistance, or postponing its
execution, the requested State should
consult with the requesting State toconsider whether assistance ma y b e
g r a n te d s u b je c t t o su c h te r m s a n dconditions as it deems necessary. The
1988 Convention (art. 7(18) called for
consultations only in the case of
postponements, not refusals. The modelfor the wider formulation used in thePalermo Convention was taken from art.
4(4) of the 1990 UN Model Treaty.
Confidentiality of information and therule of speciality. Once the information
has been sent by the requested State to
the requesting State, how can it be used?
The requested State may ask that any
information provided be kept confidential
except to the extent necessary to executethe request (art. 18(5) and 18(20) of theP alerm o C onve ntion) . Ho w ever, thesituation may arise that the information
received in respect of o ne offence orsuspect at the same time exculpates
another suspect in a completely separate
procedure. To address this potential

Costs. According to article 18(28) of thePalermo Convention, the ordinary costs ofexecuting a request shall be borne by therequested State Party, unless otherwise
agreed by the States Parties concerned. If
expenses of a substantial or
ext ra o rdi n a ry n a t u re a re o r w i l l b e
required to fulfil the request, the States
Parties shall consult to determine theterms and conditions under which therequest will be executed, as well as themanner in which the costs shall be borne.
This latter provision has been modelled
o n, f o r e x a m p le , a r t. V I I I ( 3 ) o f th e
Canadian-US treaty and para. 12(3) ofthe Commonwealth Scheme.38
IV. SUMMARY: THE GENERALEVOLUTION OF EXTRADITION
AND MUTUAL LEGAL ASSISTANCE
IN CRIMINAL MATTERS
With the increase in international
travel, the improvement in technology
38 In 1999, the Law Ministers of the Commonwealthadopted guidelines on the apportionment of costs
incur red in pr oviding mutual assistance incriminal matters.

389

RESOURCE MATERIAL SERIES No. 59
and communications, the greaterl i kelihoo d t ha t a crime can ha ve a n
impact beyond national borders, and theincreased profits that can be made fromo rganize d crim e, the ne ed to ob tain
assistance from other states in bringing
offenders to justice has expanded rapidly.
T he b a s ic t o o ls t h a t c a n b e u se d —extradition and mutual legal assistancein criminal matters—have regrettably
not evolved to keep pace with
developments in crime.

••
M uc h o f the e ve r yd a y p r a ct ice o f
e xt r a d i t i o n a n d m u t u a l a s s is ta n c econtinues to be reliant on bilateral andmultilateral treaties that have beendrafted many years ago. Moreover, many
States which are parties to such treaties
still do not have the necessary legislation
or resources to respond to requests for
extradition or mutual assistance.
•

Requests are often transmitted
through diplomatic channels or from
Government to Government, and theresulting delays may cause a carefully
assembled case to collapse in thehands of the prosecutor.
The traditional extradition regimeTherequesting
State
may
misunderstandthef ormalrequirements in the requested Stateas to the presentation and contents of
the request. For example, therequesting State may not realize that,
under some treaties, it must present
docu men tation that the double
criminality requirement is met, thatthe offence is extraditable, and that
execution is consistent with the law of
the requested party.
The requested State, in turn, may notalways demonstrate flexibility indemanding more details about theoffence and the offender. Often, very
specific information may be difficult
to provide if the investigation is still
underway.

Nonetheless, as shown in this paper,
some developments have taken place inb o t h e x tr a d i ti o n a n d m u t u a l l e g a l
assistance, in particular over the past ten
years.
Some of the main trends in theevolution of extradition are summarized
in the following table.
The “new, improved” extradition
regimebilateral

multilaterallimited scope of offences; lists of offences

broad scope of offences; no offence lists

need to present prima facie evidence

an arrest warrant suffices

extradition of nationals not possible

nationals can be extradited, althoughconditions may be imposed

broad grounds for refusal

few grounds for refusal

no reference to the expected treatment
or punishment of the suspecthuman rights standards appliedslow

trend towards mutual recognition andthe “backing of warrants”

bureaucratic“good practice” standards followed; e.g.
the possibility of consultation before
possible refusal

390

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS•

bilateraltreatiesare
being
increasingly replaced by multilateraltreaties. Although bilateral treaties
have been preferred for example byth e common law cou ntries, th e
sim u lta n eo u s e x iste nc e o f m a ny
inte rnational
instrumentscomplicates the work of thep r a ct itio n e r. Fo r thi s a n d o t he r
reasons, also the common law
countries are seeing the advantages ofmultilateral treaties w ith a wide
scope of application•

the earliest treaties were based onlists of offences. If an offence was notincluded in the list, extradition could
not be granted. More recent treaties
are generic, in that they apply to abroad scope of offences.

•because courts have traditionallybeen cautious in applying coercive
measures, the courts in particular incommon law countries have required
prima facie evidence that the suspect
had indeed committed the offence inquestion. Because of the differences in
the law of evidence and in criminal
procedure in different countries, suchprima facie evidence w as often
d iff ic ult to pr ovid e. M or e rec ent
instruments have generally regarded
it as sufficient that the requesting
State (at least if it belongs to a selectgroup of states) produce a valid arrest
warrant•

one of the most cherished principles
in extrad ition law has bee n that
States will not extradite their own
nationals and will, at most, undertaketo bring them to trial in their own
courts. Today, more and more States
are allowing extradition of their own
nationals, although some conditions
m a y b e p la c e d, s uc h a s t h a t t h enation al, if co nvicte d, sho uld be

returned to his or her own country toserve the sentence•

there is currently a clear trend
tow a rd s e lim ina tion of the ma ny
grounds for refusal to extradite, suchas the political offence exception•

there is a trend towards granting
greater righ ts to the per son inquestion as an object (as opposed tosubject) of the process, and to greater
consideration of how he or she would
be treated or p unished in therequesting State. Consideration canbe given, for example, to thepo ssibility of p er se cution on the
grounds of sex, race, religion,
nationality, ethnic origin or politicalopinions, the possibility of unfair
trial, and the possibility ofpunishment which, in the requested
State, is deemed inhumane•another trend is toward less rigid
procedural requirements, including
direct communications and simplified
procedure

There has also been a clear dynamic in
the development of mutual assistance.
New international instruments open up
the p ossibility o f m utual assistance
between an expanding number ofcountries, the scope of offences has beenenlarged, conditions a nd grounds ofrefusal have been tightened or entirely
eliminated, and the process has been
expedited. Some of the main trends are
summarized in the following table.

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RESOURCE MATERIAL SERIES No. 59
The traditional mutual assistance
regimeThe “new, improved” mutual
assistance regime

bilateral

multilaterallimited scope of offences

broad scope of offences

assistance limited to the service ofsummons

many possible forms of assistanceuse of central authority

possibility of direct contacts between
lower level authorities requesting andgranting assistancebroad grounds for refusal

few grounds for refusal

requested State applies solely its own
laws in granting assistanceprocedures requested by the requesting
State can be applied if these are notcontrary to the laws of the requested
Statebureaucratic“good practice” standards followed; e.g.
the possibility of consultation before
possible refusal•

as with extradition treaties, bilateralmutual legal assistance treaties arebeing increasingly replaced bymultilateral treaties•

the earliest mutual legal assistancetreaties covered only a limited scopeof offences. More recent treaties covera broad scope of offences.

•the measures offered under mutual
legal assistance treaties (anddomestic laws in many States) has
expanded. At first, the focus was onservice of summons. Today, a wide
range of measures are offered.

•

traditional mutual legal assistancetreaties required that requests besent through diplomatic channels or
through a central authority. Morerecent treaties allow the use of directcontacts•

more recent treaties have restricted
or even eliminated the many grounds
for refusal to provide assistance392•

requested State applies solely its own
laws in granting assistance;
procedures requested by therequesting State can be applied if
these are not contrary to the laws of
the requested State

•as with extradition treaties, another
trend in mutual le ga l assistancetreaties is toward less rigid
procedural requirements, including
towards the use of directc o m m u n ic a t i o n s a n d s i m p l if i e dprocedure.

The Palermo Convention, which was
ne got i a t e d b et w e e n 1 9 9 8 a n d 2 0 00 ,reflects in many ways the “state of theart” of extrad ition a nd mutual legal
assistance. In particular, it includes
man y provi sion s t hat are n ew f orpractitioners in many countries, and may
well improve the day-to-day practice ofinternational cooperation.
Negoti ati on of the Pa lermo
Convention, however, is only the first

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
stage. The Convention must be ratified
and the investigators, the prosecutors
and the judges must be given the tools
they need to complete the job.

393

INTERNATIONAL COOPERATION AGAINSTTRANSNATIONAL ORGANIZED CRIME: THE PRACTICAL
EXPERIENCE OF THE EUROPEAN UNION
Matti Joutsen*
I. DEVELOPING
COUNTERMEASURES AGAINSTTRANSNATIONAL ORGANIZEDCRIME: HOW FAR CAN WE GO?
As long as crime and organized crime
remained domestic issues, the history ofi nte r na tio n a l la w e nf o r ce m e n t an d
j ud icia l co o p er a tio n p ro ce e d ed a t aleisurely pace. Many years passed fromw hen private policem en a nd priva tesecurity companies were first used tocollect evidence and apprehend offenders
abroad, to when the first formal
a rra ngemen ts w ere made for law
enforcement cooperation. Initiatives forformal judicial co-operation arrangements
emerged even more slow ly. The firstmodern mu ltila teral trea ties oncooperation in criminal matters did notappear until less than fifty years ago.
It is thus all the more remarkable howmuch progress has been made world-wide
during the last few years.
It is true that we had a right to expect
a qualitative change in our response tocrime and international crime. After all,
we are facing considerable increases incrime as a result of many factors. These
factors include developm ents intechnology, transportation andtelecommunications, the social changes
related to m assive im poverishme nt,
natural disasters and internal conflict,the establishme nt of re gio nal trad e* Director, International Affairs
Ministry of Justice, Finland394

gro up ings re m ov ing ba r rie rs to the
movement of people, goods, services andc a p it a l, a n d f u n d a m e n t a l p o li t ic a lchanges in many parts of the world.
Nonetheless, it would have required avisionary to have said, only five years
ago, that in the year 2001:
•

•
•

•

over 120 countries would have signed
a w ide-ranging globa l conventiona ga i nst t ra n s na t i ona l or ga nize dcrime;
work is underway on a global
convention against corruption;a controversial campaign against offshore and on-shore financial centres
en ga ge d in m on e y la und e rin g isleading to significant results; andregional cooperation is evolving
rapidly in pl aces as diver se as
Southern Africa, the Andes countries,
the countries around the Baltic Sea,and Southeast Asia.

How far and how fast can thisintensification of global cooperation go?
One way to try to answer this question
would be to look at existing cooperation
on a smaller scale, and see if it could be
expanded w orld-wide. The Europea nUnion countries provide one useful pointo f re f e r e nc e . I f c o o p e r a t i o n c a n b edeveloped among these fifteen countries,
with their quite different legal systems
and different criminal justice structures,
it can be at least visualised elsewhere.
This paper looks at police cooperation,p r o s e c u to ri a l c o o p e r a t io n, ju d i c ia l

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
co op era tion, and co op era tion in theformulation of domestic law and policy. In
each case, the present status quo in mostparts of the world will be set out, andthen the practical reality in the European
Union will be described.
A f e w w o rd s a b o u t t he E u r o p e a n
Union. It consists of fifteen Member
States, comprising almost all of Western
Europe. (In addition, ten Central andEastern European countries, and Malta
and Cyprus are negotiating on
membership.) One important area ofcooperation is know n as “justice andhome affairs”, which to a large extent
deals with the control of organized crime.
Decisions in this sector are made by theEuropean Union Council, which consistsof the respective Ministers from each
Member State.1 The Council can adopt socalled framework decisions (formerly
k n o w n a s “ jo i n t a c ti o n s” ) , c o m m o npositions, resolutions, recommendations
and conventions. “Framework decisions”
a re binding in re sp ect of their goal,
although each Member State has someflexibility on how to amend its legislationin order to ensure that this goal is met.
“Joint positions” are used, for example, in
negotiations with third States and intergovernmental organizations; Member
States are required to adhere to any joint
p osition agr ee d to . Re solutions an dr e c o m m e n d a t io n s a re n o n - b in d i ng ,although they do express a political goal.
C onventions are bind ing on thesig natories, an d th ere is political
1

To avoid some confusion: the European Union and
the Council of Europe are different organizations.
The former consists of fifteen Member States, andas noted covers most of Western Europe. Its top
decision-making body is called the European
Council of Ministers, or the European Council for
short. The Council of Europe, in turn, today haspressure on all Member States to signthem.
A second major decision-making bodyin the European Union is theCommission, which has responsibilities
in particular for deciding on the economic
integration of the European Union. It
does not have any powers to decide on“justice and home affairs”, although it
does have the right of initiative. A third
power is the directly elected European
Parlia ment, which ha s a right to b e
consulted , a lso on justice a nd hom eaffairs.
II. POLICE COOPERATION
The global status quo:
The general rule around the world isthat law enforcement personnel do nothave powers outside of their jurisdiction.
N o tice s a re co m m u ni ca t e d t hr ou gh
Interpol. A few countries have posted
liaison officers abroad, and informal
contacts are used on an ad hoc basis.
Otherwise, officially, information may not
and is not exchanged except throughformal bilateral channels, and even then
only in a few cases. Coordination of crossbor der investigation s is rare, andrequires considerable preparation
through formal channels.
The European Union reality:• an international organization, Europol,
co-ordinates cross-border investigations,and seeks to provide support to domestic
law enforcement services in specialist
fields.
• a network of liaison officers has beendeveloped.
• Europol produces annual situation
reports on organized crime, bringing
together data from all Member
States.

43 Member States, and c overs almost all ofEurope, East and West, North and South.

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RESOURCE MATERIAL SERIES No. 59
Within the framework of the Schengenconventions, which apply to almost all
EU Member States,
•

•
•
•

the Schengen information systema ll ow s na t io na l l aw e nforce ment
agencies to share data on many key
issues almost instantaneously with
their colleagues in other countries.
The system extends to some 50,000
terminals in the member states.
law enforcement authorities are allowed
hot pursuit across borders.
law enforcement authorities are allowed
to engage in surveillance in the territoryof other countries.
law enforcement authorities are allowed
to engage in controlled delivery.

A. Europol
Europol was established in October
1 99 8 , when the E urop ol Convention
entered into force among the fifteen
E u ro p ea n U n ion c ou ntr ies . It is aninternational organization that has its
h e a d q u a r t e r s in t h e H a g ue , in t h e
N etherlands. I t is not a t present an
operational entity. It is not, for example,
a “European Bureau of Investigations”,
w ith age n ts m a nd a te d to ca r r y o ut
investigations or to arrest suspects in the
different European Union countries.
The objective of Europol is essentially“to im prove ... the effectiveness andcooperation of the competent authorities
in the Member States in preventing andcom bating terrorism, unlaw ful d rug
trafficking and other serious forms ofinternationa l crim e where there arefactual indications than an organizedcriminal structure is involved and two or
more Member States are affected by theforms of crime in question in such a way
as to require a common approach by theM e m b e r S t a t e s o w in g t o t he sc a l e ,significance and consequences of theoffences concerned.”

396

Europol is charged, more specifically,wi th a ct in g to p r e v e n t a nd co m b a t
unlawful drug trafficking, trafficking in
nucle ar and rad ioa ctive sub stances,illegal immigrant smuggling, trade in
human beings and motor vehicle crime.
A f t e r E u r o p o l’ s e s t a b l i s h m e n t , i t s
mandate has been successively expanded,
to include for example crimes committed
or likely to be committed in the course of
terrorist activities, and money
laundering. Proposals are now being
considered to extend the mandate evenfurther, for example to the forgery ofmoney and means of payment.
The principal tasks of Europol consistof:
1. facilitating the exchange of information between the Member States,
2. obtaining, collating and analysing
information and intelligence (including the preparation of annual reports
on organized crime),
3. notifying the competent authorities ofthe Member States of information
concerning them and of any
connection s identified between
criminal offences,
4. aiding investigations in the Member
States by forwarding all relevant
information to the national units, and5. obtaining a computerized system ofcollected information.
Europol is also charged with
developing specialist knowledge of theinvestigative procedures of the competentauthorities in the Member States andproviding advice on investigations, andwith providing strategic intelligence toassist with and promote the efficient andeffective use of the resources available atthe national level for operational
activities. For this purpose, Europol can
assist Member States through advice andresearch in training, the organization and119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSe quipme nt o f the a utho ritie s, crim e
prevention methods, and technical andf o r e n si c p o l i ce m e t h o d s a n d p o li c e
procedures.
Wo rk in progress. W ha t ab out the
future of Europol? In October 1999, soonafter the Europol Convention entered into
force, a special European Union Summit
was held in Tampere, Finland, to discuss,among other issues, further improvementof co operatio n in responding totransnational organized crime. In respectof Europol, the Tampere meetingconcluded, inter alia, that:••joint investigative teams should be
set up, as a first step , to comb at
tr a f f ic ki ng in d r ug s a n d h um a nbeings as well as terrorism.
Representatives of Europol should beallowed to participate, as appropriate,in such teams in a support capacity.
Europol’s role should be strengthenedby allowing it to receive operational
data from Member States andauthorising it to ask Member Statesto initiate, conduct or coordinate
in ve sti gatio n s o r to cr ea te j o int
investigative teams in certain areas ofcrime, while respecting systems of
judicial control in Member States.

I n Ma rch 2 00 0, a new a ction pla nagainst organized crime was adopted.2 It
contains a number of points regarding
Europol:•2

Europol could carry out studies ofpractice at national and Union leveland of their effectiveness, develop
c om m o n str a te gie s, p o licie s an dtactics, organize meetings, develop
and implement common action plans,
The Prevention and Control of Organized Crime:
A European Union Strategy for the beginning of
the new Millennium. See section V.C., below.

••

carry out strategic analyses, facilitate
the excha nge of inform ation a ndin t e ll i ge nc e , p r o v i d e a n a ly t ic a l
support for multilatera l nationa linvestigations, provide technical,t a cti ca l a nd l e ga l s u p po r t , o f f er
technical facilities, develop common
manuals, facilitate training, evaluate
results, and advise the competentauthorities of the Member States.
consideration should be given to thefeasibility of setting up a database ofpending investigations, making it
possible to avoid any overlap between
investigations and to involve several
European competent authorities inthe same investigation.
Europol should help in establishing a
research and documentation networkon cross-bord er crime, and inorganizing the collection, storage,
processing, analysis and exchange ofre l e va nt in f o r m at io n , in cl ud i ng
information held by law enforcement
services on reports on suspicious
financialtransactions.
Theestablishment of compatible criminal
intelligence systems among Member
States should be a long-term goal.

Europol is now up and running. Thereis a clea r ne ed fo r it in E uro pe . I ts
potential for developing strong
cooperation between the law enforcement
agencies of the fifteen different Member
States of the Europ ean U nion isimmense, and the pressures on it tosucceed are great. The experience of theEuropean Union shows that practical law
enforcement cooperation is possible also
within a formal structure.
B. Schengen
Due in part to the slowness with which
police cooperation was being developed
and to political differences of opinions
over the extent of this cooperation, some
European Union countries (originally,

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RESOURCE MATERIAL SERIES No. 59
Belgium, France, Germany, Luxembourg
and the Netherlands) decided on a “fasttrack” alternative. The result was the
Schengen Agreement of 1985 and the
Schengen Convention of 1990, which has
sought to eliminate internal frontier
controls, provide for more intensive police
cooperation, and establish a shared datasystem.
The “Schengen group” currently
consists of Austria, Belgium, Denmark,Finland, France, Germany, Greece, Italy,
Luxembourg, the Netherlands, Portugal,
S pa i n a nd S w ede n, a s we ll a s , fro moutside the EU, Iceland and Norway. 3
The United Kingdom and Ireland have
not joined, since they wish to retain
separate passport controls.
Police coo peration within theframework of Schengen includes crossborder supervision, “hot pursuit” acrossborders into the territory of a notherMember State; and controlled delivery(i.e. allowing a consignment of illegal
drugs to continue its journey in order tod isco ve r th e m odu s op era nd i of th e
offenders, or to identify the ultimate
recipients and their agents, in particular
the m ain of fende rs) . These f orms o f
cooperation have been hard-won: they did
n o t s e e th e li gh t o f d a y un ti l af te r
protracted negotiations betw een the
Governments concerned, and even thenthey have been hedged by a number ofrestrictions.
The need for Schengen arose with oneof the primary go als of econom ic
integration, the elimination of border3

The principal reason for the inclusion of Norway
and Iceland is that these two countries are part ofthe passport-free zone formed among the Nordic
countries. The other three Nordic countries,
Denmark, Finland and Sweden, are members of
the Schengen group.

398

controls on the transit of persons, goods,
ca p ital and se rv ice s. A ltho ugh th iselimination of border control undoubtedly
promotes trade and commerce, at thesame time it makes more difficult thetask of controlling the entry and exit byoffenders. In return for ending checks oninternal borders, the Schengen countries
a gr ee d o n the e sta b lis hm e nt o f the
Schengen Information System (SIS). Thisconsists of a central computer (inStrasbourg, France) linked to a national
computer in each country, and to a totalof some 50,000 terminals. When fully
operational, data entered into any one
computer (for example data on wanted
persons, undesirable aliens, persons to be
expelled or extradited, persons undersurveillance, and some stolen goods)
would immediately be copied to the othernat ional in formati on sys tems. A nelectronic mail system (SIRENE;
Supplementary Information Request at
th e N a t io na l E n tr y ) a ll o w s f o r th etransfer of additional information, suchas extradition requests and fingerprints.
Yet another data-connected acronym is
VISION, which refers to the “VisaI n q u i r y S y s te m in a n O p e n - b o r d e r
Network”.
The strength of the Schenge narrangements lies in the fact that they
allow for highly practical law
enforcement cooperation, at a level that is
unique in the world. At the same time,
the arrangements have been subjected to
criticism. Although the arrangements
have been made specifically to respond tothe opening of the borders between theco un trie s in q ue stio n, t he q u es tio nremains whether these arrangements are
s ti ll i n s u f f i c i e n t to r e s p o n d t o th eincreased mobility of offenders. Secondly,
the arrangem ents do not include a ll
European Union countries, while on theother hand they do include two non-EU
countries. This inevitably leads to some

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
practical difficulties. Third, since there isno supervisory court structure or any
effective parliamentary review ofSchengen decisions, it has been suggested
that human rights concerns will receive
less attention that the law enforcementp r ior itie s. ( O n t he o th e r ha n d, a ny
a ctions ta ken would necessa rily fallunder the jurisdiction of at least one ofth e S ch en gen c ou ntrie s, a nd so th ele gality of the ac tion co uld the n be
scrutinized under the appropriate
national law.)
C. Information Gathering andAnalysis
Law enforcement authorities worldwide would be among the first to agree
that a more proactive, intelligence-led
approach is needed to detect andinterrupt organized criminal activities,
apprehend the offenders, demolish thecriminal netwo rks, and seiz e andconfiscate the proceeds of crime.
Information is needed on the profile,m o tive s a n d m od us op er a ndi o f th e
offenders, the scope of and trends inorganized crime, the impact of organizedcrime on society, and the effectiveness of
the response to organized crime. This
information includes operational data
(data related to individual suspected andd e t ec te d c a s es ) a n d e m p iri ca l d a ta
(qualitativeandquantitative
criminological data).
Regrettably, on the global level thear ran gemen ts for th e exch ange of
operational and empirical data continue
to be ad hoc, between individual law
enforcement agencies or even individuals.
Such ad hoc arrangements also raise
concerns over whether or not domestic
legislation on data protection is being
followed. Implementation of the United
Natio ns
Convention
againstT ransnational O rganize d C rim e (inparticular articles 27 and 28) should

provide a firme r f ounda tion for thisexchange of data, but the Convention has
not yet entered into force.
Within the Europ ean Union
framework, on the other hand, several
arrangements are already in place forgathering and analysing data:••

4

a joint action adopted in 1996 deals
with the role of liaison officers. Theirfunction is specifically to focus on
information gathering. They are to“facilitate and expedite the collectionand exchange of information though
direct contacts with law enforcement
agencies and other comp etentauthorities in the host State”, and“co ntrib ute to the colle ctio n andexchange of information, particularlyof a strategic nature, which may be
used for the improved adjustment of
measures” to combat international
crime, including organized crime. So
far, over 300 liaison officers have beenposted by EU countries, and theywork in close cooperation with one
another.
Europol already produces annual
reports on organized crime based onda ta provided by M emb er States.
These annual reports are being usedin an attempt to define strategies.
Over the years, the quality and utilityof these annual reports have
improved, even though continued
work is needed to improve thevalidity, reliability and international
co m p a ra b il ity o f th e d a ta . 4 O n e
pa rti cu la r f ea t ure of t he a nn ua lreports is that they contain

The work on the annual situation reports is
pr i ma ri l y don e by a “Co nta ct and Suppo r t
Network” consisting of representatives of the law
enforcement authorities of the different Member
States.

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RESOURCE MATERIAL SERIES No. 59

•

•

•

recommendations based on an
analysis of the data.
various decisions have been taken ont h e e x c h a n ge o f i n f o r m a ti o n o nspecific subjects. For example, a Joint
A ct io n a d o p t e d o n 2 0 M a y 1 9 9 7
requires the exchange of information
between law enforcement agencies
when potentially dangerous groups
are travelling from one Member State
to another in order to participate in
events.
the European Union has created anumber of financial programmes toencourage the closer involvement of
the academic and scientific world in
the analysis of organized crime.
a European police research network is
being established to act as ani n f o r m a t io n s o u r c e o n r e s e a r c h
results,otherdocum ented
exp eriences a nd good practice incrime control.
III. PROSECUTORIAL
COOPERATION

The global status quo:International contacts between
prosecutorial authorities are based on
bilateral and the few multilateral treaties
on mutual legal assistance. Informal
contacts are facilitated by theInternational Association of Prosecutors
and other, similar non-governmentalorganizations.
The European Union reality:• a special structure, the European
Judicial Network, has been set up to
p rom ote direct co ntacts b e tw e enprosecutors. The system involves
c o m p ute r iz e d link s b e t w e e n th e
M em b er S tates, and in tim e w ill
prob ably even a llow aut omatictr an slat io n an d tra nsm issi on o frequests.

•••

several European Union Member
States have posted liaison
magistrates abroad, with a specificmandate to facilitate responses torequests for extradition and mutual
legal assistance, and a more generalmandate to promote international
cooperation.
prosecutorial
andjudicial
cooperation is promoted also by directcontacts through the Schengenstructures.
aninternationalorganization,
Eurojust, is being set up to assist in
the coordination of the prosecution ofcross-border cases.

A. The European Judicial Networkand the Strengthening ofInformal Contacts
Am ong the grea test difficulties inextradition and mutual legal assistanceare the lack of information on how arequest should be formulated so that it
ca n rea dily be dealt w ith in anothercountry, and the lack of information onwhat p ro gre ss is be ing m a d e in therequested State in responding to therequest.
In those (rare) cases where thepractitioner personally knows his or her
counterpart in the other country,
inf orm a l c hanne ls ca n b e used. The
European Union has decided to create am o r e so li d b a s e f o r th e s e i n f o r m a lcontacts by establishing a “European
Judicial Network” (EJN).5 This networkco nsists primarily of the central
authorities responsible for international
judicial cooperation in criminal matters,
and of the judicial or other competentauthorities with specific responsibilities
with in the co n te xt of int er nati on a l
co operatio n. The EJN focuses o n
5

Joint Action of 29 June 1998. A similar structure
has been set up for cooperation in civil matters.

400

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
p rom oting coop era tio n in resp ect o fserious crime such as organized crime,
corruption, drug trafficking andterrorism.
The EJN is promoting cooperation in a
number of different ways. First of all, it
organizes regular meetings (at least threetimes a year) of representatives of thecontact points. These meetings havedealt, for example, with case studies,ge nera l p olicy issues, and p ractic alproblems. Organizing the meetings in the
different EU Member States provides anadditional benefit: the host country canpresent its syste m for international
cooperation, and the participants can get
to know one another. Both factors areimportant in instilling confidence in one
another’s criminal justice system.
Second, the EJN is preparing various
tools for practitioners. One very useful
tool is a CD-rom that provides
practitioners with information on whattypes of assistance can be requested inthediff erent
MemberStates( se q u es tra t ion of a sse ts , e le ctr on ic
surveillance and so on) for what types ofoffences, how to request it, and whom tocontact. The CD-rom also contains the
texts of relative international
instruments and national legislation. A
second tool is a computerized “atlas” of
the authorities in the different Member
States, which shows who is competent to
do what in the different Member States inrelation to international cooperation.
Soon, the contact points in all fifteen
Member States will be connected with
one another by a secure computer linkthat can be used not only to follow up on
requests, but even to send the requests
themselves.

d e v e l o p i n g a s y st e m f o r a ut o m a t ic
translation of these requests, at first atleast into the major European languages.
B. Liaison Magistrates
The concept of the liaison magistrate isbased on the positive experiences withthe growing network of liaison officers
used to promote cooperation between law
enforcement agencies. In law
enforcement, the lia ison officer uses
direct contacts to facilitate and expedite
the international collection and exchange
of information, in particular informationof a strategic nature.6
The liaison magistrate is• an official with special expertise in
judicial cooperation,• who has been posted in another State,• on the basis of bilateral or
multilateral arrangements,• in order to increase the speed andeffectiveness of judicial cooperationand facilitate better m utual
understanding between the legal andjud icial syste ms of the State s inquestion.7
The liaison magistrate does not haveany extraterritorial powers, and also
otherwise must fully resp ect thesovereignty and territorial integrity of
the host State.8

6

The recent Treaty of Amsterdam of the European
Union (article 30(2)(d)) called on the European
Co u nc i l t o “pr o mo te l i ai so n a rr a n gem e nts
betw een prose cuti ng/inve stigating officials
specialising in the fight against organized crimein close cooperation with Europol”. In order tocreate a basis for the development of this work, on
22 April 1996, the European Council adopted a

A third tool is a uniform model forrequests for mutual legal assistance.
Consideration is currently being given to

Joint Action on a framework for the exchange ofliaison magistrates t o improve judicial
cooperation.

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RESOURCE MATERIAL SERIES No. 59
Liaison magistrates are—so far—usedalmost solely by the European Union
countries. In general, liaison magistrates
are sent to countries with which there is a“high traffic” in req uests for mutual
assistance, and where differences in legal
systems have caused delays. France hasb een the mo st a ctive in sending o ut
liaison magistrates, and has sent themnot only to Germany, Italy, theN e ther la nd s, Sp ain and the U nite dKingdom, but also outside the European
Union, to the Czech Republic and theUnited States. France is also considering
sending a joint liaison magistrate to theBaltic countries (Estonia, Latvia and
Lithuania).
Several other E uropean Union
countries have sent one or two liaison
m agistrates: the United K ingdom toFrance and Italy; Italy to France (and isconsidering sending one to Spain and theUnited Kingdom); the Netherlands also to
France (and is considering sending one to7

A related concept is that of the legal attache, who
is posted in the mission of the sending State tolook after legal issues in general that concern thehost State and the sending State. Reference canal so b e ma de to te mp ora ry excha nge s ofpe r so nn el , w h ic h ar e de si gne d to i nc r e as e
familiarity with one another’s legal system andthe United States); Finland to Estonia(and is considering sending one to theRussian Federation); Germany to France;
and Spain to Portugal.9
L ia is o n m a g is tr a te s w o r k o n th e
general level (by promoting the exchange
of information and statistics and seeking
to identify problems and possible
solutions) and on the individual level (bygivin g lega l a nd p ra ctica l a dvice toauthorities of their own State and of thehost State on how requests for mutual
assistance should best be formulated inorder to e nsure a timely and properre sp o n se , a nd by tr yin g to id e nt if yc o nt a c t p e r s o ns w h o m i gh t he l p i n
expediting matters). The exact profile of
the work of the liaison magistrate varies,
depending on such factors as the types ofcases, and the extent to which there are
dire ct contacts b etw een the judicia lauthorities of the two States.
The advantages, from the point of viewof the sending State and the host State,
are numerous. Language problems are
reduced, requests for judicial co-operation
can be discussed already before they aresent in order to identify possible
pr oblems, an d there is a basis forpromoting trust and confidence in one
another’s legal system.

foster direct, informal contacts. Neither legal
attaches or personnel on temporary exchange,
however, have the same expertise and job profileas the liaison magistrate.
8See, for example, P.B. Heymann, Two Models of
National Attitudes Towards International Coop era tio n i n L aw En fo rce m en t, H arva rd
International Law Journal, vol. 31, p. 99, andAlastair Browne, Towards a Prosecutorial Modelfor Mutual Assistance in Criminal Matters?, inPeter J. Cullen and William C. Gillmore (eds.),
Cr i m e s a ns F r o nti e r e s : In te r n a ti on a l a nd

C. Eurojust: A Formal Structure for
Prosecutorial Coordination
Even the direct contacts and expertiseprovided by the EJN and the liaison
magistrates cannot always provide thetype of coordination needed ininvestigating transnational organizedc r im e . O v e r r e c e n t y e a r s , th e id e agradually evolved of setting up a separate
entity, somewhat comparable to Europol
in the law enforcement field, toEuropean Legal Approaches, Hume Papers on
Public Policy, vol. 6, nos. 1 and 2, Edinburgh
University Press, Edinburgh 1998.

402

9

From outside the European Union, Estonia hassent a liaison magistrate to Finland.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
coordinate national prosecuting
authorities and support investigations ofserious organized crime extending into
two or more Member States.10
The idea for the establishment of suchan entity received a considerable push at
the special European Union Summit heldin Tampere, Finland in October 1999. At
the Summit, everyone was agreed on theneed for such a new entity. However,there appeared to be different opinions
regarding what the precise mandate ofEurojust should be, and how it should go
about doing its work.
The Tampere meeting decided thatthese questions should be solved by theend of 2001—a rather tight schedule, but
o n e wh ic h r e m a in s f e as ibl e . I n th e
meantime, a temporary unit, called “ProE urojust” (short for “Pro visional
Eurojust”) started work in Brussels in
March 2001.
The way in which the work of Pro
E u ro ju st is ev o lving p r o vid e s so m eindicators of how Eurojust itself will work
once it begins operations. Each Member
State has sent a senior prosecutor or
magistrate to Brussels on permanent
assignment. These representatives meet
every week to discuss both individual
cases and general policy for coordinating
investigations. Plenary meetings tend to
be devoted to policy issues, while mostc a s e s w ill b e d e alt wi th i n s m al le r
meetings, among representatives of only
the individual countries involved.
Pro Eurojust itself does not have any
operational powers. Instead, the national
representatives, having agreed on whatneeds to be done, contact the competentauthorities in their own Member State forthe re quired action. In add ition,individual members of Pro Eurojust may
have operational powers according totheir national legislation. One of the
topics now being debated is what type ofoperational powers Eurojust itself will
have. For example, it may be able to ask a
M e m b e r S t a t e t o i n i t ia t e c r i m i n a lproceedings or to provide Eurojust withdata regarding the case.11
IV. JUDICIAL COOPERATION
The global status quo:
Mutual legal assistance andextradition are based on an incomplete
patchwork of bilateral treaties and, inrare cases, multilateral treaties. These
treaties tend to cover only some offences,and offer only limited measures. Requests
must be sent through a central authority.
The proce dure tends to b e slow a nd
uncertain, w ith requests often being
frustrated by bureaucratic inertia, broad
grounds for refusal, and differences incriminal and procedural law.
The European Union reality:• all European Union Member States
are parties to b roa d multilate ra ltreaties on mutual legal assistanceand extradition.
• the European Union has decided onstandards of good practice in mutual
le g a l a s s i s t a n c e , a n d r e g u l a r ly
reviews compliance with thesestandards.
• separate European Union treaties onm u t u a l l e g a l a ss i s ta n c e a n d o n
11 In order for Eurojust to have the power to ask for

data, considerable attention will have to be pay todata protection, for example, on how data are to
be transmitted, on who has access to the data, on

10 See Hans G. Nilsson, Eurojust—the Beginning orc onfiden tia lity, a nd on the ma intenanc e o f

the End of the European Public Prosecutor? inpersonal records. In this respect, the laws of theEuroparattslig Tidskrift, vol. 4, 2000

different Member States remain quite different.

403

RESOURCE MATERIAL SERIES No. 59••

e xtradition ha ve bee n drafted to
update and supplement the existing
multilateral treaties prepared withinth e f ra m e w or k o f th e C o un cil o f
Europe.
the European Union is now moving
towards a system of mutual
recognition of decisions andjudgments in criminal matters. When
this system is in place, cooperation
will be speeded up considerably: adecision or judgment in any Member
State can be enforced as such in any
other Member State.
a mutual evaluation system has been
established, in which experts fromdifferent countries assess thepractical conduct of international
cooperation in the target country.

A. Mutual Legal Assistance
The Member States of the European
Union are all parties to the 1959 Councilof Europ e Convention on Mutual
Assistance in Criminal Matters.
The 1959 Convention, however, wasdrafted almost a half century ago. Sincet h e n , i d e a s r e g a r d i n g h o w m u tu a lassistance sho uld be p rovid ed havec han ged co nside rably, esp ec ially inEurope, where there has been extensive
experience in this sector. There has beena clear trend towards simplifying and
spe eding up mu tual assis tan ce byeliminating conditions and grounds forre fusa ls. Since the E uro pea n Union
Member States have a lot of cases incommon, they have come to expect certain
standards of conduct—after all, if thecentral authority of one country is itself
slow or sloppy in responding to requests,
it can scarcely expect others to be betterw he n respo nding to its re que sts f orassistance.
In 1998, the European Union decided
to a d o pt a se t o f sta nd a rd s o n go o d404

practice in mutual legal assistance. 12
Ea ch Me mber S tate w as req uire d toprepare, in one year’s time, a national
statement of good practice. These werethen circulated among all the Member
S ta te s. Th e id e a he r e w a s t ha t t he
Mem ber States publicly commit
themselves to upholding these standards,
and can be held accountable.
The sets of standards include at least
the following eight points:
a. to acknowledge all urgent requests
and written enquiries unless a
substantive reply is sent quickly;
b. when acknowledging requests andinquiries, to provide the name andcontact details of the authority (and,if possible, the person) responsible for
executing the request;
c. to give priority to requests which havebeen marked “urgent”;
d. where the assistance requested
cannot be provided in whole or inpart, to provide an explanation and,
where possible, to offer to discuss how
the difficulties might be overcome;e. where it appears that the assistancecannot fully be provided within any
deadline set, and this will impair
proceedings in the requesting State,
to advise the requesting State of this;f. to submit requests as soon as theprecise assistance that is needed has
been identified, and to explain thereasons for marking a request a s“urgent” or in setting a deadline;
g. to ensure that requests are submitted
in co m p lianc e w ith the re le van t
treaty or arrangements; andh. when submitting requests, to provide
the requested authorities with thena m e a nd c o nt a c t d e ta ils o f t he

12 Joint Action of 29 June 1998 on good practice inmutual legal assistance in criminal matters.

119TH INTERNATIONAL TRAINING COURSE
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authority (and, if possible, the person)
responsible for issuing the request.

••

Although some of these points may
seem trivial, they all have an immediate
impact on the day-to-day work of judicial
authorities involved in international
cases.

•••

The fifteen European Union countries
have prepared their own Mutual
Assistance Convention (adopted on 29
May 2000). This is not intended to be an
independent treaty, but instead
supplements the 1959 Council of Europe
convention and its protocol. It brings
the se e a rlier tre a ties up to d a te byreflecting not only the “good practices”
referred to above, but also thedevelopment of investigative techniques
and arrangements. 13 Given that thisC onventio n and the United Na tions
C o n v e n t i o n a g a i n s t T r a n sn a t io n a l
Organized Crime were negotiated at thes a m e t im e , it sh o uld no t c om e a s asurprise that they share many ideas.
For example, the new European Union
Convention includes provisions that deal
with:
•
•
•
•
•

the sending of procedural documents
directly to the recipient in anotherState (article 5);
the sending of requests by telefax ande-mail (article 6);
thespontaneous
exchangeofinformation (article 7);
restitution of property to its rightful
owner (article 8);
temporary transfer of persons held incustody for purposes of investigation(article 9);

13 In May 2001, political agreement was reached ona protocol to the 2000 Convention, which would
simplify mutual assistance even further. The
proposal is currently under consideration.

••

hearing by videoconference (article
10);
hearing of witnesses and experts bytelephone conference (article 11);the use of controlled deliveries (article
12);
the use of joint investigative teams(article 13);
the use of covert investigations(article 14);interception of telecommunications(articles 17 to 22); andthe protection of personal data
provided in response to a request(article 23).

In particular the provisions on theinterception of telecommunications arequite lengthy, and were the subject ofextensive deb ate. Different Mem ber
States have different provisions on theconditions under which the interceptionof telecommu nications is allowed.
However, given the ease w ith w hichpeople can now move from one country in
the European Union to another, andgiven also the ease with which
co m m u n ic a t io ns c a n b e tr a c e d a n dlistened to, this presumably will become
an increasingly important issue, and thetime spent on it was undoubtedly wellspent. The basic solution in this respect
was to allow interception, but to keep theauthorities in the countries in question
informed.
The Convention brings in some other
innovations. Perhaps the mostinteresting one is that it reverses one
fundamental principle in mutual legal
assistance. Today, the almost universal
rule is that the law applicable to the
execution of the request is that of therequested State. The new Convention
states that the requested State mustcom ply with the formalities andprocedures expressly indicated by therequesting Member State. The requested

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RESOURCE MATERIAL SERIES No. 59
Member State may refuse to do so only ifcompliance would be contra ry to thefundamental principles of law of therequested State.
B. Extradition
The Member States of the European
Union are all parties to the 1957 Councilof Europe Convention on Extradition.
Also here, the Member States of theEuropean U nion have sought tosupplement the Council of Europe
C o nv e nt io n b y d r a f tin g n e w t re a ty
obligations. In 1995, the European Uniona d opte d a Co nventio n o n simp lif ie dextradition within the EU. Essentially,
the Convention focuses on the many cases
where the person in question consents to
extradition. One year later, in 1996, theEuropean Union adopted a Convention on
the substantive requirements for
extradition within the European Union.14

In advance of any decision on “fasttrack extradition”, Spain and Italy havesigned a bilateral treaty on this type of
extradition, and the United Kingdom is
introducing legislation along the samelines.
The Spanish-Italian treaty applies topersons suspected of or convicted forterrorism, organized crim e, drugtrafficking, arms trafficking, trafficking
in huma n b ei ngs o r s exua l ab use ofminors, where the maximum sentence is
at least four years. A copy of the court
order is to be sent directly to the Ministryof Justice of the other country, whichtranslates it and sends it without delay
for enforcement. What is noticeable hereis that the procedure does not call for any
court hearings at all. The only grounds
for refusal are if the documentation is notin order, or the person in question has
been granted immunity for some reason.

The E ur op e an U nion is curr ently
considering various options for “fast-track
extradition”. These discussions have been
held within the context of the discussion
on mutual recognition of decisions andj u d gm e n t s in c r im in a l m a t te r s. I n
regards to extradition, the goal is to havea warrant of arrest issued by thec o m p e te n t a u th o ri tie s o f o n e S ta t e
recognized as such by the authorities ofanother EU State, establishing a basis for
extradition. A proposal on such a
procedure is expected by the end of theyear 2001.

The United Kingdom proposal is for a“backing of warrants” scheme.15 The UK
already today uses such a “backing of
w a rra nts” a p pro a ch w ith I rela nd . 1 6
Under this approach, the extradition
request is replaced by a simple arrest
warrant, which is transmitted throughthe Home Office to the local court. The
local court only has to establish (1) thatthe person arrested is the person forwhom extradition is sought; (2) that the
warrant
andaccompanying
documentation a re in o rd er; and ( 3)w he th e r a n y o f th e r e st r ic t io ns o n
extradition apply.17 If none of these are abar to extradition, the court simply notes

14 This 1995 Convention has been ratified by nine of

15 The Law on Extradition: A Review. Home Office,the fifteen Member States: Austria, Denmark,Finland, Germany, Greece, the Netherlands,

March 2001, London.
16 Similararrangements exist among Belgium,

Portu gal , S pa in an d Swe d en . T he 1 99 6

Luxembo ur g and the Ne therlands. The five

Conventio n has bee n ra tified b y D enm ar k,

Nordic countries—Denmark, Finland, Iceland,

Finland, Germany, Greece, the Netherlands,

Norway and Sweden—also have a fast-track

Portugal and Spain.

extradition scheme among themselves.

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119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
on the back of the warrant that this canbe enforced.
A ccord ing to the U K pro posa l thebacking of warrants scheme would coverextradition requests from all European
Union countries as well as from Iceland,
Liechtenstein and Norway (referred to as“tier one” countries). It can be extended toother extraditio n partners, as
appropriate. For “tier tw o” and “tierthre e” co untr ie s, cer ta in a dd itio nal
conditions should be m et: double
criminality; the political offence
exception; the passage of time has notmade it unjust or oppressive to extradite;whether the basis of the extradition is aconviction imposed i n absentia; a ndwhether the offence is a military offence
that is not also an offence under thegeneral criminal law.
From the point of view of the United
Kingdom, all remaining states, “tier four”
states, would be subject to the prima facier e q u i r e m e n t . T h i s m e a n s t h a t th e
authorities of these countries should
demonstrate, to the satisfaction of the UK
autho rities, that the re is suf f ic ient
evidence of the guilt of the person inquestion to proceed with theextradition.18

be frozen, or that his or her house be
se arche d fo r evidence , mutua l lega lassistance has to be requested in order tohave the decision carried out abroad. The
process inevitably takes some time—time
during which the suspect can empty out
his or her bank accounts and move on to athird country.
So far, little attention has been paid towhat can, in a way, be seen as a parallel
to mutual legal assistance: recognising
the validity of a decision taken by aforeign authority or court, and enforcing
it as such. The principle would enable
competent authorities to quickly secure
evidence, seize assets and immobilize
offenders. This would, of course, also bein the interests of the victim.19
Internationally, mutual recognition offoreign decisions and judgments is almost
18 The United Kingdom has waived the prima facier eq uir em en t w i th all States Par ties to the
Eu r op ea n Co nve nti o n o n Extr ad iti o n a nd ,following an amendment to the Scheme in 1981,
with all partners in the Commonwealth Scheme.
For the United States, in turn, demonstration of“probable cause” is currently sufficient. See., e.g.,
Gully-Hart, Paul (1992), Loss of Time ThroughFo rm al an d Proce dural Re qu irem en ts inInternational Co-operation, in Eser, Albin and

C. Mutual Recognition of Decisions
and Judgments
Because of jurisdictional limits (andp e r h a p s a l so a d e e p - r o o t e d la c k o f
confidence in the criminal justice systemsof other countries), decisions made in theinvestigation of organized crime cannot
be directly enforced abroad. For example,
if a court in one country orders that asuspect be arrested, that his or her assets

Otto Lagodny (eds.) (1 992 ), Pr incipl es a nd
Procedures for a New Transnational Criminal
L a w . D o c u m e n t a ti o n o f a n I n t e r n a t i o n a lWorkshop 1991. Beitrage und Materialien aus
dem Max-Planck-Institut fur auslandisches undinternationales Strafrecht, Freiburg im Breisgau,
pp. 245–266, at p. 256–257.
19 Protecting the interests of the victim is one of thepriorities of the European Union. On 15 March
2001, a framework decision was adopted on inorder to ensure victims uniform minimum legal

17 Therearetwoconditions:theoffenceisprotections in criminal proceedings. In September

punishable by at least a minimum of twelve

2001, the Commission submitted a proposal on

months in the requesting State, and the non bis

unification of compensation to victims from thein idem principle is satisfied.

State.

407

RESOURCE MATERIAL SERIES No. 59
non-existent. There are few bilateral or
multilateral treaties on this topic. One of
the few is the European Convention on
the International Validity of Criminal
Judgments, prep ared within theframework of the Council of Europe in
1 97 0. E ve n t his trea t y ha s very few
signatures,
and
even
fewer
ratifications.20 Indeed, most EU Member
States have not ratified it, and so it hasvery little practical importance.
Furthermore, this only applies to legally
final judgments, and not for example tod e ci si o ns m a d e in th e c o ur s e o f a n
investigation.21
With the increasing integration ofEurope, Member States are now seriously
considering the potential for mutual
recognition of decisions and judgments. It
is widely regarded as an effective andind ee d almo st un av oid able too l incooperation. Furthermore, proponents
a rgue tha t the close ties a m ong theEuropean Union countries, and the factthat they are all signatories to the 1950
European Convention for the Protectiono f Hum a n Righ ts a nd Fu nda m en tal
Freedoms, ha s lead to a situa tion inwhich all Member States should have full
faith and confidence in the operation of
20 Of

the European Union Member States, only

Austria, Denmark, the Netherlands, Spain and
Sweden have ratified the 1970 Convention. The
other countries that have ratified it are Cyprus,
Estonia, Iceland, Lithuania, Norway, Romania
and Turkey. An additional eleven countries havethe cr im inal justice syste m in ea c hother’s country. To give an example, if a
judge in one country orders that a suspectshould be arrested, courts in all other
European Union countries should haveconfidence that the decision was madeaccording to law and with due respect tohuman rights.22
As a result, the Tampere European
Summit in October 1999 endorsed theprinciple of mutual recognition and called
for the preparation of a programme togradually make mutual recognition aw o r k ing re a lity . I n th e v ie w of t he
Tampere Summit, mutual recognition
should become the cornerstone of judicial
co-operation in both civil and criminal
matters within the European Union. The
programme requested by the Tampere
Summit was adopted on 30 November
2000.
There is currently discussion in the EU
about w hether the system of mutual
recognition should allow refusals, forexample on the grounds that the humanrights of the person in question had not
been
sufficiently
taken
into
consideration. Some regard such a “failsafe” system as necessary, while othersc o n s i d e r t h a t th e E u r o p e a n U n i o nmember states should have confidence
that other member states respect theEuropean Convention on Human Rights.
Another item of discussion is whether thecondition of double criminality should bemaintained.

signed, but not yet ratified, the Convention.
21 Thereis one further exception to the lack ofmutual recognition internationally. The five
Nordic countries (Denmark, Finland, Iceland,

22 An analogy can be made with the “full faith and

Norway and Sweden) recognize one another’s

credit” doctrine contained in article IV, section 1

decisions and judgments, and refusals are almosto f t he Co n s t i t u ti o n o f th e U n i t e d St a te s .

unheard of. This system is based on the fact that

According to this section, “Full faith and credit

the Nordic countries share very much the same

shall be given in each State to the public acts,

legal system, and also otherwise have long-records and judicial proceedings of every otherstanding cooperation with one another.

State.”

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119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Work in progress: In February 2001,
Belgium, France and Sweden submitted a
proposal regarding the mutual
recognition of decisions on the freezing ofproperty and of evidence. The goal is toadopt a decision on this by the end of
2001. In July 2001, the European Unionb e g a n c o n si d e r i ng a p r o p o s a l f r o mFrance, Sweden and the United Kingdom
regarding the mutual recognition of fines.
In March 2001, Germany has a somewhat
parallel proposal to this latter one on
f ines. A prop osal is expected on themutual recognition of pre-trial orders ininvestigations into computer crime. The
programme of work adopted in November
2000 also contains measures in regard to
the tra nsf er o f p ro secu tion a nd th e
excha nge of inform ation on criminal
records; work on these may begin in theyear 2002 or 2003. Work is also plannedon w ays to avoid double jeop ardy inconnection with mutual recognition.
D. Mutual Evaluations
The Member States of the European
Union have made a number ofcommitments to improving their response
to organized crime, and to improving
international cooperation. These
commitments were undoubtedly made ingood faith. However, the practical realityof investigation, pro secution andadjudication (for example, lack ofresources, and differences in priorities indifferent sectors and on different levels)
can mean that the work that is actually
carried out remains at odds with thecommitments.
One way to diagnose what problems
exist is to carry out expert reviews. The
OECD has instituted a system of mutual
evaluations of Mem ber States on
measures taken to prevent and control
money laundering. These evaluations arecarried out by teams of experts fromdifferent countries who, because of theirbackground, are able to talk as colleagues
with experts and practitioners in thetarget country, and ask the rightquestions and understand the answers
they are given. This approach has been
deemed so successful that the European
Union has adopted it on a broader scale.
Accordingly, on 5 December 1997 theEuropean Union decided on theestablishment of a mech anism forevaluating the application andimplementation at the national level ofinternational undertakings in the fightagainst organized crime.
Following the OEC D model, small
teams of experts visit the target country,
interview practitioners, report on theirassessment and make recommendations.
The assessment is confidential,23 and thetarget country is given every opportunity
to correct any errors that may have been
made.
So far, two rounds of evaluations havebeen carried out in all fifteen Member
States. The first round dealt with mutual
legal assistance and urgent requests forthe tracing and restraint of property, andthe second round dealt with law
enforcement and its role in the fightagainst drug trafficking. A third round,which will deal with extradition, will soon
begin.
The Member States are quite satisfied
w it h th e w a y i n w h ic h t h e m u t u a levaluations have been carried out. The
pr oce ss h as no t o nly c ontr ibute d to
greater understanding of the differencesthat exist between the countries, but has
also lead to many changes in law andpractice.

23 With the permission of the country in question,

the report can be published. Indeed, all of thereports so far have in fact been published.

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RESOURCE MATERIAL SERIES No. 59
V. COOPERATION IN THE
FORMULATION OF DOMESTICLAW AND POLICY
The global status quo:
I nt e rn a ti o na l co o p e r a t io n o n th e
formulation of domestic law and policy is
a l m o s t e n t i r e l y l i m it e d to g e n e r a lprovisions in bilateral and multilateralt r e a ti e s, a n d t o e ve n m o r e g e ne r a l
r e c o m m e n d a t i o n s , r e so lu t i o n s a n ddeclarations.
The European Union reality:• the European Union has accepted
decisions calling for criminalisation of
a number of offences. The definitions
are generally rather tightly drawn,
and have forced countries to amend
their legislation accordingly.
• the European Union has begun
co o pe ra tion in th e pr eve ntion o fcrime, including organized crime.
• the European Union has adopted anumber of action plans andprogrammes that have had a clear
effect on policy and practice in all theMember States.
• the cooperation in this regard has
been extended to the twelve candidate
countries, which are rapidly
amending their own procedural andcriminal laws.
• there are signs that the European
Union may be moving towards what
is called the “communitisation” ofcrimina l law, in other w ords to asituation where the po wer todetermine the contents of criminal
law is increasingly shifted from theindividua l Me mb er S tates to thefifteen Member States wo rking
together.
A. Criminalisation
On the glob al level, in the area of
substantive criminal law , very little
international cooperation exists. Where it

410

does exist, it primarily concerns the very
few substantive provisions in bilateraland multilateral treaties, such as theminimum definitions of participation in acriminal organization, corruption, money
laundering and obstruction of justice inthe United Nations Convention against
Transnational Organized Crime. There
are also a num ber of resolutions,re c o m m e n d a t i o ns a n d d e c la ra ti o n sregarding criminal law and criminal
justice, but these have tended to havelittle actual impact on law, practice andpolicy.
This is not the case with the European
Union, where there is not only extensive
discussion about the harmonisation ofboth criminal and procedural law, butmuch has been done in practice.
The question of how far the criminallaw (and procedural law) of the Member
States should be harmonised is a subjectof considerable controversy. Everyone
appears to agree that some degree of
harmonisation is necessary in order toensure smooth international cooperation,
as long as by “harmonisation” one means
the approximation or co-ordination ofdifferent legal provisions or systems byeliminating major differences andcr ea tin g min im um r e q uire m e nts or
standards. To use a musical analogy, we
can continue to play our national music,
as long as it is in harmony with the musicof the other fourteen Member States.
Everyone also appears to agree that at
this stage at least we are not talking
about the unification of criminal andprocedural law, in the sense that the
fifteen distinct legal systems would be
re p la ce d b y o ne syste m . T o use themusical analogy, no one supports the ideaof replacing the orchestra with a single
piano, no matter how beautiful or large.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The process so far has involved a focus
on certain key issues, where the Member
S tates have agreed that harmonised
legislation is necessary. Among the issues
dealt with are the following:
Fraud and counterfeiting• fraud and other crimes against thefinancialinterestsoftheCommunities (Convention of 26 July
1995, protocols of 27 September 1996
and 19 June 1997)24• fraud and counterfeiting of non-cash
means of payment (frameworkdecision on 28–29 May 2001)• counterfeiting of the euro (frameworkdecision on 28–29 May 2001)
Drug trafficking• illicit cultivation and production ofd r ug s ( C o un c il R e s o lu tio n o f 2 2
November 1996)• “drug tourism” (Council Resolution of
22 November 1996)• sentencing for serious illicit drugtrafficking (Council Resolution of 6
December 1996)• drug addiction and drug trafficking(Joint Action of 9 December 1996)
T r a f f i c k i n g i n p e r s o n s a n d r el a t e doffences• trafficking in human beings andsexual exploitation of children (Joint
Action of 21 January 1997)• combating illegal immigration (Council
recommendation of 22 December 1995)
Corruption• corruption (Convention signed on 26
May 1997)• corruption in the private sector (Joint
Action of 22 December 1998)
24 In

May 2001, the Commission proposed ana m a l ga m a t i o n o f t h e va r i o u s C o n ve n t i o nprovisions relating to fraud against the financial
interests of the EU.

Other offences• racism and xenophobia (Joint Actionof 15 July 1996)• football hooliganism (Council Resolutionof 28 May 1997)• money laundering (Joint Action of 3
December 1998)• arms trafficking (Council Recommendation of 7 December 1998)• participation in a criminal organization (Joint Action of 21 December
1998)
Procedural issues• interception of telecommunications(Council Resolution of 17 January
1995)• protection of witnesses in the fightagainst international organized crime(Council Resolution of 23 November
1995)• individuals who cooperate with thejudicial process in the fight againstinternational organized crime(Council Resolution of 20 December
1996)
Work in progress. The work on further
harmonisation of criminal and procedural
law in the European Union is proceedingon the priority areas identified at theTampere European Summit in October
1999. Work is underway for example on
the m inimum p rovisions on theconstituent elements of offences andpenalties relating to drug trafficking, on
the sexual exploitation of children andchild pornography, and on racism andxenophobia. A Commission proposal on
the constituent elements and penalties
relating to ter rorism is e xp ecte d in
October 2001, and another proposal on
cyber-crime and other high-tech crime isexpected tow ards the end of 2001. A
considerable amount of attention has also
been focused on money laundering, andon the freezing of the assets of offenders.
For example, a framework decision on

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RESOURCE MATERIAL SERIES No. 59
m oney laundering and on theidentification, tracing, freezing or seizure,and confiscation of the instrumentalities
and proceeds of crime was adopted on 26
June 2001.
O n e g e n e r a l p r io r i ty a r e a i s t h eprotection of the financial interests of theEuropean Union, for example against
subsidy fraud, embezz lement andcorruption. Here, there is a much furtherreaching proposal, called the “Corpus
Juris” project.25 Briefly, this project seeks
not only to harmonise the definition of
offences against the financial interests ofthe European Union, but also to set up a
E uropean Public Prosecutor system,
using identical procedural law provisions
in each Member State. Proponents havesaid that this degree of uniformity isnecessary to prevent organized criminalgroups from utilising differences between
the Member States. Critics, in turn, see
this as an attempt to create asupranational criminal law andprocedural law, which in time may lead tothe unification referred to above.
Th e Corpu s J uris project raises
broader issues of ho w far the
harmonisation of criminalisations can go,
and who can make the decisions.
Questions of criminal law have so far
always been reserved to the Member
States themselves to decide, on the basisof consensus. Article 31(e) of the Treaty of
Amsterdam gave the Commission a rightof initiative in these matters. The exact
implication of article 31(e), however, hasbeen questioned. Most Member States areo f the v iew th a t the C o m m issio n islimited to the right of initiative, and only
the Member States themselves may makea n y d e c i si o n o n c r i m in a li s a t io n. A
25 See http://www.law.uu.nl/wiarda/corpus/

engelsdx.html The project was first presented on
17–18 April 1997.

412

minority, however, are of the view that
article 31(e) in effect gives theCommission the right to oblige Member
S t a te s t o a d op t crim in al i s a t i on s o ncertain issues, if criminal law sanctions
are the only way to protect Community
interests. The issue is still open. So far, aworking compromise has been reached:decisions under article 31(e) are being
made in tandem, with the Commission
taking a decision on matters within its
power, and the Member States (throughthe Council) taking a decision at the sametime on matters within their powers.
B. The Prevention of Organized
Crime
Organized crime, just as is the casewith crime in general, does not spread at
random. It is often a planned andd e li b e r a te a ct iv ity . A c co r d i ng ly , i tdepends to a great deal on the presence of
motivated offenders, on the existence ofthe opportunity for crime, and on theorientation of the work of those who seek
to control organized crime. In line withthis so-called situational approach, theMember States are exploring ways toensure that committing crime is mademore difficult, that committing crime
involves greater risks to the offender (inpa rtic ula r the risk of d etection a ndapprehension), and that the possible
benefits to the offender of committing
crime are decreased or eliminated.
Also the Tampere European Summit
stressed the importance of crime
prevention. It suggested that common
crime prevention priorities should be
developed and identified. Elements forthe crime prevention policy are containedin the Council resolution of 21 December
199 8 on the prevention of organizedcrime. In March 2001, the Commission
and Europol presented a report on aEuropean strategy on the prevention oforganized crime.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
One step in developing and identifying
priorities was made on 15 March 2001,
when the European Union decided on theestablishment of a crime prevention
network. This network consists of contact
points in each M ember State,
representing not only the authorities but
also civil society, the business community
and researchers. The network functions
by organizing meetings, compiling a
database and otherwise by seeking togather and analyse data on effective
crime prevention measures on the local
and regional level in order to disseminate
information on “good practices.”
C. European Union Policies andProgrammes
The various measures listed above andthat have been taken by the European
Union did not come piecemeal, one byone. Instead, they are elements of a wider
EU policy against organized crime. A
critical step was taken on 16–17 June
1997, when the European Union adopted
a Plan of Action to combat organizedcrime. Instead of the resolutions,recommendations and declarations thatha ve so ofte n been a dop ted in otherf o r a — r e g r e t t a b ly o f t e n w i t h l i t t l epractical impact—the European Union
decided, for the first time anywhere, on
specific action, with a clear division of
responsibilities, a clear timetable and amechanism for implementing the action
plan. The strong consensus reached by
M e m b er S t a t es on t he 1 9 9 7 P la n o f
Action helped to create the political andprofessional climate required on both the
EU level and the national level to takeand implement the necessary decisions.
The 1997 Plan of Action changed therate of the evolution of international
cooperation against organized crime.
Examples of the progress that has beena chie ved a re the mut ua l e valuat i on
mechanism, the entry into force of theEuropol Convention, the establishment of
the European Judicial N etwork,
crimina lisation of participa tion in acriminal organisation, the establishmentof a variety of funds to support specificmeasures, the adoption of joint actions onmoney laundering, asset tracing, andgood practices in mutual assistance, thepre-accession pact with the candidate
co untr ie s, a nd the id e ntif ica t ion o f
f u rt h e r m e a su r e s in r e s p e c t o f th e
prevention of organized crime.
The period allotted for the 1997 Plan of
Actio n end ed on 3 1 De cem ber 19 9 9.
However, more work needed to be done.
When Finland held the Presidency of theEuropean Union during the second half of1999, it led discussions on the necessary
follow-up plan. These discussions were
given added push by the decision to holda special Summit, the Tampere European
Council (15–16 October 1999), which
dealt with, among other issues, crossborder crime.
Among the priorities identified by theTampere European Summit are:
•
•
•
•
•
•
•

the prevention and control of crime
through the reduction of opportunities;
the facilitation of co-operation between
Member States in criminal matters;
co-ordination and, where appropriate,
centralisationofcriminal
proceedings;
protection of the rights of victims andthe provision of assistance;development of operational police cooperation and law enforcemen t
training at the EU level;
enhancement of customs co-operationin the fight against crime and in theuse of information technology;
the fostering of international cooperatio n in the fight against
transnational organized crime;

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RESOURCE MATERIAL SERIES No. 59••

reinforcement of the role of Europol;
adoption of a common approachthroughout the EU on cross-bordercrime;
depriving criminals of the proceeds ofcrime; andenhancing knowledge and capacity tofight money laundering activities.

••

These various priorities—known in theEuropean U nion as the “Tampere
m il e s t o n e s ” — s e t o u t a f a i r ly c l e a r
programme for the European Union forth e y ear s to c om e . M or e d e tail wasprovided by the follow-up to the 1997
P la n of A ctio n tha t w a s w ork ed out
during the Finnish Presidency of theEuropean Union, and adopted in March
2000.26 The core of the document consistso f e le v e n c ha p te r s th a t s e t o u t th ep o l itic a l g ui d e lin e s, t he r e sp e c tiv e
m a n d a t e s a n d in i t i a ti v e s, a n d t h edetailed recommendations. Specific forms
o f c ri m e tha t a r e t he f o c us i nc lu d eeconomic crime; money laundering andoff-shore centres; terrorism; computer
crime; and urban crime and youth crime.
D. Cooperation with Candidate
Countries and Other Third
Countries
Even if the European Union Member
States could effectively develop their laws
and syste ms to pre ve nt and co ntrol
organized crime within their borders, thiswould not be enough. Preventing andcontrolling organized crime requires
global co-operation.
One particular focus is cooperation
with the so-called candidate countries.
The European Union is currently
negotiating actively with twelve countries

on membership. In December 1999, theEuropean Union decided in addition tostart preparations for the extension ofthis process to Turkey. Enlargement onsuch a scale, from fifteen Member States
to 28, will constitute not so much an
evolutionary step for the EU as a leap
into the unknown. Institutions, interests,
policies, balances of power: everything
will change. The European Union is facedwith a political challenge of the firstorder.
In this process, considerable attention
is being p aid to the p rev ention andcontrol of organized crime. The European
U n i o n h a s a l r e a d y a d o p t e d a l a r ge
number of measures (referred to as theac qu is co mm unautaire),27 and theMember States have implemented themin their domestic legislation and practice.
In o rd er to a vo id a situa tion w he reorganiz ed criminal groups takeadvantage of a sudden expansion of theEuro pean Union, a lso the candida teco untries m ust fully accept andimplement the acquis. To this end, on 28
May 1998 the European Union has madea so-called pre-accession pact with thecandidate countries on how the process
should be carried out. Considerable work
is underway multilaterally andb i l a t e r a l l y t o a s s is t t h e c a n d id a t e
countries in this work.
A second focus is the RussianFederation. Again during the Finnish
Presidency, a special European Union
Action Plan was prepared on common
action with the Russian Federation on
com b a ting orga niz ed cr im e. T his inessence sets up a structure and process
27 The26 The“acquis communautaire” can be loosely

new plan of action is known as “Thedescribed as the legislation of the European

Prevention and Control of Organized Crime: A

Union. It consists not only of the Treaties and all

European Union Strategy for the beginning of the

EU legislation, but also of the judgments of the

new Millennium.”

Court of Justice and joint actions.

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119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
for continuous consultations andcooperation between the European Unionand the Russian Federation. In addition,
there is a broad er “partnership”
agreement with the Russian Federation(and with Ukraine) that provides a basis
for cooperation.
Other geographical areas with whichth e Eu ropean Union is s eeking t ostre ngthen co-o peration includ e theMediterranean, South Eastern Europe,
China, North America, Latin America
and the Caribbean.
The European Union is also active inw orking through intergove rnme ntal
organizations such as the Council ofEurope and the United Na tions. For
example, throughout the negotiations on
the United Nations Convention against
Transna tional Organized Crime, theEuropean Union countries worked very
closely together in seeking to ensure thatthe resulting Convention was as effective
and broad as possible.
VI. LESSONS TO BE LEARNEDAs can be seen, the European Union
has put into place an enormous numberof measures in only a few years in order
to better prevent and control organizedcrime. The strengths of the European
Union in international criminal justice lie
in the considerable political pressure andinterest in cooperation, as a result of
which consensus will often be found even
if som e countries initia lly resist thepressure to change their criminal policy.
In this connection, two questions cometo mind. Have the measures actually
been effective in p reventing andcontrolling organized crime? And if theEuropean Union has been successful, canthe progress made within the European
Union be repeated elsewhere?

Whether or not the European Union
has improved its effectiveness in
responding to organized crime can, ofcourse, be debated. It is difficulty to show
a clear cause-and-effect relationship. For
example, it is misleading to try to judge
effectiveness against organized crime by
an increase in the number of arrests,
prosecutions or convictions. To a large
extent, organized crime remains hidden.
Evaluation of progress remains difficult.
When the present plan of action w as
being drafted, the Finnish Presidency
wanted to include indicators ofp e r f o rm a n ce , m e a su r e s t ha t w o u ld
provide a more precise tool for evaluating
how effective we have been in
implementation. Regrettably, it proved to
be impossible to incorporate such anelement into the plan of action. As long as
we have no way of assessing the true
extent of organized crime, or of its impact
on society, it is almost useless to
speculate if, for example, the creation ofEuropol or Eurojust has had an impact onorganized crime in Europe.
On the other hand, it is possible to sayfrom the practitioner’s point of view thatcooperation has been made more effective
and easier. The creation of Europol has
clearly improved cooperation among law
enforcement authorities, just a s thecreation of th e European Judicial
N e tw o r k , t he i ns ti tu ti o n o f l ia i so n
ma gistra tes and the crea tion of Pro
Eurojust have streamlined cooperation
among prosecutors. Information can bereceived more quickly and analysed more
effectively, and the response can be mademore promptly.
The networking that is taking place inthe European Union has also increased
the degree to which practitioners know
about, a nd have confidence in, one’s
another criminal justice system. Also thismakes cooperation more effective.

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RESOURCE MATERIAL SERIES No. 59
Can the developments in the European
Union be replicated elsewhere?
There are undeniably certain featureso f the E uro pe an U nion which ma k e
progress easier than may be the caseelsewhere. One is the existing structure
for decision-making. Without the Council
and the various networks, it would be
difficult if not impossible to get sovereigncountries to agree on measures which
ma y have at least the appearance of
infringements on sovereignty: examples
include the setting up of such formal
structures as Europol and Eurojust, theadoption of decisions on theharmonization of key legislation, anddecisions related to mutual recognition ofdecisions and judgments. A second factor
which eases progress in the European
Union is the fact that the Member States
have worked closely together for a longtime, and have come to understand and,to at least a modest degree, have faithand confidence in one another’s criminal
justice system.
Nonetheless, many elements of theEuropeanUnion
resp onsetotransnational organized crime can, and infact are, being implemented elsewhere.
The European Union has had the benefitof experience with far-reachingcooperation, and has learned
considerably from experience what works
and what does not work. As shown in thene go tia tions on the Unite d Na tions
C o n v e n t i o n a g a i n s t T r a n s na t io n a l
Organized C rime, the practicalexperience among the European Union
Member States has often served as a
guide for other countries and regions.
Examples are the “good practices” inm u tual le ga l ass istanc e , the use o f
v i d e o c o n f e r e n c e s i n t h e h e a ri n g o fwitnesses, the establishment of joint
investigative teams, and the use of liaison
officers.

416

We have come a long way from theperiod w hen countries ignored crime
beyond their borders. The speed withwhich the Eur op ea n U nio n M e mb er
States have agreed on cooperation, andthe commitment that is being shown on ahigh political level on implementation,
show that the Member States are very
mindful of the danger that organizedc r i m e p o s e s t o th e i n d iv id u a l , t h e
co mmunity, the country and theinternational community. Over the past
few years, there has been remarkable,
indeed unprecedented progress in thenational and international response toorganized crime, as shown by thestrengthening of the legislative
framework, the reorganisation of thecriminal justice system, the growing
network of bilateral and multilateralagreements, and the strengthening off o r m a l a n d in f o r m a l in t e r n a t i o n a lcontacts.
I n th e p r e ve n ti o n a n d c o n t r o l o forganized crime, we all still have a long
way to go. Nonetheless, the first steps
have been taken, and the experience inthe European Union can help in chartingout the possibilities as well as pitfalls on
the road ahead.

INTERNATIONAL COOPERATION AGAINSTTRANSNATIONAL ORGANIZED CRIME: CRIMINALISINGPARTICIPATION IN AN ORGANIZED CRIMINAL GROUP1
Matti Joutsen*
I. INTERVENING INCONSPIRACIES AND ORGANIZEDCRIMINAL GROUPS
Let us assume that the competent law
enforcem ent authorities in three
countries, Japan, the United States and
Mexico, are informed of the existence of awiretap of a telephone discussion
between A and B. In this, B informs A
that he has talked with C, who has said
that he can supply B with cannabis in
Mexico for a good price. During the same
telephone call, A tells B that he knows of
a good way to smuggle the cannabis from
Mexico to Japan, and that he also knowsof people w ho would be interested inb u ying c a nn a b i s . Ha s a cr i m e b e e n
co m mitte d, and ca n the autho rities
intervene in any of the three countries?
In respond ing to the threat oftransnational organiz ed crim e inparticular, criminal justice authorities
ha ve a ne ed to inte rve ne as soo n as
possible in order to prevent crime, breakup criminal organisations and apprehend
the offenders. Ideally, they should be able
to arrest offenders before an offence has
been committed. Otherwise, there is theconsiderable risk that the offenders willb e a ble to ca rry out the off ence a nd
escape across national b orders, thus
evading justice.
Here, however, there is a difficulty. In
t he ca s e d es cr ib e d a b ove , no a ct ua lpurchase of drugs has been made, muchless has there been any overt attempt tosm ug gle the d rug s into Jap an . T hecriminal laws of many countries would
even hold that, since there has been noact other than the first contact between A
and C, and the telephone call between A
a n d B , th e r e h a s n o t e v e n b e e n a n
a t t em p t a t a n y o f f e nc e ( s u ch a s a n
attempt at purchasing illegal drugs). If
indeed no offence has been committed,
then the authorities would not have therigh t to ma k e an y ar re sts. T he law
enforcement authorities would have to
wait and, in the worst-case scenario,
would lose the trail of A and B, and the
drugs will be successfully smuggled into
Japan.1
A s e c o n d c o n c e r n h a s to d o w i th
p ro vin g c om p li city in an o f f e nc e inconnection with crimes undertaken by alarge, well-structured organized criminal
grou p. Trafficking i n persons, fore x a m p l e , m a y i n v o lv e a n u m b e r o foffenders, acting in different capacities.
Some may seek to identify the persons to
1

I am indebted to the members of Working Group 2
for the benefit of stimulating discussions in thecourse of the preparation of this paper: Mr .
Zafarullah Khan (chairperson), Mr. Yasunari
H ata g uc h i ( co -c h ai r per s on ), Mr . S itti po ng
Tanyapong pr uc h (rappor teur), Mr. Tak ashi
M a r u o k a ( c o - r a pp o r t e u r ) , M r . N o u p h a n h
Mahaphonh, Mr . Zainal Rashid Bin Hj Abu
Bakar, Mr. Bhola P rsad Kh arel, M r.
Muchwangali Charles and (as advisors), Prof.

* Director, International Affairs
Ministry of Justice, Finland

Yasuhiro Tanabe, Prof. Hiroshi Tsutomi and Prof.
Mikiko Kakihara.

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RESOURCE MATERIAL SERIES No. 59
be trafficked, others will forge the papers
needed to cross borders, others will see if
key authorities can be bribed, yet others
will take care of transport and lodging,and finally some people will look after theplacement of the people in the destination
country, and perhaps will continue tocontrol their movement. Each activity
may involve a different individual crime(fraud, forgery, corruption, illegal bordercrossing, extortion and so on), and some
activities may in fact not involve a crime
at all ( tra ns po rt within a c ou ntry) .
P roving co mp licity in traf ficking inp e rs o n s, o r in a ny o t he r o r g a n iz e dcriminal activity, may be difficult.
A third concern has to do withprocedural economy. If a large number of
persons agree to commit crimes, andthese are in fact committed at different
times by different people (as is often thecase, for example, with extortion carriedout by large organized criminal groups),
it may be difficult to obtain sufficientevidence to convict all of them of thesubstantive offences. However, it may beeasier to prove that they have been acting
as conspirators, or as members of anorganized criminal group.
A fou rth concern has to do withinternational co-operation. In our case,each of the three persons is located in adifferent country. Of all the fields of law,criminal law is perhaps most closely tied
to the essential values of a country. Overthe centuries, considerable variety has
emerged in what is criminalised andwhat is not in the different jurisdictions.
From the point of view of domestic legal
system s, this does not cause any
particular difficulties, since the legal
systems almost invariably apply theirown criminal law.

different criminal laws has caused, andwill continue to cause, consid erab ledifficulties. One of the greatestdifficulties in practice is caused by theprinciple of double criminality.
International agreements on extradition
and m utual legal assistanc e almo st
invariably require that the offence inquestion is a crime in both the requested
and the requesting State. The requested
State will presumably not extradite asuspect to the requesting State if the
conduct in question is not criminal underit s l a w s . H o w e v e r , e v e n i f t h e tw oco untr ies a gr ee tha t the c on du ct iscriminal, the details of the definition mayvary to such an extent that the requested
country may well decide not to co-operate.
It is against this background ofdomestic and international concerns that
the United Nations Convention against
Transnational O rganized Crime (thePalermo Convention) requires States
Parties to criminalise either conspiracy orparticipation in an organized criminal
gr o u p . B o t h c o n ce p ts r e q ui re s o m e
explanation.
II. CONSPIRACY
The concept of conspiracy arose atcommon law during the early 1600s in
England, from where it spread to otherco m m on la w co untr ies . 2 At E nglis hc o m m o n la w , if a n o f f e n ce wa s n o tcompleted, it was not punishable.
This, of course, was not consideredsatisfactory. The concept of “inchoate
crime” arose. Inchoate crimes are crimes
2

The leading decision was that of the Star
Chamber in the Poulterer’s Case in 1611. See
Glanville Williams, Criminal Law. The General
Part, second edition, Stevens and Sons Limited,

From the point of view of international
co-operation, however, the existence of

418

London 1961, p. 663, and the literature cited infootnote 1 therein.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSs h a l l b e p u r s u ed w h i c h , i f t heagreement is carried out inaccordance with their intentions,either:that are committed by an act done withthe purpose of effecting some other crime(called the substantive crime or the
consummated crime).3 The three types ofinchoate crimes are attempt, conspiracy
and incitement. By and large, attempt of,conspiracy to commit, and incitement tocommit any offence is punishable.
The concepts of attempt andincitement are universally recognised,and need no further introduction in thisc o nn e ctio n . I t i s the th ir d c o nc e p t,
conspiracy, which is of interest here.
Under common law, mere thought did notconstitute a crime. A person could thinkof doing evil deeds, but would remain
unpunished for this. However, should heor she agree with another person about
the comm ission of a crime, this w as
regarded as increasing the direct risk to
the community of criminal activity in two
ways. First, it increased the likelihood of
success of the crime. Secondly, it makes
the commission of other crimes more
likely. Because of this increased risk, it
was deemed useful to bring such conduct
into the scope of criminal law even before
it reached the sta ge of attempt. The
concept of conspiracy was born.4
The first statutory definition ofconspiracy in the United Kingdom did notcome until with the Criminal Law Act
1977. 5 As subsequently amended by the
Criminal Attempts Act 1981, section 1(1)of this law states:

a. will necessarily amount to or
involve the commission of any
offence or offences by one or moreof the parties to the agreement;orb. would do so but for the existenceof facts which render thecommission of the offence or any
offences impossible,
he is guilty of conspiracy to commit
the offence or offences in question.”
The corresponding provision in, forexample, the Canadian criminal code
(section 423(2) avoids defining
conspiracy, and merely states that “Everyone who conspires with any one (a) toeffect an unlawful purpose, or (b) to effecta lawful purpose by unlawful means, isguilty of an indictable offence.”6
A few particulars about conspiracy:7
1. In its basic form, the mere agreement
to comm it a n of fence constitute s
conspiracy (see, however, below).
2. Negotiating the commission of an
offence is insufficient to constitute5

Outside the realm of statutory conspiracy are forexample conspiracy to defraud and conspiracy tocorrupt public morals. See Williams 1961, op.cit.,
pp. 686–710 and Mike Molan, Denis Lanser and“Subject to the following provisionsof this Part of this Act, if a person
agrees w ith any other person or
persons that a course of conduct

Duncan Bloy, Bloy and Parry’s Principles of
Cr i m in al L aw, Fo u rt h Ed iti o n, Ca ve ndi sh
Publishing Limited, London 2000, pp. 152–154
and 162–168. Regarding US law, see for example
Ro b e r t W . Fe r g u so n a n d Al le n H . S to k k e ,3Glanville Williams, Textbook of Criminal Law,

Concepts of Criminal Law, Holbro ok Pr ess,

Stevens and Son Limited, London 1978, p. 349.
4

Regardingthejustification

of

the

law

Boston 1976, p. 136.
on6

See, for example, Alan Mewett and Morris

conspiracy, see Williams 1961, op.cit., pp. 710–

Ma nni ng, Crim ina l La w, second editi on ,713.

Butterworths, Toronto 1985, pp. 179–189.

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RESOURCE MATERIAL SERIES No. 59
conspiracy. There must be aconcluded agreement, even if theagreement leaves open the method
and time of commission is left open(for example, the conspirators agree
to act “as and when the opportunity
arises”).
The agreement can be manifested byword or conduct.
There must be two or more parties.
H o w e v e r , a p e r s o n m a y s ti l l b econvicted of conspiracy even if none ofthe other co-conspirators areapprehended or even identified.8
The conspirators must be knowledgeableof the elements of the conduct thatamount to the offence. This means thateach must know or believe he or sheknows the facts that will make theconduct criminal when done. (Forexample in the case of fraud, if one person
agrees only to deliver an invoice, without
knowing that the invoice is for goods thathave not been delivered, this person
would not be guilty of conspiracy tofraud.)
Any act done by any of theconspirators in the furtherance of theconspiracy is an act of all, even if thisact was not planned or contemplatedby all.
It is not necessary that the offence isin fact consummated, and may indeed
lie in the indefinite future.
A person who supplies a necessary
weapon or service, even if he or she
knew that this would be used for an

3.
4.

5.

6.

7.
8.

unlawful purpose, can be convicted ofconspiracy only if he or she somehow
promotes the unlawful conduct itself.
9. Even if the conspiracy falls apartalmost immediately (for example a
key co nspirato r backs out), theconspiracy exists. The withdrawing
conspirator rem ains guilty ofconspiracy and of any acts committed
in furtherance of the conspiracy up tothat point.
10. An offender can be convicted of bothconspiracy and the actual offence.9
By its very nature, conspiracy may bedifficult to prove. A conspiracy may beinferred from conduct (in other words
from overt acts). The testimony of a coconspirator regarding the existence of the8Some limitations exist regarding who can bedeemed a co-conspirator. At English law, noconspiracy exists if the only other conspirator isthe spouse of the first conspirator, or under theage of criminal responsibility, or the intended
victim of the offence (section 2 of Criminal Law
Act 1977). The law in some other common law
jurisdictions may vary somewhat; for example, in
the United States a husband and wife can now
constitute a conspiracy. Ferguson and Stokke,
op.cit., pp. 138–139. On this point, Canadian legal
practice follows that of England; Mewett andManning, p. 183.
A special case arises when one of the two coconspirators is a law enforcement officer who isan undercover officer trying to break up drugtrafficking. For example in England, the officer
himself or herself can, technically, be convicted of

7

Regarding English law, and in addition toconspiracy although the court will probably holdWilliams 1961, and Molan et. al., see for example

that his or her “mental reservation” against theRichard Card, Card, Cross and Jones. Criminal

conspiracy meant that he or she had not in fact

Law, twelfth edition, Butterworths, London 1992,

agreed. The other co-conspirator, however, can be

pp. 479– 500 , J.C. Sm ith and Br ian H ogan,convicted. See the Yip case cite in Molan et al,

Criminal Law, seventh edition, Butterworths,

o p.c it., pp. 15 9–1 60 . Unde r Cana dia n la w ,London 1992, pp. 269–304, and D.W. Elliott andhowever, the fact that the second conspirator was

Michael Allen, Elliott and Wood’s Casebook ona police agent provocateur led to the acquittal of

Criminal Law, sixth edition, Sweet & Maxwell,

the first conspirator of conspiracy; O’Brien [1954]

London 1993, pp. 451–473.

S.C.R. 666, cited in Mewett and Manning, p. 181.

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119TH INTERNATIONAL TRAINING COURSE
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conspiracy may also be taken and used as
evidence. This latter rule (which has beenc o n s tr u e d so m e w h a t d i f f e re nt l y i nd iff erent com mon la w jurisdictions)means in practice the allowing of hearsay
evidence.10
At English law, the mere agreement tocommit an offence constitutes conspiracy.
In some other jurisdictions, however,statutes have added a requirement of an
overt act committed in the furtherance of
the agreement. This overt act may becomparatively slight, but nonethelesss uc h a n a d d i tio na l e le m e n t is th us
required.11
English law has also explicitly
addressed the question of jurisdiction.
The courts in England are deemed tohave jurisdiction both when a conspiracy
in England is directed towards an offence
to be committed in another country, andwhen a conspiracy abroad is directed
towards an offence to be committed inEngland.
In the United States, it was decided tobuild on the concept of conspiracy to cometo grips specifically with organized crime,and its attempt to infiltrate into thelegitimate economy. This was done witht h e 1 9 7 0 R a ck et ee r I n f l ue nc ed a n d
Corrupt Organisations Statute (18 USCA
§ 1961), commonly referred to as the
RICO statute. This statute criminalised
participation in or conducting of theaff a irs of an e nte rp rise in volv ed inracketeering.12 The d efinition of“racketeering” is rather complex, butessentially it is based on a list of offencesthat a re co m m o nly asso c iate d withorganiz ed criminal activity. The
definition of “enterprise” is based on thedefinition of conspiracy, and involves an“asso ciation in f a ct” of two o r m o repeople. A refinement to the definition ofco nsp ira cy is tha t th e ra ck e tee ringa c t i v i t y m u s t i n v o lv e a t l e a s t t w oracketeering acts committed within ten
years of each other (as opposed to the factthat a conspiracy may be designed tocommit only one wrongful act).13
RICO allows not only stiff punishment
for the offences within its scope, but also
civil remedies such as treble damagea c ti o n s , c o r p o r a te d i ss o l u ti o n a n dreorganisation. This aspect has beende em e d to b e p a rticula rly use ful incoming to grips with organized crime.
Canada has enacted the concept of“enterprise crime offence” (art. 462(3) ofthe Criminal Code), which is based on alist of offences that is more limited thanthe RICO statute in the United States.

12 See Norman Abrams, Federal Criminal Law and

Its Enforcement, West Publishing Company, St.
9

The Federal Model Penal Code in the UnitedPaul 1986, pp. 167–270.

States, however, holds that where the conspiracy

13 Further refinements in the United States include

has only one object or crime as its purpose, thethe Continuing Criminal Enterprise Statute,conspirators may not be punished for both thewhich is targeted at large-scale drug trafficking,crime and the conspiracy. Myron Hill, Howardand th e Violen t C rime Con trol and Law

Ro s s e n a nd W i l to n S o gg, Sm i th ’s Re vi e w .

Enfo r c em en t Ac t of 1 99 4, w hic h in tu rn is

Criminal Law, West Publishing Company, St.

targeted at street gangs. See Sabrina Adamoli,Paul 1977, p. 133.

Andrea Di Nicola, Ernesto U. Savona and Paola

10 See Williams 1961, op.cit., pp. 681–682.

Zo ffi, O rga nize d Cr im e Ar o und the W or l d,

11 Ferguson and Stokke, op.cit., pp. 135–136.

HEUNI publication no. 31, Helsinki 1998, p. 136.

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RESOURCE MATERIAL SERIES No. 59
III. THE OFFENCE OF
PARTICIPATION IN AN
ORGANIZED CRIMINAL GROUP
The concept of conspiracy has beendeveloped on the basis of common law. In
c ivil la w co u ntr ie s, t he co nc e p ts o f
a tte m p t a nd in ci te m e n t ar e w id e ly
recognised, but conspiracy is not. The
general position in civil law countries isthat mere planning of an offence, without
an overt act to put the plan into
operation, is not criminal. (As noted,
s om e s ta tute s in som e co m mo n la w
jurisdictions have taken this very same
position.) For example, mere planning ofa robbery, and even such preliminary
stages as an examination of the premises,arrangement for a getaway car or the
recruiting of assistants, do not constitutecriminal conduct. The offenders may bearrested and brought to trial only when
they have gone so far as to, for example,
enter the premises with weapons.
In Italy, which has long had difficulties
i n c o m i n g t o g r ip s w i t h o r g a n i z e dcriminal groups, this was regarded as
unsatisfactory. Groups such as the Mafia
and the Camorra may be highlyorganized, and it may be difficult for thelaw enforcement authorities to show how
individual members of the group, and inparticular the leadership, haveparticipated in actual criminal activity.
The Italian legislature therefore decided,in 1982, to adopt special legislation thatwas directed not at individual criminal
acts, but at the role of the member in theorganized criminal group. The
assum ption was that mem bers ofcriminal organisations commit crimes.
For this reason mere membership was
regarded as a crime, and persons
suspected of this could be arrested.14

Article 416bis of the Italian criminal
code thus criminalises “participation in a
Mafia-type unlawful association”.15 Suchan association is said to exist “when thep a r ti c i p a n t s t a k e a d v a n ta g e o f t he
intimidating power of the association andof the resulting condition of submission
and silence to commit criminal offences,
to manage, at all levels, control, either
d i r e c t l y o r in d i r e c t l y , o f e c o n o m ic
activities, concessions, authorisations,public contracts and services, or to obtainu nl a w f u l p ro f it s o r a d v a n ta ge s f o rthemselves or for others, or with a view topreventing or limiting the freedom tovote, or to get votes for themselves of forothers on the occasion of an election.”If the participants have firearms or
explosives at their disposal, thepunishment is higher. The punishment isalso higher if the economic activities thatthe participants intend to control are
funded even in part by the price, productor proceeds of criminal activities.
The assessment of the impact of thislegislation has been that it is effective.
The prosecutor no longer needs to provethat, for example, a leader of anorganized criminal group has in someway participated in a criminal offence. It
is enough to demonstrate that such aperson is a member of a certain type oforganisation.
The Italian definition can be regarded
as quite broad, since even a person who isa p a s si v e m e m b e r o f a n o r g a n i z e dcriminal group can be punished. Other
civil law countries have been reluctant tofollow suit. Portugal has been one country
that ha s ad op ted so m ewhat sim ilar
15 Other provisions in Italian criminal law deal with“common association crime” and “drug-trafficking
association crime”. See Adamoli et al, op.cit., pp.
14 See Adamoli et al, op.cit., p. 133.

422

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119TH INTERNATIONAL TRAINING COURSE
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legislation. Portugal has criminalised thefounding of a group for the purpose ofcommitting crimes, becoming a memberof such a group, or providing such groups
with help, particularly in the form of
weapons or ammunition, or seeking torecruit further members. Among Central
and Eastern European countries thathave enacted somewhat similarl e g is l a ti o n a r e E s t o n ia , L it hu a ni a ,Moldova and Poland.16
In addition, several civil law countries
have enacted legislation directed at more
tightly defined forms of participation orconspiracy in the case of particularlys e r i o u s o f f e n c e s . F o r e xa m p le , t h erespective criminal codes of Denmark and
Finland contain provisions regarding
conspiracy to com mit treason.
Furthermore, several civil law countries
regard commission of an offence as amember of an organized criminal group to
be an aggravating factor to be consideredin sentencing.
Finally, several civil law countries
have enacted legislation that criminalises
a ctive participa tion in a n organize dcriminal group. Germany, for example,
criminalised the formation of a groupw h o se go a ls a r e t h e c o m m i ss io n o foffences, [active] participation in the
gr oup , soliciting fo r the gro up , andproviding support for the group.
In 1997, the European Union adopted
an Action Plan against organized crime.
One of the key elements of this Action
Plan called for the adoption of a joint
actio n re quiring all f iftee n M em b er
States of the European U nio n tocriminalise participation in an organizedcriminal group. Such a joint action was
indeed adopted in December 1997.

In the discussions leading up to thejo int action, there w as conside ra b lecontroversy over its formulation. The two
M e m b e r S ta t es w ith a co m m o n la w
system, the United Kingdom and Ireland,
noted that they already use the concept ofconspiracy, and were not prepared tochange their law in this regard. Italy
strongly advocated legislation that would
follow its model in criminalising“participation in a Mafia-like unlawful
association”. Countries that did not have
either option were adverse to adopting
them, in particular on the grounds thatboth op tions (conspiracy and“participation”) were rather vague, and in
this respect were seen to be in violation of
the principle that conduct to becriminalised should be defined explicitly(the “legality principle”).
The end result was, as so often in sucha context, a compromise. All member
sta te s o f the E ur o p ea n U nio n w e rerequired to ensure that their legislation
crim inalised either conspiracy orparticipation in an organized criminalgroup, and the definition of participation
was drawn to require an overt act, “active
participation”.17
It was this joint action which
contributed to the definition adopted in
the Palermo Convention.
IV. ARTICLE 5 OF THE PALERMOCONVENTION AND ITSIMPLICATION
A. The Text of Article 5
Article 5 is one of only fourcriminalisation obligations contained in
the Palermo C onvention. It requires
States Parties to ensure that their laws
crim inalise either consp iracy orparticipation in an organized criminal

16 Adamoli et al, op.cit., pp. 138–141.

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RESOURCE MATERIAL SERIES No. 59
gro up , or bo th. The a rticle re ad s as
follows:
Article 5
Criminalisation of participation in an
organized criminal group
1. Each State Party shall adopt such
legislative and other measures asm ay be necessary to estab lish as
criminal offences, when committed
intentionally:(a) Either or both of the following as
criminal offences distinct fromthose involving the attempt orcompletion of the criminal
activity:(i) Agreeing with one or more otherpersons to commit a serious crimefor a purpose relating directly or
indirectly to the obtaining of afinancial or other material benefit
and, where required by domestic
law, involving an act undertakenb y o ne o f th e p a rti ci p a nt s infurtherance of the agreement or
involving an organized criminalgroup;(ii) Conduct by a person who, withknowledge of either the aim and
17 In

September 2001, the Commission of theEuropean Union introduced a proposal for a
Co un c i l fr a me w o r k de c is i o n o n c o m b ati n gterrorism (12103/01 DROIPEN 81, 24 September2001). If accepted, this framework decision would
require that each of the fifteen Member States of
the European Union (and, in time, the twelve
candidate Member States) “take the necessary
measures to ensure” that inter alia the following
offences will be punishable:- directing a terrorist group, andgeneral criminal activity of anorganized criminal group or its
intention to commit the crimes inquestion, takes an active part in:a. Criminal activities of theorganized criminal group;b. Otheractivitiesoftheorganized criminal group in
the knowledge that his or her
participation will contribute to
the achievement of the abovedescribed criminal aim;(b) Organising, directing, aiding,abetting,
facilitatingor
counselling the commission ofserious crime involving anorganized criminal group.
2. The knowledge, intent, aim, purpose
or agreement referred to in paragraph
1 of this article may be inferred fromobjective factual circumstances.
3. States Parties whose domestic law
requires involvement of an organizedcriminal group for purposes of theoffences established in accordancewith paragraph 1 (a) (i) of this article
shall ensure that their domestic law
covers all serious crimes involvingorga niz ed crimina l groups. Suc h
Sta tes P artie s, a s w el l a s S ta te sParties whose domestic law requires
an act in f urtherance of theagreem ent for p urposes of theoffences established in accordancewith paragraph 1 (a) (i) of this article,
shall so inform the Secretary-Generalof the United Nations at the time of
their signature or of deposit of theirinstrument of ratification, acceptanceor approval of or accession to thisConvention.

- promoting of, supporting of or participating in aterrorist group.
The definition of a “terrorist group” is quite
similar to that of an organized criminal group. It
is “a structured organisation established over a
period of time, or more than two persons, acting
in concert to commit terrorist offences..:”424

B. The Criminalisation Obligation
2(a)Conspiracy
F o r th e p u rp o s e s o f t h e P a l e r m oConvention, conspiracy is thus defined as:

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intentionally agreeing with one ormore other persons
to commit a serious crime for a
purpose relating directly or indirectly
to the obtaining of a financial or othermaterial benefit and,
where required by domestic law,
involving an act undertaken by one ofthe participants in furtherance of theagreement or involving an organizedcriminal group.

Certain key points emerge when thisdefinition is compared with for example
the statutory definition of conspiracy
under English law.
First, however, a point of similarity: aconspiracy can be present even when
there are only two conspirators. It may berecalled that art. 2(a) of the Palermo
Convention defines an “organizedcriminal group” as a structured group of
three or more persons.
One difference is that the conspiracy
must be directed to the commission of a“serious crime”. Art. 2(b) of the Palermo
Convention defines serious crime as“conduct constituting a criminal offence
punishable by a maximum deprivation ofliberty of at least four years or a more
serious penalty”. Thus, States Partiesn e e d no t e xt e nd t he ir d e f in it io n o fconspiracies to include those directed atless serious offences.
A second difference is that the purposeof the serious offence in question must be
related “directly or indirectly to theobtaining of a financial or other material
benefit”. Also this is in line with thed ef inition s give n in article 2 of th ePalermo Convention. States Parties need
not extend the concept of conspiracy
beyond offences that are basically coveredb y the Palermo Convention. (In thisregard, the criminalisation obligation inarticle 5 is narrower than any of the otherthree criminalisation obligations.)
A third difference is that the State
Party may, if its domestic law so requires,
include the additional condition that oneof the participants has undertaken an act“in furtherance of the agreement” or thatthe act involves an organized criminal
grou p. Thi s would be in li ne withsta tu to ry law in s o m e co m m on law
jurisdictions that require an overt act infurtherance of the conspiracy. It is notenough to have a “meeting of the minds”;
there must also be action. How
substantive this additional act must be tofulfil the condition laid down in article
5(1)(a)(i) of the Palermo Convention isleft open to the individual State Party.
Article 5(3) makes reference to the factthat some States Parties may wish tolimit the scope of conspiracy to only a listof serious offences. In such case, theStates Party must “ensure that theirdomestic law covers all serious crimes
involving organized criminal groups”, andmust inform the Secretary-General of theUnited Nations accordingly.
Article 5(3) also requires that States
Parties whose domestic law requires an
act in furtherance of the agreement for
purposes of the offences established inaccordance with paragraph 1 (a) (i) so
inform the Secretary-General.
2(b)Participation in an Organized
Criminal Group“Participation proper” is defined inarticle 5(1)(a)(ii) as:••

conduct by a person who,with knowledge of either the aim andgeneral criminal activity of ano r ga n iz e d cr i m i n a l g r o u p o r i t s
intention to commit the crimes inquestion,

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RESOURCE MATERIAL SERIES No. 59•

intentionally takes an active part in- either the criminal activities of theorganized criminal group or- other activities of the organizedcriminal group in the knowledge
that his or her participation willcontribute to the achievement of
the above-described criminal aim.

Here again there are key points ofdifference between the criminalisation
requirement in art. 5 of the Palermo
Convention, and such predecessors as art.
416bis of the Italian Criminal Code.
First, the person must know the aim
and general criminal activity of the groupin question, or of its intention to commit
crimes.
Second, the person must take an active
part in the organisation. The clearest
f o rm o f such pa rticip ation is in thecriminal activities of the organisation.
Here, it may be noted that if this option istaken, art. 5 requires criminalisation ofsuch participation as distinct from theattempt or completion of the criminal
activity itself. Let us assume that A joins
an organiz ed criminal group andintentionally takes part in robberies. This
person, A, should then be held guilty ofboth the robbery and of participation inan organized criminal group thatcommits the robberies. (In this respect,
the thinking behind this requirement iscloser to that of conspiracy, since mostcommon law jurisdictions hold that theo f f e nd e r c ou ld b e c o nvic te d of b o thconspiracy and the offence in question.)
The alternative form of participation
can be in “other activities of the organizedcriminal group”. However, here there is
the additional condition that the person
in question is aware that “his or her
p a rtic ipatio n will c ont ribute to th ea chieve me nt of the a b ove -de scribe d426

criminal aim”. It is left to the State Party
to d e t e r m in e h o w s u b st a n t iv e th i scontribution should be. Presumably an
accountant knowingly working for an
organized criminal group would fulfil thisdefinition, even if he or she in no way
engages in illegal accounting practices orin money laundering; merely helping thegroup with its accounts would seem to be
sufficient. A driver who drives the leadero f t h e g r o u p f r o m p la c e t o p l a c e —especially where none of the meetings
wou ld a ppear to b e r elated to t heplanning or commission of illegal
activities—would be a more doubtful
case. And going to the other extreme,
persons who work for members of thegroup as, for example, gardeners, cooks orcustodians would presumably not be seen
to “contribute to the achievement of the ...
crim in a l aim , ” alth ou gh this wo uld
ultimately depend on the individual case.
C. Attempt and Forms ofParticipation
As noted, under the Pa lermo
Convention e ither conspiracy orparticipation in an organized criminalgroup are to be criminalised as distinct
from attempt or completion of thecriminal activity in question.
Article 5(1)(b) makes the further pointthat States Parties are also to criminalisecertain specific forms of participation in
the commission of serious crime involving
an organized criminal group. The forms
themselves (organising, directing, aiding,abetting, facilitating and counselling) are
fairly well recognised in criminal law,although the construction placed on thew ords m ay w ell va ry from one lega lsystem to the next.
Presuma bly most, of not all, lega lsystem s o f the w orld a re alre ad y incompliance with this requirement, in thate.g. aiding and abetting in the

119TH INTERNATIONAL TRAINING COURSE
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c o m m issio n o f a ny s e rio us c rim e ispunishable. Although art. 5(1)(b) makes
reference to e.g. aiding and abetting “thecommission of serious crime involving anorganized criminal group,” it can b e
a rg ued th a t a S t ate P a rty ne ed n ot
separately enact such a qualified
criminalisation. Nothing, however, would
prevent States Parties from adopting astatute that does define an organizedcriminal group, and sets a special tariff ofpunishment for various forms ofparticipation in its criminal activities.
This has, indeed, already been done by
several states around the world.
D. Evidence of Conspiracy andParticipation
Art. 5(2) very briefly states that “thek no w le d ge , i nte nt, a im , p ur p os e o r
agreement referred to in paragraph 1 ofthis article may be inferred from objective
factual circumstances.” This is basically arule for interpreting the evidence of guilt.
States Parties can, alternatively, providethat their courts may look at the totalityof evidence, thus giving courts much moreleeway in construing possible guilt.
E. Coda: Applying the Convention to
the Case Study, and Assessing its
Utility
The case cited at the outset involves
three persons, A, B and C. How would
this be dealt with under the two
definitions in article 5 of the Palermo
Convention?
Under the heading of conspiracy, art.
5(1)(a)(i), all three suspects could befound guilty of conspiracy, since A and B,
and B and C, had apparently agreed onthe (illegal) purchase of cannabis, and A
and B had further agreed on its import
into Japan.
Under the heading of participation inan organized crim inal group, theprosecutor would have to show that A, B
and C constituted a structured groupexisting for a period of time. If this can
successfully be done, then all three can beconvicted of participation.
Would either or both approach add
anything to the arsenal of theinvestigator and the prosecutor, andwould there be any drawbacks?
To sum m ar ise o n the basis of theforegoing,
•

•

•

•

•

the criminal justice authorities would
have the possibility of intervening at
a n e a r lie r s ta g e o f t he c r im i na lactivity,
all three could be charged withconspiracy or participation even if
their role had been more marginal
than in the case used as anillustration;
should the three suspects continue
their activity, the prosecutor need notprove complicity in each and every actof drug trafficking;the concepts of conspiracy andparticipation allow, in effect, double
punishment: one for the conspiracy orparticipation, and one for the offencesco mm itte d in f urt her a nce of theconspiracy or participation;
legislation referring to conspiracies
and organized criminal groups could
provide the framework for the use ofcivil measures in addition topunishment.

There has also been significant
criticism of the concepts of conspiracy andparticipation in an organized criminalgroup:•

the concepts are ambiguous andconfusing, in particular if juries are
invo lve d . Th e le gal p ractic e h a s

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RESOURCE MATERIAL SERIES No. 59
s h o w n th a t t h e c o n c e p t s c a n b e
confusing even to trained lawyers;some critics have said that theco nc ep ts v io la te the p rinc ip le o flegality, which requires definition of
p recise ly wha t a cts or o missions
constitute criminal conduct;
this ambiguity raises concerns
regarding legal safeguards, such as
ensuring that the defendant knows
exactly what conduct he or she ischarged with having committed;
the ambiguity also raises concerns
th at t he co n ce p t w ill be us e d t oexpand the scope of criminal
behaviour to an unacceptable extent;
andthe concept of conspiracy has been
used, in the view of some, to “convert
innocent acts, talk and association
into felonies”.18 The discussion within
the European Union regarding thejoint action requiring Member Statesto criminalise participation in an
organized criminal group shows thatthese same qualms exist regarding
this latter concept. The concern hereis that the concepts may be abused byover-zealous prosecutors.

•

•

•

•

Even so, the experience that has beenc o lle ct ed in t he gr ow ing nu m b e r o f
countries applying one or the other ofthese concepts shows that, in the hands oftrained investigators and prosecutors,
they can be highly useful tools in theconstant efforts of the criminal justicesystem to come to grips with organizedc ri m e . T he d ra ft e rs o f the P a le r m oConvention have seized this opportunity,
and are requiring States Parties to act
accordingly.
18 Ferguson

and Stokke, op.cit., pp. 140–141. The

authors cite the use of the concept in the UnitedStates against, for example, union organisers,
members of th e Comm u nis t Pa rty, andconscientious objectors during the Vietnam War.

428

THE CURRENT SITUATION OF AND COUNTERMEASURESAGAINST TRANSNATIONAL ORGANIZED CRIME IN THE
REPUBLIC OF THE PHILIPPINES
Severino H. Gaña, Jr.*I. INTRODUCTION
The end of the Cold War and the rapid
p a c e o f g lo b a li z a t i o n h a s p r o v i d e dopportunities for criminals and organizedcrime groups to globalize their illegala ctivitie s, thus they have led to theemergence of all forms of transnational
crimes and led to the development of new
security threats. These new threa ts
include various types of transnationalorganized crime, such as trafficking inpersons, international terrorism, money
laundering, intellectual property rights
violation, illicit trafficking of drugs,
piracy on the high seas, illicit traffickingof firearms, and cy bercrim e. This
globalization has also led countries totake new security adjustments/
arrangements as organized transnational
crime exploit these advances intechnology, services, and communication.
These incidences of the varioustransnational crimes, at least within thePhilippines, has created a significant
impact on its political, economic andsocio-cultural stability and security.
II. PHILIPPINE EXPERIENCE
A. Trafficking in Persons
H uman traffick ing refers to th e
recruitment, transportation, transfer,harboring, or receipt of persons, by threator use of fo rce, b y ab ductio n, f ra ud,
deception, coercion or the abuse of power* Assistant Chief State Prosecutor,
Department of Justice,
Republic of the Philippines

or by the giving or receiving of payments
or benefits for the purpose of exploitation.
Persons may be trafficked for the purposeof prostitution, other sexual exploitationo r f o r c e d l a b o r . W h e n t h e p ra c t ic e
involves coercion or deceit, consent of thevictim is not an issue.
Human smuggling on the other hand is
the procurement of illegal entry or illegal
residence of a person into a state of which
the latter person is not a national or apermanent resident in order to obtain,
directly or indirectly, financial or otherm a t e ri a l b e n e f i t . C hi ld r e n r e f e r t opersons’ under eighteen years of age.
The Philippines is a major source ofp e o p l e t ha t a r e t ra f f i c k e d t o o th e r
countries with able economies. In Europe
alo ne, a l mo s t 7 0 5 ,4 3 9 Fi l i pi n o s a reundocumented and most of them are
victims o f trafficking, reportedly
perp etrated by Philipp ine-basedorgan ized crime g roups that h ave
contacts with similar criminal syndicatesin the receiving country. Their operation
ru ns para llel w ith th e con tin uing
deployment of documented O versea s
Filipino Workers (OFWs) to fill in the
manpower requirements of developed
countries and at the same time to solve
the soaring unemployment problem of thecountry. Aggravating this scenario is thepresence of some unscrupulous foreigners
who reportedly exploit Filipino womenand children ranging from pedophilia to
sex trafficking and prostitution,
especially those sent abroad for the same
reason.

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RESOURCE MATERIAL SERIES No. 59
From 1995 to early 2000, 751 cases ofhuman trafficking were recorded. Most of
the victims come from Region III (11%),
NCR (10%) and Region IV (9%). Of the
66% of women victims, 18% were forced
into prostitution. Furthermore, 51% weretrafficked to the Asia-Pacific, 27% to theMiddle East, and 19% to Europe.
Table 1Preliminary Review of Human
Trafficking and Smuggling Cases in
the Philippines (1995 to Early 2000)

As of December 2000, based on a reportf r o m th e C o m m i s s i o n o n F i li p i n o sOverseas (CFO), there are already 7.38
million Overseas Filipinos of which 2.99
million are documented and 1.84 million
are products of irregular migration. A
significant number are victims of all
forms of human trafficking andsm uggling while m ore than half are“informed victims” (58%) who voluntarily
went out of the country on the strength offraudulent travel documents or false
identities or travel abroad as tourists,
pilgrims, students, or any other lawful
mea ns but prolong their stay in the
country of destination in their attempt tofind jobs and earn more wages even after
the expiration of their appropriate visas,thus categorizing them as undocumented
or illegal migrants. Almost 10% of cases
involved intermarriages. Other mode
includes introduction through pen pal
clubs, marriage bureaus, and theInternet.

Recorded cases of humantrafficking (1995 to early 2000)

751
cases

Increase in trafficking cases in
1999

37%

Victims coming from Region
III

11%

Victims coming from NCR

10%Victims coming from Region IV

9%

Women victims

66%

Women forcibly put into
prostitution

18%

Forced to work in slavery-like
conditions

42%

Trafficked to Asia Pacific51%

Trafficked to the Middle East

27%

Total Number ofOverseas Filipinos

Trafficked to Europe

19%

OFWs

2.99 M

Permanent Residents

2.55 M

Irregular

1.84 M

Victims aware of what they
were getting into

58%

Victims that were deceived

42%

Victims that were recruited byparties not related/unknown to
them

53%

Victims that were repatriatedby the Philippine Government

31%* Philippine embassies andconsulates noted cases of wholesale
recruitment at the barangays/local
communities

430

Table 2Estimated Number of Overseas
Filipinos as of December 2000
7.38 Million

The CFO reports the top regions ofdestination of undocumented Filipinos
are America, South and East Asia, thePacific, Europe, the Middle East andAfrica. Top ten countries of destination of
undocumented Filipinos in chronologicalorder include the United States,
Singapore, Canada, Japan, Italy, United
Kingdom, Saudi A rabia, Greece,
Germany and France. However,according to the reports, within the lastquarter 2000 and during the first quarter

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
of 2001 reveal the increasing incidencesof irregular migration in all its forms tocountries such as Jordan, Malaysia, Italy,
and Japan which may drastically change
to order of arrangement by the end of thisyear if such trend remains unabated.
Transit countries being used in goingto states of destination include mostmembers of ASEAN, countries in Eastern
Europe and just recently Morocco. Most ofthese transit countries have no visar e qu ir e m e n t s f o r e n te r in g F i lip in onationals thus complicating the problemof irregular migration. Apart from this,the Eastern European countries, being
newly independent and sovereign states,
have yet to formulate and strictly enforce
their immigration policies and laws to
discourage human trafficking syndicatesa s w e ll as il le g a l i m m i gr a nt s f ro m
turning them as transit countries inentering Western Europe.
The Philippines is being utilized also
as a transit and destination country as
w e l l. R e c e n t a p p r e h e ns i o n s b y t h e
B u re a u o f I m m ig ra t i o n r e ve a l t h a t
Iranian, Bangladesh and Chinese
nationals are using the Philippines as atransit point to other countries such as
J a p a n, C a na d a , Un i t ed S t a t es, a n dAustralia. Indian nationals, on the other
hand, are illegally entering the country toestablish illegal business such as lending
with exorbitant interests.
Below is a list of identified seaports
used to smuggle persons in and out, both
Filipinos and aliens:
•
•
•
•
•

Iloco Sur (Salomague Island)Zamboanga del Sur (Zambo Port,
Digos, Bauin Point
Davao del Sur (Davao Gulf, Digos
Point, Panabo Port)
Bicol (Pio Duran, Albay)
Dagupan City

The nationalities of those involved inhuman trafficking in the Philippines aremostly Filipinos with contacts in transit
and destination countries. Others include
Malaysians who have been assisting
Indians to enter the country via thesouthern backdoor, Nauru and Kiribati
nationals who have been facilitating theentry into the country of undocumented
Chinese as well as Chinese, Taiwaneseand Hong Kong nationals.
The follow ing are some significant
cases:
1. “Baby Tanya” Case
This is a case of smuggling throughadoption by using spurious supporting
documents and false statements of John
L o p e z a n d M a r ia E l l a C a rr i o n w h opresented themselves as the biologicalparents of the child, Baby Tanya
Samantha Lopez. However, upon arrivalin the U.S., the INS upon receipt of reportfrom the U.S . Emba ss y t ha t the
documents and statements presented andexecuted by Ms. Carrion and Mr. Lopez
were not true, held Baby Tanya. Tanya
Samantha was repatriated on June 16,
2001 and is now under the custody of theDSWD. The case is now with theD e p a r tm e nt o f J u stic e , u nd e r go ing
preliminary investigation.
2. “Kimber” Case
This is the complaint filed by the PCTCand Mr. James H. Kimber (complainant)against respondents William S.
McKnight, Lilian U. McKnight, Rudelyn
P. Uriarte and Elvira U. Mandap dated
January 6, 2000 for violation of Republic
A ct N o . 6 95 5 M a i l O r de r B ri d e a nd
Estafa.
Mr. James H Kimber, corresponded tothe advertisement of the Pacific Islands
Connection to meet girls in thePhilippines he could marry, choosing

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RESOURCE MATERIAL SERIES No. 59
Rudelyn P. Uriarte, 16 years old andsister-in-law of William McKnight. He,
upon arrangement m ade b y W illia m
McKnight, married Rudelyn. He returnedto the United States without his wife,
Rudelyn, with the assurance that his wife
would join him after six months. The
promise was not fulfilled. He sought help
from concerned agencies of both the US
and the Philippines. He later learned that
their marriage was never registered andthat Rudelyn was married to anotherforeigner named Howard W. Gardner. He
formally filed a case against the
responde nts. The tour and travel
operation of McKnight was put underinvestigation.
3. “Marilou Pontana et al” Case
This is a case of trafficking women
through illegal recruitme nt. The
respondents, Evelyn A. Tuprio and Grace
Cervantes, recruited young girl victims in
the guise of domestic helpers but theyw er e late r utilize d as sex slav es in
Malaysia. Their illegal activities werebusted when police operatives intercepted
four young victims holding tampered
documents on board a vessel bound for
Malaysia.
B. Terrorism
Terrorism is “the use of violence, threat
or intimidation, or destruction of lives
and properties by any other means, withthe objective of creating a state of fear in
the public mind to achieve a purported
political end; or to coerce or to influence
their be havior; or to und ermine theconfidence of the general public on thegovernment.”
The Philip pines’ experience oninternational terrorism was first felt as
early as 1985 when international
terrorist groups attempted to establish afoothold in our country. They were able tostage terrorist activities and tried to432

establish their cells in the country but
were later on neutralized. These groups
which ca m e to the Philip pine s withbarely three years interval, wereidentified as the Abu Nidal Organization(ANO), the Japanese Red Army (JRA),the Iraqi terrorists, the Ramzi Yousef
Terrorist Cell, the Liberation of Tigers
Tamil Eelam (LTTE) and the recent Free
Vietnam Revolutionary Group (FVRG).
1. Abu Nidal Organization (ANO)
In 1985, some members of the group,
using student visas, have reportedly
slipped into the Philippines on a
recruitment and indoctrination mission.
It was also recorded that during that time
t he re w e re a b ou t 3 ,0 0 0 Pa l e s t in i a n
students enrolled in different colleges andUniversities in Metro Manila. The local
members of this gro up rem ained
unidentified up to December 1987 when
the police arrested five members. The
arrest led to the d iscovery o f ANO ’s
attempts to organize terrorist cells in the
country to be employed in the Asia nregion.
2. Japanese Red Army
On November 15, 1986, the ManilaJRA cell conducted a joint operation with
the New Peoples’ Army (NPA), known as
the “Operation Customer” in kidnapping
Nobuyuki Wakaoji of Mitsui Corporation(Philippines).
Investigation revealed that three topra nking ca dr es of the N PA - G ene ra lCommand in close coordination with two
JRA members were responsible for theplanning, execution and supervision of
the said operation. Wakaoji was releasedin December 1986 in Quezon City after
paying 3M US dollars to the kidnappers.
3. Ramzi Yousef Terrorist Cell
On January 7, 1995, police authorities
arrested Abdul Hakim Murad, a119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Pa kistani na tiona l in one of theapartments in Manila. M urad was amember of an international terroristgroup planning to kill Pope John Paul II
on his scheduled visit to Manila fromJanuary 10–15 for the Celebration of theWorld Youth Day. Pieces of evidence
recovered revealed the group’s plan tobomb U.S commercial airlines plying theManila - Hong Kong - Los Angeles. route.
This plot was to be the centerpiece of theso-called “Oplan Bojinka” which was ani n t r i c a t e n e t w o r k o f in t e r n a ti o n a lterrorists using the Philippines as avenue of their terrorists activities. The
bombing of a Philippine Airlines jetbound for Japan from Cebu on December
11, 1994 was a test-run to Oplan Bojinka.
It can b e recalled that one Japanesenational was killed while several others
were wounded during the incident.
4. Free Vietnam Revolutionary Group(FVRG) Terrorist Cell
The presence of this terrorist cell wasrecently discovered with the arrest of Vu
Van Doc, a U. S. citizen of Vietnameseo rigin, Huynh Thua n Ngo c, a S w iss
citizen of Vietnamese origin and Makoto
Ito, a Japanese national on August 30,
2001. One of the arrested suspects, Vu
Van Doc, who operates a terrorist cell in
the Philippines is a member of the Free
Vietnam Revolutionary Group (FVRG),
the military arm of the Government ofFree Vietna m (GFV), a w or ldw ideorganization engaged in liberating theRepublic of Vietnam from communist
rule.
The arrested suspects were reportedlyplanning to conduct bombing activities
targeting the Vietnamese Embassy in
Manila on or before September 2, 2001,
which is the National Day of the Republicof Vietnam.

C. Money Laundering
In the Philippines, the problem has its
own dimension. The perception that thePhilippine s is a haven for money
laundering is supported by data. The US
Treasury Department’s Financial Crimes
Enforcement Network reported that thePhilippines ranked second among 15 noncooperative jurisdictions in terms of thenumber of suspicious activities relating tofinancial transactions from April to July
1996 . D ur in g th is p e r io d , t he to ta lnumber of reports on suspicious activities
filed reached 566, second only to Russia,
which reported a total of 847.
Since drug trafficking is a lucrative
business in the country, money
laundering becomes the parallel activityof drug syndicates. It is further
aggravated with the absence of punitive
laws for this crime. The proceeds from theillicit drugs industry in the country
reaches P 265 billion annually, about 8
percent of the local economy’s output androughly a third of the go ve rnm ent’s
budget this year. Another source of dirty
money cleaned through the country’s
financial system is through corruption.
Transparency International, using its“corruption perception index,” ranks thePhilippines as the 65th least corrupt outof 91 countries. The Office of the
Ombudsman, the agency tasked to run
a f te r co r r up t g o ve r nm en t o f f ic ia ls,
estimates that about Php100 million is
being lost daily to corruption. The figure
is actually closer to about Php150 billion
a year or Php278 million a day. Based on
this data alone, graft and corruption in alarger scale is so pervasive that it iscapable of triggering money laundering.
The Philippines’ efforts to be taken outof the list suffered from the scandal that
erupted over allegations of corruption
and money laundering involving theformer President Joseph Estrada who

433

RESOURCE MATERIAL SERIES No. 59
allegedly stashed from P10 billion to P15
billion in payoffs from operators of the“jueteng” illegal numbers game,kickbacks from tobacco excise taxes andquestionable government investments
during his 31 months in office. He wasarrested and jailed for plunder, a nonbailable offense punishable by death aswell as the Jose Velarde scandal, where
Estrada allegedly used a false name tolaunder illegally acquired wealth. In
testimonies given to the Senate last year,
key witnesses provided details on how
E strada allegedly am assed and“legitim ized ” dirty m oney using thefinancial system. In yet another case ofmoney laundering in the Philippines, ano ff icia l of E quit ab l e PCI B a nk I nc.,
disclosed that Yolanda Ricaforte, thealleged auditor for the “jueteng” payoffs
to Estrada, deposited more than Php200
million in the bank’s six branches inMetro Manila.

The preva lence of softw are pira cy
among selected countries in Asia/Pacificin 2000 are identified as follows:

D. Intellectual Property Rights“Intellectual property” is a property
interest in an idea or creation granted by
the crea tion of la w. It exists only incountries that recognize laws on
intellectual property rights.

T h e I n te r n a t i o n a l P l a n n i n g a n d
Research Corporation (IPRC), in a study
commissioned by Business So ftw are
Alliance (BSA), to review available data
and to utilize systematic methodology todetermine worldwide business softwarepiracy and associated dollar losses, hasnoted that the world piracy rate in 2000
has increased to 37%, and dollar losses
have reached a total of US$11.75 billion
worldwide. The Asia/Pacific region inparticular has increased its piracy rate to
51% and a loss of over US$4 billion in
2000.

The Annu al B S A G lo b al S o ftw a rePiracy Study, which involves the
S o f tw a re a nd Inf o rm a tion I nd ustry
Association (SIIA), confirms that thecountry’s piracy rate decreased from 77%
in 1998 to 70% in 1999 and eventually to
61% last year, causing the Philippines tohave the second lowest piracy rate among
Southeast Asian countries. Despite thedrop of the country’s piracy rate,
however, the software industry continues
to suffer an annual loss amounting toP1.3 billion in revenues due to softwarepiracy.

434

Table 3
Vietnam

97%

China

94%

Indonesia

89%

Thailand

79%

India

63%

Philippines

61%

Hong Kong

57%

Korea

56%

Singapore

50%

Japan

37%

Australia

33%

New Zealand28%(Source: Sixth Annual BSA
Global Piracy Study, 2000)

The Asia-Pacific sustains the mostdollar losses, followed by Western Europe
and North America (see the following forth e d i str ib u tio n o f d o ll a r l os se s b yregion).

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSDOLLAR LOSSES BY REGION - 2000 (BSA)
3%
3%
26%

East Europe

7%

Mid/East Af rica
Latin America

36%
25%

Asia/PacificNorth America
Western Europe(Source: Sixth Annual BSA Global Software Piracy Study, 2000)
According to the data from the Internationa l Anti-Counterfeiting Coalition(IACC), trademark counterfeiting is ahighly profitable tax-free business.

Below is the pattern of distribution ofcounterfeit goods of organized crimegroups by region:(Source: International Anti-Counterfeiting Coalition)
It must be noted as well that mostcounterfeit products are often sold at athird of its original price or even cheaper.
In this regard, wholesalers and retailers
are having second thoughts in procuring
legitimate items over the pirated ones.

E. Drug Trafficking
Drug trafficking refers to the act of
tra nspo rting a nd e ve ntua lly se lling
illega l drug substances. A d iversiono c c ur s w he n d r ug s le g a ll y s h ip p e deventually end up on the hands of drugtraffickers and syndicate groups and soldin the illegal market.

435

RESOURCE MATERIAL SERIES No. 59
The drug problem in the Philippines
resurrected in the latter part of the 1960’s
w it h m a ri ju a n a , va liu m , m e r c o d o l,mogadon, madrax, opium and heroin as
the popular drugs of abuse. Even after
the execution of drug smuggler Lim Sengin 1972 which tremendously cut off the
supply of heroin entering the country,
there were already 20,000 drug users.
This number increased by more thantwelve times in 1980. It was during thisyear when the smuggling of hashish andmogadon tablets into the country and theexportation of marijuana wereperpetrated by foreigners. In 1981, thecountry became a transit point for heroin
and cocaine and as a consequence, drug
users increased to about 312,000. In
1983, the drug pr oblem started totranscend international borders even as
drug users continue to increase at a rapid
p a ce w ith co rex- d, hylorin, o rna col,peracon, DM, and lagaflex as additional
drugs of abuse. At that time there werealready 343,750 drug users.
The production and exporta tion of
marijuana increased during the following
y e a r . I t w a s a ls o a t t hi s t im e t h a t
m etham pheta mine hydro chloride or
shabu manifested its presence as one of
the growing popular drugs of abuse.
Thus, the government intensified its
campaign against the drug problem basedon a three-pronged approach namely law
e n f o r c e m e n t, p r e v e n tiv e e d u c a t io n
cam paign and treatment andrehabilitation programme. Even so, theproblem remained unabated such thatprior to the restoration of the d ea thpenalty on December 13, 1993, there werealready 800,000 drug abusers with asignificant number concentrated in Metro
Manila.
The
drug
users
comprised
approximately 5% or 3.7 million of the 74

436

million Filipinos of which according to the
NDLEPCC echoing the survey of the
National Youth Commission (NYC), 7%
or approximately 1.2 million of the total
youth population of 17 million aged 15 to
2 9 w e r e d r u g u s e r s a n d m o re th a n
500,000 were in need of rehabilitation.
Unfortunately, only 5,098 are treated in
the 26 public and private drug
rehabilitation centers throughout thecountry.
The drug pushers on the other hand
are roughly placed at 560,000 in Metro
Manila alone victimizing about a million
dr ug d ep end en ts a ggra va te d b y t heinv olv em e nt o f 83 d r ug syn d icate s.
Foreign criminal syndicates mostly run
the local drug trafficking business with
62% of their activities conducted in the
Metro Manila area. The local illegal drugtrade is worth about P251 billion and islikely to increase as the Philippines isgradually emerging as a major transit
point for drugs and as a producer ofm a r iju a n a f o r e xp o r t t o co n su m i n g
countries.
Narcotics operations conducted b ydifferent drug law enforcement agencies
nationwide for year 2000 resulted in thearrest of 36,753 persons and the filing of
14,258 drug cases in various courts. The
total value of drugs seized for that year
was pegged at 3,994,264,482.00 billion.
The tables below illustrate the gains of all
operating drug law enforcement agencies
for the year 2000.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Comparative Accomplishment
1997–2000
NUMBER OF PERSONS ARRESTED

40,00035,00030,00025,00020,00015,00010,0005,000
037,582 36,753+115.5% -2.20%

17,442
11,616+50.2%

1997 1998 1999 2000
01 January - 31 December

NUMBER OF CASES FILED

22,59825,000+91.3%

20,00010,00014,258

11,81515,0007,516+54.2%-36.9%

5,000
01997 1998 1999 2000
01 January - 31 December

VALUE OF DRUGS SEIZED

4B

4.00
3.03 B

3.00
2.00

1.8 B
1.08 B

1.00
0.00
1997 1998 1999 2000
01 January - 31 December

From January to August 2001, theseries of narcotics operations nationwide
conducte d by different d rug law

enforcement agencies resulted in thearrest of 23,395 persons and filing of
16,636 drug cases in various courts. The
total value of P828,557,053.40 worth ofillegal drugs were seized (DDB estimatedvalue) and a total of 26 foreign nationals
were arrested.
A successful police operation resulted
to the discovery of a shabu laboratory in
Brgy. Sto Nino, Lipa Batangas and thearrest of nine Chinese nationals and one
Filipino national in the name of Benjamin
Tubay Marcelo, the owner of the 2.5
hectares where the shabu laboratory was
located. Confiscated were 200 kgs of highgrade shabu, 400 kgs of newly processedsha bu and 50 0 kgs of ingredients ofshabu.
Early this year, over P7 million worthof fully grown marijuana pla nts andseeds were destroyed by law enforcement
agencies in a huge plantation in Sugpon,
I lo c o s S u r , L a U ni o n a n d B e n gu e t.
According to police opera tives, New
People’s Army guerillas operating in theprovince are reportedly giving protection
to the plantation.
The popular drugs of abuse at thispoint in tim e are m arijuana andmetham phetamine hydrochloride(shabu).
F. Illicit Trafficking of Firearms
Firearm is defined as “any barreledweapon that will or is designed or may bereadily converted to expel a bullet or
projectile by the action of an explosive,
including any frame or receiver of such abarreled weapon but not including any
antique firearm manufactured before thetwentieth century or its replicas.” This
includes “revo lvers a nd self -loa dingpistols; rifles and carbines; submachine
guns; certain hand-held under-barrel andmounted grenade launchers; portable

437

RESOURCE MATERIAL SERIES No. 59
anti-aircraft guns; portable anti-tank
guns, recoilless rifles; certain portablelauncher of anti-aircraft missile androcket system; certain portable lahar
launchers of anti-aircraft missile
systems; mortars of caliber less than 100
mm cal.”The main sources of loose firearms are
the unregistered local gun manufacturers.
W e ca ll th e se s ou rc e s a s “P A LT I K ”
manufacturers. They are concentrated in
the island of Cebu particularly in Danao
City, Mandaue City and otherneighboring towns. These are clandestine
backyard or cottage industries manned byfamily members purposely to produce“paltik” firearms for trade and economic
alleviations.
Illicit trafficking of firearms is anothermenace to Philippine society. It becomesa s tu m b li n g b l o c k to o u r co un t r y’ se c o n o m i c d e ve l o p m e n t a n d p o s e s aserious threat to national security. The
ultimate goals to have political control,
economic advantage, power, revenge,
seek for immediate justice and personal
security are just but a few of the factorsthat a firearms trafficker has in mind. It
is in this context that he violates theexisting laws of the country.
The “gun trail” can be traced from theindividual “paltik” manufacturers elusivede ns and production sites to theconsumers through the enterprisingindividuals or groups whose main agenda
is eco nom ic gain. Syndicated C rim eGroups involved in trafficking of firearms
collect finished products from individual
sources and consolidate these firearms on
p r e - d e si g n a t e d b o d e g a s . C a c h e s o ffirearms are shipped to Manila or any
port for delivery to contacts for the cash
t ra de by Yak uz a cont acts /a gents .
Thereafter, the agents transport the said
firearms mostly by ships, barges, motor

438

bancas and other water carriers. Someut il iz e h e l ic o p t e rs a n d a ir cr a f t f o r
shipments and use of major international
airports.
The gun trail had been monitored eversince. Reports of confiscation, buy-bust
operations and police raids prompted theYakuza to import technology of the gun
manufacturer by hiring individual gun
makers. These gunsmiths are brought toJapan in the guise of tourists, contract
w orkers, a nd other legitima te co ver
purposely to manufacture guns inside
Japan.
While the government campaign todis m a nt l e a l l p ri va t e a rm ie s in t hePhilippines has resulted in a significant
decline in gunrunning transactions andincidents of firearms smuggling, theproliferation of loose firearms remains
unabated. This can be attributed to theopportunities offere d for local
transshipments of firearms and inboundsmuggling o f f oreign- ma de we ap ons
thro ug h I nte rn a tion a l a irp o rts a nd
maritime ports. Sometime in 1992, it wasmonitored that a big shipme nt offirearms, mostly cal. 5.56 US made rifles,
were unloaded in Mindanao and local
officials allegedly purchased the firearms.
Information gathered states that theYakuza is engaged in illegal firearms
trade. Members of the Yakuzaorganization acquire the bulk of “paltik”
productions in Cebu using different exit
points like Batangas, Ilocos Sur and othernorthern parts of the country.
The following factors contribute to theflow/movement of firearms in and out of
the country:(i)

The country’s geographic configuration
with its long and irregular coastlines,
and some sparse and isolated islands,

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
afford gunrunners numerous natural
covers for landing sites and storage
points;(ii) The prospects of huge profits andready markets f or smuggle dfirearms;(iii) Increased connivance among gunrunning syndicates and some corrupt
law enforcers; and(iv) Persistent involvement of somepolitical families and otherinfluential families in these activities
either to beef up their private armies
or as instruments in the conduct ofillicit activities
G. Piracy on the High Seas andArmed Robbery Against Ships
Article 101 of the 1982 UN Conventionof Law of the Sea (UNCLOS) defines
piracy as any of the following acts:(i)

any illegal acts of violence or
detention, or any act of depredation,committed for private ends by thecrew or the passengers of a private
ship or a private aircraft, an ddirected:•on the high seas, against anothership or aircraft, or against persons
or property on board such as shipor aircraft;• against a ship, aircraft, persons orproperty in a place outside thejurisdiction of any State;(ii) any act of voluntary participation in
the operation of a ship or an aircraftwith knowledge of facts making it apirate-ship or aircraft;(iii) any act of inciting or of intentionallyf a c ili ta t in g a n a c t d e s cr ib e d in
subparagraph (i) or (ii).
Based on IMB-PRC records, piracy in
the Philippines exhibited a downward
trend, from a high of 39 incidents in 1996
to only nine (9) last year (2000). However,the country was reported to have thehigh est nu mber of crew members/passengers killed (4 0) during piracy
attacks in 2000. Yemen, Bangladesh andGuatemala followed suit, in that order. In
1996, the same report also highlighted
the Philippines as a Flag State with thehighest number of attacks at 27 or 12% of
the total number of Nationalities of Ships
Attacked.

Number of Incidents in the Philippines
40

39

35
30

24

25
16

20

15

15

9

10

5

6

5

5
0
1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

January to December 1991 - 2000

439

RESOURCE MATERIAL SERIES No. 59
Among the most significant incidentsof piracy that transpired in the Philippine
waters were the following:(i)

On April 23, 2000, a group of 21
p eo ple w ere f orc ib ly ta ke n f ro m
Sipadan Island, Malaysia bymembers of the Abu Sayaf Group.
After taking some of their money andpersonal belongings, the victims weretransported on board two vessels to
the island of Jolo in the southern
Philippines. The Philippine
authorities believed that themembers of the group were pirates
and bandits who have joined the Abu
Sayaf solely for monetaryconsiderations;(ii) The hijacking of MV Juliana, aG enera l C argo S hip lo ade d w ith
1,993 tons of steel sheets as orderedby the Philippine Steel Company
f r o m I n d o n e si a . I n v e s t ig a ti o n s
revealed that the said cargo ship was
repainted and renamed several times
and had earlier been used by the
T ha i M a f ia f o r se ve r a l y ea rs t o
smuggle goods; and(iii) The hijacking of MV Inabukwa, anIndonesian vessel carrying US$2.1
m i ll io n w o r t h o f ti n in g o ts , t inconcentrate and white pepper onbo ard . The ve ssel was seiz e d in
Sayap Island, Indonesia on March
15, 2001 by Indonesian pirates. The
vessel was heading towards
Singapore when it was hijacked. The
vessel was directed to an
undetermined destination before it
finally entered the Philippine
territorial waters. The Philippine
C o a st G ua rd ( P C G ) o f f i ci a ls o n
Ma rch 25 arrested seven alleged
Indonesian pirates and took custodyof the vessel, which name had beenchanged to MV Chungsin, at
Salomague Port, Cabugao, Ilocos Sur.

440

Both the Indonesian and Philippine
governments, through their respective
action agencies, conducted initialinvestigations into the incident. The
vessel and the Indonesian nationals werere leased on June 27, 2001 to theauthorities of the Indonesian Embassy in
the Philippines. The Indonesian
government paid all expenses arising outof the detention of the vessel and thearrest of its alleged pirates as well asother fees incurred during their custodyb y t h e P hi l ip p in e a u t h o r i ti e s . T h e
Indonesia n government promised toprovide the Philippines withinvestigation update and results thereof.
H. Cybercrime
Cyberterrorism is the “unlawful acts
and threats of attack against computers,
networks, and information stored therein
when done to intimidate or coerce a
government or its people in furtheranceof political or social objectives. Further, toqualify a s cyberterrorism, an atta ck
should result in violence against persons
or property, or at least cause enoughdamage to generate fear.”
The infamous ILOVEYOU virus andits variations as a result of mutation,
which is so far considered to be the mostdamaging and most widespread virus
outbreak in history, is a manifestation ofc y b e r te r r o r is m t h a t u n f o r tu n a t e l yinvolved the Philippines. According to
final estimates, this virus was able toinvade tens of millions of computers
representing 80% of computer systems
w o rld w id e a nd ca use d a sta gge rin g
fina ncia l d a ma ge a mo unting to $ 1 0
billion. It w as ab le to cause va rious
irreparable damages to computers inHong Kong, Malaysia, Germany,
B e lg ium , F ra nc e , th e N e th er lan d s,
Sweden, Great Britain and the UnitedStates. Specifically, the virus disabled
A T M s i n B e l g i u m le a v i n g c i t i z e n s

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
cashless for quite sometime, disrupted
the British House of Commons’ internal
communications system and corrupted
the e-mail systems of the US Congressincluding that o f the Pentagon withs p e ci f i c r e f e r e n c e t o t h e c l a s s if ie dinformation system of the US Defense
Department.
The use of computers as instruments
f or te rro rist op er a tio ns ca n b e b est
illustrated by the case of Ramzi Ahmed
Yousef who is now serving a life sentencein the United States for the 1993 bombingof the World Trade Center in New York.
A la ptop seized from him during his
arrest by members of the Philippine
N a ti o n a l P o l i c e r e ve a ls a d e t a il e do p er a t i o na l p la n t o b o m b d o z e ns o f
A m e ri ca n a ir line s o ve r th e P a cif ic .
Osama Bin Laden’s terrorist activities
and underground infrastructures are
sustained by personal computerscomplete w ith sophisticated satellite
uplinks and encrypted messages which
provide him with the capacity to direct
terrorist operations in other countries
while maintaining a seclude dunderground network in Afghanistanwith the aid of the Taliban militia.
T he Ph ilip pin es is a ho me to 180
internet service providers and at least
700,000 computers of which 50% areconn ect ed t o t he in tern et. Wi th ad e v e l o p in g e c o n o m y t h a t i s sl o w l yembracing electronic technology, it is also
gradually becoming a vulnerable prey tothe onslaught of computer crimes andcyberterrorism. At this early, thedevelopment of its computer networks ishampered by threats posed by theseperverse activities. The more notable ofthese computer crimes include Internet
Service Provider (ISP) hacking involving
the illegal use of ISP accounts, denial ofservice which includes web defacing andother service interruptions of websites

which was done to the website of the
Department of Foreign Affairs, the AMA
Computer College, the BBPilipinas.com,
Globe.com.ph, and the Fapenet.org.,
backdoor/Trojan involving the sniffing ofimportant documents of other websites,
and credit card fraud which is the mostprevalent com puter crime beingcommitted.
Since January of this year, several
institutions were hacked to include the
PLDT, the Office of the President andthat of the Press Secretary, Ateneo deManila University, and the University ofSanto Tomas. Just recently, Senator
Roco’s website was hacked by a malicious
pra nk ste r w ho de fa ce d the site a nd
replaced it with irrational andincomprehensive information.
The cyber-terrorist threat, on the other
hand, could be perpetrated by the CPP/NPA /N D F which ha s bee n co mputerreliant since 1987. The movement is able
to enhance its intelligence networks andintercept classified information with its
sophisticated computer system. To denyg o v e r n m e n t a u t h o r it i e s c l a s s i f i e dinformation of the movement, the latterhas institutionalized encryption as ameans of relaying information to operating
units in other parts of the country. Even
its recognized leader, Jose Maria Sison,
maintains a personal website from which
he can communicate and rally the local
insurgents into launching terrorist attacks
against the government. Non-governmentorganizations here and abroad that are
sympathetic to their cause and giving
financial and other assistance can also be
r e a c h e d t h ro u gh t h e i n te r n e t th u s
facilitating unhampered transactions.
The National Youth Student Bureau,
which serves as an impo rtant
subordinate party organ of the National
Organizational Department of the CPP/

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RESOURCE MATERIAL SERIES No. 59
N P A , ma in tains a p oo l of co mp ute r
literates a nd experts. Se vera l pa rtym e mb e rs ha ve e nro lle d in d iff er ent
co mp ute r schools while others ha ve
infiltrated the underground computer
networks to gain expertise on how toinitiate computer crimes and utilize thesame in their terrorist activities.
III. COUNTERMEASURES/
INITIATIVES
T he p ro s p e c t o f l a w e n f o rc e m e nt
cooperation in Asia has come of age. In an
era of regionalization and globalization,states have to recognize that incombating a threat together it is likelythat they will have to collaborate andcoordinate their actions.
T he a r ra y o f re gi o na l a nd g lo b a larrangements takes m any f orms:
standing bodies, ad hoc conferences,bilateral agreements, and multilateralconventions. These non-state actions
form the basis for cooperation and, at its
essence, is the basis for a continuing
union of states. The ultimate objective ofsuch cooperation is the forma tion of
global and regional groupings with thestated minimum aim of providing a forum
on issues of significant mutual concern.
A. Trafficking in Persons
The Philippines has no specific lawthat deals squarely with hum an
trafficking. How ever, a bill titled as“Anti-Trafficking in Human Beings Act of2001” that seeks to criminalize humantrafficking in all its forms is pending in
the Philippine Congress. Pending thep a s sa g e o f t h is le g a l m e a s u re , l a w
enforcement authorities to penalize thoseinvo lved in hum an trafficking are
utilizing several laws. These are thefollowing:442

1. Republic Act No. 6955 entitled “AnAct to Declare Unlawful the Practiceof M a tc hin g Fi lip ino W o m e n f or
Marriage to Foreign Nationals on a
Mail-Order Basis and Other Similar
Practices
IncludingtheAdvertisement, Publication, Printing
or Distribution of Brochure, Filers
and Other Propaganda Materials inFurtherance Thereof and Providing
Penalty Thereof”.
2. Republic Act No. 7610, known as
the “Special Protection of Children
Aga inst Ab use , Exploita tio n andDiscrimination Act”. This law
prevents the prostitution and otherforms of sexua l a buse comm itted
against children (Article III) and also
penalizes child trafficking (ArticleIV).
3. Republic Act No. 8042, known as
the “Migrant Workers and Overseas
Filipino Act of 1995”. It penalizes
illegal recruitment of persons for
employment abroad.
4. Republic Act No. 8239, known as
the “Philippine Passport Act of 1996”
penalizes the procurement and use of
spurious Philippine passports.
The Philippine law enfor cement
organization has specialized units to deal
with human trafficking cases. These are
the following:
1. Human Trafficking Desk of thePhilippine
Centeron
Transnational Crime (PCTC). This
desk is in charge of gathering data on
human trafficking cases as well as in
the maintenance of the central
database, continuous gathering ofin f o rm ati o n t o su st ain th e d a t arequirem ents of the database,generating reports from the databaseneeded in police investigation, andoperations, trend analysis, strategic
studies and policy recommendations.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
2. Anti-Illegal Recruitment Brancho f the Philippine Ov ersea s
Employment Administration(POEA). It is specifically tasked toinvestigate cases of illegal
recruitment for employment abroad
and filing cases in appropriate courts.
3. Violence Against Women andChildren Division of the National
Bu re au of In ve st igat ion . T his
specialized unit takes cognizance of
all cases with women and children as
victims to include trafficking andsmuggling, forced labor andprostitution.
4. Women and Children Concern of
the Criminal Investigation
Detec tion Group. Thi s iscounterpart of the Violence against
Women and Children Division of the
NBI at the Philippine National Police
and as such its functions is similar
with the former.
The following are the programmes ofv a ri o us i nte r na tio n a l an d n a ti o nal
organizations as well as the Philippine
governments to stop trafficking in womenand children:
1. Prevention(i) Philippine Overseas Employment
Administration—offers dancing
skills d eve lo pm ent f or would- beentertainers and caregiver’s training
to potential domestic helpers, in the
belief that these talents and skills
would protect Filipino women
workers abroad.
(ii) National Commission on the
Rights of Filipino Wom en(NCRFW)—Advocating policies andprogrammes to stop trafficking in
w omen and children such a s theenactment of an anti-trafficking bill
into law and the d evelopment o f
information and education materials

foradvocacyandpublicdissemination.
(iii) Other government agencies into
a dvocacy and aw areness are theD e p a rtm e n t o f T o ur ism (D O T ),Department of Social Welfare andDevelopment (DSWD), Philippine
Overseas Employment Administrationand the Commission on Filipinos
Overseas (CFO). The Department of
Educ ation, Culture and Sp orts
(DECS)—conceptualizing integrated
programmes to be conducted for schoolof ficia ls, curriculum d eve lopers,s tud en t/c om m u nity le a de rs a n dparents.
(iv) Philippine
NetworkagainstTrafficking in Women (PNATW)—
lobbied for the introduction of antitrafficking legislation and has been
involved in the production of several
videos and broadcast programmes
about the risks of working aboard.
(v) The International Organization
on Migration (IOM)— al sos up p o r te d v a r io u s in f o r m a ti o n,
advocacy law development activities.
(vi) The United Nations Coalitions
Against Trafficking in Persons
Global Programme—enables thecountry’s coordinating agencies todraft a Strategic Action Plan Against
Trafficking in Persons. More over,representatives from the Coalitiona r e co nsiste ntly m o nito ring the
programmes of the Center as well as
continuously sharing information,
which could facilitate and effectively
implement such programmes.
(vii) Other NGOs advocate initiatives
paying attention to prostitution as a
violation of human rights.
2. Protection and Return
Protection and return activities focuseson the special assistance to victims whocome out of prostitution by providing

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RESOURCE MATERIAL SERIES No. 59
shelter, health care, counseling,education, and vocational training.
3. Reintegration
Reintegration programmes are aimed
at facilitating the recovery from any
traumatic experience and the turn tonormal life of victims to pursue their
aspirations in life.
B. International Terrorism
It is the national policy of thePhilippine government to declare a total
war against terrorism. It considers all
terrorist actions, regardless ofmotivation, as criminal acts, not to accede
to blackmail or demand nor grant any
concession, not to provide sanctuary or“safe haven” for terrorists whether they
are Filipino or foreign nationals. It alsoadheres to all international conventions
and initiatives against terrorism andparticipates in all endeavors designed tostrengthen international cooperation inorder to prevent and neutralize terrorist
acts.
Beca use of the globa l character ofterrorism, the Philippines has sought tostrengthen its international linkages by
sig ning the Joint Commu nique oninternational terrorism during the 1993
Conference of ASEAN Chiefs of Police(ASEANAPOL) and the Memorandum of
Agreement on Counter-Terrorism withseveral countries and pursued various
a gr ee me nts w ith the U S A, like w ise
establishing an INTERPOL-National
Central Bureau.
In 1996, the Philippines hosted theInternational Conference on Counterterrorism (ICCT) in Baguio, which wasattended by nineteen representatives
f rom d iffe rent pa rts of the w orld toe nh a n c e i nt e r n a ti o n a l c o o p e r a ti o n
ag ains t all fo r m s of te rr o rism . Th e
“Baguio Communique” took into444

co nsideration some fundamental
principles such as: 1) there must be no
sanctuary for terrorists; 2) there must be
no c o m pr om is e in the fi ght a ga in stt e r r o r i sm ; 3 ) t h e s t r e n g t h e n in g o fmultilateral and bilateral cooperation or
coordination of policy and action against
terrorism; etc.
The Philippine government establishedthe Philippine Center on TransnationalC r im e ( P C T C ) o n 1 5 J a nu a r y 1 9 9 9
pursuant to EO. Nr 62, to deal specificallywith all transnational crimes includingthat of terrorism. The PCTC’s primaryfunctions among others are: to establish ashared central database among
government agencies for information on
criminals, methodologies, arrests andconvictio ns regarding tra nsnatio na lcrimes, to explore and coordin ate
information exchanges and training withothe r gov ernm e nt a ge ncie s, fo re ig n
co untries
andinternationalorganizations.
Relatedly, on 7 May 1999, Executive
Order No. 100 was issued transferring
the INTERPOL-NCB functions from PNP
to PCTC’s supervision in order to fortify
and facilitate the coordination between
and among foreign countries. This, inessence, placed other agencies, offices andinstr um e ntalit ies su ch as th e L oo p
Center of the NCCAS (before NACAHT);
the Po lice A ttaches of the P NP and
Political Attaches/Counselors for Security
Matte rs of the DILG under its
sup e rv isio n and co ntr ol in o rd e r tostrengthen
theoperational,
administrative and information support
system of the PCTC. Additionally, E.O
No. 110 was issued, dated June 15 1999,
which directs the PNP to support the
AFP in Internal Security Operations forthe suppression of insurgency and otherserious threats to national security, theDepartment of the Interior and Local

119TH INTERNATIONAL TRAINING COURSE
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Government (DILG) was relieved of its
p r i m a r y r e s p o n s i b i li t y o n m a t t e r s
involving the suppression of insurgency
and other threats to national security.
O n the othe r ha nd , M e mo ra ndum
Order No. 121 dated October 31, 2000,
p ro vid e s a n d d ef ine s me a su re s a nd
guidelines on how to effectively address
terrorism particularly hostage-taking
situations. However, all aviation-related
incidents shall be covered by existinglaws and procedures under the National
Action Committee on Anti-Hijacking andTerrori sm (NACA HT) , a nd thisMemorandum shall be supplementary
thereto.
To further ensure the effectiveness ofthe government’s drive against terrorism,
the government issued Executive OrderNr 336 on 5 January 2001, reconstituting
the National Action Committee on AntiHijacking and Anti-Terrorism to NationalC o u ncil f o r C iv il A via tio n S ec ur ity(NCCAS). The reconstituted NCCAS wasestablished primarily to contain threatsof avia tion-related terrorism a nd tostrengthen the law enforcem ent
capabilities in order to effectively address
all forms of terrorist acts against civil
aviations.
Just recently, President Gloria
M acapagal A rroyo announced thef o u r te e n p o in t p o lic y in cl ud in g s ix
measures to combat terrorism as follows:
Six Measures• One, to join the International
Counter-Terrorist Coalition and towork with the United Nations.
• Two, to work closely with the UnitedStates on intelligence and security
matters concerning terrorism.
• Three, to make available Philippine
air space and facilities when these are
required as transit or staging point.

•••

Four, to contribute logistical support
in the form of food supply, medicinesand medical personnel;
Five, to subject to the concurrence ofCongress, to provide combat troops if
there is an international call for suchtroops.
Six, to prevent the flow of funds toterrorist groups to the Philippines bypassing and implementing legislation
against money laundering.

Fourteen Pillars• Organize the whole enterprise anddelineate clear lines of responsibility
and accountability (including theca b in e t o v e r s ig h t c o m m it t e e o ninternal security).
• Anticipate events more efficiently andeffectively (with the national security
advisers undertaking special
intelligence coordinating projects).
• Strengthen internal focus against
terrorism (with all the government
units “down to the barangay level”
involved).
• Hold accountable all public andprivateorganizations
andpe r so n a l i t i es a b e t t i ng o r a id ing
terrorism.
• Synchronize internal efforts with theglobal outlook (including the fasttracking of a regional consensus withIndonesia and Malaysia in the war
against terrorism).
• Combine a policy of tactical counter
force with a set of strategic legal
measures.
• Pursue broader inter-faith dialogue topr omote Ch ristian an d Mu slim
solidarity.
• Exercise vigilance against movementso f su s p e c t e d p e r s o n s, f i r e a r m s ,explosives, raw materials ofe x p l o s iv e s , t o x ic m a t e r ia l s a n dbiological materials.

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RESOURCE MATERIAL SERIES No. 59
•
•
•
•

•
•

Coordinate preparations and actionsin the event of catastrophic terrorist
attacks.
Draft a comprehensive security planfor critical infrastructure.
Support the immediate transfer out ofoverseas Filipino workers.
Modernize the armed forces and thenational police considering current
and emerging needs to contain the
global terrorist threat.
Seek the support of media to promoteconsensus and counsel prudence.
Take cognizanceof terrorism’s
political, social and econom ic
underpinnings.

C. Money Laundering
The Senate and the House ofRepresentatives of the 12th Congress had
passed recently the much-debated AntiM one y La und ering Bill through theRepublic Act No. 9160, an Act Defining
the Crime of Money Laundering,
Providing Penalties Therefor and forother Purposes. This Act shall be known
as the “Anti-Money Laundering Act of2001.” This act, which is a consolidationof House Bill No. 3083 and Senate Bill
No. 1745, was finally passed by the Houseof Representatives and the Senate on
September 29, 2001 and was approved
into law by President Gloria MacapagalA rroyo. The bill m akes it a crime totransact through the banking systemmoney in excess of four-million pesos(US$80,000.00) representing proceeds for
14 specific crimes.
Included in the predicate crimes of thislaw are kidnapping for ransom; drugtrafficking; graft and corruption; plunder;r o b b e r y a nd e x to rt io n; ju et e ng a n dmasiao; piracy on the high seas; qualified
th ef t; sw ind ling, s m ugglin g, cy ber crimes; hijacking; destructive arson andmurder, including those perpetrated byt er r or is t s a ga ins t no n - co m b a t a nt s;

446

securities fraud; and offenses of a similar
nature punishable under the penal lawsof other countries.
D. Intellectual Property Rights’
Violations
Below are some specific initiatives
undertaken by the Philippine
g o ve r nm e n t f o r th e p r o te c ti o n a n dpromotion of intellectual property rights:
1. BSA and NBI Campaign Against
Software Piracy—Coordinated andconducted a campaign against thecontinuing problem of illegal
software.
2. Republic Act 8293—Known as the“Intellectual Property Code of thePhilippines”, it is being implemented
as the primary law on intellectual
property to comba t all forms a ndmanner of infringement, piracy andcounterfeit of intellectual property
rights.
3. Creation of Intellectual Property
Office (IPO)—Tasked to administerand implement the State Policy toprotect the exclusive rights ofscientists, inventors, artists, andother gifted citizens to theirintellectual property and creations
which are beneficial to people, forperiods as provided in the Intellectual
Property Code.
4. Creation of the PIAC-IPR—
Cr ea ted to coo rd inate co ncern ed
government agencies and private
entities for the proper enforcement ofintellectual property rights in the
country.
5. Creation of the PCTC—Tasked toperform the necessary and propercourses of action to contribute in thebattle against intellectual property
rights crime.
6. BSA and PISO Campaign Against
Internet Piracy—Both agreed towork together in addressing internet

119TH INTERNATIONAL TRAINING COURSE
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pirac y pr oblems specifically ingenerating greater awareness and theappreciation of the roles of internet
service providers in the prevention
and control of this problem.
7. Private Sector Initiatives—Forgedan agreement to restrict the sale ofpirated compact discs and to sanction
those who will violate suchagreement.
E. Drug Trafficking
Republic Act No. 6425 otherwise
known as “The Dangerous Drugs Act of1972” as amended by Presidential Decree
Numbers 44, 1675, 1683, 1707, Batas
Pambansa Blg. 179, and Republic Act No.
7 65 9—this la w institutiona liz es theinternationally accepted two-pronged
approach of supply and demand
reduction. Supply reduction is manifested
through the imposition of penalties foracts punishable in relation to prohibitedand regulated drugs and the forfeiture of
the proceeds or instruments of the crimeso penalized in favor of the government.
Department of the Interior andLocal Government (DILG) CircularNo. 98-227—this DILG issuancemandates all local government units(LGUs) to organize Anti-Drug Abuse
Councils in their respective areas of
responsibility. The chief executives of all
local political units (barangays,
municipalities, cities, and provinces) arec on curr en tly the ch a irm e n o f th es e
ADACs with the provincial directors,
chiefs of police and precinct commanders
as vice chairmen. These organizations aretasked to implement demand and supply
reduction through the realization ofprogrammes and projects on preventive
education, treatment and rehabilitation,r e s e a r c h , a n d in t e r d i c ti o n s. T h e s eorganizations also offer venues throughwhich various organiz ations andindividuals will work together in theplanning, implementation and evaluationof programmes on drug abuse prevention
and intervention. As of year 2000, forty
thousand four hundred and forty six
thousand Barangay Anti-Drug Abuse
C oun cils (B A D A C s) w er e o rga niz e dthrough the orchestration of the National
Drug Law Enforcement and Prevention
Coordinating Center (NDLEPCC).
Letter of Instruction Nr. 1 (LOI Nr1)—this LOI was signed by President
Gloria Macapagal Arroyo on July 4, 2001
the purpose of this LOI was to seek tomobilize and bring to bear the entire
Governments machinery and the Civil
Society in all-out and sustained anti-drug
campaign n ation wide towa rds theattainment of a drug free Philippines
2010.
F. Piracy on the High Seas andArmed Robbery Against Ships
Currently, the Philippine Government
is coming up w ith a na tional plan ofaction to address piracy on the high seas
and armed robbery against ships.
In the meantime, the Maritime Groupof the Philippine National Police,
Philippine Coast Guard, Philippine Navy,
MARINA and the PPA primarily enforce
all applicable laws regarding piracy anda rm ed ro b b er y. The se a gen cies a ndof f ice s have c o ngru en t f un ctio ns to
implement such laws, although withspecific limitations in terms of equipment
and facilities. A core group composed ofse le cte d re pre se nta tive s from theseagencies drafte d a program me ofactivities on matters pertaining to law
enf or cem e nt, le gal and inf orm ationexchange.
On August 3, 2001, CABCOM-MOAC
Co re G rou p o n P ira cy e xpre ssed its
support to the Japanese proposal on the“Regional Agreement on Anti-Piracy in

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RESOURCE MATERIAL SERIES No. 59
Asia”. This ASEAN-Japan proposal was
discussed on October 4–5, 2001, in the
aspect of the scope of agreement,
information network, capacity building
and cooperation, among others.
G. Illicit Firearms Trafficking
The control of “Paltik” manufacturing
is one of the problems that beset our law
e n f o rc e m e nt a g e nc ie s. T he co u nt ry
through its PNP Firearms and Explosive
Division is encouraging illegal
ma nufacturers to come to terms andorganize a license industry. As of now,there are two licensed manufacturers in
D a na o C ity, C ebu—the D anao Arms
Corporation (DAMCOR) and the Workers
League of Danao Multi-Purpose
Cooperative (WORLD-MPC). These two
manufacturers are authorized to produce
a total of 6,000 ass orted firearms
annually based on their manufacturers
license issued by the PNP Chief. Thispo wer to approve and disapproveapplications for firearms manufacturing
license was expressly delegated to the
C h ie f , P N P u n d e r S e c t io n 2 7 ( f ) o f
Republic Act 6975.
There is a need therefore to liberalize
the issuance of manufacturer’s license toeliminate red tape, and come up with asimpler system. Decentralizing of theprocessing to the regional level may
encourage illegitimate “paltik”
manufacturers to come out in the open
and abide with the regulations.
The Bureau Customs is the primaryagency tasked to address the smugglingof firearms. The Philippine government
formed an AD-HOC committee toincorporate the efforts of all law
enforcement and intelligence agencies bycreating a coordinating body called the
National Law Enforcement Coordinating
Committee (NALECC). Each memberag en cy p a sse s in fo rm atio n to o the r448

agencies to come up with SPIDER WEB
efforts to identify and entrap smugglers
even at local inter island ports of entry
and exit. Intensified informatio ngathering by app ointed intelligenceagents and informants is likewise being
undertaken. Searches by Coast Guard
and Custom Officials are implemented on
suspected carriers.
1. On Pilferage of Firearms
The counterintelligence units andrespective Security Officers of AFP/PNP
a r e no w a d d r e s sin g th e p ro b le m o fpilferage of firearms. Inventory andinspection of physical establishments arebeing monitored regularly. Aside from theenhancement of physical structure on
camps and other military installations,safeguard mechanisms are employed.
2. On Losses from Police and Military
Operations
Professionalizing the police and themilitary can n eg ate l os ses du rin glegitimate Police and Military operations.
Training, Information and Education oftroo ps in ord er to ta ke ca re of theirindividual equipment are every now andthen undertaken. Executive Order 122
da ted 8 S eptemb er 1 99 4 pe rta ins toproper reporting of lost FA’s as well as
recovered firearms from the enemy. This
includes the proper accounting of all
government firearms as basis for future
audit and inventory.
H. Cybercrime
Th e g overnment is continuously
stren gthen ing its legal as well as
structural mechanisms to counter the
proliferation of computer crimes andcyberterrorism
vis-à-vis
theimplementation of the National
Information Technology Plan that seeks
to ensure the electronic interconnection ofa ll go ve rnm e nt units, a ge nc ies a nd
instrumentalities and also ensures that

119TH INTERNATIONAL TRAINING COURSE
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all sectors of society will have access to
information technology.
Foremost of these initiatives is thepassage into law of Republic Act No.
8 7 9 2 , a l s o kn ow n a s t he E l e ct r on i c
Commerce Act. It seeks, among others, toensure network security and penalize
u n a u th o r iz e d a cc e s s, il le g a l u se o felectronic documents and the wanton
destruction of computer files.
Complimenting this law is the Task
Force on N ational Information
Infrastructure Protection established on
May 20, 2000. It is tasked to conduct anassessment of all national infrastructuresthat form part of the country’s social
backbone, identify their vulnerabilities tocyberterrorism and other related crimes
and recommend response measures toensure their protection leading to therealization of a comprehensive National
Information Infrastructure Security
Programme.
IV.ASSESSMENT
The rapid growth of technology has
created a paradox in society, such that wehave to live side by side with theadvances it has for our lives, as well as
the dangers it poses to man and society.
For no matter how remarkable theseadvances have become, there also will
alw ays be advancements in criminal
undertakings and activities that use thevery same technology to “advance” theirvery own peculiar interests.
The Philippines has remained as asource, transit and destination country
for illegal emigrants to include victims of
trafficking and smuggling. This is due towide range of national conditions thatfavor the exodus of people out of thecountry as well as large economic andsocial op portunities abroad. Thisphenomenon is further enhanced by
globalization, which is easing them o b i li t y o f p e o p l e a c r o s s n a t i o n a lborders.
Institutional mechanisms andinternational/regional arrangements aresoun d a ction s that w ill definit ely
strengthen national capabilities against
human trafficking and smuggling andother transnational crimes.
Terrorism has always existed and thechances are strong that it will continue toexist. It will remain as long as there islittle regard for the emotional componentof political, social and economic problems
besetting two or more opposing states.
The se f a ctors m otiva te ind ivid ua ls,
groups or class to conduct aggressions asa means to correct perceived injustices orinequity in their relationship. The threatof terrorism will continue to be felt in thePhilippines. This is a strong indicationthat the Philippine government should bedetermined and sincere in addressing thethreat of domestic and international
terrorism.
In Asia, money laundering is on theri se . T he r e a so n s c ite d a r e o f f ic ia lcorruption, strict bank secrecy laws,
traditional ethnic underground banking
networks and in some countries a lack ofanti-money laundering laws. The reportp in p o int e d C hi na , H o ng K o n g, a n d
M a c a u a s m a j o r m o ne y l a u n d e r i ng
centers, and also named India, Indonesia,
and the Philippines. The Philippines hastaken its move. It is expected that othercountries, especially those falling under
the category as probable havens of money
launderers, will finally heed the call of
FATF.
The massive increase in piracy,
counterfeit and infringem ent ofintellectual property rights has

449

RESOURCE MATERIAL SERIES No. 59
significantly affected the Southeast Asian
region, including the Philippines. The
proliferation of the crime has also been
implicated in the continuing economiccrisis being experienced by the region.
Despite the efforts and measures takenby the government, the nation is still at
risk and gre at da nger. Accord ing to
B u sin e ss So f twar e A llianc e ’s C h ie f
Executive Officer, Robert Holleyman,“the Philippine laws are not enough toprotect IPR and copyright.”
The illicit trafficking of firearms is acommon problem shared by many state.
The gravity of the problem depends on
how rules on firearms regulations arebeing implemented. The definition of
firearm has been a subject of debate. But
the scope of its operation and impacts areu n d e r m in i n g t h e se c u r i ty o f e v e r yi nd iv id u a l. T he P hi lip p in e s sh o ul daddress the problem s posed byunregistered firearms and the productionof “paltik” guns. Control through effective
regulation is needed. A proactive concept
should also be developed to counter illicit
trafficking of firearms.
Another transnational crim e
recognized as an offense against the lawof nations is piracy. Incidents of piracy
were expected to increase with increase
trade and commerce using internationalsea lanes. There is, therefore, a need for
gr ea te r re gion al na va l co op er a tio n,d iplo ma tic d ialo gue a nd continuingu nd e rsta nd ing o f v a rio us m a r itim e
issues. These issues could include thefollowing: information sharing; joint
exercise/patrolling; standard operatingprocedure on piracy reporting; training of
personnel; technology exchange and theestablishment of anti-piracy networks
and rescue center.
In drug trafficking, interna tional,r egion al an d na tio na l initia tives to450

combat the problem on illegal drugs are
sufficient in substance but not in a way
the se a re b ein g im p le me nte d . W it hrespect to international and regional
initiatives, their implementation within
the territory of signatory sta tes arehampered.
Unfortunately, the economic
environment is being transformed bytransnational criminal syndicates to theiradvanta ge. With the emergence of ab o r d e r le s s w o r l d , m e m b e r o f t he secriminal syndicate s can e nter any
country with ease to perpetrate their
i ll e g a l a c t i v it i e s m a s q u e r a d in g a s
legitimate investors and tourists.
V.CONCLUSION
Transnational crimes have existed anda consensus has emerged that these will
be a growing challenge. Not all states,
however, agree which of these crimes areto be given priorities because they do notaffect every country equally. Its effects ina country, like the Philippines, facing thechallenges of sustaining a certain level of
economic growth, can be more severe
compared to its neighbors. For example,
migration can be harmful to sending
state, but in some respects, it can be
helpful to a sending state because of
pecuniary remittance being sent back to
the fa milie s of migrants. The harm,
however, is greater than the help because
a nu m be r o f the se m igra nts en d up
exploited. O ther nationa l conditions
vulnerable to exploitation by
tra nsna tio na l o rga niz e d synd ica te s
include the following:
1. Archipelagic condition of the country
characterized by scattered islands
and islets and a long and virtually
unguarded coastline;
2. The widening gap between the richa nd t he po or a cco mp a ni ed b y a n

119TH INTERNATIONAL TRAINING COURSE
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u ne m p lo y m e n t p r o b le m a n d th e
shortage of manpower and specializedskills in industrialized countries;
3. Proximity to drug producing andexporting countries and source ofillegal migrants; and4. The absence or ineffectiveness of laws
against transnational crime.

451

OVERVIEW OF THE PROVISIONS OF THE UNITED NATIONSCONVENTION AGAINST TRANSNATIONAL ORGANIZEDCRIME AND ITS PROTOCOLS
Dimitri Vlassis*
I. THE NEW CONVENTION:
A NEW ERA IN INTERNATIONAL
COOPERATIONIn December 1998, the United Nations
General Assembly established1 an Ad Hoc
Committee for the elaboration of the
U nited N ations Co nven tio n a ga inst
Transna tional Orga nized Crime andthree additional Protocols addressing:trafficking in persons, especially womenand children; illegal trafficking in andtra nsporting of migra nts; and illicit
m anufa cturing of a nd traff icking infirearms, their parts and components andammunition. In establishing thisCommittee, the Assembly took a giant
step toward closing the gap that existed
in international cooperation in an area
generally rega rded as one of the top
priorities of the international community
in the 21st century. The Assembly also
lay to rest the uncertainty anduneasiness that surrounded the endeavor
by manifesting the collective political willof all States to tackle conceptual andpolitical problems and find commonly
acceptable solutions. One year later, in
December 1999, the General Assembly
adopted another resolution2, by which it
asked the Ad Hoc Committee to intensify
its work in order to complete it by the endof 2000. The Assembly thus formalized

the deadline under which the Ad Hoc
Committee had been working since its
establishment. Apart from the symbolism
in v o lv e d , th e d e ad li ne r e f le ct s th e
urgency of the needs faced by all States,
developed and developing alike, for new
tools to prevent and control transnationalorganized crime. It also reflects the needof sustaining and building on them o m e n t u m th a t m a d e t he o r i g in a ld e ci sio n p o s sib le in o r d e r to f o st er
consensus while not compromising thequality of the final product.1 2
The process leading up to theestablishment of the Ad Hoc Committee
may seem long and arduous. However,
the reader is urged to keep in mind that
only four years passed from the time thatthe idea of a convention first surfaced
until the official commencement of thene go tia tion p ro ce ss. T his co m p a re s
extremely favourably with other similar
initiatives, especially in areas that are ascomplex as that of criminal justice andthe development of international criminal
law. Further, the Ad Hoc Committee
charged with conducting the negotiations
operated from the beginning under a selfimposed short deadline3, which is rather
unusual in international negotiations of
1

See General Assembly resolution 53/111 of 9
December 1998. In resolution 53/114, also of 9

* Crime Prevention and Criminal Justice Officer,

December 1998, the General Assembly asked theSecretary of the AD HOC Committee for the

Ad Hoc Committee to devote sufficient time to the

Elaboration of the United Nations Convention

elaboration of the Convention and the three

Against Transnational Organized Crime, United
N a t i o n s C e n t r e F o r I n te r n a ti o n a l C r i m ePrevention (United Nations)452

additional international legal instruments.
2

See General Assembly resolution 54/126 of 17
December 1999.

119TH INTERNATIONAL TRAINING COURSE
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this sort, especially in the context of theUnited Nations. This deadline set a very
vigorous pace for the negotiations, whicho f te n tax e d he av ily t he c a p a c ity o fsmaller delegations.
The reader should also keep in mind
that the Ad Hoc Com mittee was
essentially negotiating in parallel fourinternational
legallybinding
instruments. All this notwithstanding,
the Convention was finalized in July, a
few months ahead of schedule, and two of
the Protocols were completed within thed e ad l in e , in s p it e o f t he nu m e r o u scomplexities and political concerns theymight have entailed.
Finally, the reader should always bearin mind that the United Nations is ag lob a l or ga n iz a tio n f o un d ed o n th e
principle of equality. The concerns of all
S tat es , b ig or sma ll, more or lesspowerful, deserve equal attention andshould be taken into account in all of theactivities in which the United Nations is
e n ga ge d . Th e p ri nc ip a l str e ng th o finternational action, especially that of anormative nature, is its universality. In
the case of an instrument intended toaddress an issue as complex as
transnational organized crime, the active
participation of both developing anddeveloped countries from all regions isessential. The very nature oftransnational organized crime, with theability of criminal groups to seek the mostfavourable co nditions for theiroperations, demands no weak links in the
chain of joint action.
The spirit guiding the negotiations has
been one of constructive engagement andsensitivity to the concerns of everyone
3

It should be noted that the General Assembly
made this deadline official with resolution 54/126
of 17 December 1999.

involved in the process. Everyone agrees
that the objectives of the negotiations
cannot be expediency but consensus,
together with conscious and genuine
commitment, which are the cornerstonesof successful action. Consensus has often
been equated with weakness andobscurity, especially when it comes tonegotiated texts. It may be true that, at
first glance, many documents that havebeen the results of prolonged negotiations
may appear convoluted and inefficient.
A f te r a ll, ve ry o f te n o n e o f the k ey
elements of compromise is ambiguity.
Ha ving said this, how ever, it is a lso
important to bear in mind that equallyoften the ideal is far removed from thefeasible. A n international legal
instrument that upholds the highest
standards of clarity and directness ofla ng u a g e , a n d i nc l ud e s s tr o n g a n dstraightforward obligations is desirable
a nd c om m en d a b l e . I t a l s o d e s e rv e s
careful study at the academic level and isan essential component of any course ininte rn atio na l law . H ow e ve r, if thi s
instrument fails to come into force, or, if
it does, is acceded to and implemented bya handful of countries, its practical utility
becomes doubtful, to put it mildly, and isdestined to languish in library books andsoon forgotten.
The Ad Hoc Committee operated withthese guiding principles from the time ofits e s ta b li sh m e n t. T h e n e go t ia tio nprocess was highly participatory. Over125 countries participated in the sessionsof the Ad H oc C o mm ittee . With thegenerous help of Austria, Japan, Norway,
Poland and the United States, on average
23 of the Least Developed Countries (agroup of 48 countries from Africa, Asiaand Latin America determined by theGeneral Assembly each year) attended
the sessions. Its members agreed early onthat the quality of the final product wasessential. Other existing Conventions,453

RESOURCE MATERIAL SERIES No. 59
such as the 1988 Vienna Drug
Convention and the Convention against
T e rr or ist B om b in gs 4 wo uld pr o vid e
inspiration, as they had often dealt withsimilar issues. However, the Ad Hoc
Committee also agreed that everyc onsc ious effor t would be made to
improve upon the texts of these
Conventions, to the extent possible, ino r de r t o m e e t the ne e d s of the ne w
Convention and to reflect new trends.
Before proceed ing to giving an
overview of the text of the Convention, it
is important to note a very interesting
feature of the negotiation process. It will
be recalled that, to a large extent, thedriving force behind helping the idea ofthe conve ntion mature was theenthusia sm of d eveloping countries.
Faced with the breakneck pace of thenegotiations, several developing countries
began complaining that the deadline washaving an impact on their ability to study
the text fully and prepare their positions.
These countries felt that keeping thedeadline should not have an adverse
im p a c t o n th e ability o f de ve lo p ing
countries to express their concerns andnegotiate solutions they regarded as
acceptable. In addition, as the text was
gradually embellished and enriched withn e w p r o p o s a ls , s e v e r a l d e v e lo p i n g
countries started to entertain fears thatde velop ed countries viewed theConvention as an opportunity to impose
approaches and solutions on their lesspowerful counterparts, and this was thereason that the Convention had become
highly desirable to them.
Criminal justice is an integral
component of a country’s soul and, assuch, one of the key attributes ofsovereignty. In a rapidly developing and4

Adopted by the General Assembly by resolution
52/164.

454

very demanding field as action against
transnational crime, particularlyorganized crime, the tendency to expand
jurisdiction at will, in order to respond to
specific exigencies, has been noted andfeared. Further, developing countries
realized that the new Convention would
impose a multitude of obligations, which
would require the investm ent ofconsiderable resources. With limited
reso urces a nd com pe ting prio rities,
especially at present when most efforts
are directed towards addressing problems
related to infrastructure and meeting thechallenges of globalization, many of thesecountries foresaw the difficulty ofmeeting those obligations. This latter
dimension of the thinking of those few
countries was also a result of two
perceptions.
Firstly, all developing countries andcountries with economies in transition
had gradually become aware, in a more orless painful way, of the ramifications andpo tential of mo de rn transnationalorganized crime. However, for several ofthem the problem had not caused
dramaticcrisesdomestically.
Consequently, the new obligations wereviewed as being out of proportion with
their domestic experiences and theirpolitical agenda at home.
Secondly, many policy-makers in somedeveloping countries had geared theirthinking towards the short-term, mainly
as a result of pressing needs.
Consequently, the implications of the
expansion of transnational organizedcrime were not included as a parameterin the development of policies for the
future . I n add itio n, this short- te rm
thinking could not capture theramifications of concerted action against
transnational organized crime, using the
new Convention as the framework andmain tool. In other words, the short-term

119TH INTERNATIONAL TRAINING COURSE
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thinking failed to assess the impact of thetendency of organized criminal groups toseek conditions of relative safety when
governmental action increases the risk
and cost of operations. It should be madevery clear that the political commitment
and the conviction about the need for the
C o nv e n t io n a n d t h e d e s ir a b il it y o f
concluding it remained totally
undiminished. The negotiations,however, went through a phase of caution
on the part of several developing
countries and became, as a result, more
intricate.
The new Convention can be divided
into four main areas: criminalisation,interna tional coo peration, technicalcooperation and implementation.
It will be recalled that one of the main
reasons for the initial scepticism waswhether the concept of transnationalorganized crime could be defined in an
appropriate manner, from both the legal
and political perspectives. The
negotiators decided to use a two-pronged
approach to the issue. First, it was agreed
that it would be sounder to define theactors rather than the activities. The
rationale behind this approach was thatthe international community wasem ba rking on negotiating a b inding
international legal instrument for the
future. Organized criminal groups are
known to shift from activity to activity,from commodity to commodity and among
geographical locations, often on the basisof what in the business world would becalled a cost-benefit analysis.
Given this known characteristic, itwould be futile to try and capture in anegotiated legal text everything thatthese groups are known to engage in atpresent or might decide it makes goodbusiness sense to carry out in the future.
In this context, the Convention defines anorganized criminal group as being “astructured group of three or more persons
existing for a period of time and acting inconcert with the aim of committing one ormore se rious crimes or offences
established pursuant to [the] Convention,in order to obtain, directly or indirectly, afinancial or other material benefit.”
Second, the new Convention should
bring about a certain level ofstandardization in terms of offences as
they are codified in national laws, as aprerequisite of international cooperation.
Working on these premises, the Ad Hoc
Committee begun discussing the conceptof serious crime. At the beginning, many
countries expressed doubts as to whether
the term would be appropriate, arguingthat it s igni fie s d if f e re nt t hin gs todifferent systems. It would be useful tobear in mind that this discussion wasclosely linked to the question of whether
the Convention would include a list ofoffences.
The A d H oc Co mm ittee asked theSecretariat to carry out an analytical
study on serious crime and on if and how
the concept was reflected in nationallaws. The study, which was based on the
responses of over 50 States, showed thatthe concept of serious crime was wellunderstood by all, even if thequalification might not necessarily be
used in legislation. The doubts about, orobjections to the use of the term
gradually subsided. Serious crime isd e f in e d a s “c o n d u c t c o n s ti t ut i n g acrim inal offence punishable by amaximum deprivation of liberty of at
le a s t f o u r y e a r s o r a m o r e s e r i o u spenalty.”T h e C o n ve n t io n e st a b li sh e s f o ur
offences: (a) participation in an organizedcriminal group; (b) money laundering; (c)corruption; and (d) obstruction of justice.

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RESOURCE MATERIAL SERIES No. 59
The provision establishing the offenceof participation in an organized criminalgroup is a carefully crafted one, whichbalances the concept of conspiracy in thecommon law system w ith that of thevarious versions of participation as suchversio ns have evolved in various
continental jurisdictions. The aim was topromote international cooperation under
the C onvention by ensuring thecompatibility of the two concepts, without
attempting to fully harmonize them.
The provision on criminalisation ofm oney laundering departs from aprevious similar provision in the 1988
V ienna Drugs C onve ntio n, b ut go esb ey ond by ex pandin g th e s cope ofpredicate offences covered.
The provision on the establishment of
the offence of corruption was the subjectof considerable debate, mainly because it
was deemed a limited effort against am uch broad er phenome non. The
approach finally selected was to include a
provision in the Convention, in view ofthe fact that corruption is one of themethods used, and activities engaged in
by organized criminal groups. This wasdone on the understanding tha t thisConvention could not cover the issue of
corruption in a comprehensive mannera nd a sepa rate convention w ould b eneeded for that purpose. In fact, on therecommendation of the Ad Hoc
Committee and the Commission, theGeneral Assembly adopted a resolution5on this matter. This resolution sets out
the preparatory work, which would need
to be carried out in 2001, for theelaboration of the terms of reference ofth e n eg otia tion of a n ew s epar ate
convention against corruption. Following
the completion of this work, a new Ad Hoc

5

General Assembly resolution 55/61.

456

Committee will be established and asked
to negotiate the text.
Finally, the provision establishing theoffence of obstruction of justice captures
the use of force, intimidation or bribery tointe rf ere with w itnes ses or e xp er ts
offering testimony, as well as with theperformance of the duties of justice or law
enforcement officials.
In the area of international
cooperation, the Convention includes
articles on extradition, mutual legal
assistance, transfer of proceedings andlaw enforcement cooperation.
The provision on extradition adopts theapproach of double criminality to this toolof international cooperation. The article
provides that most of the particulars of
extradition would be essentially left tonational legislation or treaties that exist
or will be concluded between States. It is
for this reason that, with the exception ofa safeguard clause on prosecution orpunishme nt on account of sex, race,
religion, nationality, ethnic origin orpolitical opinions, the article does notcontain grounds for refusal of extradition.
There is an implicit recognition ofnationality as a traditional ground forrefusal of extradition, because this was
identified a s an area where the newConvention could not attempt to bringabout change in national legislation, due
to very strict traditions or constitutional
impediments. The Convention, however,embodies the principle aut dedere aut
judicare when extradition is refused on
the ground o f the na tiona lity of thealleged offend er. The article o n
extradition provides that the offences
covered by the Convention w ould be
deemed to be included as extraditableoffences in any treaty existing between
States Parties, or would be included infuture treaties. States Parties can use the119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Convention for extradition purposes even
if they make extradition conditional on atreaty. Those which do not makeextradition conditional on a treaty willrecognize the offences covered by the
C onve ntio n a s extrad itab le offences
between themselves.
A n othe r im po rta nt fe a ture of th e
article is that it contains an obligation forStates Parties to try and resolve
differences by consultation before theyrefuse an extradition request.
The article on mutual legal assistanceis much more extensive, having beencalled by some a “treaty within a treaty”.
In its 31 paragraphs, the article detailse v e r y a sp e ct o f m u tu a l a s si st a n c e ,in clu d ing gr o und s f o r r ef u sal. I t isimportant to note that, while the article
is largely based on similar provisions inother Conventions, it brings forth theconsiderable evolution of the concept ofmutual legal assistance, as one of the
primary tools of international cooperation
against transnational crime. In this vein,
the article speaks of the use of modern
technology, such as electronic mail for thetransmission of requests, or video link forthe giving of testimony. The Convention
also includes language regarding the
spontaneous provision of information andassistance, without prior request. In thearea of law enforcement cooperation, theC o n v e n ti o n i n c lu d e s p r o v is i o n s o n
e x c ha n ge o f in te l li ge n c e a nd o th e r
operational information and on the use ofmodern investigative methods, with theappropriate safeguards.
P rio r to p rocee ding to the a rea o ftechnical cooperation, it is important tomention that the Convention includes
detailed provisions on the development ofregulatory regimes to prevent and control
money laundering and on confiscation,
including provisions on the sharing ofconfiscated assets. The Convention also
includes provisions for the protection of
w i tn e ss e s, a k e y c o m p o n e n t o f a ny
successful action against organized crime.
The relevant article includes a provisionasking States to consider entering into
agreements with other States for the
relocation of witnesses. Further, and in
the same vein, the Convention includes
a n a r ti cl e o n th e p r o te c t io n o f a n d
assistance to victims and another on
measures to enhance cooperation withlaw enforcement authorities of persons
involved in organized criminal groups(those who have been described in recent
years using the Italian term pentiti).
As mentioned earlier, the involvement
and participation of all countries in thejoin t effor t ag ain st tr an sna tiona lorganized crime lies at the core of thedecision to negotiate a new international
legal instrument. It also inspired thenegotiations throughout the work of the
Ad Hoc Committee. The new Convention
will create numerous obligations forcountries, which range from updating or
adopting new legislation to upgrading thecapaci ty of their law enforcemen t
authorities and their criminal justicesystems in general. Many of the activities
required to meet these obligations areresource intensive and, as a consequence,
will create a considerable burden for thelimited capacities of developing countries.
The spirit of the discussions around thissubject has been very interesting. These
discussions have been based o n theunderstanding that the implementationof the Convention would be in the interestof all countries. Consequently, such
implementation would be theresponsibility of all countries, regardlessof their level of development. Developing
countries would gear their systems andbring their limited resources to bear indischarging this responsibility. However,everyone recognizes that, once this has

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RESOURCE MATERIAL SERIES No. 59b een done, there will be many a reas
where developing countries and countries
with ec ono m ie s in transition wo uld
require significant assistance until they
are able to bring all their capacities up to
a common standard.
Following extensive discussion, theC onve ntio n includes tw o a rticles ontechnical cooperation, one intended tocover cooperation to develop specifictraining programmes and the other todeal with technical assistance in the moret r a d i ti o n a l se n s e o f t h e t e r m , i . e . ,involving financing of activities at thebilateral level or through internationalorganization s, s uch as the United
Nations. The latter provision foreseesthat States Parties will make concrete
efforts to enhance their cooperation withd evelop ing countries with a view tostrengthening the capacity of the latter top r e v e n t a n d c o m b a t t r a n s n a ti o n a lorganized crime.
States Parties are also aske d toenhance financial and material
assistance to developing countries inorder to support efforts to implement theConvention successfully. For thep ro vision of te chnic al assistan ce todeveloping countries and countries witheconomies in transition, the Convention
f o re s e e s th a t S t a t e s P a rt ie s w o ul dendeavour to make adequate and regularfinancial contributions to an accountspecifically designated for that purpose ina United Nations funding mechanism.
The Ad Hoc Committee decided that thisaccount will be operated for the time
being within the Crime Prevention andCriminal Justice Fund, a mechanism set
up to receive voluntary contributions forthe technical cooperation activities of theC entre fo r International Crim ePrevention.

458

In the resolution by which it adopted
the Convention, the General Assembly
established this special account under the
Crime Prevention and Criminal JusticeFund. It is interesting to note that almost
imm edia tely, do nor countries begun
making contributions to that account,dem onstrating the seriousness withwhich they regard the matter of providing
assistance to developing countries andcountries with economies in transition,even at the pre-ratification stage.
On implementation, the Convention
has taken a very interesting course. The
Convention will establish a Conference of
the Parties, which will have the dual taskof im pr ovin g th e ca p a city o f S ta te sParties to combat transnationalorganized crim e a nd to promote andrev iew t he impl em enta tion of t heConvention.
The Conference of the Parties willaccomplish these tasks by (a) facilitating
the activities of States Parties foreseen
under the articles on technicalcooperation, including by mobilizing
resources; (b) facilitating the exchange of
information among States Parties onpatterns and trends in transnationalo r g a n iz e d c r im e a n d o n s u c c e s s f u lpractices for combating it; (c) cooperatingwith relevant international and nongovernm ental organiz ations; (d)examining
periodicallytheimplementation of the Convention by
States Parties; and ( e) making
re comm end ations to improve theConvention and its implementation. The
relevant article goes on to say that theConference of the Parties will acquire thenecessary knowledge on the measures
ta ken b y t he Sta tes Parti es i n
implementing the Convention and on the
difficulties encountered by them in doing
so by the States Parties themselves, and119TH INTERNATIONAL TRAINING COURSE
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mechanisms as it may establish.
T he m e c h a n i sm se t u p i s a c le a r
movement forward from previous
practices in the field of implementation ofinternational conventions, at least in thec on te xt o f t he U n ite d N a t io ns. T h eprovision esta blishes a d ua l form o freview. On the one hand, it preserves themore traditional obligation, found in mostother Conventions, for States Parties tofile regular reports on the progress they
have made in implementation. This issu p ple m e nte d b y a d d itio na l re vie w
mechanisms, which the Conference may
establish. This is an indirect reference toa system of “peer review”, which has beendeveloped in various forms in recent
years in the context of regional
instruments. Another important featureof the provision is that the Conference of
the Parties will not only function as areview body. It will pay equal attention toserv ing as a foru m for developing
countries and countries with economies
in transition to explain the difficulties
they encounter with implementation andseek the assistance necessary to
overcome such difficulties. This link
between implementation and technicalcooperation and assistance reinforces thecollective will that guided thenegotiations to take into account allconcerns and needs and address themjointly in order to achieve the common
goals embodied in the new Convention.
Another innovative feature of the newConvention is an article on prevention.
The provision is designed not only tointroduce form ally the concept ofprevention, which is relatively new inaction against transnational organizedcrime, but also to include in theConvention some of the results of thelatest thinking in this field. The languageof the article is permissive, thus

reflecting the novelty of the concept andthe fact that it still needs to mature inorder to be treated more as an obligation.
However, given that States generallyinterpret even permissive provisions tom e rit th e be st p o ssib le e f f o rt s, t heimportance of the article is significant.
The provision transfers to the global level
efforts already discussed or undertaken
at the regional level. It is designed toencourage countries to take appropriate
le gisla tive , ad m inistr ative o r o thermeasures to shield their legal markets
from the infiltration of organized criminalgroups. Some of the measures foreseen
are the promotion and development ofstandards and procedures designed tosafeguard the integrity of public andpriva te e ntities, as w ell a s cod es ofconduct for relevant professions and theprevention of the misuse of legal persons
by organized criminal groups.
Perhaps the most interesting feature of
the Convention is its scope of application.
Its analysis was left last because of thelong debate its finalization required, butalso because it conditions the entire textof the Convention.
The Convention will a pply “to theprevention, investigation and prosecutionof (a) the offences established inaccordance with [the Convention]; and (b)serious crim e as defined [by theConvention], when the offence istransnational in nature and involves anorganized criminal group.” However, thecriminalisation obligations that countries
will undertake, regarding the offences
they would have to establish inaccordance with the Convention, would
be “independent”. This means that States
will legislate to establish as criminal
offen ces the four types of conduc t
described in the Convention, regardless ofwhether they are transnational or involvean organized criminal group.

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RESOURCE MATERIAL SERIES No. 59
The Convention also definestransnationality. A n offence istransnational in nature if it is committed
in more than one State; it is committed in
one State but a substantial part of its
p r ep a r a tion , p la nnin g, d ire c tion o rcontrol takes place in another State; it iscommitted in one State but involves anorganized criminal group that engages incriminal activities in more than one
State; or it is committed in one State but
has substantial effects in another State.
In ad dition, the provisions on
extradition and mutual legal assistancec o n ta in s p e c if ic an d v e ry c a r e f u lly
negotiated language to permit applicationof these articles in order to establish boththe transnationality and the involvementof an organized criminal group. Solutions
to th ese m a tte rs w ere ba se d o n th ede monstrated political will of all
co untrie s involve d in the process toconclude a Convention that meets all
their concerns. Such solutions were alsob a se d on the share d de sire to re ach
agre em ent witho ut d im inishing thefunctionality and qua lity of the new
instrument.
II. THE THREE PROTOCOLS
A. The Protocol Against Trafficking
in Persons, Especially Womenand Children
1. General Provisions (Articles 1–5)
Article 1 sets out the rela tionshipbetween the Convention and the Protocol,
complementing Article 37 of theConvention. The same text appears in
A rticle 1 of the Protocol against thesmuggling of Migrants and has been
added as Article 1 of the revised draft
Protocol against the Illicit Trafficking in
Firearms. The Protocol supplements theConvention, and provisions of the twoshould be interpreted together.
460

Provisions of the Convention apply to theProtocol mu tatis mutan dis un les so th er w ise sp e c if ie d o r th e P ro to c o lcontains provisions which specificallyvary or are inconsistent with those of theConvention. All Protocol offences are also
regarded as Convention offences, whichmakes all Convention provisions (e.g.,legal a ssistance, applicable to cases
which involve only Protocol offences. The
Conference of States Parties, which isestablished by A rticle 32 of theConvention, will have similar functions
for each protocol by the application of
Article 32 to the protocol in question,
mutatis mutandis.
A rt ic le s 2 a nd 4 s e t out t he b a s ic
purpose and scope of the Protocol. The
Protocol is intended to “prevent a nd
co m b a t” t ra f f i ck in g in p e rs o ns a nd
facilita te international co-op era tio nagainst such trafficking. It applies to the“prevention, investigation andprosecution” of Protocol offences, but only
where these are “transnational in nature”
and in vo lv e an “or ganize d cr im inalgroup”, as those terms are defined by theConvention.
The key definition, “trafficking inpersons”, appears in Article 3. This term,
which is being defined for the first time,is intended to include a range of cases
where human beings are exploited byorganized crime groups where there is anelement of duress involved and atransnational aspect, such as the
movement of people across borders or
their exploitation within a country by atransnational organized crime group. The
definition is broken down into three listsof elements: criminal acts, the means
used to commit those acts, and goals(form s o f exploitatio n) . At least one
element from each of these three groups
is required before the definition applies.

119TH INTERNATIONAL TRAINING COURSE
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Thus, to constitute “trafficking inpersons”, there must be:•••an act of “recruitment, transportation,transfer, harbouring or receipt of
persons”;
by means of “the threat or use offorce or other forms of coercion, of
abduction, of fraud, of deception, of
the abuse of power or of a position ofvu lne rability o r of the giving o r
receiving of payments or benefits toa ch ie ve t h e c o ns e n t o f a p e r s o nhaving control over another person”;
for the purpose of exploitation,
which includes, at a minimum, “...the
exploitation of the prostitution ofo th e r s o r o t h e r f o r m s o f s e xu a l
exploitation, forced labour or services,slavery or practices similar to slavery,
servitude or the removal of organs.”

The question of whether a victim could
consent to trafficking was a major issue
in the negotiations. In many trafficking
cases, there is initial consent orcooperation between victims andtr affick ers follo we d later by mor e
coercive, abusive and exp loitive
circumstances. Some States, and many
NGOs felt that incorporating an elementof consent in the definition or offence
provisions would make enforcement andprosecution difficult because such early
consent would be raised by traffickers as
a defence. Other States felt that someelement of consent was needed to limit
the scope of the offence, distinguishtrafficking from legitimate activities andfor constitutional reasons. To resolve theissue, paragraph (b) of the definition
clarifies that consent becomes irrelevant
whe never any of the “means” oftrafficking has been used. This
compromise addressed the concerns ofboth positions. To further clarify the
relationship between consent, the offence
and criminal defences, it was agreed thatthe travaux preparatoires would draw
attention to Article 11(6) of the
Con vention, w hich applies to th is
Protocol mutatis mutandis, and which
ensures that existing criminal defences indomestic law are preserved.
2. Protection of trafficked persons(Articles 6–8)
The negotiation o f the Proto cols
against Trafficking in Persons and the
Smuggling of Migrants both found it
necessary to deal with the fact that theprim ary subject-ma tter, while of ten
treated as a commodity by smugglers andtraffickers, consists of human beings
whose rights must be respected and who
must be protected from various forms ofharm. The terms “smuggling” and“trafficking”, have acquired differentde finitions f rom those trad itiona lly
a ss oc ia t e d w ith na r c ot ic d r ug s, fo r
example. The need for an appropriatebalance between crime-control measuresa nd m ea sure s to supp o rt o r p ro tec ts m u g g l e d m i g r a n t s a n d v i c ti m s o f
trafficking arose in two primary places ineach Protocol: the provisions dealing withthe return of persons to their countries oforigin, and provisions expressly providing
for protection, support. These provisions
are similar in some respects, but they are
not identical. The language of the two
instruments also takes account of the factthat there are critical differences between
migrants, who have consented tosmuggling and for whom repatriation
generally poses no significant risks, andvictims of trafficking, who have been
subjected to various forms of coercion andwho face significant risks of revictimisation or retaliation if they aresent home, particularly if they ha ve
assisted law enforcement in prosecuting
their traffickers.
A r t i c le 6 o f t h e P r o to c o l a g a i n s t
Trafficking in Persons contains a series of461

RESOURCE MATERIAL SERIES No. 59
general protection and support measuresfor victims. Paragraphs 1 and 2 require
States Parties to take basic measures,s ubje ct to c on stituti on al o r sim ilar
constraints, which include shielding theidentities of victims and providing accessand input into legal proceedings. While
the physical safety of victims cannot
absolutely guaranteed, States Parties are
required to endeavour to do so by Article
6 ( 5 ), a s w e l l a s b y A rt ic le s 2 4 ( 2 )( a )(witnesses) and 25(1) (victims) of theConvention. Further measures in Articles
6(3) and 7 of the Protocol are subject tothe discretion of States Parties. These
include a list of social support benefits
such as counselling, housing, education,
medical and psychological assistance(Art. 6(3)) and an opportunity for victims
to obtain legal status allowing them toremain in the receiving State Party,
either temporarily or permanently (Art.
7). The provisions of Convention Articles
24 and 25 may also apply in such cases.
Where victims have also been witnesses,
for example, the relocation provision of
Article 24(2)(a) may apply.
The return of victims of trafficking totheir countries of origin is dealt with in
Article 8 of the Protocol, which is similar
but not identical to the corresponding
provision (Art. 18) of the Protocol against
the S muggling of Migrants. A ma jor
concern with the return of trafficking
victims is that it may leave themvulnerable to being trafficked all overagain, or in some cases, vulnerable toretaliation from traffickers for having cooperated with law enforcemen t orprosecution authorities. Another concern
is that in some cases, victims have been
sent home while criminal or other legalp r o c e e d in gs in w h ich th e y h a v e a ninterest are still ongoing. To respond tothese concerns, the text req uires all
S tates Pa rtie s involved to ha ve d ue
regard for the safety of the victim and for462

the status of any ongoing legal
proceedings (Art. 8(1), (2)). Returns may
be carried out involuntarily, but the text
states that the process “...shall preferably
be voluntary” (Art. 8(2)). This reflects acompromise between concerns that giving
victims any concrete formal legal status
or right to remain in destination statesmight provide further incentives andopportunities for traffickers on one hand,
while excessive or rapid returns might
unnecessarily expose victims to further
hardship and risk on the other. The text
does not make any special provision forvictims who are also witnesses, but theadditional safeguards for witnesses foundin Article 24 of the Convention would
apply in such cases. More generally,
Articles 24 (witnesses) and 25 (victims) of
the Convention will generally apply totrafficking victims.
T he ne gotia tion of th e pr ovision s
governing the repatriation or return ofs m u gg le d m igr a nt s a n d t ra ff i ck i n gvictims in both Protocols also faced theneed to specify the legal preconditions on
which the right of destination States toreturn individuals and the obligations ofcountries of origin to facilitate and accept
the return, should be based. There was
general agreement that States Parties
should be required to accept the return oft heir o w n na t i ona l s a nd pe rma ne nt
residents, but views differed on whether
the sta tus of a smuggled migra nt or
trafficking victim should be determinedat the time of entry into the State seeking
to return the person or at the time of theactual return itself. The former option
precludes States from revoking status asa national or resident to prevent thereturn, whereas the latter does not.
Different language was used to address
this question in each of the two
instruments. In the case of victims of
trafficking, countries are obliged to accept

119TH INTERNATIONAL TRAINING COURSE
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the return of any person who is a nationalat the time of the return or who had aright of permanent residence at the time
he or she entered the destination State( A rt. 8 (1 ) ). I n t he ca s e o f s m uggle dmigrants, the obligation is only to accept
those who are nationals or have a right ofpermanent residence at the time of the
return (A rt. 18 (1 )), altho ugh S tates
Parties are also required to consider the
return of migrants who had permanent
residency rights at the time of entry intot he d e sti na t io n S ta te . T he t ra v a u x
preparatoires for the Protocol against the
Smuggling of Migrants also record theunderstanding of the Ad Hoc Committeethat States Parties “...would not deprive
persons of their nationality contrary tointernational law, thereby rendering
them stateless.” This acknowledges thatnationality can be taken away for cause,
but should not be taken away exclusively
to prevent repatriation.
A p a rt f rom the se dif fe renc es, th e
obligations placed on States concerning
return or repatriation are the same inboth instruments. The basic obligation on
States Parties is to “facilitate and accept”
the r etur n o f nation als or sp ec if iedpe rm anent reside nts without undue
delay and to verify without delay whether
illegal migrants in other countries are infact their nationals or residents (Art. 8(1),(3)). This includes the obligation to issue
any necessary travel documents such as
passports, entry or transit visas (Art.
8(4)).
3. Prevention, Co-operation and Other
Measures (Articles 9–13)
Generally, the law enforcement
agencies of countries which ratify theProtocol would be required to co-operatewith such things as the identification of
offenders and trafficked persons, sharing
in formati on about th e meth ods ofoffenders and the training ofinvestigators, enforcement and victimsupport personnel (Art. 10). Countries
would also be required to implement
security and border controls to detect andp r e v e n t t r a f f i c k i n g. T h e s e in c l u d estrengthening their own border controls,
imposing requirements on commercial
carriers to check passports and visas (Art.
11), setting standards for the technicalquality of passports and other travel
documents (Art. 12), and co-operation inestablishing the validity of their own
documents when used abroad (Art. 13).
Social methods of prevention, such as
resea rch, a dve rtising, a nd socia l or
economic support are also provided for,both by governments and in collaboration
with non-governmental organisations ared e alt wi th bo t h in A rti cle 9, wh ich
supports Article 31 of the Convention6.
B. The Protocol Against the
Smuggling of Migrants by Land,
Air and Sea
1. General Provisions (Definitions,
Criminalisation, Scope and Purpose,
Articles 1–6)
Article 1 sets out the relationshipbetween the Convention and the Protocol,
com plementing Article 37 of theConvention. The same text appears in
Article 1 of the Protocol against
Trafficking in Persons and has b een
added as Article 1 of the revised draft
Protocol against the Illicit Trafficking in
Firearms. The Protocol supplements theConvention, and provisions of the twoshould be interpreted together.
Provisions of the Convention apply to thePr otoc ol mu tatis mu tan dis un les so the r w i se sp e c if ie d o r th e P ro to c o l
6

See in particular Article 31(5) (public awarenessc a m p a i gn s ) a n d 3 1 ( 7 ) ( p r o j e c t s a i m e d a t
alleviating the circumstances which make certain
groups vulnerable to transnational organizedcrime).

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RESOURCE MATERIAL SERIES No. 59
contains provisions which specificallyvary or are inconsistent with those of theConvention. All Protocol offences are also
regarded as Convention offences, whichmakes all Convention provisions (e.g.,lega l assistance, a pplica ble to ca ses
which involve only Protocol offences. The
Conference of States Parties, which isestablished by Article 32 of theConvention, will have similar functions
for each protocol by the application of
Article 32 to the protocol in question,
mutatis mutandis.
Article 2 expresses three purposes:
preventing and combatting smuggling,promoting cooperation among States
P artie s a nd p rotecting the rights o f
smuggled migrants. The scope of
application of the instrument (Art. 4)
applies both to combatting smuggling andp rotecting rights, but limits both too ffe nces w hi ch a re t ra ns na t i ona l i nnature and involve an organized criminalgroup as defined by the Convention. The
Protocol applies only to the prevention,
investigation or prosecution of suchoffences and the protection of the rights ofpersons who have been the objects of suchoffences. The phrase “persons who havebeen the object of such [i.e.: trafficking]o ff ence s” in this a nd other Pro to colprovisions is intended to clarify that
smuggled migrants, while sometimes
exploited or endangered by smugglers,
are not “victims” of the primary Protocol
offence.
The criminalisation provision, Article
6, requires States Parties to criminalise
the smuggling of migrants as defined in
Article 3, and enabling a person who is
not a national or permanent resident of aState to remain there illegally.
P rod ucing, p rocur in g, p ro vid ing, or
possessing fraudulent travel or identity
documents must also be made an offence,but only where these acts are committed

464

for the purpose of smuggling migrants.
This will generally apply to smugglers
with out als o in clu di ng th e ill eg al
migrants who m a y o nly po ssess the
documents for the purpose of use in theirown smuggling. A major political andlegal concern during negotiations was thegeneral agreement among participantsthat the Protocol should criminalise thesm uggling of migrants without
crim inalising m ere migration or the
migrants themselves. This was difficult
because illegal migrants have generallycommitted offences relating to illegal
entry or residence in most countries, andwould usually be complicit in their own
sm ug gling wi tho ut lang uage in the
Protocol and any implem enting
legislation to the contrary. The solution,found in Article 5 and Article 6(4) is that
the Protocol specifies that the provisionsof the Protocol and its implementing
legislation should criminalise smuggling
but not create any liability for having
been smuggled (Art. 5), while providingthat offences or other measures adopted
or applied by States Parties on their own
au th o rit y c o ul d sti ll ap p ly t o m e rem ig r a n t s . A s n o t e d , th e d o c u m e n t
offences of Article 6(1)(b) also apply only
to those who commit them for the purposeof smuggling others and not for their own
migration.7
In recognition that smuggling is often
dangerous, and to increase protection for
migrants, States Parties are also required
to make smuggling in circumstances
which endanger the migrants’ lives orsaf e ty, o r wh ich e n tail inh um a n or
degrading treatment a s aggrava tingcircumstances to the Protocol offences(Art. 6(3)).

7

See the note in the travaux preparatoires to Art.
6(1)(b) on this point.

119TH INTERNATIONAL TRAINING COURSE
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2. Smuggling of Migrants by Sea(Articles 7–9)
While all of the Protocol applies to all
forms of smuggling by land, sea or air, it
was f elt nec essar y to m a k e sp ecif ic
provision for smuggling by sea because oft h e se r i o u s n e s s a n d vo l u m e o f t h e
problem, and the body of international
maritime law already in existence. Manyof the specific provisions of this Part wered rawn f rom or d evelop ed based onprovisions from three earlier sources
dealing with the boarding and searchingof vessels and related safeguards: Article
110 of the 1988 U.N. Convention on the
Law of the Sea, Article 17 of the 1988
U.N. Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic
Substances, and a more recent (1988)
Circular from the International Maritime
Organization titled Interim Measures for
Combatting unsafe practices associatedw it h t he tr a ff i c k i ng o r t ra n sp o rt o f
migrants by sea.
Generally, the provisions of Part II are
intended to give states which encounterships which are believed to be smuggling
migrants sufficient powers to take actions
to app rehend the m igrants andsmugglers and to preserve evidence,
while respecting the sovereignty of thestates (if any) to which the ships are
flagged or registered. A major factor for
most delegations in striking a balance
between sovereignty and effective powers
to intervene was the fact that, in manycases, vessels used to smuggle migrants
are decrepit or unsound to the point
where fast action could be essential topreserving the safety of any migrants onboard.
The general rule for taking actions
against a ship at sea is that this can only
be done with the approval of the State
whose flag the ship flies or with whom it
is registered. The Protocol requires States

Parties to co-operate “to the fullest extent
possible” in accord ance with the“international law of the sea”, which term
includes both the 1988 U.N. Convention
and o ther instruments (Art. 7 ). The
taking of measures against ships at sea isgoverned by Article 8, which provides
separately for three basic cases:•••

States seeking assistance against
ships they believe to be their own(Art. 8(1));
States seeking permission to act
against ships believed to be flagged orregistered to another State (Art. 8(2));
andStates taking action against ships
believed to be without nationality(Art8(7)).

The remaining provisions of Article 8
deal with the mechanisms whereby thenationality of ships can be establishedand other relevant information can betransmitted from one interested State
Party to another. Under Article 8(1), a
state which believes that one of its ships,
or a ship which is flying its flag, is being
used for smuggling may call upon otherStates Parties to take action to suppress
this, and those States are required torender such assistance as necessary,
within available means. Under Article
8(2), a State which believes that a ship
registered or flagged to another State is
involved in smuggling may check theregistry, and ask the registry state forauthorisation to board, inspect, and if
evidence of smuggling is found, to takeother actions. The responding state must
answer the requests expeditiously, but
may place limits or conditions on whatm a y b e d o n e ( A rt . 8 ( 4 ) , ( 5 ) ) . S u chconditions must be respected, except
where there is imminent danger to lives
or safety, or where there a bilateral or
multilateral agreement b etween thestates involved says otherwise (Art. 8(5)).

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RESOURCE MATERIAL SERIES No. 59
Where there is no apparent nationality or
registry cannot be determined, the shipm ay be board ed and insp ected asnecessary (Art. 8(7)).
The other provision of Part II, Article 9
contains “safeguard clauses” which limit
the powers of States Parties to act underA r t i cle 8 , en s ur e t ha t f und a m e nt a linterests such as the safe and humane
treatment of persons found on board
vessels and the security of vessels andother cargoes are protected, preserve theexisting jurisdictions of coastal states andthe flag states of vessels, and provide forcompensation in cases where the grounds
for having taken measures against av e ss e l la t e r p r o ve u nf o u nd e d . A s afurther safeguard, Art. 9(4) also requiresthat any vessel or aircraft used by a State
Party to take actions under Part II must
be a warship, military aircraft or othership or aircraft clearly marked to identify
it as being on government service when
the action is taken.
3. Prevention, Co-operation and Other
Measures (Articles 10–18)
As with the provisions of Articles 27–
2 9 o f t h e C o nv e n t io n, t h e P r o to c o lprovides for the exchange of information
which may range from general researchor legislative information which would
assist others in implementing theProtocol or combatting smuggling in moregeneral terms to much more specific andsensitive info rm atio n a bo ut specif ic
smuggling cases or more general means
and methods being used by smugglers(A rt. 1 0). As in the Protocol against
Trafficking in Persons, specific legal anda d m in istr a tive m e a sure s to co m ba t
smuggling which involves commercial
carriers are also required, “to the extent
possible” (Art. 11). These include
penalties where carriers found carrying
sm uggle d m igra nts a re co mp licit or
negligent and requirements that carriers

466

check b asic tra vel documents bef ore
transporting persons across international
borders.
The use of false or fraudulent
passports and other travel documents is
an important element of smuggling, anddocuments are often taken from migrants
upon arrival so that they can be re-usedby the smugglers over and over again. To
address this part of the problem, Article
12 requires the use of travel documentsthat cannot easily be used by a person
other than the legitimate holder, and ofsuch quality that they cannot easily befalsified, altered or replicated, and Article
13 requires States Parties to verify thelegitimacy and validity of any documents
purported to have been issued by them. A
number of delegations noted thatcountries which became parties to theProtocol against Trafficking in Persons as
w e l l a s t h is P r o t o c o l w o u l d f i n d i tnecessary to implement the parallel
provisions on travel documents jointly,
since it would not be practicable to adopt
or apply different rules for smuggling andt r a f f ic k i n g c a s e s . A s a r e s u l t , t h erequirements of Articles 12 and 13 are
identical in both instruments.
State s Pa r tie s ar e ca lle d u po n toundertake training activities (Art. 14)
and adopt general preventive measures(Art. 15). Training under Article 14 forofficials can be domestic or in cooperation with other States Parties whereappropriate. It must include not only
methods and techniques for investigatinga n d p r o s e c u t in g o f f e n c e s , b u t a ls oback gr ou nd in te llige nce - gath er ing,
crime-prevention, and the need to provide
humane treatment and respect for thebasic human rights of migrants.
Adequate resources are called for, withthe assistance of other Sta tes w here
domestic resources or expertise are notenough (Art. 14(3)). Based on the

119TH INTERNATIONAL TRAINING COURSE
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as sumpti on that a key elemen t ofp re ve nt io n is th e d is s e m i n a t io n o f
information about the true conditions
during smuggling and after arrival to
discourage potential migrants, Article 15
requires the creation or strengthening of
programmes to gather such information,transmit it from one country to another,and ensure that it is made available to
the general public and potential
migrants. This supports Article 37 of theConvention which calls for information
campaigns directed at groups who areparticularly vulnerable to the activities oftransnational organized crime, which
would include regional or ethnic groups
likely to be solicited or recruited as
potential migrants.
Part II of the Protocol also contains
provisions which deal with the protection,
assistance and return of migrants. As
with the Protocol against Trafficking in
Persons, these provisions take account ofth e f a c t tha t m i gra nts, wh ile o f te ntreated as a commodity by smugglers, arehuman beings w hose rights m ust b e
respected and who must be protectedfrom various forms of harm. Articles 16( p ro t e c ti o n a nd a s s i s ta n ce ) a n d 1 8(return) provide for the basic assistanceo f s m u g g le d m i g r a n t s , t a k i n g i n t oacco unt the fac t that they are notgenerally victims of crime and are in far
less jeopardy of retaliation fromtraffickers, but also considering the factthat smuggling is often conducted incircumstances which endanger their lives
or safety.
Several provisions of the Protocol areintended to ensure that the basic humanrights of migrants are protected from
infringement, whether by traffickers,
go ve rnm en t o ff icia ls o r o the rs. Th e
primary provision is Article 16, which
requires appropriate legislative or othermeasures to “preserve and protect” therights of smuggled migrants. Article
14(2)(e) also requires the training of
officials in “the humane treatment of
migrants and the protection of theirrights”, and Article 19 ensures that any
rights (e.g., for migrants who are also
refugee s) unde r other interna tiona lhumanitarian and human rights law are
not affected by the Protocol. Article 16(5)requires conformity with the provision of
the V ie nna C onve ntion on C onsular
Relations which requires States Parties
to that instrument to inform
apprehended migrants of their rights to
consular access.8
Other provisions address concerns
about the fact that migrants are in manycases subjected to dangerous conditions,degrading conditions or physical violencein the course of smuggling. Article 16(2)requires the adoption of appropriate
measures to afford migrants protection
against violence. Article 6(3) requires
States Parties to make the existence of
circumstances which endanger lives orsafety or entail inhuman or degrading
treatment in the course of smuggling an
aggravating circumstance to the basic
smuggling offence, and Article 16(3)r e q u i re s a p p r o p r ia te a s si st a n c e t om ig r a n ts w h o se l iv e s o r sa f e ty a r e
e n d a n g e r e d i n t h e c o u r s e o f b e in g
smuggled.
The return of smuggled migrants totheir countries of origin is dealt with in
Article 18 of the Protocol, which is similar
but not identical to the corresponding
provision (Art. 6) of the Protocol against
Trafficking in Persons. Since migrants
8

The relevant provision is Article 36 of the Vienna
Co n ve nti o n, 5 9 6 UN TS 8 6 3 8– 8 6 40 . I n t hediscussion of this provision, it was pointed outthat as conventional international law, theConvention, and hence the obligation to provide
consular access, was binding on all States.

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RESOURCE MATERIAL SERIES No. 59
are less likely to be witnesses intransnational organized crim ep ro ce ed ings, th e Pro toc ol m a k es nos p e c if ic p r o vi sio n f o r p r o te c tio n o r
p a r ti c i p a ti o n in su c h p r o c e e d in g s ,a lt h o u gh m i g ra n ts w ho a r e i n t h is
position would still be covered by Articles
24 and/or 25 of the Convention,
depending on the exact circumstances of
their cases. The only protections peci fic ally provided for retur ned
migrants is found in Art. 18(5), which
requires all of the States Parties involved
in return of a migrant to ensure that it iscarried out “...in an orderly manner andw it h d u e r e ga rd f o r th e sa f e ty a n ddignity...” of the migrant.
The n ego tiatio n o f the p ro visions
governing the repatriation or return ofs m ug gle d m ig ra nts a nd tr a f f ic ki ng
victims in both Protocols also faced theneed to specify the legal preconditions on
which the right of destination States toreturn individuals and the obligations ofcountries of origin to facilitate and accept
the return, should be based. There was
general agreement that States Parties
should be required to accept the return of
the ir ow n na tio na ls and p erm a nent
residents, but views differed on whether
the status of a smuggled migrant or
trafficking victim should be determinedat the time of entry into the State seeking
to return the person or at the time of theactual return itself. The former option
precludes States from revoking status asa national or resident to prevent thereturn, whereas the latter does not.
Different language was used to address
this question in each of the two
instruments. In the case of victims of
trafficking, countries are obliged to accept
the return of any person who is a nationalat the time of the return or who had aright of permanent residence at the time
he or she entered the destination State

468(A rt. 8 ( 1 )) . In t he c a s e of s m ugg le dmigrants, the obligation is only to accept
those who are nationals or have a right ofpermanent residence at the time of theret urn (Art. 1 8( 1) ), a lt hough S ta te sParties are also required to consider the
return of migrants who had permanent
residency rights at the time of entry intoth e d e s tin a tio n S ta te . T h e tr a v a ux
preparatoires for the Protocol against the
Smuggling of Migrants also record theunderstanding of the Ad Hoc Committeethat States Parties “...would not deprive
persons of their nationality contrary tointernational law, thereby rendering
them stateless.” This acknowledges thatnationality can be taken away for cause,
but should not be taken away exclusively
to prevent repatriation.
A pa rt fro m these d iff ere nce s, theobligations placed on States concerning
return or repatriation are the same inthis instrument as in the Protocol against
Tra fficking in Persons. The ba sic
obligation on States Parties is to“f acilitate a nd accept” the return ofnationals or specified residents without
undue delay and to verify without delay
wh eth er illegal migrants in oth er
countries are in fact their nationals or
residents (Art. 18(1), (3)). This includes
the obligation to issue any necessary
travel documents such a s passports,
entry or transit visas.
C. Protocol Against the Illicit
Manufacturing of or Trafficking
in Firearms
1. Status
Many provisions of the Protocol against
the Illicit Manufacturing of andTrafficking in Firearms were finalised at
the 11th session of the Ad Hoc
Committee, but several key issues had
no t b e e n r es olve d , a nd th e G e ne ra l
Assembly called upon the A d Hoc

119TH INTERNATIONAL TRAINING COURSE
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Committee to conclude the Protocol at an
add itional sessio n. 9 The C omm itte e
decided to apply a narrow, conventional
definition of “firearm”, excluding otherf o rm s o f d e structiv e de vic e such a s
rocket-launchers and explosive devices. It
also developed language for Article 4(1)and (2) which excludes legitimate Stateto-State and national security-related
activities from the application of theProtocol while ensuring that theexclusion is not so broad as to opt out
virtually any activity. The languaged e v el op e d f o r A r tic le s 4 a nd 8 a ls oensures that all firearms, even thosemade for government purposes, will bema rked at m anufa cture, allaying
concerns about unmarked governmentf i r e a r m s l a t e r s to l e n o r o t h e r w i s ediverted into illicit traffic. The languaged e velo p ed fo r A rtic le 8 e nsu re s th eunique marking of each firearm with“alpha-numeric” characters, but allows
countries which have previously used
“simple geometric” markings as part oftheir marking systems to maintain thispractice. Based on these agreements, theentire Protocol was agreed by the Ad Hoc
Committee on consensus. It was thenreferred to the General Assembly, which
a dopted it on 31 M a y 2 001 . 10 Under
Article 17 of the Protocol, it is open for
signature at U.N. Headquarters in New
York from 2 July 2001 until 12 December
2002.11
2. Relation with the U.N. Convention
A rticle 1 sets out the relationshipbetween the Convention and the Protocol,
complementing A rticle 37 of theConvention. The same text appears in
Arti cl e 1 of the Protocols against
Trafficking in Persons and the Smugglingof Migrants. The Protocol supplements

the Convention, and provisions of the twoshould be interpreted together.
Provisions of the Convention apply to thePr otoc ol mu tatis mu tan dis un les so the r w i se sp e c if ie d o r th e P ro to c o lcontains provisions which specificallyvary or are inconsistent with those of theConvention. All Protocol offences are also
regarded as Convention offences, whichmakes all Convention provisions (e.g.,legal a ss istance, a ppli ca bl e to cas es
which involve only Protocol offences. The
Conference of States Parties, which isestablished by A rticle 32 of theConvention, will have similar functions
for each protocol by the application of
Article 32 to the protocol in question,
mutatis mutandis.
3. Purpose, Scope and Application
The purpose provision (Art. 2) was
concluded at the 12th session. It was
decided to make the language consistent
with that of the other instruments, giving
the purpose as: “to promote, facilitate andstrengthen coo pera tion...to p revent,com bat and eradicate the illicit
ma nuf acturing of a nd traf fick ing infirearms, their parts and components,
and ammunition.”
As noted above, Article 4, dealing withscope of applicat ion , was also notconcluded until the 12th session. Therewas general agreement that all types oftransfer, transaction and firearm should
11 Since the adoption of the Protocol by the General

Assembly was too late for the Palermo signingconference at which the other instruments wereopened for signature, conventional language
concerning signature was added to Art. 17 during
the final drafting session. The instrument opens
for signature somewhat later than those adopted
earli er, b ut i t was decided to close al l 4

9

GA/Res/55/25.

10 GA/Res/55/255. For

see A/55/383/Add.3.

instruments on the same date, 12 December 2002,
travaux preparatoires notes,

which is the 2-year anniversary of the opening of
the initial 3 instruments.

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RESOURCE MATERIAL SERIES No. 59
be prima facie included in the Protocol,
p r ov ide d that the re is so m e link too ffe nces w hi ch a re t ra ns na t i ona l i nnature and involve an organized criminalgroup in some way as required by Article
3 of the Convention itself. There was also
general agreement that the Protocol,
which deals with individual criminality
and not disarmament or State activities,
should not app ly to “S ta te-to-S ta te”
transactions. The issues not resolved
until the final session involved activities
which directly involved either only one orno States, but which were neverthelessseen as raising legitima te “national
security” concerns on the part of one ormore States Parties. This was eventually
addressed using language which opts out“national security” transfers, provided
that this is consistent with the United
Nations Charter (Art. 4(2). The agreed
text of Article 4 also included all illicit“manufacturing” of firearms (Art. 4(1)),
while only excluding “transactions” and“transfers” (Art. 4(2)). The effect is toensure that all firearms must be marked,
addressing concerns about the problem offirearms which might otherwise be madewithout m arking for legitimate
government or national security purposes
and then subsequently diverted, creatinga supply of untraceable illicit firearms.
4. Definitions (Article 2)“Firearm”
The question of subject-matter is dealt
with in the definition provision (Art. 2). It
was agree d that the ter m “fire ar m”
should include any “barrelled weapon
which expels a shot, bullet or projectile by
the action of an explosive”, with the
exception of some antique firearms. To
address concerns that this applied to verylarge “firearms”, such as artillery-pieces,
the word “portable” was added,
accompanied by a note in the travaux
preparatoires to the effect that “portable”
itself was intended to mean portable by470

one person without mechanical or otherassistance. After discussion at several
sessions, the C om m itte e u ltim ate ly
decided not to apply the Protocol to otherso-called “destructive devices”.
“Illicit manufacturing”
The agreed definition of illicit
manufacturing includes three distinct
activities: m anufacturing without alicense, manufacturing from illicit (i.e.,
trafficked) parts, and manufacturing
w i th o u t m a r k in g . E a c h o f t h e s e i sintended to address a major source ofdiverted or trafficked f irearms.
Unlicensed manufacture would include
illegal factories and firearms made in alegal factory, but of a type or quantity thepr od uce r wa s not lic ense d to m ak e.
Assembling from trafficked parts would
address schemes in which stages of the
manufacturing process were split among
several jurisdictions to avoid committing
offences in any of them. Manufacturing
w i th o u t m a r k i n g r e q u i r e s t h a t a l lfirearms be marked a t manufacture,
which ensures that unmarked firearms
cannot be diverted before being marked
at a later stage. There is some overlap
between the definitions of illicit
manufacturing and illicit trafficking,since each includes an element (a ndhence an offence) relating to the
manufacture and transfer of firearms
without the necessary markings.
“Illicit trafficking”
The agreed definition of “illicit
trafficking” is the core of the Protocol. As
defined, “Illicit trafficking” would include
any transaction or transfer in which af ir e a r m m o ve s f ro m o n e co u nt ry toanother where the exporting, importing,a nd t ra ns it Sta t es, i f a ny, ha ve no tlicensed or authorized it. This must beread in conjunction with Article 5(1)(a),which requires illicit trafficking to bemade a domestic criminal offence, and119TH INTERNATIONAL TRAINING COURSE
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11(2), which precludes the issuance ofany export lice nse until thecorresponding import and transit license
has already been issued. The combined
effect is t o commit States Parties
criminalise the export of any firearms,
parts, components or ammunition unlessthe subsequent import is authorized.
5. Criminalisation Requirements(Article 5)
The structural approach taken to thecriminalisation of illicit trafficking andillicit manufacturing is similar to those of
the other instrum ents: the d eta ile dspecification of conduct or activities to becriminalised is set out in the definitional
provisions, and then merely criminalised
by cross-references back to the definition.
S ta t e s P a r ti es a re a l s o re q u i r e d t o
c r i m i n a li s e a t te m p t i n g t o c o m m it ,participating as an accomplice in, ororganizing or directing others to commit
any Protocol offence, although theseobligations are subject to limits thatmake criminalising some of these things
impossible in some legal systems (Art.
5(2)).
I n s ub s ta n c e , S t a te s P a r t ie s a r erequired to criminalise the two basic
activities against which the Protocol isdirected, illicit manufacturing and illicit
trafficking. They are also required toc r e a t e o n e s u p p o r t in g o f f e n c e , t h eobliteration, removal or alteration of theserial numbers or other markings on a
firearm (Art. 5(1)(c)). It was not necessary
to criminalise failing to mark a firearm ortransferring an unmarked firearm per se,
because these activities are included in
the definitions and general offences ofillicit m anufacturing and illicit
trafficking. Further offences relating to
the financing of illicit trafficking anddom estic possession or misuse of
trafficked firearms and the breach ofarms-embargoes had been proposed, butwere ultimately dropped because they
were redundant either with theConvention itself or domestic criminal
law or beyond the scope of the Protocol.
6. Confiscation Seizure and Disposal(Article 6)
The subject of confiscation, forfeitureand disposal is dealt with in Convention
Articles 12–14, which deal with bothproceeds of crime and instrumentalities
of crime, and which apply to the Protocol,
mutatis mutandis. These w ould also
apply to firearms which have been usedin crime as instru mentalities andfirearms which have been trafficked as acommodity as proceeds. The Conventiond e f in i t io n o f “ p r o c e e d s ” ( A r t . 2 ( e ) )includes “...any property derived from or
obtained, directly or indirectly, throughthe commission of an offence.” This wasseen as problem atic, because thecustomary method of disposal forpr oceeds an d ins tru men talities is
ge ne ra ll y to s e l l t h e m a n d u se th e
resulting f und s f or le gitima te State
purp oses or to pa y co mp ensa tio n or
restitution to victims. Where firearms areconcerned, many States felt that thebetter course was to simply destroy them,
thereby ensuring that they could neverenter illicit commerce or be used in crime.
As a result, Article 6 of the Protocol
cre a tes a n e xce p tio n to the ge ne ra l
principle established by the Convention,
providing that, in the case of firearms
parts, components or ammunition, theproperty should be disposed of either bydestruction, or by other disposal only
where officially authorised and where theitems have been specifically marked andthe disposal recorded.
7. Record Keeping (Article 7)
C r i t ic a l t o th e o v e r a ll c o n t r o l o f
trafficking in firearms is the marking of
firearms (Art. 8) to ensure that they canbe uniquely identified, and the keeping of471

RESOURCE MATERIAL SERIES No. 59
records based on the markings in order tomake it possible to distinguish between
legitimate and illicit activities and to
facilitate investigations when atransaction subsequently proves to havebeen illicit or where firearms are diverted
to illicit hands in the course of alegitimate, authorized transaction ortransfer. Some delegations had concerns
about the need for keeping records withrespect to legitimate activities, but it wasu ltimately agreed that legiti ma teactivities must be scrutinised in order to
identify and suppress illicit activities.
Article 7 requires States Parties toeither keep records themselves, or torequire others (e.g., the actual parties toeach import/export transaction) to do so,for a period of ten years, the period being
a compromise between the need to limit
the administrative burdens on States
Parties and the fact that firearms are
durable goods which can surface many
years after having been transferred. The
means whereby States “shall ensure” thek e e p in g o f re c o rd s b y o th e rs i s no t
addressed by the Protocol, but would in
most cases involve a legal requirementthat those involved in import/exporttransactions create and preserve thenecessary records. It is open to States
Parties to create additional offences toc o m p e l th e k e e p i n g o f a p p r o p r ia t e
records, but the Protocol does not require
it. T he re co rd- k ee ping re q uire m ent
extends to records of transactions inparts, components and/or ammunition
only “where appropriate and feasible”.
This recognizes the practical difficulties
in dealing with smaller parts an dcomponents, which may be impossible tomark and are difficult to identify andinspect. Creating and verifying acomplete record of parts and components
might require the disassembly of eachfirea rm in a shipment t o record andinspect each of its parts, for example. In

472

the ca se o f a mm u nitio n, in div idu a lmarking and record keeping was also
seen as impracticable because of the verylarge numbers of individual cartridges inmost shipments. One option for keeping
records “where appropriate and feasible”
in such cases is for States Parties torequire the keeping of records which
describe shipments or batches of parts or
ammunition, but not individual elementsof each.
The actual substance of the records
which must be kept consists of whateverin f o rm a tio n is ne e d e d to t ra ce a n didentify the items involved. This mustin cl ud e th e se r ia l nu m b er o r o the rmarkings on the firearm and specified
information relating to the source, transit
and destination countries in internationaltransfers, but the list is indicative andnot exhaustive. Since there is no overall
co-ordination of the marking schemes ofmanufacturers or countries, markings are
only uniq ue w hen other inform ation
about a firearm is also known. In mostcases, to permit identification and tracing
as required, States Parties will therefore
find it necessa ry to ke ep ad ditiona l
information about a firearm, such as its
manufacturer, model, type or calibre.
8. Marking (Article 8)
As noted, the marking requirements
were also not finalised until the 12th
session of the Ad Hoc Committee. Therewas general agreement that firearms
should be marked in a way which would
permit unique identification, but theactual content of markings varies fromcountry to country and manufacturer tomanufacturer. Some delegations alsosought to exempt firearms made for Stateagencies, but this was se en as
problematic because of the large numbersof State firearms later transferred ordiverted to private hands, whether bylegitimate or illicit means, which would

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
provide a substantial source of
untraceable illicit firearms. The
identification of the content of “unique”
markings was also complicated by thefact that firearm manufacturers employ
serial numbers or other markings which
are generally only unique when combinedwith other characteristics of the firearmin question, such as type, calibre and theplace, country or factory where it was
made. A handgun made in the UnitedStates might well have the same serial
number as a rifle made in Germany, forexample, and ensuring that this could
never occur would prove difficult for thec o u n tr i e s a n d c o m p a n ie s i nv o l ve d .
Ultimately, it was decided to require“unique” marking using the “...name of
the manufacturer, the country or place of
manufacture, and the serial number” butt o a l lo w c o u n tr i e s a l r e a d y u s in g a
combination of numeric, alpha-numericand simple geom etric symbols tomaintain their existing practices.
9. Deactivation of Firearms (Article 9)
In most countries, records tracking
f ir e a r m s a r e p u r g e d w h e n e v e r t h efirearm s to which they apply arethemselves destroyed. Problems havearisen in some cases where firearms are
not completely destroyed if the records
are purged and the firearms are
sub se q ue ntly re sto red an d use d fo r
criminal purposes. Firearms which havebeen “deactivated” in ways which makethem inoperable but leave them intactfrom a standpoint of outward appearance
are popular as display items, and thisprocess is often used to preserve wart ro p h ie s w hi ch w o u ld o th e rw ise b eprohibited by domestic laws. To deal withthe problem of reactivation, Article 9 of
the Protocol contains technical standards
w h ic h e ns ur e t ha t f i re a rm s a re n ot
considered to have been destroyed for the
purposes of a State Party’s licensing andre cord -ke ep ing p ra ctice s unle ss thep r o c e ss is e s se nt ia ll y i r re ve r s ib le .
Paragraph 9(a) also requires essential
parts to be disabled and incapable ofremoval from the deactivated firearm,which precludes any re-circulation ofindividual parts, or the assembly of new
firearms using parts from deactivatedones.
10. Import-Export Requirements(Article 10)
As noted, the of fence of “illicit
trafficking” consists of internationaltransfer without the legal authorisationof all of the states concerned. To support
this, Article 10 contains the requirementthat exporting States verify that
subsequent transit and im port isauthorized by the States involved before
they license the export itself (Art. 10(2))
Art icl e 1 0 als o provi des sta ndard
requirements for the documents involved,
which provide information about thetransaction and identify the firearms
involved for purposes of record keeping
and a ny subsequent tracing or otherinvestigative inquiries. After extensive
discussion about whether to require theauthorization of “transit” States and how
to define “transit” for the purposes of
imposing such a requirement, a simpler
approach was adopted in this Article. The
sim plified schem e requires that
documents identify any transit states andthat such States be notified in advance ofthe transit (Art. 10(3)). If a transit State
does not give written notice that it does
not object, the exporting State cannot
issue an export permit for the transaction(Art. 10(2)(b)). To address concerns about
the application of the Protocol toindividuals who import or export firearms
for temporary use for occupational orrecrea tiona l purpo se s, Article 10 (6 )provides for “simplified procedures” insuch cases.

473

RESOURCE MATERIAL SERIES No. 59
11. Security and Preventive Measures(Article 11)
Some illicitly trafficked firearms arem anufactured directly for the illicit
market, but most are firearms originallym ade for lawful purposes andsubsequently diverted into crim inal
hands. To address this, Article 11 calls forsecurity measures to prevent theft ordiversion at every stage of the
manufacturing, storage, import, export,
transit and distribution process.
12. Information and Tracing (Article 12)
As with Articles 27–28 of theConvention, Article 12 of the Protocol
c ov er s the e xc ha ng e o f inf o rm a tio nranging from very general scientific or
forensic information about firearms tospecific and potentially sensitive
information about organized criminalgroups, their means and methods andinformation about specific legal or illegaltransactions. Information about specificindividuals or companies involved in thefirearms trade can only be provided on acase by case basis (Art. 12(1)).
Information about the means andmethods of offenders can be requested ona more general basis (Art. 12(2)). Article
12(3) contains the third core obligation of
the Protocol, the obligation of States
Parties to assist one another as necessary
in the tra cing of firearms. The term“tracing” itself is defined in paragraph3(f).
13. Brokers and Brokering (Article 15)
During negotiations, there was
extensive discussion about whether the
brokering of firearms transactions was aseparate activity from trafficking itself,
and if so whether it required regulation
under separate provisions of the Protocol.
A further issue, given the fact that mostbrokers operate in many jurisdictions,
was which of the jurisdictions involveds ho u ld r eg u la te a b ro k e r a nd w ha t474

s p e c if i c l ic e n s i n g , r e c o r d - k e e p in g ,security and other requirements shouldbe imposed. It was ultimately decided toadopt a flexible provision which leaves
these matters to the discretion of eachState Party. Where a State Party does
impose requirements on brokers, Article
15(1) contains an indicative list of whatshould be included: basic licensing andregistration, and a requirement thatbrokers identify themselves and state
their involvement on import, export andtransit documents. Article 15(2) further
urges States Parties to keep records withrespect to brokering and to exchange suchinformation with other States Parties
under Article 12. Article 7, which statesthat States Parties “shall ensure thema intenance...” of record s, d oes not
specify by whom such records would be
kept. This means that States Parties
could impose a requirement on brokers
within their jurisdiction to keep therecords of transactions in which they are
involved.

THE GLOBAL SITUATION OF TRANSNATIONAL ORGANIZEDCRIME, THE DECISION OF THE INTERNATIONAL
COMMUNITY TO DEVELOP AN INTERNATIONALCONVENTION AND THE NEGOTIATION PROCESS
Dimitri Vlassis*
I. TRANSNATIONAL ORGANIZEDCRIME IN PERSPECTIVE
T he thre at po se d to natio nal andinternational security by transnational
crime, in all its forms and manifestations,is not the inadvertent by-product of longterm trends. On the contrary, this threat
is a n ine vita b le c on se q ue nce of theactivities of individuals and organizations
a s t he y c o r r u p t s t at e in s t it u t io ns ,undermine the rule of law, threaten the
integrity of financial and commercial
sectors of society, contravene legal andsocial norms and conventions, transgressnational sovereignty and violate national
borders. New opportunities offered by the
globalization of trade and communications
have been exploited eagerly and effectively
by criminals, leaving law enforcement
trailing behind and working to match theinventiveness, adaptability and resilienceo f cr im inal o rgan iz a tion s tha t ha ve
become transnational in both thought anddeed.
The toll of crime has becom efrightening. Not to mention the misery it
leaves in its wake, the financial damage
to societies is staggering. The economic
price exacted on nations is enormous,
while its social and hidden human costs* Crime Prevention and Criminal Justice Officer,
Secretary of the AD HOC Committee for the
Elaboration of the United Nations Convention

are even higher. In addition to traditionaland “street” crime, the consequences oforganized crime present real and present
da nge rs to p ro gr es s a nd a b r a ke todevelopment. Violence associated withthis form of crime is extending its reachfar beyond national frontiers. Organizedcrimina l groups are spread ing theiroperations around the globe and a reengaging in a variety of activities that
range from the traditional to the modern
with an increased level of sophistication.
They also display a remarkable ability toshift across borders and from activity toactivity with speed and adaptability thatwould be the envy of a ny legitima tebusiness. Overall, the annual profits oforganized crime are estimated, according
to some sources, at one trillion dollars
wo r ld - wi d e ; al m o st a s m u ch as th e
United States annual federal budget.
Moreover, the export of precious raw
materials, including chemical, biologicaland nuclear material, is increasingly
attracting the attention, and often fallingin to t h e h a n d s o f o r g a n iz e d c ri m e .
Through its interfaces with other licit andillicit activitie s, o rganized crim e isinfiltrating national economies, taking
advantage of the difficulties of following
the trail of criminal proceeds. It has
b e c o m e c le a r t ha t o n ly b y ta c k li ng
organized crime in a concerted mannerinroads can be made into a problem thatexceeds the capacity of national
mechanisms operating alone.

Against Transnational Organized Crime, United
N a t i o n s C e n t r e F o r I n te r n a ti o n a l C r i m ePrevention (United Nations)475

RESOURCE MATERIAL SERIES No. 59
Developing countries and emerging
democracies are becoming a target fororganized criminal groups opera tingacross borders, because of theirvulnerabilities, while their institutions
are either young or in the process of being
built. Often, the sophisticated modus
operandi of these groups is no match tothe criminal justice systems of developing
countries and countries with economies
in transition. The need for foreign capitalto give new life to the economy and assist
t he se co un tr ie s in e nte r ing t od a y ’s
c o m p e ti t i v e a n d d e m a n d i n g g l o b a lmarket, frequently obscures the longterm threat posed by the investment ofcriminal proceeds. Criminal groups are
keen to enter developing countries andeconomies in transition, not only becauseof their potential, but also because of thedecreased risks involved. The advantages
t h a t s uc h g r o u p s e n jo y , d u e to t h e
s i z e a bl e a m o unts of m o ney a t t h eir
disposal and their ability to eliminate
competition through intimidation andviolence, make risks that would daunt
any legitimate business perfectly
acceptable. The consolidation of theirpower places in grave danger the growing
economies of those countries, particularly
in terms of their future development,
their competitiveness in the international
arena, and their stability.
Money laundering is a vital componento f all fo rm s of organiz ed crim e. The
infiltration of legal financial markets andthe attempts of organized crime to control
sectors of national economies through thelaundering of its illicit proceeds continue
to re prese nt g rave thre ats fo r theinternational community and for national
and international financial systems. Free
trade and high-speed telecommunications
make it easier to engage in multiple
a ctivities and launder money a crossnational borders, with an estimated one
b illion dollars in crime profits w ire-

476

transferred through the world financial
markets every day. In addition toconcealing wealth and lau nderin gproceeds, organized criminal groups areturning to “borderline” economic
endeavours, while diversifying theiroperations in response to a principle thathas been driving international businessfor ever: reduce risks a nd maxim ize
profitability. Since these types of crime
often involve no violence, they offer the
additional advantage of not drawing
public attention, which puts increased
pressure on national a uthorities foraction. Such activities come with thepotential for pow er, which organizedc ri m e h a s n e v e r sh u n ne d . A n o t he r
feature in these types of crime is that thesuccessful engagement of criminals in
economic crimes is often viewed by the
public as an act of cunning and evenbravery. This attitude amply
demonstrates the corrosive effects thatsuch crimes have on the social fabric. It isf u n d a m e n ta l th a t t h i s a t t i t u d e b ereversed, because it can prove equally or
more dan gerou s th an th e offen ces
themselves.
Novel threats d emand novel
combinations of expertise and novel
operational capabilities. If theinternational community is to responde f f e c ti v e ly t o t h e t h r e a ts p o se d b ytransnational criminal organizations,then policy solutions need to be not only
comprehensive and well-coordinated, butalso highly im aginative. Str ate gie s
should take full account of the nature of
the challenge. On the grounds that it
takes a network to defeat a network,emphasis should be given not simply toextend ing the formalities of law
enforcement and judicial cooperation, butalso to building a transnational networkof coo rd ina ted mea sures that w ould
eventuall y b e global. An effective
concerted approach should also take into

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
account the risk management strategies
of criminal organizations and should
initiate appropriate action to reduce orovercome them. The responses should be
the converse of the criminalorganizations. Among the objectives to beachieved is to eliminate safe havens forcriminal organizations, recognizing that asafe haven is more likely to be the resultof limited state capacity than to be theresult of lack of will. A m ultila teralapproach offers distinct advantages and ahigher probability of success. Equallyimportant is the targeting of the assets ofcriminal organizations, focusing less on
the money laundering process as suchand mo re on the uncovering andforfeiture of the assets accrued by theseorganizations. States must reflect very
seriously on the impact of organizedtransnational crime on the lives andeconomic activity of their citizens. It is
im p e ra ti ve to p ro m o te w or ld w id e aculture of legality and tolerance, insteadof accepting a culture of lawlessness andviolence, which dangerously threatens
national institutions and their principal
foundation: global values. Policy- anddecision-makers, and leaders must begin,
as a matter of urgency, to think in termsof new partnerships to safeguard global
values and prevent organized crime andmoney laundering from impeding thequest of countries for growth, stability
and steady progress towards democracy.
Throughout the world, there isrecognition of the need to develop more
effective, ideally global, strategies for theprevention and control of organized crimein all its forms and manifestations. The
task before the international community
is, however, even greater, because thedevelopment of better and more effectives o l ut i o n s i s no t t h e o n l y ne e d ; t h einternational community must reassess
the very nature and dimensions of the
problem, and the policies that can serve

the common purpose of dealing with it.
States must also reflect very seriously onth e im pa ct o f crim e in gen era l, a ndorganiz ed transnational crime inparticular, on the lives and economic
activity of their citizens. Policy- anddecision-makers, leaders and the publicin general must gear their minds to thinkbeyond and challenge perceptions more orless well ingrained. It is necessary to
re as se ss in te r es ts an d lo o k be y on d
traditional roles and stereotypes. If this is
d o n e , i t is a l m o st c e r ta i n t h a t t h einternational community will discoverthat the public and private sectors sharemuch more than was thought. They sharenot o nly c om m on inte re sts bu t alsoc o m m o n v a l u e s. T h e in t e r n a t i o n a lcommunity must begin, as a matter ofurg en cy, to think in terms of n ew
partnerships to safeguard these values
and protect mutual interests.
II. UNITED NATIONS EFFORTS TO
STRENGTHEN INTERNATIONAL
COOPERATION AGAINSTORGANIZED CRIME: THE EARLYYEARS
The work of the United Nations tostrengthen international cooperation
against o rga nize d crime d a tes backtwenty-five years. The issue in its various
aspects has been debated and analysed bysuccessive congresses on the preventionof crime and the treatment of offenders,
the quinquennial event organized by theUnited Nations Crime Prevention andCriminal Justice Programme since its
esta blishm ent. 1 Thi s deb at e a nd i t s
results reflect the changing perceptions
and comprehension of the problem over
several decades. It must also be viewed as
1

The Tenth United Nations Congress on the
Pr e ve ntio n o f Cr im e a nd the Tr ea tme nt o f
Offenders was held in Vienna from 10 to 17 April
2000.

477

RESOURCE MATERIAL SERIES No. 59
a series of steps, as a sustained course in
the direction of raising awareness amongpo licy- and decision-m akers andchallenging the conventional thinking
about crime prevention and criminal
justice matters. The process must be
viewed in perspective and in context. The
United Nations is a global organization,with a steadily increasing membership,especially after the end of the Cold War.
In this environment, there are various
and m ultiple po litical c once rns anddifferences in political and substantive
a p p ro a ch e s t o p r o b l e m s. D o m ina nt
among
the
concerns
remainssafeguarding sovereignty, which is formany smaller developing countries andcountries with economies in transition (oremerging democracies) the last bastion ofnational integrity and identity. Criminal
justice matters are at the core ofsovereignty concerns, being perceived as
essentially domestic in nature, touchingas they are on institutions ranging fromnational constitutions to legal regimes
and systems.
The Fifth United Nations Congress on
the Prevention of Crime and theTreatment of Offenders, held in 1975,
examined the “Changes in Forms andDimensionsofC riminality—
T ra nsna tiona l an d Na tion al” und er
agenda item 5. In what could today, withth e be ne f it o f h ind sight, be te rm e dprophetic, the Congress focussed on crimeas business at the national andtransnational levels: organized crime,
white-collar crime and corruption. Crime
as business was recognized to pose a more
serious threat to society and nationale co no mie s than traditional form s o fcrime. While it was a serious problem inmany developed countries, the national
welfare and economic development of theentire society in developing countries wasfound to be drastically affected by such

478

criminal conduct as bribery, price-fixing,
smuggling and currency offences.
In 1980, the Sixth United Nations
Congress, under agenda item 5 entitled“Crime and the Abuse of Power: Offences
and Offenders beyond the Reach of theLaw,” added new elements to theinternational perception of organizedcrime. Among these offences were thosecrimes with respect to which the law
enforcement agencies were relatively
powerless because the circumstances
under which they had been committed
were such as to decrease the likelihood of
the ir b ein g r ep o rte d o r p ro sec ute d.
Organized crime, bribery and corruption
were among the first examples listed.
The Seventh Congress considered theissue further in 1985 under its Topic 1,
entitled “New dimensions of criminality
and crime prevention in the context ofdevelopment: challenges for the future.”
The Congress emphasised that multiple
illicit operations carried out byinternational criminal networks
represented a major challenge to nationallaw enforcement and to international
cooperation.
In 1990, within the framework of its
Topic III, entitled “Effective national andinternational action against: (a)Organized crime; (b) Terrorist criminal
activities,” the Eighth Congress
ex a m in ed the p ro b le m o f o rga n ize dtransnational crime in the light of new
historic developments. The rapid increasein the number of independent countries,
together with the growing expansion ofcrim ina l a ctivitie s b eyo nd na tio na lborders, had created the need for new
international institutions, which could
introduce a measure of order and enhancethe effectiveness of crime prevention
efforts. On the recommendation of theCongress, the General Assembly focused

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
on strengthening internationalc o o p e r a t io n b y a d o p t in g t h e M o d e lTreaties on Extradition, 2 on Mutual
Assista nce in Criminal M atters, 3 on
Transfer of proce edings in Criminal
Matters4 and on Transfer of Supervisionof Offenders Conditionally Sentenced or
Conditionally Released. 5 The Congress
also adopted a set of guidelines againstorganized crime in resolution 24, which
was welcomed by the General Assemblyin resolution 45/121. In resolution 45/123,
the General Assembly urged Member
States to implement these guidelines andinvited them to make available to theSecretary-General their national
legislation against organized crime andmoney laundering.
The Eighth Congress also marked the
beginning of a new era for the United
Nations Crime Prevention and Criminal
Justice Programme. At first glance, thechanges that were precipitated by therecommendations of the Congress, andthe action that followed at the legislative
level, were of a mostly institutionaln a t u r e . Q u i t e t o th e c o n t r a r y , th esignificance of these changes lies in thef a c t t h a t S t a t e s c o n f r o n t e d , a l b e itimperfectly, one of the core concerns of
the inte rnation al com m unity. Th e
question was to what extent the United
Nations, faced with radically changed
political and historical realities, would
credibly perform its primary function of
being a policy-making forum andmedium, while simultaneously providing
developing countries with the means to
2

See General Assembly resolution 45/116, of 14
December 1990.

3

See General Assembly resolution 45/117, of 14

effectively cooperate with their peers. On
th e r e c o m m e n d a t i o n o f th e E i g h thCongress, the Secretary-Generalconvened the Ministerial Meeting on theCreation of an Effective United Nations
Crime Prevention and Criminal Justice
Programme, which was held in Versailles
fro m 21 t o 2 3 No vem be r 1 9 9 1. 6 The
M e e ti n g d e v e l o p e d a S t a t e m e n t o f
Principles and Programme of Action,
which the General Assembly adopted in
December 1991. 7 In this document theAssembly determined that the revamped
Programme would focus its activities on
specific areas of priority, and direct its
energies toward providing timely andpractical assistance to States at theirrequest. Action against organized crime
figured prominently among the areas ofpriority attention f or the new
Programme. On the institutional level,
the Assembly decided that the Committee
on Crime Prevention and Control, thegoverni ng body of the Pr og rammec o m p o s e d o f e x p e r ts n o m i n a t e d b y
Govern ments bu t s ervin g in theirindividual capacity, would cease to exist.
In its place, the Assembly established theCommission on Crime Prevention andCriminal Justice, a functional
Commission of the Economic and Social
Council, composed of the representativesof 40 Governments, thus ensuring direct
go ve r n m e n t a l i nv o l v e m e n t i n b o thdecision-making and oversight of theProgramme’s activities.
The Commission was established andheld its first session in 1992. One of its
first endeavours was to flesh out further
the general guidelines established by theGeneral A ssembly regarding theprioritie s of the P rogra mm e. O n its

December 1990.
4

See General Assembly resolution 45/118, of 14

6

December 1990.
5

See General Assembly resolution 45/119, of 14
December 1990.

See General Assembly resolution 45/108, of 14
December 1990.

7

See General Assembly resolution 46/152, of 18
December 1991.

479

RESOURCE MATERIAL SERIES No. 59
re co mm end a tio n, the E cono m ic a nd
Social Council determined that one of thepriority themes that should guide thework of the Commission and the United
Nations Crime Prevention and Criminal
Justice Programme would be: “nationala nd t ra ns n ati o na l crim e, or gan iz e dcrime, economic crime, including money
laundering, and the role of criminal law
in the protection of the environment”. 8
The Council also took note of therecommendations of two Ad Hoc expert
group meetings, which had been held in
1991, in Smolenice, Slovak Republic, andin Suzd al, Ru ssian F ed era tion, andr eque sted th e Secr etary- Ge ner al tocontinue the analysis of the impact oforganized criminal activities upon society
at large. 9 The Commission, also at its
first session, requested the SecretaryGeneral to examine the possibility of
coordinating efforts made at themultilateral level against the launderingof proceed s of crime, a nd to propose
mea ns for technical as sis tan ce t orequesting Member States in draftingl eg isl ation a nd in t rai nin g of law
enforcement personnel, as well as indeveloping regional, subregional andbilateral cooperation.10
III. THE ROAD TO THE
CONVENTION
The direct governmental involvement
in setting the agenda for the United
Nations Crime Prevention and Criminal
Justice Programme, assured through theestablishment of the Commission, helped
give new impetus to the importance ofinternational action against organized8

See Economic and Social Council resolution 1992/
22.

9

See Economic and Social Council resolution 1992/
23.

10 SeeCommission on Crime Prevention

Criminal Justice resolution 1/2.

480

and

crime. In its first couple of sessions, theCommission engaged in intense work,
reviewing and assessing the activities of
the Pro gra mm e until that time andpaving the road f or the future.
International concerted action had been
identified as a key component of success
aga inst o rga niz ed crime, which wa ssorely missing at the time. This was oneof the c on clusio ns w hic h on e o f theprominent figures of the fight againstorganized crime, Judge Giovanni Falcone,
had derived from all his efforts against
the Mafia. Judge Giovanni Falcone is
known for sweeping successes againstorganiz ed crime in Italy throughm e t ic u lo u s w o r k , e x p a n s i o n o f h i sinvestigations into fields previously
beyond the scope of traditional
prosecutorial wo rk, and throughcooperation with the authorities of othercountries. Wha t is perhaps less wellknown is that about two months before
his tragic death, Judge Falcone led his
country’s delegation to the inauguralsessio n of the C om m ission. I n what
probably was his last public address at aninternational forum, he called for moremeaningful action at the international
level against organized crime, in order toaddress the problem of national
authorities trying to cope with aphenomenon that was no longer national.
In e xpla ining w hy he tho ught mo reinternational cooperation was a must,
Judge Falcone launched the idea of aworld conference at a sufficiently highpolitical level to lay the foundations forsuch cooperation.
The Commission took up the idea of amajor world conference on organizedcrime the year after Judge Falcone’s
death. In doing so, it built on the efforts of
the United Nations and the awarenessand interest displayed by theinternational community through thesignificant work at the policy-making

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
level that it had accomplished in its shortexistence. The result was theorganization of one of the most significant
e ve n ts in the hist or y o f th e U ni te dNations Crime Prevention and Criminal
Justice Programm e. The World
Ministerial Conference on OrganizedTransnational Crime, held in Naples,from 21–23 November 1994 was also oneof the best attended events ever, withover 2000 participants and delegations
f r o m 1 4 2 S ta te s ( 8 6 of t he m a t th e
M inisteria l leve l, w hile others w ere
represented by their Heads of State or
Government).
The
C onfe rence
unanimously adopted the Naples Political
D ecla rati on a nd G l ob al A ction P la nagainst Organized Transnational
Crime, 11 which wa s approved b y theGeneral Assembly one month later.12
The Naples Political Declaration and
Global Action Plan emphasised the needfor urgent global action against organizedtransnational crime, focussing on the
structural characteristics of criminalorganizations. Countries were called
upon to begin the process of harmonising
their legislation, while special attention
was paid to the need for countries toensure that their criminal justice systems
had the capacity to prevent and control
organized transnational crime in all its
manifesta tions. Equal attention wasgiven to the need for the international
community, particularly donor countries
a nd f inancing institutions, to assist
developing countries and countries witheconomies in transition to bridge the gap
between the capacity of their criminal
justice system s in ge nera l, an d law
enforcement authorities in particular,
and the ability of organized criminalgroups to shift their operations from11 See United Nations document A/49/748.
12 General

Assembly resolution 49/159 of 23

December 1994.

activity to activity and to elude efforts
aga inst them by using sophistica ted
methods of operation.
The Naples Political Declaration and
Global Action Plan stressed the need forthe international community to arrive ata generally agreed concept of organizedcrime as a basis for more compatible
national responses and more effective
international cooperation. Particularattention was given to more effective
bilateral and multilateral cooperation
against organized transnational crime,
asking the C ommission on C rime
Pre vent i o n a nd C ri m ina l J us t i ce t o
examine the possibility for a convention
or conventions against organizedtransnational crime. Furthermore, theprevention and control of the laundering
and use of the proceeds of crime wereconsidered essential elements of any
international effort.
T h e n e g o t i a t io n s f o r t h e N a p l e s
Political Declaration and Global Action
Plan were long and difficult. One issue ofcontention was whether the document
would issue a clea r m andate for theelaboration of a new convention against
transnational organized crime. Most of
the members of what is known in the
United Nations as the Western European
and O thers G roup (a regional groupwhich includes all Western European
countries as well as Australia, Canada,
New Zealand and the United States) were
sceptical, if not openly negative to theidea of a convention. The reason was thatthey regarded the subject as too thorny toapproach, especially since it involved anumber of conceptual and legal
difficulties, with definitions figuringprom inently am ong them . The seconceptual and legal problems, coupledwith the inherent difficulty ofnegotiations with the full membership of
the United Nations around the table, led

481

RESOURCE MATERIAL SERIES No. 59
these countries to conclude that the final
p ro d uc t w a s lik ely to be the low est
common denominator. An instrument
without “teeth” was something that was
not desirable and perhaps not worth thet im e a nd e f f o rt f o r m o st d e ve lo p e dcountries. A further concern stemmed
from the perception that the more or lessquite well developed networks of regionaland bilateral arrangem ents thatd ev elop ed c ountr ie s ha d d eve lop ed ,especially in the field of international
cooperation in criminal matters, wassufficiently operational and functional tode al with organized crim e. These
countries thought that a new convention
m ig ht p la c e th os e a r ra n ge m e nts in
j e o p a r d y , e s p e c i a ll y r e g a r d i n g t h epresumably stronger provisions they
contained.
At the other end of the spectrum stoodthe vast majority of developing countries
that thought the idea of a new convention
was a good one for several reasons. First,
the prospect of a universal instrument
held appeal for developing countries
because of the nature of the problem they
were beginning to witness crossing into
their territories and affecting their efforts
towards development. In this regard,
many developing countries and countries
w i t h e c o n o m i e s i n t r a n si t i o n w e r eexperiencing sentiments bordering on
genuine shock because they had no way of
a ccurately estima ting the m alicio us
potential of organized criminal groups.
For many years, they were under the
impression that organized crime was the
problem of industrialised countries. Mostof them were also under the impressionthat organized crime was synonymous todrug trafficking and that issue had been
the object of numerous international andregional initiatives and instruments,
w hi ch p ro v id e d a c e rt a in d e gr e e o f
gui da nce a nd coo rd ina t ed re sp ons e.
Second, the possibility of dealing with a482

problem in the context of a global forum,such as the United Nations, has always
been favoured by developing countries
because of the relative parity, which that
forum affords them. Strengthening thisconviction is the tendency of United
Nations in most of its entities to favour
decisions by consensus and to avoid, if at
all possible, voting. Consensus decisionmaking allows more room for theconcerns of smaller countries to be taken
into consideration and reflected in the
final outcome of the endeavour. Third, as
any instrument against transnationalorganized crime would dwell at length on
methods of international cooperation,
deve loping countries saw a newconvention as the way of addressing
pressing needs in that area. Lacking theresources, both human and financial, as
well as the negotiating power, developing
countries and emerging democracies had
quickly recognized their inability toembark upon the development ofextensive networks of bilateralagreements or arrangements in the fieldof international cooperation in criminal
matters. An international convention
offered the potential of making up for thisinability and of filling the gaps theseco untries had identified in thecooperation they needed.
In view of all this, developing countries
and countries with econom ies intransition, as a block, threw their support
behind the idea of a convention in Naples
and tried to use the Declaration as thevehicle for promoting its elaboration. The
final language of the Declaration was acom prom ise solution, w hich w as theresult of the tireless efforts of the thenVice-President of Colombia (who waschairing the negotiating committee at theConference) and the delegate of Italy incharge of these negotiations, Ambassador
Luigi Lauriola (who is now serving as the
Chairman of the Ad Hoc Committee on

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
the Elaboration of the Convention). It is
important to keep this background in
m ind, whe n the elabo ration of the
C onve ntion itself will be d iscussed ,because over time and with changing
circumstances and political agendas,
there has been considerable evolution ofthat position.
The Commission on Crime Prevention
and Criminal Justice followed up on theimplementation of the Naples Political
Declaration and Global Action Plan at its
f ourth 1 3 and fifth 1 4 sessions. On its
recommendation at its fourth session, theEconomic and Social Council requested
the Secretariat to perform the following
functions: (a) to initiate the process ofrequesting the views of Governments on aconvention or conventions; (b) to collectand analyze information on the structureand dynamics of organized transnational
crime and on the responses of States tothis problem, for the purpose of assisting
the international community to increase
its knowledge on the matter; (c) to submit
to Member States at the following sessionof the Commission a proposal on thecreation of a central repository of existinglegislative and regulatory measures andinformation on organizational structuresdesigned to combat organize dt r a n s n a ti o n a l c r i m e ; ( d ) to s u b m it
proposals to the C ommission for thedevelopment of practical models andpractical guidelines for substantive andprocedural legislation in order to assist
developing countries and countries intransition; (e) to provide advisory services
and technical assistance to requesting
Member States in needs assessment,
capacity-building and training, as well as
in the implementation of the Naples
Political Declaration and Global Action
Plan; and (f) to join efforts with otherrelevant international organizations inorder to reinforce common regulatory andenforcement strategies in the area of
preventio n and control of money
laundering, and to assist requesting
States in assessing their needs in treaty
development and the development ofcrim in a l ju stice inf rastr uct ure andhum an reso urce s. 1 5 A n in-se ssio nal
intergovernmental working group wasestablished at the fifth session of theC o m m i ssi o n t o r e v ie w t he v ie w s o f
Governme nts on a convention orconventions, as well as the proposals of
the Secretariat described under (c) and(d) above. The (then) Crime Prevention
and Criminal Justice Division, on thebasis of information provided by Member
States, prepared a report for theCommission’s consideration at its fifthsession, in which the actual situation oforganiz ed crime w as review ed. Most
responding Member States expressed
their favourable disposition towards aconvention
againstorganized
transnational crime.
In N o vem be r 1995, th e Divisionorganiz ed a regional MinisterialWorkshop on the Follow-up to the Naples
Political Declaration and Global Action
Pl a n, ho st e d b y the G o v e rn m e nt o fArgentina in Buenos Aires. The
Workshop adopted the B uenos Aires
Declaration on Prevention and Control ofOrganized Transnational Crime. The
co untrie s o f L a tin A m e rica a n d the
Caribbean expressed their support for
expe ditio us fo llo w -up to the Na ple s
Political Declaration and Global Action
Plan and endorsed the idea of developing
a convention against organizedtransnational crime, offering a list ofelements that such a convention should
include.

13 Vienna, 30 May to 9 June 1995.
14 Vienna, 21 to 31 May 1996.

15 Economic and Social Council resolution 1995/11.

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RESOURCE MATERIAL SERIES No. 59
At its fifth session, the Commission
devoted particular attention to the issueof organized crime in general and to thefollow-up to Naples in particular. On its
recommendation, the General Assembly
adopted the United Nations Declaration
on Crime and Public Security. 16 By thisDeclaration, Member States undertook toprotect the security and well-being of all
their citizens, by taking effective national
measures to combat serious transnational
crime, including organized crime, illicit
drug and arms trafficking, smuggling ofother illicit articles, organized trafficking
in persons, terrorist crim es and thelaundering of proceeds from serio us
crimes. Member States also pledged topromote bilateral, regional, multilateraland global law enforcement cooperation
and assistance, while taking measures toprevent support for and the conduct ofoperations of criminal organizations intheir national territories. In addition,
Member States agreed to provide, to thef ullest extent p ossib le , fo r ef fec tive
extradition or prosecution of those who
engage in serious transnational crimes inorder to ensure that these criminals findno safe haven.
According to the Declaration, mutual
co ope ratio n a nd a ss i s ta nce i n t hesem atters would also include thestrengthening of systems for the sharing
of information among Member States,
and th e pro vision of bilateral an dmultilateral technical assistance. This
cooperation was also considered
important in connection with thea greement of S tates to ta ke steps tostrengthen the overall professionalism of
their criminal justice, law enforcement
and victims assistance systems, as well as
relevant regulatory authorities. Member
States were urged to become parties assoon as possible to the principal existing
16 General Assembly resolution 51/60.

484international treaties relating to thevarious aspects of the problem ofinternational terrorism, as well as to theinternational drug control conventions.
The Declaration called upon States totake measures to improve their ability todetect and interdict the movement acrossb ord ers o f tho se enga ged in serio ustransn ation a l cr im e, as we ll as the
instrumentalities of such crime, and toprotect their territorial boundaries. Suchmeasures would include adopting
ef fective c ontrols on explosives a nd
against illicit traff icking in certain
materials and their components that are
specifically designed for use andmanufacturing of nuclear, biological orchemical weapons; strengthening
supervision of passport issuance ande nh a n c e m e n t o f p r o te c ti o n a g a i ns t
tampering andcounterfeiting;strengthening enforcement of regulations
on illicit trafficking in firearms; andcoordinating measures and enhancing
informa tion excha nge t o com ba t theorganized criminal smuggling of persons
across national borders.
In connection with the control of theproceeds of crime, Member States agreed
to adopt measures to combat theconcealment or disguise of the true originof the proceeds of serious transnational
crime and the intentional conversion ortrans fer of such proceeds for th at
purpose. Member States also agreed toreq uire a d eq uate reco rd k ee ping b yfinancial and related institutions and thereporting of suspicious transactions andto ensure effective laws and procedures topermit the seizure and forfeiture of theproceeds of serious transnational crime.
Member States recognized the need tolimit the application of bank secrecy lawswith respect to criminal operations and too b t a in th e co o p e r a t io n o f f in a n ci a linstitutions in detecting these and other119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
operations, which may be used for the
purpose of money laundering.
Further, M emb er States agreed tocom ba t and prohibit co rrup tion a ndb rib e ry and t o c o n sid e r d e ve lo p in gconcerted measures for international
cooperation to curb corrupt practices, aswell as developing technical expertise toprevent and control corruption.
On the recommendation of the
C om mission a t its fif th se ssion, theEconomic and Social Council adopted aresolution, 17 in which it took note of the
Buenos Aires Declaration and requested
the Secretary-General to continue his
consultations with Member States on thepossibility of elaborating a convention orconventions against organize dtransnational crime. The Council also
requested the Secretary-General to assist
in the implementation of the Naples
Political Declaration and Global Action
Plan and to meet the needs of Member
States for increased knowledge on the
structure and dynamics of organizedtransnational crime in all its forms, aswell as trends in its development, areas ofactivity and diversification. In addition,
the Secretary-General was called upon toa ssi st M e m b e r S t a te s i n r e vi e w in gexisting international instruments andexploring the possibility of elaborating
new ones to strengthen and improvein terna tional cooperation aga inst
organized transnational crime and tointensify technical assistance in the formof advisory services and training. The
Secretary-General was also requested toestablish a central repository for national
legislation, including regulatory
measures, on organized transnational
crime; information on organizational
structures designed to combat organizedtransnational crime; and instruments forinternational cooperation, including
bilateral and multilateral treaties andlegislation
toensuretheir
im plem enta tio n. F or the purp ose ofproviding increased technical assistanceto requesting Member States, theSecretary-G enera l w as req uested todevelop training manuals for specialised
law enforcement and investigative
personnel on action against organizedtransnational crime, taking into accountdifferences in legal systems.
In 1995 and 1996 , the issue of theconvention was a topic of discussion anddebate during the annual Commission
sessions but also in other for a, bothwithin and outside the United Nations.
The doubts and he sitation that had
resulted in the compromise language of
the Naples Declaration persisted, eventhough the surveys carried out by the
Secretariat showed that the majority ofcountries were favourably disposed to theconvention. In numerous discussions, theissu e t ha t a pp e a r e d t o b e th e m o s tdifficult was how would the international
community define organized crime in a
way that would be acceptable to everyone,despite d ifferences in concepts,
perceptions and legal systems. But even
within the group of countries which had
been the most sceptical, there were signs
of at least a change in thinking. The
Group of Senior Experts, which wa s
established by the Group of Seven Major
Industrialised Countries and the RussianFederation (what was then known as G7/
P8 and since 1998 is referred to as theG8) at Lyon, deserves much of the credit
for this reversal of opinion. The Group’s
mandate was to explore ways and means
to stre ngthe n c oo peratio n ag ain st
transnational organized crime. Chairedby Ambassador Lauriola of Italy, theGroup produced a set of forty
recommendations, which set the stage for

17 Economic and Social Council resolution 1996/27.

485

RESOURCE MATERIAL SERIES No. 59
much of what has been done since in thefield.
In September 1996, the President of
Poland subm itted to the GeneralA s se m b ly t he d ra f t o f a fr a m e w o r kconvention against organized crime. 18
Poland had been one of the most vocal
proponents of the new convention since
the Naples Conference. Its initiative wasa component of its consistent policy of
support for the new instrument, but also
res ul ted from the Government ’s
conviction that the issue was urgent andre q uire d com me nsura te a ctio n. T he
Government of Poland was of the viewthat the best way to allay the fears anddispel the doubts expressed by several
countries about the difficulty of
approaching the matter was to get them
to focus on something in writing. Poland’s
methodological approach was sound. The
question of the new convention until thattime had been a largely abstract one.
Ev ery discu ssion revolved aroun dwhether the approach to international
cooperation was more effective at thebilateral and regional level, or whether
there was tangible benefit to be gained byelevating normative efforts to the global
level. In the absence of a draft, whichpeople could study and discuss at capitals
with their criminal law and other experts,
there was hardly any debate about what
the contents of a new convention could be.
Con sequ en tly , h ardly any one wasvisualising the possible benefits of a newinternational binding legal instrument.
Poland tried to shift the focus of thed i s c u s s i o n a n d s ti m u l a te n a t i o n a lthinking along the lines of assessing
potential benefits and coming to termswith the individual problems that would
be associated with the process ofobtaining those benefits. Poland also
wanted to show that isolated

manifestations of the type of criminality,
which the new instrument would target,
had already been the object of previous
international negotiations. In order toachieve these goals, Poland included inits draft a list of offences, based on thete rm ino log y use d in o the r pr ev iou sinternational conventions.
Poland’s objective about focusing thethinking and discussions on thepossibility of the convention wasachieved. The General Assembly adopted
a reso lution in D ecember 19 96 , 1 9 b ywhich it took note of Poland’s proposal
and asked the Commission to devote
priority attention to the question of theconvention at its sixth session. Even if on
the face of it that resolution did not givethe green light for the beginning of theprocess towards the new convention, thed is c us s io n s t ha t p re c e d e d it s f i na ldrafting were indicative of a change ina t t i t ud e . T h i s c h a n g e r a ng e d f r o m
acceptance of the merit of having a newc o n v e n t i o n t o r e s ig n a t i o n t o w h a t
appeared to be inevitable. This latterapproach stemmed from the building andexpanding momentum in favour of theconvention, which began increasing thepolitical cost of its rejection.
On the other hand, the inclusion of thelist of offences in Poland’s draft, andespecially the inclusion of terrorism inthat list, created two problems. First it
was immediately picked up by a numberof countries, which had serious problems
with terrorism. For these countries,
including terrorism into a list of offencesusually committed by organized criminalgroups, thus treating terrorism as justanother form of organized crime, was theanswer to their frustrations of many
ye a r s a b o ut the la c k o f p r o gre ss i n
19 General

18 See United Nations document A/C.3/51/7.

486

Assembly

December 1996.

resolution

51/120of

12

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
concerted action against terrorism at theinternational level. This is an importantfeature of the development and evolutionof the convention because it was resolved
only at the very la st mom ent in thenegotiations. Second, including offences
established or defined in otherconventions created problems for thosecountries that were not Parties to theseconventions.
In preparation for the sixth session of
the Convention and in order to boost the
chances of the convention, the Giovanniand Francesca Falcone Foundation (afoundation established in Palermo in thememory of Judge Giovanni Falcone andh is w if e , w ho w a s k ill e d w it h h im )o rgan iz ed f rom 6 t o 8 A pri l 1 99 7 i n
P alermo an in for mal meetin g. All
members of the Commission were invited
to discuss what issues a new convention
should cover. The meeting in Palermo
confirmed the attitude described earlier
but also showed that whateverreservations remained were still to be
reckoned with.
The key turning point for the fate of
the new convention was the sixth sessionof the Commission.20 During that session,
the Commission established a working
group to deal with the ma tter of theimpleme ntation of the Naples
Declaration. The core mandate of theg ro up , h o we ve r, was to d iscu ss th equestion of the convention. Even if, as
mentioned earlier, attitudes had begun tochange and even tho se still holding
reserva tions a bout whether the newconvention was truly feasible or desirable
had begun to accept the inevitable, thegroup had to tread a fine line. The careful
formulation of the group’s report to theCommission is perhaps the bestindication of how precarious the whole
20 Vienna, 28 April to 9 May 1997.

question remained. The group reported
th a t “ . . . i t w a s [ it s ] s e n s e t h a t i t scontribution would be most useful to theCommission if it would canvass the scopeand content of a convention, rather thanenga ge in a drafting exercise, which
would be outside the mandate given by
the Council and the Assembly, and would
require significantly more time than thatavailable. ... In determining the scope andcontent of a convention, the international
community could draw on the United
Nations Convention against Illicit Trafficin N a rco tic Drugs a nd Psychotrop ic
Substances of 1988, but should be able tocome up with new and more innovative
a nd c r ea tiv e r e sp o n se s . T h e G ro u p
re c og niz ed th at it w a s d e sir able todevelop a convention that would be as
co m p r e h e ns iv e a s p o ss ib le . I n th i sconnection, several States indicated that
their rema ining rese rvatio ns on theeffectiveness and usefulness of aco nv e ntio n w er e c o ntin ge nt u p o n aconvention’s scope of application and themeasures for concerted action that suchan instrument would include. Several
Sta tes stressed the importance they
attached to the nature of a convention asa framework instrument. One difficult
issue w as a rriving at an acce pta ble
definition of organized crime. It w asindicated, however, that this issue was
not insurmountable, especially in thep re se nc e o f a str on g a n d su sta ine dpolitical will. Several States were of theview that a definition was not necessarily
the most crucial element of a convention,and that the instrument could come into
being without a definition of organizedcrime. In this connection, it was also
su g g e s te d t h a t t h e p h e n o m e no n o forganized crime was evolving with suchrapidity that a definition would limit thescope of application of a convention, byomitting activities which criminal groups
may engage in. Other States felt that theabsence of a definition would send the487

RESOURCE MATERIAL SERIES No. 59
wrong signal regarding the political will
and commitment of the international
community. In addition, avoiding theissue would eventually create problems in
the implementation of a convention. In
view of all this, concerted efforts to arrive
at a solution should be made. ... The
problem of definition could be solved bylooking at each of its elements separately.
It was suggested that a first step towards
a definition might be to use thedefinitions of offences contained in otherinternational instruments. .... There wasalso discussion about whether inapproaching the definition, the focus
should be on the transnational aspects oforganized crime or on organized crime ingenera l. It w as pointed out that the
mandate of the Commission was related
to transnational organized crime but thatt h e i s su e r e q u i r e d f u r t h e r s e r i o u s
consideration in the conte xt ofd e t e r m i n in g t h e o v e r a l l sc o p e o f aconvention.In the context of thed iscussio n on whe the r a convention
should include a list of offences, someStates expressed their support for the
inclusion of terrorist acts in such a list.
Most States were of a contrary view,recalling the initiatives currently under
way in the United Nations and otherforums on terrorism and the conclusionsof the Commission at its fifth session. The
Group agreed that it would be useful tofocus on w idely accepted constituent
e le ments of orga niz ed crim e. I n thediscussion that ensued, the elements
identified included some form ofo rga niza tion; con tinuity; the use o f
intimidation and violence; a hierarchicalstructure of groups, with division oflabour; the pursuit of profit; and the
purpose of exercising influence on the
public, the media and political structures.
The Group decided that the best way toproceed for the purpose of advancing thei s su e w a s to se e k c o m m o n g r o u n d ,utilising as many previous contributions488

as possible, and building on the positive
experience and valuable work done atother fo rums, such as the Europea nUnion and the Senior Experts Group on
Transnational Organized Crime. The
draft United N ations frameworkco nvention
againstorganized
transnational crime (A/C.3/51/7) was auseful point of departure and a good basis
for further work. In this connection, theGroup decided to discuss matters related
to international cooperation in criminal
matters that would form an essential parto f an in te r na tio n a l le g a lly bin d in g
instrument. T he ove rriding conce rnwould b e to eq uip the interna tiona lcommunity with an effective instrument
to strengthen action against organizedcrime.
In spite of this careful language, it wasevident that the tide had changed. In fact,s e v e r a l d e l e g a t i o n s b e g a n p u t t in g
proposals on the table that went beyond amere discussion of the desirability or
feasibility of the convention. The issue
became not whether there would be a newconvention but w hat should the newcon vention con ta in and h ow so on it
should be developed. It is interesting tonote that some of these proposals were
submitted in the form of “non-papers”, inorder to afford their authors thepossibility to keep the option of backing
out ope n. The Group agreed thatconsiderable work was required on theissue of the convention. For this purpose,
it proposed that an open-ended
inte rgovernm enta l group of exp erts
should be established to consider all
pending proposals related to the issue ofco nventions, as w ell a s all elem ents
thereof a nd a pprop riate cooperation
modalities and mechanisms.
Continuing its efforts for the
implementation of the Naples Political
Declaration and Global Action Plan, the119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Crime Prevention and Criminal JusticeDivision organized a regional MinisterialWorkshop in Dakar, Senegal, for thecountries of the African region in July
1997 . That was the second follow-up
ministerial meeting after the one
organized in 1995 in Buenos Aires. The
purpose of the meetings was to sustain
the commitment and political will, whichdeveloping countries had clearly
displayed in Naples, and to further build
on it in order to promote the idea of theconvention. In unanimously adopting theDakar Declaration, the M inisters
reaffirmed their commitment to fightagainst organized transnational crimeand reiterated their collective political
will to supp ort the efforts of theCommission towards the elaboration of
a n i nt erna tiona l convention a ga inst
o rganized transnation al crim e. In
addition, the Ministers reviewed anda p p r o v e d tw o r e gi o n a l p r o j e c t s f o rtechnical cooperation, aimed at providing
assistance to the Governments of theregion in strengthening their capacities
to prevent and control organize dtransnational crime.
On the recommendation of theCommission at its sixth session, theG en e ra l A sse m b ly e stab lishe d 2 1 a n
intergovernmental group of experts,
which met from 2 to 6 February 1998 in
Warsaw. The group’s mandate was toelaborate a preliminary draft of a possible
international convention againstorganized transnational crime, on thebasis of the contributions and proposals
that Governments had made at the sixth
se ssi on o f th e C o m m issio n, o r su ch
documents as the forty recommendationsof the G7/P8 Lyon Group.

21 SeeGeneral Assembly resolution 52/85 of 12

December 1997.

The Warsaw meeting w as the firstoccasion on which the question of thedesirability or possibility of the newconvention was laid to rest. Theintergovernmental working groupreported that “there was broad consensus
on the desirability of a convention againstorganized transnational crime. There wasmuch to be gained from this international
legal instrument, which would not onlyb ui l d o n, b ut a l s o g o b e y on d , o th er
successful efforts to deal with pressing
issues of national a nd interna tiona lconcern in a multilateral context.”
The Group then went on to develop a“list of options” for the convention, whichamounted to a first draft containing
several options for various provisions.
The term “list of options” was deliberately
used as a way of satisfying those few who
were still reluctant to speak of a“preliminary draft”, considering this termas determining in an unequivocal manner
the resolution of the issue of whether thene gotia tions for the new conve ntion
should be authorised. It is interesting tonote that before embarking on the veryloose drafting exercise, the Group put
down a number of general principles,
which it understood would guide “theefforts to elaborate a new international
convention.” The m ain principles
emanating from the general discussion,
were as follows:“(a) While the contours of organizedcrime were generally understood, there
continued to be divergences of a legal
nature that made it difficult to reach acomprehensive definition. Engaging insuch an endeavour m ight requireconsiderable time, whereas there was ageneral feeling of the urgency of action in
the direction of elaborating the newconvention. Organized crime continued to
evolve and manifest itself in different
ways. As there was a general489

RESOURCE MATERIAL SERIES No. 59
understanding of criminal organizations,
efforts to determine the scope of theconvention should build on that
understanding, focusing action under the
new convention against those groups.

with a focus on the organized nature of
the offence in question, as well as looking
at ele m e nts th at w ou ld n ec es sitate
international cooperation, including its
transnational reach.

(b) Certain States were of the view that
attempting to list all possible criminal
activities in which criminal organizations
were likely to engage would be difficultand might lead to a convention that was
too narrow. Such an approach entailed
two major risks. First, it would ab initio
prejud ice the applicability andeffectiveness of the convention, as a list
could not be all-inclusive and would mostp rob ab ly e xclude em erging f orms o fcriminal activity. Secondly, it would
present considerable difficulties withregard to other provisions of theco nventio n, a s spec if ic crim es o ften
demanded specific responses. The need tod eal w ith specif ic of fences might b e
accommodated by additional protocols,
which could be negotiated separately, notaffecting the comprehensiveness of theconvention or it operability ande f f e c ti ve ne ss . F u rt h e r m o r e , it w a s
observed that such an approach mightprove m ore conducive to a more
expeditious negotiating process thatwould make the new convention a reality
in a shorter period of time.

(d) There w as agreem ent that theconvention should include pra ctica lmeasures of international cooperation,such as judicial cooperation, mutual
assistance in criminal matters,
extradition, law enforcement cooperation,
witness protection and technicalassistance. The convention should be acapacity-building instrument for States
and the United Nations alike inconnection with the collection, analysis
and exchange of information, as well as
the provision of assistance. Furthermore,
the con vention should expand thepredicate offences for the purpose ofaction against money-laundering, while itshould include provisions creating theobligation of States to confiscate illicitly
a c q ui r e d a s s e t s a n d re g u l a t e b a nk
se cre cy. The convention should a lso
include provisions to prevent organizedc ri m e , su c h a s m e a s u re s t o r e d u c eopportunities for criminal organizations
or limit their ability to engage in certain
activities. The convention should haveprovisions that require legislative action
on the part of Governments, in order tof a c ili ta t e m e a ni ng f ul a nd e f f e c ti ve
co operatio n. Certain delegations
expressed strong opposition to a “serious
crimes convention” as opposed to a n
instrument focused on organized crime.

(c) An alternative approach that was
proposed might be based on theseriousness of the offence, which might bedetermined on the basis of the penalty
foreseen in national legislation and arequirement that the offence becommitted in connection with a criminalorganization, association or conspiracy.
That approach was not free of difficulties,
as the concept of seriousness was not asm eaningful in all national syste ms.
However, there was merit in further
c o n s id e r i ng s uc h a n a p p r o a ch a s apotential solution, especially combining it490(e) Other international instruments,
especially the International Convention
for the Suppression of Terrorist
Bombings (General Assembly resolution
52/164, annex) and the United Nations
Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic
Substances of 1988, were useful sourcesof inspiration. They contained provisions

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
of direct relevance to the new convention.
Some of those provisions could provide
solutions to similar problems, or serve asa point of departure in order to go beyond
their scope, taking into a ccount newneeds and developments. In addition, theconventio n sho uld e mp ow er the la w
enforcement authorities of States parties
to employ extraordinary investigative
tech niqu es (e.g . wire-tapping an dundercover operations), consistent withconstitutional safeguards.
( f) Fina lly, the co nve ntion shouldincorporate appropriate safeguards forthe protection of human rights and toensure compatibility with fundamental
national legal principles.”I n March 1998, the C entre forInternational Crime Prevention22
organized the third regional ministerial
event in follow-up to the Naples Political
Declaration and Global Action Plan. Thist im e , t he m e e tin g w a s c o nv en e d in
Manila, was attended by countries of the
Asian and Pacific region and adopted theManila Declaration on the Prevention
and Control of Transnational Crime, inwhich renewed support for the convention
was expressed.
The prop osals of the Warsaw
Intergovernmental Group weresubm itte d to the C o mm issio n at its
seventh session. 23 During that session,
the tra ditiona l in-sessiona l w orking
group on the imp le me nta tio n of the
N a p l e s D e c la r a t io n b e g a n w h a t i nessence was a first reading of the draft
prepared in Warsaw. That same working
group also made recommendations to the
22 As part of the reform of the United Nations, theCrime Prevention and Criminal Justice Division

Commission, which formed the basis for adraft resolution, for eventual
c o n s i d e r a t io n a n d a d o p t i o n b y t h eGeneral Assembly, by which an Ad Hoc
C om m itte e w o uld b e e sta b lish ed toelaborate the new instrument.24 One key
elem e nt of the d eb a te on th at dra f t
resolution was whether it would include adead line f or the w ork of the Ad Hoc
Committee. Many delegations thought
this would be premature and a deadline
was not included in the text. However,everyone began speaking in terms ofmaking every effort possible to complete
the work by the end of 2000. The
symbolism was certainly one motive forthe choice of the unofficial deadline.
Other motives included the desire ofmany countries to ensure that embarking
on negotiations was not an open-ended
endeavour, not wishing to see the issue
embroiled in endless debate, as had been
the case with other international
conventions. Another, perhaps more
powerful, reason was the prominent placeon the international agenda that action
against transnational organized crime
had acquired. Linked with this was therealization that attempting to negotiate
such a m ajor international legal
instrument was fraught with all kinds ofconceptual and political difficulties,
which had the potential to erode thepolitical will that made theco m m e n c e m e n t o f th e n e go tia ti o n spossible.
The negotiations of the draft resolutionthat would give the green light for theelaboration of the new convention to
begin were conditioned by an interestingd e v e l o p m e n t . F a c e d w i t h p r e s s in gpolitical priorities, or frustrated by otherprocesses, some countries had begun
identifying individual issues, which they

was re co ns ti tute d in to th e Ce nt re fo r
International Crime Prevention in October 1997.
23 Vienna, 21 to 30 April 1998.

24 General Assembly resolution 53/111.

491

RESOURCE MATERIAL SERIES No. 59
thought merited attention at theinternational normative level.
Argentina had for quite some time
favoured action, in the form of a newconvention, against trafficking in minors.
It had tried to push forward the initiativein the context of the work done in Geneva
on additional protocols to the Convention
on the Rights of the Child. How ever,progress there was frustratingly slow,
m a inly b ec a use o f the f a ct tha t th e
proposed new protocol approached theis sue fr om a purely h uman rig hts
perspective. Therefore, Argentina decided
to give the whole matter a new spin andsee whether the international community
was ready to deal with it in the context ofcriminal justice. At the seventh session of
the Commission, Argentina proposed thedrafting of a new convention against
trafficking in minors, citing the growing
evidence of this becoming an activity inwhich organized criminal groups were
engaged.
Austria was experiencing an increase
in incidents of smuggling of migrants. Its
efforts to cope with the problem led it to
discovered that it was not alone in having
to d ea l with m ore and more cases ofillegal entry of migrants, organized bycriminal gangs from various regions of
the world. As part of its consolidatede f fo rt to s ee the issu e risin g in th einternational agenda, and building on
previous work on smuggling of migrants
do ne by the Com mission and theSecretariat, Austria presented to theCommission the draft of a conventiona g a in s t th e i ll e g a l tr a f f ic k i n g a n dtransport of migrants. At about the sametime, Italy was developing new policies inr e sp o n se t o t he in f lu x o f A l ba n ia nmigrants who were being transported
across the Adriatic by organized crimegroups. Italy was also shocked by thesinking of a ship carrying illegal

492

immigrants off its coast. Consequently,
Italy undertoo k an initiative at theInternational Maritime Organization(IMO) aimed at the issuance of directives
regarding trafficking of migrants by sea.
W h e n i t f o u nd o u t a b o u t A u s t ri a ’ s
initiative at the Commission, Italy joined
forces and presented a proposed protocol
to deal with trafficking by sea, to bea t t a c h e d t o t h e p r o p o s e d A u s tr i a nconvention.
The Crime Prevention and Criminal
Justice Division had been mandated tocarry out a study on firearms regulation.
The study had b een a ssigne d to theDivision on the initiative of Japan andhad been carried out w ith voluntary
funding provided by that country. The
study (which was eventually published in1998) was before the Commission at its
seventh session. The Governments ofCanada and Japan thought that, as aresult of the conclusions of the study, theissue of action against the illicit
ma nufacturing of and tra fficking infirearms had sufficiently matured tomerit attention at the normative level.
They thus proposed a new instrument onthat subject, which could draw upon andb e i ns p i re d b y th e O rg a n i z a t io n o f
American States Convention o n
F ire a r m s, w h ich h a d re c e ntly b e e n
concluded.
The Commission was thus found in
front of a major decision. Whereas it had
been engaged in discussing whether thetime was ripe to ask that theinternational community embark on thenegotiations of a new convention, it was
now faced with the prospect ofauthorizing negotiations for four such
instruments. All of the proposed subjects
deserved attention, having risen, in one
way or another, to the top of the political
agenda. However, there was also thequestion of limited resources, especially

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSof the United Nations, in supporting, bothsubstantively and organizationally, thenegotiations. In addition, there was thepolitical issue of whether authorization tocommence negotiations on four separate
conventions would not result ind i sp e r sin g e f f or ts a n d d ilu ti ng th epolitical commitment required forsuccess. Then, there was the issue ofw h ic h o f t h e s e i n s t r u m e n t s w o u l dcommand priority. The question facing
delegations was whether prioritising was
feasible and, if so, what would be thecriteria for determining which of these
proposed instruments would be
elaborated first. The political decision
reached at the end was to link the morer ecent in itiati ves to t he pr opos ed
convention against transnationalorganized crime. The talk amongd e l e g a t i o n s w a s a l o n g t h e l in e s o fnegotiating protocols to the convention oneach of these subjects. Not everyone was
happy with that solution, mainly becauseof the lower status of a protocol comparedw ith a full-fledged convention. As aresult, the draft resolution proposed by
the C omm ission f or ad optio n by theG e ne r a l A ss em b ly d id n o t sp e a k o fprotocols but of additional instruments,
leaving their status open for further
c o n si d e r a t io n a t a m o r e o p p o r tu n emoment.
On the recommendation of theC o mm ission , the G ene ra l A sse mb ly
de cided “to e stab lish an open-ende dintergovernmental ad hoc committee forthe purp ose of e laborating acomprehensive international convention
against transnational organized crimeand of discussing the elaboration, as
appropriate, of international instruments
addressing trafficking in women andchildren, com bating the illicit
m anufa cturing o f a nd t ra ff icki ng i nfirearms, their parts and components andammunition, and illegal trafficking inand transporting of migrants, including
by sea.”25 The Assembly also decided toaccept th e recommen dation of theCommission to elect Luigi Lauriola of
Italy as the Chairman of the Ad Hoc
Committee.
As mentioned earlier, the discussions
that le d to the f inal ver sio n o f th isresolution revolved around establishing a
d e a d l in e f o r t h e c o m p l e t i o n o f t h enegotiations. Even if the draft did notinclude such a deadline, planning for thework of the Ad Hoc Committee had to be
ca rr ie d o ut taking into ac co unt thecommonly shared understanding about
the total time available to it to complete
its tasks. At the seventh session of theCommission, the delegation of Argentina
came forward with an invitation to host am e e t in g o f t h e A d H o c C o m m i tt e e .
Howe ver, the resolution re mained adraft, as it was intended for adoption by
th e G e n e ra l A ss e m b l y. T he a nn ua lsessions of the General Assembly begin in
September and the Third Committee,
which is the committee responsible forcrime prevention and criminal justicem a tt er s, d o e s no t t a k e u p re l ev a n t
recommendations before October. Legally
speaking, the Ad Hoc Committee wouldn o t c o m e in t o e x i s te n c e be f o r e t h e
Ge ne r a l A ss e m b ly h a d ad o pt e d t heresolution establishing it. A paragraph
was included in the resolution to deal
with this institutional problem, while
assuring that the time between May andOctober would be productively used. The
G e n e r a l A s s e m b l y “ w e lc o m e d w i th
appreciation the offer of the Governmentof Argentina to host an informal
prep aratory
meetingoftheintergovernmental ad hoc committee at
Buenos Aires , so as to en sure t hecontinuation without interruption of
25 General

Assembly

resolution

53/111of9

December 1998.

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RESOURCE MATERIAL SERIES No. 59
work on the elaboration of theconvention.” In order to further advancethe work, the Chairman invitedinterested countries to form an informalgroup of “Friends of the Chair”, which
would explore mainly procedural matters
to pave the way for the Ad Hoc
Committee.
The “Friends of the Cha ir” held ameeting in July 1998 in Rome, where
they began discussing a host of issues
surrounding the new convention. One ofthese was the timetable for thenegotiations, in order to ensure that thework could finish by the end of 2000.
Even if the terms of reference of thegroup were oriented primarily towards
procedure, several substantive mattersbegan to be ventilated by delegations. It
is important to note that the size of thegroup kept increasing. Wishing not to letanyone out, the Chairman of the Ad Hoc
Committee had specifically indicated thatthe group was open-ended. As countries
started com ing to term s with the
implications of the negotiations, theyjoined the group in order to participate indecisions that could have a bearing on theprocess.
The meeting in Buenos Aires was heldfrom 28 August to 3 September 1998. It
picked up where the Commission had left
off in going through the Warsaw text by
way of a first reading. Already at thisearly stage, delegations started beefing
up the text with new proposals on mostmajor issues that it was supposed tocover. Also at this early stage, one of thequestions that was intensely debated was
the list of offences and whether such a list
wo uld m ak e ref er ence to ter rorism .
Perhaps most importantly for thenegotiation process, the Buenos Aires
meeting marked the formation of a coregroup of delegates, who were experts intheir field s and shared considerable

494

experience from previous negotiations.
One important feature of this core group
was that it was highly participatory, inthe sense that it included representatives
from virtually all regions and all legal
systems of the world. The formation ofthis core group brought with it a
gradually increasing sense of ownership
regarding the text, which is a key
element of the success of the endeavour.
The group of “Friends of the Chair”
held two m o re me etings, o ne in themargins of the Buenos Aires meeting andanother in November 1998 in Vienna. Its
contribution was considerable especiallyin mapp ing the road toward s thecompletion of the process and discussing
in a very informal way other procedural
matters, including the question of the Ad
Hoc Committee’s Bureau.
The Ad Hoc Committee was officiallyestablished in December 1998 and held
its first session in Vienna in January
1999. It finalized the text of theConvention at its tenth session in July
2000 and the text of the Protocols against
Trafficking in Persons, Especially Womenand Children and against Smuggling ofM igr ants at its ele ve nt h ses sio n in
October 2000. The Ad Hoc Committee
tried very hard but did not manage too ve r c o m e d if f e r e n c e s im p e d in g t he
f in a liz ation o f th e te xt of the th ird
Protocol, against Illicit Manufacturing ofand Trafficking in Firearms. Therefore, itscheduled another session (its twelfth) for
February/March 2001 , in order tocomplete this task. After a very intense
we ek , the Co m mitte e’ s e ff or ts we recrowned with the successful conclusion of
the negotiations for the third Protocol,
which completed the package that theinternational community had set out toconclude only two years before.

EFFORTS OF THE CENTRE FOR INTERNATIONAL CRIMEPREVENTION TO PROMOTE EXPEDITIOUS ENTRY INTO
FORCE OF THE UNITED NATIONS CONVENTION AGAINSTTRANSNATIONAL ORGANIZED CRIME AND ITS PROTOCOLSAND EXPECTED IMPACT OF THESE NEW INSTRUMENTS
Dimitri Vlassis*
I. THE PALERMO HIGH-LEVELSIGNING CONFERENCE
The Convention and the two Protocols
finalized by the Ad Hoc Committee at its
October 2000 session were submitted to
the General Assembly for consideration
and action at its f ifty- fif th sessio n,
together with a draft resolution that the
Ad Hoc Committee prepared at its Julya nd O cto b e r s es si o ns . T h e G e ne r a l
A ssem b ly a d op ted una nim ously th e
resolution 1 and, by virtue thereof, theConvention and the two Protocols. By
striking his gavel in the morning of 15
November, the President of the General
Asse mbly brought to a successful
conclusion the strenuous efforts of theinternational community to negotiate ingood faith a set of instruments toc o ll e c t i ve ly f ig h t o r g a n i z e d c r i m e .
Because of the fully participatory natureo f t h e n e g o t i a t in g p r o c e s s a nd t h esustained politica l commitment thatformed the core of the joint efforts of the
all States, the new instruments take intofull consideration all legitimate concernsof all countries, big or small. They do so
without in any way compromising thequality, functionality and, m ost
importantly, universality of the

instruments. Perhaps one of the mostsignificant features of the negotiation
process was that all countries engaged in
it ca me aw a y w ith a strong se nse ofownership of the new instruments. It willbe this sense of ow nership tha t w ill
constitute the best guarantee for thee x p e d it io u s e n tr y i n to f o r c e o f t h eConvention and its Protocols and theirsubsequent implementation.1
T he n e w C on ve nt ion a nd t he tw oProtocols were opened for signature on 12
December 2000 at a high-level political
sig nin g co nf ere nce in Pa lerm o . T hesymbolism and significance of this action
by the General Assembly2 extend beyond
the obvious. By gathering in Palermo, the1 4 9 S t a t e s pr e se nt s e nt a po w e r fu lmessage to the world about theirdeterm ination to join forces a gainst
tr an sn ationa l o rga nize d crime . T hesuccessful conclusion of the negotiations
for the Convention and its Protocols inrecord time was only the beginning of
joint efforts in this field. The politicalcommitment remained as strong as ever.
In evidence of this commitment, theConvention was signed by 123 countries
and the European Community, while theProtocols against Trafficking in Persons* Crime Prevention and Criminal Justice Officer,
Secretary of the AD HOC Committee for the

1

Against Transnational Organized Crime, United

GeneralAssembly

resolution

55/25

of

15

November 2000.

Elaboration of the United Nations Convention
2

The High-Level Political Signing Conference was

N a t i o n s C e n t r e F o r I n te r n a ti o n a l C r i m e

c o n v e n e d p u r s u a n t to G e n e r a l A s s e m b l y

Prevention (United Nations)resolution 54/129 of 17 December 1999.

495

RESOURCE MATERIAL SERIES No. 59
and Smuggling of Migrants received 81
and 78 signatures respectively.
The Protocol on the Illicit
M anufacturing of and Trafficking in
Firearms, Their Parts and Components
and Ammunition was finalized at thetwelfth session of the Ad Hoc Committee
in March 2001. It was submitted to theGeneral Assembly, which had kept theitem entitled “Crime Prevention andCriminal Justice” on the agenda of its
fifty-fifth session open, in anticipation of
the successful completion of the work of
the Ad Hoc Committee. The Assembly
adopted resolution 55/255 of 31 May
2001, by which it unanimously adopted
the Protocol and opened it for signature
at United Nations Headquarters in New
York on 2 July 2001.
Since Palermo, the num ber ofsignatories to the Convention and thefirst Protocols has increased to 127, 88
and 84 respectively. The third Protocolhas been signed by two countries so far,but a significant number of signatures
are expected on the occasion of the 56th
session of the General Assembly, whicho pe ned on 1 1 S ep te mb e r 2 0 01 . Fivecountries have ratified the Convention todate, while there are three parties to theTrafficking in Persons Protocol and twoparties to the Smuggling of Migrants
Protocol.
II. EFFORTS OF THE CENTRE FOR
INTERNATIONAL CRIMEPREVENTION TO PROMOTESPEEDY RATIFICATION OF THE
NEW INSTRUMENTS
Immediately af ter the Palerm oConference, the Centre for International
C rime Prevention embarked on aconsolidated and comprehensive effort topromote expeditious entry into force of
the Convention and its Protocols. The

496

Centre developed a framework for action,b a s ed on a num b e r of k e y s t r a t eg ic
precepts and objectives.
The Centre structured its activities
along two major lines: first, bringing
itself to a position of being able to respondrapidly to indiv idual requ ests forassistance; and second, sustaining andnurturing the political will andmomentum that made the completion of
instruments of such complexity in such a
record time.
The first course of action was geared
to w a r d s a c h i e v i n g th e o b j e c t iv e o f
supporting and strengthening the effortso f i n d iv id u al co un t r ie s , w h ic h h a dalready embarked on, or were about tobegin the pre-ratification process. Severalof these countries were intent o nincorporating the Convention and its
P r o to c o ls in to t h e ir d o m e s ti c l e ga lsystem, but found themselves in need of
specialized expertise or consolidated
information about the experience of othercountries, in order to successfully ande xp e di tio usly r e vie w the ir e x istin glegislation. Further, these countries
required the same type of assistance inorder to amend their existing legislation,
or draft new legislation, as the case may
be, which would bring their systems inline and in compliance with the new
instruments. This course of action was
pursued by engaging in consultations
with the natio nal authorities of thecountries requesting assistance, whichwere directly responsible for theratification process and working withthem in reviewing existing legislation ordrafting amended or new laws.
The second course of action intended toachieve th e obj ec tive of providin gcountries the opportunity to exchange
experiences and ana lyze difficulties
e nco u nte re d in th e p re - r a tif ica t io n

119TH INTERNATIONAL TRAINING COURSE
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process, as well as mutually reinforce
each other, on both the political andsubstantive levels. The Centre decided topursue this course of action by organizing
sub-regional or regional consultations orseminars. The Centre opted for a balance
between the sub-regional and regional
approach, in order to engage, in groups,
countries w hich share common legal
traditions and systems, or pursu ecommon goals in economic and social
development, while gradually expanding
to cover countries which sharegeographical regions and are active inthat context in pursuing common politicalobjectives. I n order to ma ximize theim pa ct o f its a ct ivi tie s, the C e n tr e
decided to seek close cooperation with
sub-regional and regional organizations,which pursue similar objectives and bring
into the process the profound knowledgeof their respective region or sub-region
and their political presence and influence.
The underlying premise of all of theCentre’s activities is that at this stage,emphasis should be placed on supportingand promoting the efforts of countries tob ring the new instruments in f orce.
Implementation of the Convention and its
Protocols would be a subsequent goal,
which would require a much broader andm o re d et a ile d se t o f st ra te gie s an dactivities. Implementation would also
require a much more comprehensive andlarger technical cooperation programme,
supported by a considerably expanded
a n d s u s t a in e d f i n a n c i a l b a s e . T h e
C onve ntio n ha s esta blished its ow nm e c h a n i s m , t h e C o n f e r e n c e o f th eParties, which is charged with the task ofoverseeing and guiding implementation
efforts.
I n this co nt ex t, t he C e ntr e m a d e
proposals to donor countries and was
gratified by the immediate response.
Several countries, among which Japanfigures prominently, made voluntary
co ntrib utions to the special accountestablished under the United Nations
Crime Prevention and Criminal Justice
Fund, which was set up in accordancewith the General Assembly adopting theConvention. At the time of writing thispaper, the Centre had undertaken thefollowing activities:
In January 2001, the Centre attended
the annual meeting of the Law Ministers
and Attorneys-General of the Caribbean
Community, at the invitation of thatorganiz ation, and presented theConvention and the two Protocols that
had at the time been adopted by theGeneral Assembly. The CARICO M
countries had not been able to attend thePalermo Conference and, as aconsequence, were a group of countries
that had not signed the new instruments.
Working closely w ith the CARI CO M
Se creta riat, the C entre m ana ged tosecure the commitment of the majority of
the CA RI CO M countries to sign theConvention and its Protocols, as
appropriate. Bahamas signed theConvention and the two Protocols in
March, and several more o f the
CARICOM countries ha ve confirmed
the ir intention to do so a t a specia lsigning ceremony which will take place
during the current session of the General
Assembly. As a follow-up, the Centre isorga niz ing, in co op e ra tio n with theCommonwealth Secretariat, a Ministerial
Seminar in Trinidad and Tobago at theend of November to review progress on
the ratification process and help the
CARI COM countries analyze therequirements for ratification.
In March, the Centre organized, inclose cooperation w ith the S outhern
Africa Development Community, a subregional Ministerial Seminar in Pretoria,
South Africa for the 14 SADC States. The

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RESOURCE MATERIAL SERIES No. 59
SADC States agreed to work intensely
towards ratification and review progress
towards the end of the year.
In April, the Centre organized another
Ministerial Seminar in Guatemala for thecountries of Central America and in July,
the Centre participated in a meeting of
the ASEAN countries devoted to thecommon efforts towards transnationalorganized crime and the ratification of
the Convention and its Protocols.
The Centre is planning similar events
for the ten countries of the Economic
Cooperation Organization in Teheran,Islamic Republic of Iran, for the countriesof the Economic C om munity of WestA f ric a ( E C O WA S ) in O ua ga d o ugo u,
Burkina Faso, for the countries of theLatin American region in Quito, Ecuador,
for the entire African region in Algiers,
Algeria, and for the countries of Central
and Eastern Europe, in Vilnius,
Lithuania. The Centre is also engaged in
c o n s u lt a t io n s w it h in t e r e s te d ho st
countries in order to organize a similar
regional event for the countries of the
Asia and Pacific region.
The Centre is cooperating closely with
the I nter- Pa rliame ntary U nion andattended its m ost recent annual
conference in Ouagadougou, Burkina
Faso, engaging in very useful dialogue
with parliamentarians from around theworld on the contents of the new
instruments and the crucial importanceof their support at the legislative level.
The C entre ha s b een jo ine d in its
efforts by the International Scientific andProfessional Advisory Council (ISPAC),
which organized an interregional meeting
involving thirty countries on theratification of the Convention and its
Protocols, on 14 and 15 September in
Courmayeur, Italy.

498

M eanw hile, the C entre ha s b egun
responding to individual requests forassistance and has built into its work
plan severa l more advisory missions
before the end of the year.
In all of these activities, the Centre hasb ee n using a “che cklist” con tain in g
sub stantive elements of ratif icatio nplans. This tool is reproduced below.
A. Substantive Elements of
Ratification Plan
1. Legislative Action
Article 5— C rim ina liz ation o f
Participation in an Organized
Criminal Group
E s t a b li sh t h e f o l lo w i n g c r i m i na loffences as distinct from those involving
the attempt or completion of a criminal
activity:•••

Agreeing to commit a serious crimefor a purpose rela ting directly orin d i r e c t l y t o t h e o b t a in i n g o f afinancial or other material benefit.
Conduct by a person, who withknowledge of an organized criminalgroup or its intention, takes an active
part in:- Criminal
activitiesoftheorganized criminal group.
- Other activities of the organizedcriminal group in the knowledge
that his or her participation willcontribute to the achievement of
the above-described criminal aim.
Organizing, directing, aiding, abetting,f a c il i t a t i n g o r c o u n s e l i n g t h ecommission of crime involving anorganized criminal group.

Ensure that domestic law covers all
se r io us c ri m e s inv o lvi ng o r ga n iz e dcriminal groups.

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Article 6—Criminalization of theLaundering of Proceeds of CrimeE s ta bl is h th e f o ll o w in g c r im i n a loffences:••••

The conversion or transfer of known
p r o c e e d s o f cr im e , t o c o nc e a l o r
disguise the illicit origin.
The concealment or disguise of thetrue nature, source, location,
disposition, movement or ownershipof known proceeds of crime.
The knowing acquisition, possession
or use of proceeds of crime.
Participation in, association with orconspiracy to commit, attempts tocommit and aiding, abetting,f a c i l i t a t in g a n d c o u n s e l in g t h ecommission of the above offences.

Ensure that above criminalizationa pplies to w id est range of predicate
offences (both w ith in an d ou tsi dedomestic jurisdiction).
Article 8—Criminalization of
Corruption
E s ta bl is h th e f o ll o w in g c r im i n a loffences:•••

The promise, offering of an unduea d v a n t a g e o r g iv i ng t o a p u b li c
official, in order that the official act or
refrain from acting in the exercise of
his or her official duties.
The solicitation or acceptance by apublic official of an undue advantage,in order that the official act or refrainfrom acting in the exercise of his or
her official duties.
The participation as an accomplice inthe above offence.

Article 10—Legal Persons
Establish the liability of legal persons(to the extent consistent with the State’s
legal principles) for pa rticipation inserious crimes involving an organizedcrimina l gr oup a nd f or the of fe nce s
established in accordance with articles 5,6, 8 and 23 of the Convention.
Article 23—Criminalization of
Obstruction of Justice
Establish following criminal offences:••

The use of physical force, threats or
intimidation or the promise, offering
or giving of an undue advantage toinduce false testim ony or the
production o f evidence in aproceeding.
The use of physical force, threats or
intimidation to interfere with theexercise of official duties by a justiceor law enforcement official.

B. Procedural Legislation/
Administrative Measures
Article 11—Prosecution,
Adjudication and Sanctions
Make the commission of an offence
established in accordance with articles 5,6, 8 and 23 of this Convention liable tosanctions that take into account thegravity of that offence.
Establish under domestic law (whereappropriate) a long statute of limitations
period in which to commence proceedings
for any offence covered by thisConvention and a longer period where
alleged offender has evaded theadministration of justice.
Article 12—Confiscation and Seizure
Adopt the following measures to enableconfiscation of:••Proceeds of crime derived from
offe nces o r property the va lue of
which corresponds to that of suchproceeds.
Property,equipmentor
other
instrumentalities used in or destinedfor use in offences.

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Adopt measures to enable theidentification, tracing, freezing or
seizure of any item referred to in para
1 of the article for the purpose of
eventual confiscation.

Empower courts or other competentauthorities to order that bank, financial
or commercial records be made available
or be seized (bank secrecy shall not be alegitimate reason for failure to comply).
Article 15—Jurisdiction
Adopt measures to establish
jurisdiction over the offences establishedin accordance with articles 5, 6, 8 and 23of this Convention when:
•
•

•
•
•

•

500

The offence is committed in the
territory of that State Party
The offence is committed on board a
vessel that is flying the flag of that
State Pa rty or a n aircra ft that isregistered under the law s of that
State P a rty at the tim e that theoffence is committed.
May also establish jurisdiction when:2.(a) The offence is committed against
a national of that State Party.
2.(b) The offence is committed by anat io na l o f tha t S ta te Party or astateless person, who has his or her
habitual residence in its territory.
2.(c) The offence is:- 2.(c)(i) One of those established inaccordance with article 5, para 1,of this Convention and iscommitted outside its territory
with a view to the commission of aserious crime within its territory.
- 2.(c)(ii) One of those established inaccordance with article 6, para 1(b)(ii), of this Convention and iscommitted outside its territory
with a view to the commission of
an offence established inaccordance with article 6, para 1•(a)(i) or (ii) or (b)(i), of thisConvention within its territory.
Adopt
measurestoestablish
jurisdiction over the offences when
the alleged offender is present in the
territory and it does not extradite
such person solely on the ground thathe or she is one of its nationals.

May also adopt measures to establish
jurisdiction over the offences when the
alleged offender is present in the territory
and it does not extradite him or her.
Article 24—Protection of Witnesses
Provide evidentiary rules to permit
wi tn e s s te s ti m o n y to b e g iv e n in amanner that ensures the safety of thewitness.
Take appropriate measures within its
means to provide effective protection frompotential retaliation or intimidation for
witnesses in criminal proceedings andtheir relatives and other persons close to
them.
Article 25—Assistance andProtection of Victims
Take appropriate measures within its
means to p rovide assistance andprotection to victims of offences coveredby this convention, in particular in casesof threat of retaliation or intimidation (inso far as legislation is concerned).
Establish appropriate procedures toprovide a cce ss to com pensa tion a nd
restitution for victims of offences coveredby this convention (in so far as legislationis concerned).
Article 26—Measures to Enhance
Cooperation with Law Enforcement
Authorities
Consider providing for the possibility of
mitigating punishment of an accused

119TH INTERNATIONAL TRAINING COURSE
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person who p rovides substantial
cooperation.
•
Consider providing for the possibility ofgranting immunity from prosecution to aperson, who provides substantial
cooperation.
Take appropriate measures toencourage persons, who participate or
who have p ar ticip ate d in or gan ize dcriminal groups:••

1.(a) To supply information forinvestigative and evid entiary
purposes.
1.(b) To provide factual, concrete help
contributing to depriving organizedcriminal groups of their resources orof the proceeds of crime.

•

Article 18—Mutual Legal Assistance
Review current mutual legal assistancea rr a n ge m e nts a nd / o r le gi sla ti o n toensure compliance with Article 18. In
particular:•

2. International Cooperation Measures
Article 16—Extradition
Review
current
extraditiona r ra ng em e n t s a n d /o r l e gis l a t i o n t oensure compliance with Article 16. In
particular:•••

If States make extradition conditionalon the existence of a treaty: review
extradition treaties currently in force
to ensure that offences covered by theConvention and the Protocols are
extraditable offences and seek wereappropriate to conclude extradition
treaties with other State parties tothis Convention.
If States do not make extradition
cond itio nal on the existence o f atreaty, review legislation or
arrangements to ensure recognition of
the offences covered by the
C onve ntion a nd the Pro tocols a s
extraditable offences.
Review legislation applicable toextradition to ensure expeditious
extradition procedures for offences

covered by the Convention and theProtocols.
Review legislation applicable toextradition
toprovideforsim plification of evidentiary
requirements relating to extradition
for offences covered by theConvention and the Protocols.
Review
legislation
toensuree x t r a d it io n r e q u e s t s u n d e r t h eConvention are not refused on thesole ground that the offence is also
considered to involve fiscal matters.

•

•

•

Review mutual legal assistancelegislation, treaties, agreements or
arrangements, a s appropriate, toensure that such assistance isextended where the requesting State
has reasonable grounds to suspectthat an offence established or coveredby the Convention and the Protocols
is transnational in nature.
Review
legislation
and
other
adm in istr a tive a rra n ge m e nts toensure confidentiality of information
provided by another State as a resultof a request for mutual legal
assistance under the Convention.
Review legislation to ensure thatrequests for mutual legal assistanceunder the Convention are not refusedon the ground of bank secrecy.
Designate a central authority thatsha ll ha ve the responsibility andpower to receive requests for mutual
legal assistance and either to execute
them or to transmit them tocompetent authorities.

Notify the Secretary-General of the UN
at the time of ratification, acceptance or

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approval of or accession to thisConvention of the language or languages
acceptable to e ach State for thetransmission of requests for mutual legal
assistance.
III. EXPECTED IMPACT OF THE
CONVENTION AND ITSPROTOCOLS
Combating
crime
and
the
organizations that pursue it for achieving
wealth and power is the central goal of
the new instruments. It denotes theperception of the problem and the will ofc ou ntrie s to act. Shif ting fr om thisdimension to the reality prevailing ine a ch c ou ntry , the p e rce p tion o f th e
problem and the will to act are influenced
by many intervening variables, which
condition the effectiveness of the action.
These variables include a number ofobjective elements, such as the level ofresources available, the qualifications
and professional skills of decision-makers
and those charged with implementation,in particular the criminal justice system
personnel, including law enforcement
agencies.
The Convention and its Protocols havebeen designed and negotiated ascooperation tools that will en ablecountries throughout the world to workt o ge t h e r i n r a i s in g th e s t a n d a r d s ,consolidating their appro ach andmaximizing the effects of joint action
against transnational organized crime.
The new instruments contain a variety ofm echanisms employed in theachievement of these objectives. Their
strength lies in the ingenuous and carefulcombination of measures, as well as in
the innovative solutions they contain to
problems of a substantive as much as apolitical nature.

502

Substantive criminal law must adapt
to the challenges posed by organizedcrime in different ways. Those countries
which have had more threats posed byorganized crime have been the first toreact, by refining their legislation. The
ma in changes rela te to the crime ofparticipating in an organized criminalgroup and to the confiscation of assets
acquired through criminal activities. In
some countries, legislation allows theconfiscation of crime proceeds throughcivil action against the proceed (in rem).
This can be seen as a further expansion of
the capability of the law in dealing withthe changing trends of organized crime.
The Convention has solidified andexpanded the trend of modified criminal
legisla tion to include the of fe nce of“participation in an organized criminalgroup”. In many countries, this would
coincide with the crime of “conspiracy”.
The Convention’s negotiators went togreat lengths to ensure the fullcompatibility of the legal concepts andtraditions, which are at the core of these
two approaches. The purpose of the new
instrument was not to engage in efforts
toward s f ull unif ic atio n o f natio nal
legislation, recognizing the futility of theta sk, but to bring a bout a sufficientdegree of harmonization, understood in
the sense of convergence andcompatibility. Criminal legislation is thepoint of departure and reference for thecollective efforts of a criminal justices y s t e m . C r im i n a l j u s t i c e s y s t e m s ,however, are constructed on the basis oflegal, cultural and social traditions,which are evidenced throughout thatsystems operations and methods of work.
The transnational nature of the threat
de m a nd s clo se inte rop e ra b ility a ndcooperation of criminal justice systems
rep rese nting nume rou s a nd d iverse
traditions and approaches. The purposeof the new Convention and its Protocols is119TH INTERNATIONAL TRAINING COURSE
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to achieve harmony ininteroperability and cooperation.

that

T he success o f e fforts against thelaundering of criminal proceeds directly
depends on the level of accessibility of law
enforcement agencies to the activities offinancial bodies. A problem here is that
opening up the activities of the financial
bodies to outside scrutiny can affect theirc o m p et itiv e p o si tio n. Ho w e ve r, th e
activities of organized crime mayundermine the entire financial market,
affecting the whole society. Furthermore,
the money derived from organized crime
often circulates through the samec h a nn e ls a s m o n e y c o n c e a le d f r o mtaxation authorities. In view of this, it isvital for the banks to maintain records ofthe ide ntity of their clie nts, and tocooperate with law enforcement agencies
whenever there are suspicious deposits orother transactions. It may be necessary tostrengthen mechanisms of control overbanking operations and even to centralize
information of this kind.
In the last decade, many countries
have introduced in their criminal laws
the crime of money laundering inco m plianc e w ith th e V ienn a Unite dNations Convention against Illicit Trafficin Na rcotic D rugs and Psychotropic
Substances. However, due to the fact that
drug trafficking is only one of the sourceso f the pr o ce e d s of cr im e , the r e is atendency in many Western countries toexpand the predicate offences from drug
offences to virtually all serious crimes.
B ut the approa ch had b een fa r f rom
uniform. In most other regions of thew orld , countries w hich crimina lise dmoney laundering as a separate offence
often limited its application to drug
proceeds. The new Convention intends to
set a sta nda rd of crim inalisation o fmoney laundering that would not greatly
expand the predicate offences.

Compliance with the obligation containedin the new Convention would result in
extending money laundering legislation
to all serious crime, as defined in theConvention, and to the offences
established by the Convention and its
Protocols.
A number of areas have been identified
as imp lem enta tion prio ritie s f or aneffective anti-money laundering strategy.
These areas are predicated on a numberof assumptions about the presence of
certain enforcement mechanisms. Keyamong them, is the concept that a net or
web operates at three complementary
le ve ls— inte rn a tio na l , re gio n a l a ndnational. Political support, adequate
resources, and high professionalism areessential conditions for effective action at
all three levels. Governmental
institutions m ust a lloca te a deq uate
me ans and fa cilitie s to successfully
regulate or exercise other types of control
over activities which enjoy the benefit of ahigh level of sophistication and which
may involve a high volume of legitimatetransactions, as may be the case withelectronic transfer technology.
The key element that characterizes theapproach of the new Convention, not onlywith respect to criminalisation, but alsowith regard to the measures thatcountries should take in order to put inplace an effective regime against moneyla undering, is the fa ct tha t the newConvention sets a truly global standard.
That standard is the product of anegotiation p rocess, which wascharacterized by respect for diversity andtook into account the concerns of all
countries. The result is a combination ofactions that countries can subscribe toan d inc orp orate into th eir syste ms,
without constrains of a substantive orpolitical nature.

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Corrup tion gre atly fa cilita tes theactivities of organized criminal groups. Inview of this, many countries have enacted
s p ec ial an ti- c or ru p tio n le g islat ion .
Prosecution of corruption is difficult andthe adjudication of the alleged offendereven m ore difficult, especially w henorganized crime is involved due to the
problems in obtaining evidence. Laws
often create incentives for solidarity
between corrupted and corrupter, withboth punished equally. For these reasons,
there is broad a greement w ithin thei nt e r na tio n a l co m m un it y t ha t i t isurgently necessary to develop new sets ofpo licies against corruption, fro m
r e g ul a to r y to c r i m i n a l o n e s. M a n yregulations in areas sensitive tocorruption need be reshaped (preventive
p o lic ie s) , wit h th e in co r p o rat io n o f
incentives to the reporting of corruption
ca ses in the same legislation which
criminalizes the corrupted officials andw ith the creation (at a legislative or
judicial level) of a conflict of interest
between the corrupter and the corrupted,
in order to get evidence.
The new Convention includes a specificcriminaliz ation provision against
corruption and an article setting out a setof basic measures against this form of
criminal activity. The inclusion of bothprovisions was done ontheunderstanding that the purpose of theConvention was by definition limited inthis pa rticular are a. It w a s dee me dappropriate to set a standard insofar as
corruption is a modality that features
prominently in the o perations oforganized criminal groups, either as adirect activity or as corollary to theirother activities. The negotiators of theConvention realized that the issue of
corruption was much broader than thescope and purposes of the new
C onvention. It w ould risk no t d oing
justice to the concerted political will504

pr evailing am o ng th e in tern atio nal
community to deal with corruption in acomprehensive manner to try and coversuch a broad issue in this Convention.
Thus, the decision was made, relatively
early on in the negotiation process, tolimit the provisions on corruption to thoseabsolutely essential for the purposes of
the ne w C onve ntio n a nd em b ark o nnegotiations of a new separate
Convention against corruption at a laterstage. The process of embarking on thesenegotiations is already under way. In july
2001, an open-ended intergovernmentalgroup of expe rts m et in V ie nna a nd
successfully complied with the mandate
given to it by the General Assembly todraft terms of reference for thene go tia tion o f the ne w C o nve ntio n.
Subject to final approval by the General
Assembly at its current session, a new Ad
Hoc Committee will begin negotiations on
the new instrument in early 2002.
The Convention pays par ticularattention to the problem of deterring andpunishing misconduct by legal entities,
such as multinational and othercorporations. Individual executives may
frequently be beyond national jurisdiction
and p e rso nal r esp o nsibility ma y bedifficult to establish. Crim inal
punishment of the entity itself, by fine orby forfeiture of property or legal rights, isutilized in some jurisdictions against
corporate misconduct, and an increasingn u m b e r o f c o u n t r i e s a r e i n c lu d i n g
corporate crimes in their legislation.
Crimina lization of a le ga l entity forcorporate crimes is a powerful deterrent
tool, inte rvening in the invisib le orintangible good of the “reputation”. The
gr o w t h o f e c o n o m i c c r im e s st ri c tl yconnected with organized crime, such as
frauds, calls for more attention to theactivities of legitimate enterprises. These
are the places where the infiltration oforganized crime begins the process of119TH INTERNATIONAL TRAINING COURSE
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pollution of the legitimate economy andcorporate sanctions can help to reduce thevulnerability of the economic systems.
The new Convention establishes anobligation to direct appropriate attention
to this matter. The fact that the
C onve ntio n lea ves the cho ice o f thenature of the liability that countries will
decide to incorporate in their legislationis yet another reflection of the care withwhich the Convention approaches theissu e of div ers itie s a m ong na tio na lsystems. The approach of the Convention
in this are has been one of pragmatism. If
countries concentrate on the effectivenessof measures designed to attribute liability
to legal persons, and on the appropriate
enforcement of these measures, instead oftrying to introduce concepts that might bealien to their legal system and might
create conflicts of a nature related tofundamental principles of these systems,
the result cannot but be beneficial forinternational cooperation.
Crime committed for economic gain canbe successfully countered by theforfeiture of such gains and of any otherassets of the individuals andorganizations involved. In some legal
systems great significance is attributed to
the freezing, seizure, and confiscation ofassets related to illegal activity. The needfor more effective organized crime control
makes it necessary to regard forfeiture asa strategic weapon, an economic methodof discouraging organized crime activities
and a means of eliminating the financial
advantages of such antisocial activities.
The Convention takes the approachthat the procedures for freezing, seizure,and confiscation need to be broad in theirscope and permit the confiscation of awide range of assets of an offender in
ord er to eliminate a ll ga in f ro m thecriminal activity. A subsidiary benefit ofsuch action is allowing law enforcement
agencies to use confiscated assets orfunds to further the activities of theagency. This can ha ve a pow erfulincentive effect. International
agreements may provide also for sharing
such assets.
The Convention will also set in motion
consideration to allowing certain liberale vid e n tia r y r ule s t o b e u se d in th eprocedures for confiscation of the assetsof criminals involved in organized crime.
Confiscation has acquired growing
importance as a necessary complement toanti-money laundering policies drawing
on the experience of those countries,
which have practiced it. Drawing on theexperience of those countries, which havepracticed it, other countries could be
encouraged to develop these sanctions intheir legislation.
The Convention builds on theexperience which suggests theadvantages provided by using
information obtained with the help ofele ctr o nic sur ve illa n ce , un de rc ov er
agents, controlled delivery, the testimonyof accomplices and similar methods of
inv es tiga tion for the coll ection ofevidence. The use of the testimony ofaccomplices can be extremely helpful inprosecutions involving organized crime.
Ca reful assessm ent and use o f suchtestimony can enable law enforcement
authorities to penetrate the layers of
se cr e cy wh ich ar e c ha rac te r ist ic o forganized criminal groups and whichw o uld o th er w ise p r ote c t th em f ro m
prosecution.
T h e C o nv e n t io n a t t ri b u t e s g r e a timportance to provisions for theprotection of witnesses. Its application
w il l e nc o ur a ge n a ti on a l s yst e m s o fcriminal justice to pay close attention to

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these programmes, with legislation aimed
at providing for the security of a witness.
In particular, attention is expected to befocused on the adoption of measures forthe protection of witnesses that allow for
the relocation and change of identity ofw itnesses, along with their physicalprotection if there is a threat posed by adefendant and the defendant’s associates.
This
cannecessitate
makingarrangements to provide the witnesses
with documents enabling them (and theirfamily) to establish a new identity, withtemporary housing, providing for thetransportation of household furniture ando the r p e rso na l b e lon gings to a ne w
location, subsistence payments, assistingthem in o btaining em ployment, a nd
providing other necessary services toassist the witnesses in leading a full andnormal life. In considering the type ofprotection to be provided, the financial
circumstances of a country must be taken
into account. In addition, provision need
to be m ade fo r the safe custody o fincarcerated witnesses, including
separate accommodation. Legislation
may also be necessary to deal with thepractical problems that may arise inconnection with relocated witnesses, suchas child custody disputes and crimes
committed under their new identity.
Witness assistance programmes haveb een key issue s in the fight againstorganized crime for those countries whichhave experienced on a large scale thisphenomenon and the consequent numberof cooperating witnesses. The quality of
their contribution and the evidence they
allow to collect depend also on the qualityof protection (physical, psychological, andeconomical) provided. The Convention
w il l se t in m o t io n p ro ce s se s a t th enational level, and agreements at theinternational level, in this field.

If effective action is to be taken againstorganized crime, the law enforcement
authorities must be able to prevent anddetect any manifestation of such crime.
This requires the systematic collection
and analysis of all relevant informationfrom all appropriate sources in order tomake possible the production and use of
intelligence for both strategic and tactical
purposes. The methods employed for theco llection and utilization of such
i nfo rm a ti o n m a y b e a ut ho ri z ed a ndcontrolled by legislation. Even so, it isimportant that the technical facilities andte ch n iq u e s w h i ch l a w e n f o rc e m e n t
authorities are allowed to use are always
sophisticated enough to enable them toma tch those e mp lo yed by orga niz ed
crime.
The production of intelligence requires
the collection, processing and analysis of
a w id e ra n ge o f in f or m a tio n o n t hepersons and organizations suspected ofbeing involved in organized criminal
activity, often including even information
which at first sight does not directly
relate to organized crime. There may be
no rigid borderline between strategic andtactical intelligence, but the main aim oftactical intelligence is to help in theplanning of particular police operations
and to identify the sources for obtaining
the evidence which makes it possible toarrest a susp ect and to p rove guilt.
Trained intelligence analysis greatly
increases the effective application of law
enforcement intelligence. It is important
to note that there is ofte n a nee d tocontinue the collection of information
during all appropriate stages of the legal
process. Intelligence should always becollected in such a manner that evenyears later it can be retrieved and used as
evidence.
Computerized information systems areo f p a r tic ular ben e f it in co m b a ttin g

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organized crime where resources permit.
Computers are used to store informationon the various persons and organizations
suspected of being involved in organizedcrime, as well as information about the
cr ime s com m itted , a nd tho se un de r
preparation. Where there are different
law enforcement agencies co lle cting
information, appropriate arrangementsn e ed t o b e m a d e t o a l l ow a r e gu l a r
exchange of information between local
and national (or federal) authorities, andbetween local police forces in different
areas. Careful attention must be paid toth e compatibility of computerized
systems, and the convertibility of manualsystems to computerized ones. Creationo f a c e n t r a l i z e d d a ta b a n k m a y b e
appropriate in some countries, with theinformation shared internationally on thebasisofmutualagreements.
Furthermore, technical assistance inse tt ing up an d o rg a nizin g cr im inal
intelligence systems represents a mutual
benefit to both developing and developed
countries.
Particular attention has to be paid to
information from confidential p olice
sources, including prisoners. However,important intelligence comes from othersources, in particular, fina ncia l andtaxation bodies. When permitted to do so,they can be of great assistance, as theyfrequently find themselves directly incontact with organized groups seeking toutilize the proceeds of crime. Also of value
may be legislative inquiries and official
and public records. An essential resourcein the effective investigation of organizedcrime is the capability to collect, andpresent in an intelligib le ma nner as
evidence , comp licated financial a ndcommercial information. The collection of
information concerning forfeitable assets
allows the forfeiture of such property andmakes it available for police use.

The infiltration of organized crime into
legal enterprises and any contacts it may
make in political circles, can create a
sup erf icial re sp ectability, fa cilitate
corruption and be used by criminals tohinder investigations of their activities.
Therefore, law enforcement agencies,
when collecting data on the criminal
activity of a particular person ororganization need to obtain the mostco m p re h en siv e in te llige nc e p ic tu repossible. A range of measures have been
adopted, which include the following: a)to develop intelligence, throughinform ants, searches and othertechniques, in order to uncover largescale organized criminal enterprises; b) todetermine the factors and conditions
facilitating the development of organizedc ri m i n a l a c ti v it y ; c ) t o p ro v id e f o r
ce nt r a li z e d c o l le c ti o n , st o r a g e a n danalysis of information (including use of
criminal organization charts) and for thetactical application of such information;d) to ensu re cooperation with law
enforcement authorities and other bodies
involved using a multi-agency approach;e) to study other countries’ experience oforganized crime control; and g) to developo n th e b a si s o f th e a b o v e f a c to r s asystemic approach to criminal policy,
based on appropriate legislation, proper
allocation of resources and mobilization of
public support.
To lift the veil of secrecy, conspiracy
and fear- induced silence of possible
witnesses, as well as to understand how
the criminal groups function, who directs
their activities and, where their illegal
inco m e is ch anne lle d, p o lice bo d ie s
generally collect intelligence andevidence by using undercover methods.
With appropriate saf eguards, secret
operations directed against organizedc ri m e c a n b e co nd uc t e d e f f e c t iv e ly
through the use of undercover agents andinformants, often in conjunction with the507

RESOURCE MATERIAL SERIES No. 59
use of technical facilities to intercept andto record conversations, the contents ofwhich may facilitate the disclosure ofcrimes. These techniques may include
wire-taps, surveillance by means of closed
circuit systems, night vision equipment,
as well as video and audio recording of
on-going events. In some jurisdictions,such technical surveillance may be used
only in cases when other mechanisms ofinvestigation have failed, or there are no
reasons to think that they lead to thedire cted results, or where othermechanisms are too dangerous.
If extreme care is exercised with regard
to the reliability of their testimony, anddue account is taken of the severity of
their offence, the cooperating witnesses
for the prosecution may be a valuablemeans of infiltrating organized crimegroups. Mitigation of sentence or evendismissal of charges, where possible, canmotivate lesser criminals to assist in
i n v e st i g a ti o n s o f o r g a n i z e d c r i m e .
Incorporation of such procedures inton ation al legislation or recognizedpractice, together with the protective
services previously discussed, has served
to attract such cooperating witnesses.
The Convention and its Protocols are
expected to spark considerable activity
a nd im prove me thods in the field ofcollection, analysis and exchange ofintelligence and information. One of the
key features of cooperation in this areunder the Convention and its Protocols is
the standard-setting element of the new
instruments, thus guarding against theinherent risks posed by the necessarily
intrusive nature of many of the methods
used for the collection of information andintelligence.
Organized crime may be investigatedby a variety of law enforcement agencies
with diff er ent jur isd ictio ns. I n this508

connection, it is essential to ensure thatclose coordination is maintained between
central and peripheral structures, as wellas effective liaison between intelligenceand operations. In countries with federal
st r uc t u re s i t i s a ls o e s se n t ia l t ha teffective mechanisms be established toensur e coo rd ina tion of ju risdiction,
intelligence and operations among federal
policing a gencies and those of other
Governmental units. Whole coordination
within and between agencies and units is
a co nd itio n f o r to s ucc e ssf ul a c tio nagainst organiz ed crime, a clear
delineation of jurisdiction contributes to ah a r m o n i o u s a n d e f f e c t iv e w o r k in g
relationship.
When resources permit, there may begreat value in the formation of one ormore specialized units dedicated to theinvestigation of organized crime,
particularly in the areas of corruption,m o n e y la un d e ri ng an d ille g a l d r u g
trafficking. However, the danger must berecognized that exclusive jurisdiction
over an area of investigation may create
susceptibility to corruption, andappr opr iat e s afegu ar ds sh ou ld be
developed.
Within any individual law enforcementa gency a strictly centra lize d senior
management system which can scrutinize
all aspects of investigations and monitor
their course is necessary to ensure that
all in ve st igat io ns ar e co n du c te d i naccordance with national laws and withproper respect of human rights. It is
important for senior man agemen to f fi cia ls to t a ke d ue a c co u nt o f t henecessity of ensuring financial, logistical,
and moral support.
Investigators and in particular thoseleading the inve stigation shou ld beselected on the basis of their ability,
expe rience, m oral qualities, and119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
dedication. The importance of basic andin-service training should not be
underestimated not only for the police,
but also prosecutors and judges. Highprofessionalism and specialization are
key factors of success.
The
relationships
betweeninvestigative functions and prosecutorial,a nd ju d i ci a l o r ga n s v a r y m a rk e d ly
between diffe rent legal syste ms. T ocombat organized crime, effectively, in
any system, it is necessary to ensure that
there is harmonious coordination among
them,. Obviously, due respect must be
acco rd ed to ma intain ing the pro pe r
relationships betw een the functions,k e e p i ng in m i nd t h e im p o r t a n ce o fpreserving the independence andimpartiality of the judiciary, as well as
the proper role of defence lawyers.
T he C onve ntio n a nd its P roto cols
contain specific provisions on cooperation
between law enforcement agencies and,most importantly, detailed provisions on
tra ining a nd te chnica l coo p era tio n.
Regarding the latter, the Convention and
its Protocols were negotiated on the basisof a fundamental assumption. It wasc le a rly u nd e rsto o d b y a ll co un trie s
involved in the negotiating process thatthe joint fight against transnationalorganized crime would entail theincorporation into the new instruments ofa number of obligations. Many of theseobligations would be onerous for many
developing countries, which had limited
resources and competing priorities forthese resources. Conversely, it was also
understood that effective cooperation
against transnational organized crime
required sustained commitment on thepart of all countries, manifested among
other things by a decision to bring limited
resources to bear in the common effort.
However, when that was done, it was
clearly accepted that for many countries

there would still be needs, which would
be cove red through the pro vision oftechnical assistance. In this respect, it
was the common belief that effectivenessand efficiency in international
cooperation depended on the equallysustaine d c om m itm en t to e f fo rts topromote the provision of this technicalassistance.
Due to the inherent characteristics oforganized crime, which is simultaneously
engaged in providing illegal services andgoods and in infiltrating the legitimate
economy, the criminal justice system
alone cannot successfully fight it. For
these reasons, the Convention and its
Protocols have incorporated a range of“p re ve n tive ” p ol icie s, a im e d a t, f or
example, reducing the demand for illicit
goods or deregulating/regulating somema rkets, in orde r to minim iz e theirvulnerability to infiltration by organizedcrime groups. These preventive policies,
as opposed to crime control policies,
relate to various sectors of the social andeconomic systems. Their increased use(e.g., the regulation of non bank financial
institutions as an anti-money laundering
policy), calls for their close integration
with crime control policies and,
consequently, with the criminal justicesystems.
A sy s t e m i c a p p r o a c h o r i e n te d t oidentifying the most effective strategies
against organized crime focuses on twoelements: goals and policies. The morethese are rationally linked, the better are
the chances that the prevention andcontrol system will be effective.
“Rationally” is intended to mean that agiven society or country should selectpriorities among the goals desired, being
ready and willing to accept trade-off
effects, and relating this selection to the
choice of those policies which are lesscostly and present fewer political and

509

RESOURCE MATERIAL SERIES No. 59
juridical constraints, keeping also in
mind that organized crime is at the sametime a domestic and an international
problem.
I n t e r m s o f s t r a te g ie s, t h e m a i nquestion is that of identifying which are
the most effective policies for preventing
and controlling organized crime. Thed istinction betwe en pre vention andcontrol is based on the nature of thepolicies pursued (defensive or offensive).
A l t h o u g h t h e y m a y a p p e a r c lo s e l yinterlinked in terms of the effects thatthey produce, the difference lies in thegoals that are to be achieved. For
exam ple, w ith respect to prevention
policies, decreasing the demand for illicit
goods and services reduces theopportunities for organized crime andprevents its expansion. Conversely, thederegulation, or the introduction of ad i f f e r e nt ty p e o f r e gu la t io n , o f th e
construction industry has te nd ed tominimize its vulnerability, preventing
criminal organizations from obtaining
dominant, often monopolistic positions in
the market and im peding theirinfiltration of the legitimate economy. On
the other side, crime control policies aim
at disrupting the structure of criminalorganizations. These two policies, to bee f fe ctive , sho uld be in tegr ated in asystemic approach. In fact, when crime
control policies are used without
considering the advantages of preventivem e a s u r e s , a n d g e n e r a l d e te r r e n c e
receives the overwhelming attention andis intended as the only form of
prevention, the criminal justice system
becomes overburdened and, therefore,
less effective.
When considering how to prevent or
reduce the incidence and expansion oforganized crime, the main assumptions
are the following: a) organized crime is a
derivative of a complex society: the more

510

complex societies become in th eirorganizational structure, the more thecrime problem reflects this complexity,
featuring varying and more sophisticatedorganizational patterns; b) the criminal
ju sti ce sy ste m is o v e rlo a de d . S o m eexperts are questioning whether the
economic costs of control policies havereached the point of diminishing utility.
Criminal law alone, and law enforcement
in isolation, cannot succeed in dealing
with the increasing complexity, flexibility
and sophistication of large-scaleorganiz ed crime operations; c) as
organized crime is oriented to providing
illicit goods and services and to
infiltrating legitimate activities througha variety of methods, including
corruption and violence, it is necessary to
identify preventive strategies that, while
reducing the opportunities, also increase
the threshold of vulnerability of theeconomic systems to infiltration. These
strategies need to be integrated with—a n d n o t o p p o s e d to — c r i m e c o n t r o lmeasures.
These policies should be integrated, as
they tend to achieve the same goal. On
the one hand, there is the aggregateddemand, while on the other, there is only
the demand for illegal goods and services.
Since the problem is highly complex, it
should be treated as such, taking into
account the trade-offs and side effects
that might occur. Deeper knowledge andthorough eva lua tion of the different
implications, as well as their effects inthe different regions of the world arenecessary for addressing this side of
preventive strategies.
In relation to preventive measuresagainst crime, the strengthening of thevalues of morality and legality must
occupy a prominent position. They are theessential prerequisites for building socialand cultural consensus against organized119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
crime. The operations of organized crimegroups, and their continued existence interritories where they are establishedand traditionally located, require social
consensus which helps minimize the riskof law enforcement activities and in theprocess facilitates recruitment of new
members. Organized crime groups
achieveconsensus
through a
redistribution of resources and,
consequently, by creating incentives to
employment in economically and sociallyd e p r e ss e d a r e a s , a nd a lso c re a tin gdisincentives through corruption and fearof violence. Building and maintaining
high moral standards in political anda d m i n is tr a ti v e s tr u c tu r e s t hr o u g h
resp ect for the law is the firstcommitment for effective action againstorganized crime. A culture of morality
a nd lega lity has strong m essa ges toconvey to those who violate the law and to
those who allow them to do so. These
values need to be implanted, nurtured
with extreme care, and passed on to newgene rations. As organized crim e
represents the organized violation ofthese values, it is essential to devise andimplement comprehensive strategies torestore legality wherever it has beeneroded, and to create “incentives formorality” for those who are exposed orsusceptible to corruption. Measures forthe protection of the criminal justicesystem against violence and the fear of
violence are in the direction of restoring
legality. Codes of conduct established in
d i f f e re n t a re a s o f G o ve r nm e nt a n dadministration are also in the direction ofrestoring morality.
Policies oriented toward civic education
can produce important results againstorganized crime by building a social
consensus a ga inst it, disseminating
information and increasing awareness ofthe cost of organized crime to society. In
this context, mass media p lay animportant central role. Messages
transmitted by the media, however, may
have contradictory educational effects, as
they may often be oriented to producing
spectacular or sensational effects. Fiction
crime stories and non-fiction accounts are
attracting increasingly wider audiences.
Crime, violence, and corruption capture
public attention in all parts of the world:
the issue of reconciling the rights of
inf or ma tion and f ree do m of a rtistic
expression, w ith the civic and social
responsibility of promoting values ofmorality and legality, is a very difficult
one. The interrelationship between media
a n d c r im e , a n d t he ir r o l e i n c r im e
prevention, are truly challenging
questions that will become even more
important in the future. Research anddocumentation on experiences acquiredso far, as well as an increasing attention
by educational institutions, are essential
for gaining the support of the media inthis area.
A second goal within the framework of
preventive strategies is related to theneed to reduce the level of vulnerability oflegitimate industries to the infiltration oforganized crime groups. The assumption
is that organized crime tends to infiltrate
the legitimate economy for different
purposes, such as: a) laundering andinvesting the proceeds of crime in lessrisky activities; b) acquiring
respectability and social consensus for its
members; and c) controlling the territory
where it operates in order to maximize
economic and political advantages andm inim iz e the risk o f a p p re he nsio n,arrest, and conviction (law enforcementrisk). Activities in the illegal markets andinfiltration in the legitimate business are
not separated in the life of an organizedcrime group. O pportunistic crimina lorganizations go where there is money totake, and mono-task organizations suchas those specializing in drug trafficking

511

RESOURCE MATERIAL SERIES No. 59
become opportunistic when they have toinvest the mo ney p rod uced b y theircriminal activities. For both, infiltrationof legitimate business is part and parcelof their activities. The reverse aspect of
the same goal, i.e. reducing vulnerability,means increasing the transparency of theeconomic system.
Successful p olicie s involve a goo dchemistry of regulation and deregulation,f o r e x a m p l e a s tr o n g r e g u la t io n o flicensing all those economic activitiest h a t c o u l d e a s i ly b e i n f i lt r a t e d b yo r ga n iz e d c r im e h a s r e c e n tl y b e e n
p u r s u e d in a n u m b e r o f c o u n t r i e s .
Another example of regulation is thelicensing of all those economic activities,
such as the banking and financial
s er vic e s, t hat c a n be inf ilt ra t ed byo r ga niz e d cr im e . I n p a rtic ula r , th e
regulation of the transactions requestedby the banks for anti-money launderingp u r p o s e s h e l p s t o i d e n ti f y m o n e y laundering operations and trace criminalorganizations. Furthermore, newr egula tio ns a nd c od es o f con duc t o fbusiness and professionals also help as ananti-money laundering policy, by keeping
high standards of transparency in thesystem and avoiding illicit infiltration.
Preventive strategies and policies,
although not sufficiently used in the past,
are increasingly being explored in recent
times in the area of organized crime.
They are promising and cost effective if
carefully planned and implemented. As
such, they represent the naturalcomplement to traditional crime control
policies.
The C onve ntion and its P roto colspromote effective action againsto rg a ni z e d c r im e wh i c h i s b a se d o n
p riorities in ob je ctives a nd efficientmanagement of resources. It is possiblethat in those countries where organized

512

crime does not appear to the public as
violent or as damaging as in others, it
may not be regarded to as a top priority.
Also, street crimes are closer to the dayby-day experience of the general public,
than transna tiona l organiz ed crim e.
Decision makers, who are necessarily
sensitive to public opinion and are also
aware of the costs and the impact of these
forms of crime on the society at large,
may be forced to take decisions thatprivilege an immediate response to street
violent crimes. The reality, however, isthat there clearly exists a global-local
nexus in relation to organizedtransnational crime.
As far as police action and criminal
proceed ings are concerned, theConvention and its Protocols promotestrategic measures in the following areas:•••

improvement of intelligence in order
to identify the organizational
structure of criminal groups, types ofactivities of these groups,
interrelations between the various
groups and the means used to sustain
themselves;development of investigative methods
that permit to “penetrate” criminalorganizations, such as the creation of
specialized investigative units, theinterception of communications, theuse of undercover operations andcontrolled deliveries, the protection of
witnesses and victims, and rewards/
protection of turncoats;
investigative methods and othermechanisms aimed at seizing andfreezing illicit profits, thus facilitating
confiscation,
such
as
the
establishment of appropriate
st ru c tu re s a t th e na tio na l le v e l(integrated proceeds of crime units,
seized property management
directorates).

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
S tra tegic mea sures a re a ls o thoseaddressed to the law enforcement
agencies in terms of enhanced capability,p r o f e s s i o n a li s m a n d c o o r d i n a t i o n .
S tra tegic inte lligence should not b esacrificed to the tactical one. Investment
i n th i s a r e a i s e s s e n t i a l , a s i s th ecooperation between different agencies.
The experience of concentrating energies
and resources against organized crime ina specialized agency could be an
innovative organizational measure only if
this concentration truly happens. Whent h i s i s n o t p o s s i b le b e c a u s e o f t h e
notorious difficulties and resistance,
substantial and effective coordination
among existing agencies and between
them a nd the prosecutors should b e
consistently pursued. Different patternsof cooperation and coordination can be
f o un d i n th e m o s t e xp e r ie n c e d l a w
enforcement agencies of many countries.
T he C onve ntio n a nd its P roto cols
would promote responses to the growing
threat to the economy posed by organizedcrime through the progressive
development of preventive strategies,
m o stly add re ssed at pr ese rving th e
stability of financial institutions andfocused on:•••

the provision of technical and forensic
training for police, prosecutors andjudges, enabling them to understandf in an cial op eration s, and co llectevidence;
the limitation of bank secrecy andother relevant regulations;a more active role of financial
institutions in appropriate controls,s uc h a s s us p ic io u s t ra ns a c tio n sreporting.

investment in preventive strategies,
which probably had traditionally been
neglected in the past. This development
requires that the different systems towhich these strategies are addressed areincreasingly more integrated. The process
which begun asking for more cooperation
between the banking system and thecri mi nal jus tice system should be
extended to the educational system andto all the areas of media communications.
Commissions of inquiry and overviewing
legislative committees could encouragesuch a process which is a progressive one,
involving a wide set of new policies andinstitutions traditionally outside the areaof crimina l justice. Property la ws incommon law systems and civil law in thecivil law countries are being confronted
with new form s of regulation ofconfiscated assets. Administrative law
and other forms of regulation of public
contracts could reduce the probability ofcorruption and defend the legitimateb u si n e ss e s f r o m t h e in f i lt ra ti o n o forganized crime groups. Together withthe existing “hard laws”, a new set of “softlaws” is being accepted domestically andinternationa lly for ach iev ing n ew
standards.
In conclusion, the Convention and its
Protocols will promote an integration ofstrategies, policies, and mechanisms,with their effective and tra nspa rent
management, as the challenging answer
to the growing dange r posed bytransnational organized crime.

The criminal justice system alone,usually overburdened and overloaded,
has structural limitations in controllingorganized crime. This imposes a deep513

AN OVERVIEW OF ELECTRONIC SURVEILLANCE IN THE
UNITED STATES; LAW, POLICY, AND PROCEDURE
Julie P. Wuslich*
I. INTRODUCTION
In the United States, there are two
p r im a r y l e ve l s o f g o ve r n m e nt — th efederal system and the state system. 1
Although these independent systems
each have their own governing bodies andlaw enforcement agencies, shared areasof legitimate governmental interests,
such as com ba ting drug- tra fficking,result in overlapping and concurrent
jurisdiction where the federal and state
governments act independently or evenjointly to address these mutual problems.
This discussion will focus on the use ofelectronic surveillance as an investigativetechnique used in the federal system andwill not discuss the systems of the various
states and their laws.
As practiced in the federal system,e l e c t r o n i c s u r v e i l la n c e ( c o m m o n l yreferred to as “wiretapping”) is one of themost effective law enforcement tools forinvestigating many types of criminale n t e r p r i se s . I n t h e U n it e d S t a t e s ,electronic surveillance has been usedsuccessfully to prosecute traditionalorganized crime (the American mafia or
La Costra Nostra), large drug-trafficking
organizations, violent street gangs, andcriminals involved in various types of* Chief, Electronic Surveillance Unit, Office ofEnforcement Operations, Criminal Division,

public corruption and fraud. In a recent,for example, electronic surveillance wasused successfully to uncover a fraud
scheme that victimized the McDonald’s
restaurant chain a nd its customers.
McDonald’s was sponsoring games ofchance for its customers, which involved
prizes of up to one million dollars. The
defendants, who were responsible forrunning the contests for McDonald’s, preselected the winners in exchange for a
portion of the prize money. In this case,the electronic surveillance led to thea r r e s ts o f s e ve r a l p e r s o n s w h o a r ecurrently awaiting trial.1
Since 19 90, the num ber of federa linvestigations using electronic
surveillance has increased dramatically,
and that trend is expected to continue. In
1990, federal law enforcement agencies
su bm i tte d a to ta l o f 791 e le c tr o nic
surveillance requests to the Departmentof Justice for approval. Between October
1, 2000, and September 20, 2001, thefederal agencies submitted over 1,700
electronic surveillance requests. Over the
past ten years, there has been not only an
increase in the number of electronic
surveillance requests, but also a growing
number of investigations that have multijurisd ictional and international
components, particularly in the area of
drug trafficking and alien smuggling,

United States Department of Justice** As a consequence of the terrorist attacks in the1

The federal system includes federal law affecting

U.S.A. on 11 September 2001, Ms. Wuslich was

all 50 states, as well as the territories of theu n ab l e to a t te n d th e 1 1 9 th I n te r n a ti o n a l

United States Virgin Islands, the District ofTraining Course. Copies of the two lectures Ms.

Columbia, Puerto Rico, Guam, and the Northern

Wuslich had prepared were distributed to all ofMariana Islands. The state system is comprised ofthe participants.

the 50 state governments.

514

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
whe re A merican traffickers andsmugglers have co-conspirators overseas
and in multiple states within the UnitedStates. Crime, once primarily a local
concern, has gone global. The
proliferation of the Internet and the useof hand-held communications devices,such as cellular telephones and two-way
p a g e r s , ha s i n c r e a se d a c r i m i n a l’ smobility, expanded the reach of his or her
criminal enterprise, and shortened thetime necessary to plan and execute eventhe most complex crimes.
While electronic surveillance is a very
valuab le technique, and ha s yielde dtremendous results in some significant
investigations, it is also a very intrusiveo n e t h a t i m p l ic a t e s p r iv a c y r i gh t s
p ro te c t e d un d e r th e U n it e d S t a t e sConstitution, particularly the Fourth
A mend ment p rotection against
unreasonable searches and seizures. For
that reason, significant legal and policy
restrictions have been placed on the useof electronic surveillance in the UnitedStates, mostly imposed by Congress ands om e im p os e d b y th e c o ur ts . T he s e
restrictions are designed to balance theneeds of law enforcement to fight crime
against the right of citizens to be free ofoverbroad or unnecessary government
intrusion into individual privacy.
II. LEGAL REQUIREMENTS
A. Background Of Title III
In 1968, the United States Congressenacted the federal electronic
surveillance statutes, which are often
referred to as Title III of the Omnibus
Crime Control And Safe Streets Act of1968 (hereinafter, “Title III”).2 Congressenacted Title III in response to several
United States Supreme Court decisions
recognizing the applicability of2

18 U.S.C. §§2510–2522.

constitutional protections to anindividual’s communications, andbecause it wanted to regulate the use ofelectronic surveillance by law
enforcement and private citizens, resolve
conflicts in the law, set a federal standard
by which electronic surveillance would be
conducted and, most importantly, tocombat organized crime.3 In 1968,
organized crime (La Cosa Nostra) was
seen as a plague on American society, andwas credited with controlling various
crim ina l en terp rise s, su ch a s dr ugtrafficking, gambling, loansharking, andprostitution, and corruptly influencing
legitimate businesses, labor unions, andthe political process.
While Congress wanted to give law
enforcement an effective tool to eradicate
organized crime, it also wanted to tightly
control the use of electronic surveillance
to avoid abuse of the technique and toprotect individual privacy, as
constitutionally required. To accomplishthese conflicting, yet important goals,
Congress: 1) enacted a two-step approval
process requiring Executive and Judicial
Branch concurrence for two of three typesof communications a law enforcement
officer is permitted to intercept; 2) limited
the types of crimes for which electronics u r v e i ll a n c e c a n b e a u t h o r i z e d ; 3 )restricted ele ctronic surveillance tothirty-day intervals and; 4) required thegovernment to submit an affidavit to theauthorizing authorities w hich would
justify the electronic surveillance ando ut lin e h o w t he g o v e rn m e n t w o u ld
comply with the statutory requirements.
Each of these fundamental requirements
and their related statutory components
will be discussed, in turn.

3

United States Senate Report No. 1097, 90th
Congress, 2nd Session, 1968.

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RESOURCE MATERIAL SERIES No. 59
B. The Approval Process
When law enforcement agents of agovernment investigative agency want to
conduct a wiretap over a telephone or
install listening devices in a location, theymust obtain approval from two entities.4
First, they must obtain approval from astatutorily specified high-level official at
the Department of Justice, who mustco ncur in the nee d for the pro pose dinterception and find that it meets all of
the statutory and constitutional
requirements. The Department official
does not authorize the interception, but
in ste a d a u tho r iz e s the go ve r nm e nt
agents to apply to the appropriate federal
co urt fo r an order authorizing theinterception. Second, the agents mustthen obtain such an order from a federal
district court judge. Congress enacted theprovision requiring Justice Departmenta pprov al becau se it b el ieved t hat
centralized review by the Department
would promote national uniformity in theway electronic surveillance wasconducted, and because Congress wanted
to hold a politically accountable official
responsible for any abuses that mightoccur.
With regard to approval by a judge,
C o ng re s s e n act e d th is p r o vi sio n inaccordance with constitutional principles
t ha t req ui re a det ached and neutral
authority to review and authorize certain
types of law enforcement action directedagainst the citizenry.
Unless the government has obtained
both approvals, and in the correct order,
it cannot conduct the electronic
surveillance.5 If the government fails to
get both approvals, but conducts theelectronic surveillance, the evidence mustbe suppressed and the government will
not be allowed to use that evidence, or
any derivative evidence, at trial.6
The approval process at the JusticeDepartment usually takes a few days andinvolves the following process. When afederal investigative agency and theUnited States Attorney’s Office in thelocation where the crime is beingcommitted7 is ready to conduct electronic
sur ve illan ce in an in ve stig atio n, its u b m i ts a n a f f i d a v it a s p a r t o f i t sapplication8 to conduct surveillance to theElectronic Surveillance Unit, which ispart of the Justice Department’s
Criminal Division. An attorney in that
U nit re vie w s th e a ff id a vit f or le ga lsufficiency. If the affidavit meets thestatutory requirements, it is forwarded tothe appropriate high-level official forreview along with a recommendation thatthe request be approved. If the official
a g re e s t h a t t h e a f f id a v it i s l e g a l l y
su f f ic ie nt , h e o r s he w i ll g ra n t t herequest. At that point, the government
may submit the application and approved
affidavit to a judge, who may grant ordeny the request to conduct thesurveillance. If the judge grants there quest, he or she will issue aninterception order, which allows the law
enf orcement agency to conduct
surveillance over a particular telephone/facility or within a particular location fora thirty-day period. Most judges will issue
6

United States v. Chavez, 416 U.S. 562 (1974).

7

Many times throughout this paper, the term
“government” is used to refer collectively to thefederal investigative agencies and the United
St atesAtt orn ey’s

Offices,orth eirrepresentatives.
8

18 U.S.C. §2518(1); United States v. Williams,
124 F.3d 411 (3d Cir. 1997)(The procedure of4

18 U.S.C. §2516(1).

s ubmit tin g a s worn af fid av it by a law

5

United States v. Reyna, 218 F.3d 1108 (9th Cir.

e n f o r c e m e n t o f fi c e r , w h i c h i s a t ta c he d to2000).

prosecutor’s application, is sufficient.).

516

119TH INTERNATIONAL TRAINING COURSE
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the order the same day they receive therequest from the government.
It should be noted that when Title III
was amended in 1986 to specifically provide for the interception of electronic communications, which are communications
tha t o ccur, i nter alia, o ver a paging
device, a computer, or a facsimile
machine, Congress required only
approval by a judge, without the predicate Department review and approval. 9
Congress did not consider the interception of these communications to involvethe same level of intrusion into a person’s
privacy as the interception of a person’s
telephone calls or private conversations.
Nevertheless, by agreement between
Congress and the Justice Department,internal Department policies require
review and approval prior to applying to
the court for an order authorizing theinterception of electronic communications
over computers, facsimile machines, andtwo-way paging devices.
The requirements for the government’s
affidavit in support of the electronic
surveillance application to the court are
discussed below.
C. The Affidavit
1. Sworn to by a Law Enforcement
Officer
L ike a trad itional sea rch w arrant
under longstanding United States law,
Title III requires the application to bem a d e b y a f e de ra l la w e nf o rce m e nt
officer, who has investigative and arrest
powers for the crimes under investigation
and who swears to the facts andstatements set forth in the affidavit.10 As
918

U.S.C.

§2516(3);The

Electronica matter of policy, the Department ofJustice lim its the numb er of federa lagencies which can conduct electronic
surveillance. The Department does this toensure that only the agencies with themost expertise, resources, and experiencecan conduct electronic surveillance as
p a r t o f th e ir i nv e s tig a tio n s . T ho s eagencies that are not historicallyapproved to conduct ele ctronic
surveillance can do so only whenpartnered w ith an a pproved agency,
usually the Federal Bureau of
Invest igati on (“ FBI”), where both
agencies have jurisdiction over the crimes
under investigation.
2. Identifying the Persons Committing
the Crimes
Title III requires the government to
identify by name, if it can, the persons
who are committing the crimes underinvestigation and who are expected to beintercepted over the specified telephone
or within the location. 11 This provision
serves two purposes. First, it requiresthat the government determine if thepersons identified in the affidavit haveb ee n the sub je c t o f p rio r e le ctro nic
surveillance.12 If they have, thegovernment must include in the affidavit
all of the information about such priorsurveillance. One of the reasons thisinformation is required is so that thejudge may determine if the government isbeing overzealous in its investigation ofthese individuals, such as could be thecase if numerous, prior court-authorizedinterceptions had failed to produce any
evidence of criminal involvement by thetargets. In such a situation, the judge
may require the government to justify therequest.13 Second, at the conclusion of the
10 18 U.S.C. §2518(1).

Communications Privacy Act of 1986, United

11 18 U.S.C. §2518(1)(b)(iv).

States Senate Report No. 541, 99th Congress, 2nd

12 18 U.S.C. §2518(1)(e).

Session, 1986.

13 18 U.S.C. §2518(2).

517

RESOURCE MATERIAL SERIES No. 59
investigation, the government must given o tic e to th e p e r so ns n a m e d in th eaffidavit that they were intercepted sothat these persons can prepare theirdefen se if charges are brought, orotherwise challenge the legality of thesurveillance.14
3. Identifying the Facility or the
Location and the Type ofCommunication
Next, unde r Title III, and incompliance with the Fourth Amendment,
the go ve rnment m ust identify, withparticularity, the telephone facility or
location that will be the subject of theelectronic surveillance, and the type ofcommunication that will be intercepted,
i . e . , te l e p h o n e c o n ve r s a t io n s ( w i r ecomm unications),
face-to-faceconversations (oral communications), or
computer transmissions, pager data, orf a c sim il e tr ans m issi on s ( e lec tr on ic
communications). 15 This requirement
ensures that the law enforcement officer
who is conducting the surveillance knows
what facility or location—and what kindof communications—he or she is allowed
to inte r ce p t. T his p re ve nts th e law
enforcement officer from conducting ano p e n- en d ed or o ve rly b r oa d se a rc h,targeting any telephone or location usedby a subject (except for “roving”
interceptions, discussed infra). However,once the government has established thata particular telephone or a location is
being used to facilitate criminal activity,
the court’s order generally provides thatt he gov ernm en t can in tercept th ecrim ina l-rela ted com munications o fanyone who may use that telephone or
locatio n, and not just those p ersons
named originally in the court order.16

The exception to the particularity
requirement is the “roving” provision of
Title III. Under Title 18, United States
Code, Section 2518(11), the government
can obtain a court order for a 30-day
period to intercept communications overany telephone/facility or within any
location that a specific subject may beusing to commit the crimes. For example,
drug traffickers often use a series ofdifferent cellular telephones to carry out
their criminal activities, and will often
use a telephone for only a few days inorder to prev en t la w enforcemen t
detection of their crimes. By the time thegovernment has identified the telephone
the sub ject is using and obtains therequisite approvals, the subject may nolonger be using it. The roving provision
allow s t he go ve rn m en t to inte rce p t
communications over any telephone thesubject may obtain and use during the 30day period as long as the government canshow that the subject’s behavior has theeffect of thwarting its ability to intercept
his or her calls, and that the subject has apattern of using multiple telephones to
conduct his or her criminal activity. With
respect to a location, the government
must show that it is unable to specify inadvance to the reviewing court where thesubject and his or her co-conspirators will
be meeting to conduct their criminal
activity. In one case, the governmento b ta in e d a c o ur t o rd e r t o in te rc e p t
communications of Mafia members who
were planning to conduct a ceremony toinduct ne w m em b ers into the crimefamily.17 The government’s confidential
informant, who would be present at theceremony, would not learn of the meeting
location until a few hours before thecerem ony w as to take place. A morere cent example involved a public
corruption case, wherein the subject of

14 18 U.S.C. §2518(8)(d).
15 18 U.S.C. §2518(1)(b)(ii), (iii).
16 United States v. Kahn, 415 U.S. 143 (1974).

518

17 United States v. Ferrara 771 F. Supp. 1266 (D.

Mass. 1991).

119TH INTERNATIONAL TRAINING COURSE
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the investigation scheduled meetings
with his co - consp irator s at the lastminute to make bribe payments, and had
not been seen meeting with them at thesame location twice.
After the government obtains a court
order to conduct roving interceptions overdifferent telephones or within different
loca tions, the governme nt m ay o nlyintercept the com munications of thesubjects identified in the affidavit as theusers of the telephones or locations, andsubjects in communication with them. Ifother subjects of the investigation areusing the telephones or locations, without
the named subjects also participating in
the com munication, the governme nt
cannot intercept those communications,even if they are criminal in nature.18
4. Listing the Crimes under
Investigation
T i tl e I I I a l lo w s f o r e l e c tr o n i csurveillance only when the government isinvestigating one of several crimes listed int he s ta tu te . C o n gr e s s d e c id e d t ha telectronic surveillance should be used toinvestigate only the most serious types ofoffenses. If the government wants to
wiretap a telephone (wire communications)or install listening devices in a location tocapture face-to-face communications (oralcommunications), the government must be
investiga ting one of the enumeratedo f f e ns es l iste d in T itle I I I . 1 9 I f theg o v e r n m e n t w a n t s to i n te r c e p t
communications over a computer, a pager,o r a f a c s i m i l e m a c h i n e ( e l e c tr o n i ccommunications), the government only
needs to be investigating a federal felony
offense, which again recognizes Congress’sview that electronic communications
18 United

warrant lesser protection than required forwire and ora l comm unica tions. 2 0 By
requiring the government to identify which
crimes are under investigation, the statutea g a i n e n su r e s t h a t t h e e le c t r o n i csurveillance will not be overly broad or
unnecessarily intrusive.
5. Establishing Probable Cause
In accordance with the FourthA m e n d m e n t , T it l e I I I r e q u i r e s th e
government to outline the facts that show
a particular telephone or location is being
use d to fa cilita te the comm issio n ofcriminal acts. 21 There are several ways
the government can do that. For example,
the government may have a confidential
inform ant or an underco ver law
enforcement agent who can engage thesubject in a discussion of criminal activity
during a call over the telephone or during
a meeting within the location. The drug
dealer may instruct the informant to callthe drug dealer on a particular telephonewhen the informant wants to buy cocaine.
Thereafter, the informant calls the drug
dealer at that telephone. During the call,the informant asks to buy a quantity of
cocaine and the dealer agrees to make thesale at a nearby parking lot. The
informant travels to the parking lot,meets the dealer, and buys the cocaine. It
is clear from that chain of events that thedr ug dealer used the telephone tofacilitate his or her drug business.
6. Establishing the Need for theElectronic Surveillance
Because electronic surveillance is so
intrusive, the government must show
w hy it n e e d s t o c o n d u c t e l e c t ro n ic
surve illa nc e to g ath er the ev id e nce
necessary to prosecute the subjects. 22
Specifically, the government must stateStates v. Gaytan, 74 F.3d 545 (5th Cir.

1996); United States v. Jackson, 207 F.3d 910

20 18 U.S.C. §2516(3).

(7th Cir. 2000).

21 18 U.S.C. §2518(1)(b).

19 18 U.S.C. §2516(1).

22 18 U.S.C. §2518(1)(b).

519

RESOURCE MATERIAL SERIES No. 59
what other investigative procedures havebeen tried, and if not, why they would be
u n l ik e l y to s u c c e e d o r w o u ld b e t odangerous to use. These other procedures
includ e p hysica l surveilla nce o f thesubjects, search warrants executed at
locations or residences known to be usedby the subjects, interviews of the subjects
or their associates, the use of a grand jury
to investigate the subjects, examinationof telephone records for their telephones,
and seizures o f contraband. If thegovernment has not performed each ofthese investigative techniques, it must
explain why it cannot do so, or, even if it
did, why using the technique would not
be sufficient in and of itself to meet thegoals of the investigation. For example,
the government may have conducted
physical surveillance of the subjects, but
the subjects observed the surveillancea g e n ts a n d s t o p p e d t h e i r c r i m i n a lactivitie s, or the subje cts ro utinely
engage in counter- surveillancemaneuvers, which create a danger to thepolice officers or others, or the subjects
live or travel in an area that makes such
surveillance difficult. In one case, the FBI
was investigating a cocaine conspiracy ina small town. One day, FBI agents wereconducting physical surveillance, and themayor of the town began to follow theagents. The mayor escalated his pursuitof the agents and forced the agents todrive out of town. The FBI learned laterthat the mayor chased the agents because
they were suspicious strangers.
Moreover, the government may have usedconfidential informants or undercoveragents at one time in their case producing
some evidence supporting theinvestigation, but the subjects discovered
their identities and to continue to usethem would compromise their safety. The
governm ent may also have seizedc ontra b a nd f rom a vehicle d uring asearch, but the driver of the vehicle
refuses to cooperate or was only privy to520

limited information about the person towhom he was delivering the drugs.
7. Prior Electronic Surveillance
Title III requires that the government
set forth in the affidavit whether any of
the subjects, facilities, or locations havebeen the subject of prior surveillance.23
The government is required to give a fulland complete statement of any priorelectronic surveilla nce orders. Tha tstatement includes the dates of the priororders, the names of the subjects of theinvestigation in those orders, and what
facilities or locations were the subject of
the electronic surveillance. As explained
previously, one of the purposes of thisrequirement is for the judge to determine
if the government is being overzealous inits investigation of these individuals.
These checks must be done by all of theinvestigative agencies that may haveconducted electronic surveillance of thesubjects, and not just the agency making
the instant request.
8. Statement of Time
Under Title III, the government can
only conduct electronic surveillance for aperiod of up to 30 days, and the affidavit
must contain a statement to this effect.24
If th e government has not met its
investigative goals during the first 30
days of interceptions, the government
may seek approval from the Departmentof Justice an d the j ud ge to c ond uc tinterceptions for another 30-day period.
Each time the government applies for an
extension order, it must describe theevidence derived from the wiretap anddemonstrate a continuing investigativeneed to intercept the communications. 25
There is no statutory limit on the numberof times the government can seek to
23 18 U.S.C. §2518(1)(e).
24 18 U.S.C. §2518(1)(d), (5).
25 18 U.S.C. §2518(1)(f).

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
extend the electronic surveillance. Aslong as the government meets th e
statutory requirements each time, andthe judge so permits, the government
may continue to conduct surveillance.
T he a vera ge e le ctr onic surveilla nce
investigation is conducted forapproximately four months. It is thee x ce p t io na l e le ct ro n ic s ur v ei llan c einvestigation that lasts for a year or
longer.
9. Minimization
Title III requires that the government
minimizetheinterceptionofcommunications not related to the crimes
under investigation. 26 This means thatthe government is required to terminate
the interception of the communicationw h e n t h e c o m m u n i c a t io n d o e s n o t
conce rn the crim ina l ma tters und er
inv estigation or any oth er type of
criminal activity.27 For example, if a law
enfo rcem ent of ficer is liste ning to atelephone call and the subjects are nottalking about their identified criminal
activities or any other crime, the officer
must turn off the monitoring equipment.
After a reasonable interval, the officerc a n tu rn th e e q ui p m e n t b a c k o n t odetermine if the call has become criminal
in nature. If the subjects are now talking
about their crimes, the officer can listen
to and record the call. When monitoring acall, the officer may have to turn theequipment off and on several times. To
26 18 U.S.C. §2518(5).
27 Congress anticipated that communications about

crimes that were not identified in the order might
be inter cepted during a la wfully co nduc ted
wiretap. The government may intercept thosecom m u ni cati on s, a nd d is s em i na te thos ecommunications to law enforcement officers fordetermine if the government lawfully
minim iz ed the comm unica tio ns, thecourts consider the following factors: 1)
the number of co-conspirators; 2) the
com plexity of the crim es beingcommitted; 3) the size and longevity of
the criminal enterprise; 4) the actions
take n by the m on ito ring o f f ice rs tominimize the co mm unications andwhether they showed a high regard forthe subjects’ privacy; 5) the use of codedlanguage by the subjects; 6) whether the
telephone or the location is the center ofthe criminal activity; 7) judicial review
and approval of the minimization efforts;
and 8) whether the monitoring agentswere adequately instructed on the proper
minimization techniques.28
There is a statutory exception to therequirement to minimize communications
as they are occurring. If the subjects areconversing in a foreign language or in acode that the law enforcement officers do
not understand, and the government does
not have translators available totranslateandminimizethecommunications as they are occurring,
Title III allows the government to record
the conversations in their entirety andminimize the conversations later.29 This
procedure is called “after-the-fac t
minimization.” The key to after-the-fact
minimization is that the process usedm u s t p r o t e c t th e s u b j e c t ’ s p r i v a c yinterests to approximately the same
ex tent as would contemporan eou s
minimization. To achieve this result,translators are told to translate only the
portions of the recorded communications
that seem relevant to the crimes underinvestigation. The translators then give
only the relevant portions of thecommunications to the law enforcement

further investigation. If the government wants to
use those communications in subsequent court
proceedings, it may do so if it obtains an orderunder 18 U.S.C. §2517(5).

28 United States

v. Parks, 1997 WL 136761 (N.D.

Ill.).
29 18 U.S.C. §2518(5).

521

RESOURCE MATERIAL SERIES No. 59
officers investigating the case. The nonrelevant parts of the communications areplaced under seal with the court and are
not reviewed by the law enforcement
officers.30
While not explicitly provided for in
Title III, there are other instances when
the government cannot minimize theinterception of communications as they
are occurring, but must intercept, record,
and review the entire communication todetermine its relevance to theinvestigation. 31 One instance involves
electronic communications over facsimile
machines, computers, and pager devices,
and another instance involves voice-mailleft on a telephone system. Given thenature of the communication and the way
it is transmitted, the government must
intercept the whole communication anduse the af te r- the- fa ct minim iz a tion
procedures, disclosing and using only
those communications that are relevantto the investigation, and sealing theinformation that is not relevant.
III. EMERGENCY INTERCEPTIONSCongress, in recognizing that there are
emergency circumstances under which
the normal approval processes must be
circumvented, enacted a provision by
w hich law enforcement may conduct
electronic surveilla nce w ithout firstobtaining a court order. A discussion ofthat provision follows.
With the approval of a highly-placed
Department of Justice official, Title III
allows the governmen t to c on duc tinterceptions over a particular facility orwithin a location without first obtaining acourt order when: 1) there is an imminent
threat of death or serious bodily harm to
an individual; 2) there is a threat tonation al s ecu rity; or 3) events
characteristic of organized crime are aboutto occur, and interceptions must beginb e f o r e a c o u r t o r d e r c a n , w it h d u e
diligence, be obtained in order to preventthe harm, forestall the threat, or captureevidence of the organized crime activity.32
To illustrate these principles and theprocess involved, consider the following
example. The FBI receives informationthat several armed gunmen have robbed abank and have taken hostages. Upon
arrival at the scene, the FBI observes
through the windows of the bank threemasked, armed gunmen and four
hostages, bound and blindfolded. The FBI
also sees that one of the gunmen is talking
on a cellular telephone, leading them tobelieve that the gunman is conversing
with co-conspirators. The FBI hostage
negotiator reports that the gunmen are
making demands for money and safe
passage from the bank and out of thecountry, and that they want to take one of
the hostages with them. The gunmen havegiven the FBI four hours to comply with
their demands. At this stage, the FBI
identifies the telephone that the gunman
is using 33 and decides to contact the
telephone company to obtain records forth e te le p h o n e t h a t w i ll s h o w w h a t
telephone numbers are being called fromthe gunman’s telephone.34 An analysis of
the c alling re cord s re veals that th egunman’s telephone is being used to call atelephone that is registered to the person
who also appears as the registered owner
32 18 U.S.C. §2518(7).

30 United

States v. David, 940 F.2d 722 (1st Cir.

33 Whenturned on, a cellular telephone emits1991); United States v. Padilla-Pena, 129 F.3d

certain signals. Law enforcement can capture

457 (8th Cir. 1997).

these signals through specialized equipment and

31 United States v. Tutino, 883 F.2d 1125 (2nd Cir.

1989).

522

identify the telephone.
34 18 U.S.C. §2703(c)(1)(C).

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
of a suspected getaway car parked outsideof the bank. (A check of motor vehicle
records reveals that the name and address
info rm ation liste d for this person is
fictitious.) Unable to proceed further, theFBI decides to seek emergency
authorization to intercept communications
over the telephone used by the gunman.
The FBI hopes to obtain information thatwill h elp to resolve the situation
peacefully, as well to gather evidence
about the identities of the gunmen andany of their co-conspirators. To begin thep r oc e ss, th e F B I co nta cts a f ed e r a lprosecutor in the appropriate UnitedStates Attorney’s Office, who contacts the
Criminal Division of the Justice
De p ar tme nt and talks to one o f thelawyers in the Electronic Surveillance
U n it . T h a t l a w y e r c o o r d i n a t e s t h e
a p p r o v a l p r o c e s s o r a l ly w it hi n th e
Department and with the FBI, and one
hour later, th e Attorn ey Generalpersonally grants the head of the FBI
permission to decide whether an
emergency situation exists as defined by
the statute and, if so, to intercept calls
over the gunman’s phone.
From the time the Attorney Generalauthorizes the interception, theprosecutor has 48 hours to obtain a court
order approving the emergency
interception. The court order must be
based on a written affidavit that is sworn
to by a law enforcement officer and sets
forth the facts known at the time theemergency was authorized by the
Attorney General. If the prosecutor fails
to obtain the order within the 48-hourtime period, the intercepted telephone
calls and any evidence derived from theelectronic surveillance must be
suppressed. If the emergency situation
has not been resolved within the 48-hour
period, and the government wants toco ntinue to inte rce p t ca lls o ve r th e
telephone, the government must submit

an affidavit to the Department of Justicefor approval to seek a court order to do so.
It is important to note that all of therequirements of Title III apply toemergency situations. The government
must have probable cause to believe that
communications about a crime listed in
the statute will be intercepted over the
telephone/facility, or within the location,a n d t h a t a l t e r n a t iv e i n ve s ti g a ti v etechniques will not suffice to prove thecrimes or forestall the danger or threat.
IV. POST-INTERCEPTIONREQUIREMENTS
A. The Sealing Requirement
Title III requires that when thegovernment has concluded its electronic
surveillance investigation, it must takethe original record ings of thecommunications and place them underseal with the court.35 The sealing
requirement ensures the integrity of therecordings and enables their use at trial.
I f th e g o v e r nm e nt f a i ls to s e al th erecordings in a timely manner, the court
may prohibit their use at trial.36 Because
sealing is only required at the end of theelectronic surveillance investigation, thegovernment could co ntinue theinterceptions for over a year without
having to seal the recordings. However,the Justice Department recommends
sealing the recordings every 30 days toensure the continuing evidentiary valueof the recordings.
B. The Notice Requirement
Within 90 days of the conclusion of theelectronic surveillance investigation, thego ver nm e nt m ust no tif y th e na m e dsubjects that they were the targets of anelectronic surveillance investigation. 37
35 18 U.S.C. §2518(8)(a).
36 United States v. Ojeda-Rios, 495 U.S. 257 (1990).
37 18 U.S.C. §2518(8)(d).

523

RESOURCE MATERIAL SERIES No. 59
This provision gives the subjects theopportunity to challenge the electronic
surveillance evidence. If, at the end of the
90-day period, the government is still
investigating the subjects, it may seek topostpone the notice for another 90 days,or until further order of the court.
V. ACTIVITY NOT COVERED BY
TITLE IIIA. Consensual Recordings
Title III, by its terms, does not apply tothe interce ption and recording of
telephonecalls,
face-to-faceconversa tions, or computer or pager
transmissions that are made by a law
e n f o r c e m e n t o f f ic e r , a c o n f id e n t ia linformant, or a private citizen, when thatpe rson is a participant in thecommunication.38 The legal rationale isthat a person does not have a reasonable
expectation to believe that the personwith whom he or she communicates willkeep his or her confidence. 39 Therefore,
the government does not have to obtain
Department of Justice approval or a court
order before an undercover government
agent or a confidential informant may
record a telephone call or a conversation
with the subject of a criminal
investigation. Additionally, a private
citizen may record his or her
communications with others as long as heor she is not recording thec o m m un ic a t io n s f o r t he p ur p o s e o fcommitting a crime or a tortious act. An
example of a criminal or tortious act
would be that the communication wasrecorded in order to blackmail someone.

that person’s criminal culpability, andthey are commonly used to establish thata person is using a location or a telephone
to facilitate the commission of a crime.
Therefore, consensual recordings are avery valuable technique for law
enforcement to use when a government
agent or an informant has gained thetrust of someone suspected of criminal
wrongdoing.
B. Prison Monitoring
Under Title III, the government may
monitor inmate calls o ver priso ntelephon e lines without obtainin g
Department of Justice approval or a court
order. Specifically, 18 U.S.C. §2510(5)(a)all ow s t he recording of teleph one
co n ve rs a tio ns o f inm a te s b y p ris o n
officials to ensure the safe and orderly
administration of the prison. If, however,
the government wants to investigate thecriminal activities of a particular inmate
involving crimes with persons outside of
the prison system, the Department ofJustice, as a matter of policy, requires thegovernment to obtain its approval and acourt order to conduct the electronic
surveillance.
C. Video Surveillance
Another common investigativetechnique that is not proscribed by Title
III involves the use of closed-circuit,hidden cameras to record a subject’s
criminal conduct. Although Title III does
not regulate or prohibit the use of video
surveillance, several court opinions havecircumscribed its use. 40 In accordance
40 United

States v. Falls, 34 F.3d 674 (8th Cir.

1994); United States v. Koyomejian, 970 F.2d 536

Consensual recordings of a person’scommunications are strong evidence of(9th Cir. 1992); United States v. Cuevas-Sanchez,

38 18 U.S.C. §2511(2)(c), (d).

Biasucci, 786 F2d 504 (2d Cir. 1986); United

39 Lopez v. United States, 373 U.S. 427 (1963); Hoffa

States v. Torres, 751 F.2d 875 (7th Cir. 1984);

v. United States, 385 U.S. 293 (1966); United

United States v. Mesa-Rincon, 911 F.2d 1433

States v. White, 401 U.S. 745 (1971).

(10th Cir. 1990).

524

821 F.2d 248 (5th Cir. 1987); United States v.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
with these opinions, the government
must obtain a court order to conduct
video surveillance in any area where thesubject has a reasonable expectation ofprivacy. The court order must be based ona warrant sworn to by a law enforcement
officer that establishes reason to believethat the subject(s) will be engaged incriminal conduct in the location that will
be videotaped. Video surveillance is often
used in drug-trafficking cases where thegovernment believes that contraband will
be stored at, or delivered to, a particularlocation, and it wants to identify the
persons involved in the drug activity.
VI. SUPPRESSION OF TITLE III
EVIDENCE
Title III contains a statutory
suppression rule that provides that theg ov ernmen t can not use electron ic
surveillance evidence or any evidence
derived from the surveillance in a court
proceeding if: 1) the communications
were intercepted unlawfully; 2) the court
order app roving the electronic
surveillance was insufficient on its face;or 3) the interceptions were not conductedin accordance with the order. 41 Because
the court order authorizing the electronic
surveillance is based on an ex parte, incamera showing of facts by thegovernment, the judge who authorized
the w ire ta p, w hen p resente d w ith adefense motion to suppress, m ay
reconsider the original facts and decidethat suppression is warranted. A court
hearing to determine if the evidence will
be suppressed is triggered by a motion to
suppress the evidence by the defendant’s
attorney.42

Title III evidence has been suppressed
because the government failed toestablish an investigative necessity forthe electronic surveillance. 43 Title III
e vi d e n c e ha s a ls o b e e n s up p r e ss e dbecause the government failed todetermine if the subjects had been thesubject of prior electronic surveillance,44
and when the government failed to obtain
Department of Justice approval before it
obtained the court order for the electronic
surveillance.45
Because of the safeguards placed onth e go ve r nm e n t ’ s u s e o f e l e c t r o n ic
surveillance, Title III evidence is rarely
suppressed.
VII. CONCLUSION
While Title I II lim its go ve rnm ent
conduct with regard to the use ofelectronic surveilla nce, this la w ha sprovided rea so na ble guidelines w ellunderstood by investigative agents andprosecutors, and these guidelines ensurethat the interceptions conductedpursuant to court orders will result in the
successful prosecutions of those w ho
communications are intercepted.

43 United

States v. Aileman, 986 F. Supp. 1228

(N.D. Cal. 1997).
41 18 U.S.C. §2515; United States v. Ruggiero, 824

F. Supp. 379 (S.D.N.Y. 1993).
42 18 U.S.C. §2518(10)(a).

44 United

States v. Luong, No. CR-94-0094 MHP(N.D. Cal. 7/14/98) (unpublished).
45 Reyna, supra.

525

ELECTRONIC SURVEILLANCE IN THE UNITED STATES:A CASE STUDY
Julie P. Wuslich*
I. INTRODUCTION
The f ollo wing is a case study o f atypical electronic surveillance
investigation. This case study begins with
the initial investigation, and proceeds
through preparing the evidence for trial.
II. THE INVESTIGATIONOn February 22, 2001, FBI Special
Agent Clark Kent interviewe d a
confidential government informant (“CI1”). CI-1 has provided reliable
information in other investigations, andin those investigations, CI-1 bought drugs
and introduced undercover agents to thetargets of those investigations. CI-1’s
information has been used previously inarrest warrants and search warrants.
The information that CI-1 has provided int hi s ca se h a s b e e n co r r o b o ra te d b yphysical surveillance of the subjects, andinform a tion f rom othe r confide ntial
informants and an undercover agent. CI1 has a prior conviction for possession of
cocaine, and is cooperating with the FBI
in this investigation in hopes of gaining
leniency for a family member who has
pending drug charges.

* Chief, Electronic Surveillance Unit, Office ofEnforcement Operations, Criminal Division,
United States Department of Justice** As a consequence of the terrorist attacks in the
U.S.A. on 11 September 2001, Ms. Wuslich was
u n ab l e to a t te n d th e 1 1 9 th I n te r n a ti o n a lTraining Course. Copies of the two lectures Ms.
Wuslich had prepared were distributed to all of
the participants.

526

During the interview on February 22,
CI-1 told Agent Kent that Robert Gerard(“Gerard”) and members of his drug crew
distribute cocaine and heroin in the
Keeney Heights area of Washington,
D.C., and that CI-1 bought cocaine from
“J-Boy,” a member of Gerard’s crew, inD e cem b e r 2 0 0 0. C I - 1 i d en t if i e d t hefollowing persons as members of Gerard’s
drug crew: “Little G,” “Kay Kay,” and“Swee t N a ncy. ” A ge nt Ke nt show e ddriver’s license photographs to CI-1 andCI-1 was able to identify Little G as Gene
Blum, Kay Kay as Katrina Karr, andSweet Nancy as Nancy Prim.
On M arch 3 0, 2001, Agen t K en t
learned that Fred Hend ricks was
murde red that day in the sameneighborhood in Keeney Heights where
Gerard lives. Agent Kent reviewed theofficial police reports written by the local
police officers investigating the murder.
Based upon those reports, Agent Kent
learned that Gene Blum, Bridget Lynn,
and Natasha Spencer were present at thescene of the murder on March 30. Thosere ports a lso conta ined the follow ing
information: The police questioned eachof these individuals about the murder.
Lynn and Spencer denied any knowledgeof the circumstances surrounding themurder. As to Blum, when police arrived
at the scene, he was seen trying to leave
the a rea o n a m otorcycle. B lum w a s
detained and he volunteered to answer
some questions. During the questioning,
Blum advised the police that there was a
q u a nt it y o f c oc a i n e i ns id e a l o ck e dcompartment in the motorcycle. Blumgave the keys to the compartment to the119TH INTERNATIONAL TRAINING COURSE
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officer. Later that day, the police obtained
a sea rch w arrant for the m otorcycle
compartment. The next day, the search
warrant was executed and approximately
one quarter of a kilogram of cocaine wasfound inside. Because Blum is suspectedin the mu rde r o f Fr ed H end rick s, adecision was made not to charge Blumwith any crime at this time, but rather tocontinue the investigation.
On April 5, 2001, Gerard’s house wasburned to the groun d. Agent Kent
reviewed police reports of the incident,
which reflected that witnesses saw threeu nid en tifie d m a le s en te r t he ho us ecarrying gasoline, and set the house on
fire. Two persons, one of whom was an
infant male, were inside the house when
the fire was set, and died as a result.
Gerard was not at home at the time of thefire.
On A pril 25, 2001, A gent Kentinterviewed Stephen Simon, who has
been indicted on charges of distributing
cocaine. Simon provided the following
information as part of a plea bargain in
his pending case. In the presence of his
attorney, Simon told Agent Kent that he
was a member of a rival drug gang, andthat he knows Gerard and Blum. Simon
stated that Gerard had given Hendricks
two kilograms of cocaine on consignment,
and when Hendricks failed to pay Gerard
for the cocaine, Gerard had Hendricks
killed. Simon stated that he learned thisinformation from his girlfriend, Natasha
Spencer, who was at the scene of them u r d e r . S im o n st a t e d f ur th e r th a t
G e r a rd r ec eiv es la rg e ship m e nts o f
cocaine every few months, and that hesells cocaine for $17,500 per kilogram.
O n M a y 5 , 2 0 0 1 , t h e l o c a l p o li c ein te rvie we d an ind ivi du al who was
w illing to provide information about
Gerard’s drug trafficking activities. Thisp e rs o n ( “C I - 2 ”) h a s n e ve r p ro v id e dinformation to law enforcement before
and, therefore, his reliability is unknown.
CI-2 stated that Gerard and Blum areheavily involved in drug trafficking andare very violent. On May 11, 2001, CI-2
told the local police that Gerard andmembers of his crew were at the Starlight
Motel in Raljon, Maryland. Based on thisinform ation, local police officers
established surveillance at the motel.
During the surveillance, officers saw
Gerard, Blum, and several unidentified
males enter and exit two motel rooms.
On May 13, 2001, an undercover FBI
agent (“UC”) was sent to the Starlight
Motel to apply for employment. On May
18 , 20 0 1, t he UC b egan w ork a t theStarlight Motel as a maintenance worker.
On May 20, 2001, CI-2 told the local
police that Gerard and Blum were at theStarlight Mo tel, and that they wereselling drugs from a room there. That day
and the following day (May 21, 2001),
surveillance agents observed Gerard andBlum entering and exiting room 123. In
addition, throughout the day, several
unidentified males were seen entering
room 123, staying a few minutes, andthen leaving the room.
On May 25, 2001, CI-2 stated that
Blum had gone to the Starlight Motelagain to sell drugs. T he lo ca l police
conducted surveillance of the motel andsaw Blum exit room 178. Blum entered a
Chevy Suburban truck that was being
driven by a female. Surveillance agentslater identified this female fromphotographs as Nancy Prim. One hourlater, agents saw the Chevy Suburban
return to the motel. Blum exited the carand entered room 178. Prim, the driver,
departed the area.

527

RESOURCE MATERIAL SERIES No. 59
On May 25, 2001, the UC was working
at the motel, when someone from room
178 called the front desk to complain
about a maintenance problem. The UC
went to room 178 to fix the problem andobserved Blum a nd two unidentified
males inside the room. When the UC
arrived, he heard Blum refer to one of theunidentified males as “J-Boy.” While in
the room, the UC used the telephone to
make a call to another police officer.
During the call, the UC mentioned goingto a party and getting some cocaine totake to the party. Blum overheard theUC’s call and offered to sell the UC somecocaine. The UC, who was w earing arecording device, recorded his
conversation w ith Blum. During theconversation, Blum stated, “I can get you
all the coke you want. How much do you
want?” The UC replied, “I’ll take an oz(one ounce of cocaine).” Blum told the UC
to call him later at the motel. The UC
then left the room.
T h a t e v e n i n g , t h e U C c a ll e d t h etelephone in room 178 and spoke to Blum.
The UC recorded his conversation with
Blum. During the call, the UC and Blum
agreed to a price of $1,100 for one ounceof cocaine. Blum gave the UC his pager
number and told the UC to page him atthat number when the UC was ready to
conduct the drug deal.
On May 26, 2001, at 9:15 a.m., the UC
paged Blum at the number he was given,and input the telephone number of his
cellular telephone. At 9:20 a.m., the UC
received a call from Blum. The caller
identification device on the UC’s cellular
phone revealed that Blum was callingfrom a telephone bearing the number(202) 514-1234. During this conversation,
which the UC recorded, the UC told Blumthat he was ready to buy some cocaine
from him. Blum instructed the UC tomeet him at room 178 at the Starlight528

Motel at 10:30 a.m. Blum then ended thecall. Later, the FB I subp oenaed1
telephone records for Blum’s phone, (202)514-1234 (hereinafter, referred to as the“target phone”). Those records show that
immediately after Blum ended the callwith the UC, the target phone was used
to call a pager. The FBI subpoenaed
records for the pager from the service
provider, and learned that the pager issubscribed to in the name of Dorothy
Gerard, Gerard’s mother. At 10:30 a.m.,the UC arrived at the motel and met
Blum in room 178. The UC bought one
ounce of cocaine from Blum in exchange
for $ 1,1 00 . Mea nwhile, surve illance
agents were outside the motel. After thetransaction, the UC left the motel room,
followed by Blum. Blum entered a white
Ford Navigator sport utility vehicle anddrove away from the motel. Surveillance
age nts f o llo we d B lu m t o I nte r state
Highway 95. While Blum was driving on
Interstate 95, he slowed down and drove
along side of the car being driven by thesurveillance agents. Blum waived to theagents and then sped off. Realizing thatthe y had be en d e te cte d , th e age n ts
discontinued surveillance of Blum.
On June 2, 2001, the UC attempted tocontact Blum at the pager number Blum
had given the UC. The UC never received
a call back from Blum.
On June 22, 2001, a local police officer
contacted Agent Kent and advised that
she had been contacted by a confidential
informant (“CI-3”). The police officer
advised Agent Kent that CI-3 wasreliab le, and that CI-3 had provided
credible information to her in the past.
The police officer advised that CI-3, who
is associated with many gang members,
knows that Blum uses the target phone infurtherance of his drug business.
1

18 U.S.C. §2703(c)(1)(C).

119TH INTERNATIONAL TRAINING COURSE
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On June 28, 2001, Agent Kent learnedof another c onfidential in for mant
working for the local police (“CI-4”). CI-4
has never provided information before,
but knows Blum and has bought cocaine
from Blum on several occasions within
the last six months, most recently in the
beginning of June 2001. CI-4 stated that
he has never bought cocaine from Gerard,
but knows that Blum works for Gerard asa drug distributor. CI-4 indicated that hewould be willing to contact Blum to buy
cocaine, but that he was not willing torecord any of his conversations w ith
Blum. CI-4 stated that, given the drugcrew’s reputation for violence, he feared
retribution from Blum or others, if therecording equipment was detected on his
person.
On August 1, 2001, at 1:20 p.m., CI-4
paged Blum and input the telephone
number where CI-4 could be reached. At
1:45 p.m., Blum called CI-4. Subpoenaed
phone records for the target phone showthat a t approximately 1:45 p.m., thetarget phone w as used to call CI-4’s
phone. According to CI-4, he told Blumthat he wanted to buy an ounce o f
cocaine. Blum told CI-4 to meet him at agas station in one hour. One hour later,
CI-4 went to the gas station. Before CI-4
arrived at the gas station, Agent Kent
se a rc he d C I - 4 f o r co ntra b a nd , w ith
negative results, and gave CI-4 $1,100 in
pre-recorded governm ent funds.
Surveillance agents then observed CI-4
approach the gas station. A short whilelater, Blum arrived at the gas station in a
red Lexus automobile. Blum got out of his
car and walked over to CI-4. Agents saw
CI-4 hand something to B lum. Blum
returned to his car, reached inside, andreturned to CI-4. Blum handed an object
to CI-4. CI-4 left the gas station andBlum drove away. CI-4 then met with
Agent Kent and gave him one ounce of a

substance that later tested positive forthe presence of cocaine.
On August 5, 2001, Agent Kent
subpoenaed telephone records for thetarget phone from the service provider. A
re v ie w o f th o se r ec o r d s sh o w s t ha t
between July 2, and August 2, 2001, theta rget p hone w a s used to m ak e a ndreceive a total of 1,144 calls. Of that total
number of calls, Agent Kent determinedthat the target phone was used to makecalls to the following telephone numbers:
1) 34 calls to the pager believed to be usedby Gerard, most recently on August 1,
2001; 2) 22 calls to a residential phone
subscribed to by Dorothy Gerard, mostrecently on July 23, 2001. Agents
conducting physical surveillance haveseen Gerard frequent this residence; and
3) 19 calls to a telephone at the Starlight
Motel, most recently on July 28, 2001.
Agents observed Gerard, “J-Boy,” andNancy Prim at the Starlight Motel on
July 22, 2001, and saw “J-Boy” at the
motel on July 28, 2001.
III. POST-APPROVAL PROCESS
Based upon the above facts, on August
10, 2001, the FBI agent and theprosecutor submitted an application anda n a f f id a v it 2 t o t h e D e p a r t m e n t o f
Justice, seeking approval to conduct
ele ctro nic sur ve illa n ce o ve r B lum ’ sphone—the target phone—in connection
with their investigation of federal drug
crimes being committed by Blum andothers. On August 12, 2001, theDepa rtment of Justice approved theapplication,3 authorizing the prosecutor
to seek a court order for the electronic
surveillance. On August 13, 2001, theprosecutor submitted the application andaffida vit to a judge for approva l. On
2

See Attachments A and B.

3

See Attachment C.

529

RESOURCE MATERIAL SERIES No. 59
August 13, 2001, the judge signed theorder4 granting authorization to intercept
wire communications over the targetp h o n e u se d b y B lu m to in v e sti ga t efederal drug violations being committed
by him and his co-conspirators.
IV. CONDUCTING THE
ELECTRONIC SURVEILLANCE
A. The Logistics
1. The Personnel
Conducting an electronic surveillance
investigation is a manpower intensive
operation, requiring the requisite numberof monitors (those persons who will beintercepting and recording thecommunications) and an adequate
number of law enforcement officers toprovide investigative assistance during
the course of the investigation.
Depending on the type of criminal
activity being investigated, thegovernment may want to monitor the
telephone or the location, 24 hours a day,seven days a week. In a typical drug
investigation, like the one describedabove, the government will monitor the
telephone on a constant basis and anissue will be whether the government canlocate and train enough monitors in order
to comply with Title III’s minimization
requirements as outlined in 18 U.S.C.
§2518(5). In addition to the hours during
which the interception will be conducted,
the government must determine if it willn e e d m o n ito rs w ho sp e a k a f o r e ign
language or who are conversant in thecoded language that the subjects may beusing to discuss their criminal activity.
Drug dealers often discuss their illegal
activities in coded terms. In one
investigation, the drug traffickers had
their own language, where they used4

See Attachment D.

530

numbers to represent the letters of thealphabet. By the end of the investigation,
the government had a complete
dictionary of coded words that the drug
dealers used.
M any tim es, the m onitors are notfederal law enforcement agents. Title III
permits the use of local and state police
officers and contract personnel (such as
foreign language translators) to monitor
the communications as long as they are
under the supervision of a federal agent.5
As to the req uisite num ber of la w
enforcement personnel, it is critical thatthe government has enough officers toengage in complimentary investigative
action to corroborate and support theelectronic surveillance evidence. Fore x a m p le , a s e x p l a i ne d a b o v e , d r u g
dealers often use coded language whenconversing with one another over the
telephone, and sometimes will use codewords that reflect legitimate businessactivities in which they may be involved.
In one recent case, the drug dealer owned
an auto repair shop. When the dealer
discussed his drug trafficking activities
over the telephone, he often usedterminology related to the auto repair
business. Physical surveillance of his
business was used to show that, despite
his claims that his calls were related to
his legitimate business, he had very few
customers, performed very little, if any,
auto repair work, and that his business
was often closed during normal businesshours. In addition, through physicalsurveillance, the agents were able to seize
a load of cocaine based upon a series ofcalls that were intercepted over the drug
dealer’s telephone, 6 in which the dealer
used word s r elated to h is business.
5

18 U.S.C. §2518(5); United States v. Lyons, 695
F. 2d 80 2 (4th Cir . 19 82 ); Uni ted State s v.
Manfredi, 488 F.2d 588 (2d Cir. 1973).

119TH INTERNATIONAL TRAINING COURSE
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W i th o u t p h y sic a l su r v e ill an c e , t h egovernment would not have been able tocontradict the drug dealer’s assertions
that his calls were innocent in nature, norwould it have been able to seize
corroborative evidence, in this case a loadof cocaine, of his drug dealing.
Intercepted communications, in and ofthemselves, are rarely enough to convictt he su b j e ct s o f th e c r im e s. R a t he r ,intercepted communications are a meansby which to e stablish re la tio nsh ip s
between individuals and to locate
evidence that will be used at trial to provet h e c r im e s . W i t h o u t c o r r o b o r a t i v ee vid enc e o b ta ined thro ugh p hysic alsurveillance and other investiga tive
techniques, the wiretap evidence has
little or no meaning to a trier of fact.
2. Where to Monitor theCommunications
Under Title III, a court can only issue
an order for communications that will beintercepted within its territorial
jurisdiction. 7 J udicial opinions havedefined the term “interception” broadly sothat it can occur in at least two places: 1)
where the interception (or initial captureof the commun ication s) will occur
technically for the first time (this is
usually the place where the premises are
physically located or where the telephone
is being used), or 2) where thecommunications will be redirected and6

18 U.S.C. §2517(1), (2) permit the disclosure ofel ectronic su rveillan ce evidence by law
enforcement officers to other officers while acting
in the proper performance of their duties. See also
United States v. Vento, 533 F.2d 838 (3rd Cir.
1976); United States v. Rabstein, 554 F.2d 190

heard or accessed by the government for
the first time (the monitoring location). 8
It is the policy of the Department ofJustice that if the government is going tolisten to, or access, the communications
in a jurisdiction where the premises are
not located or where the telephone is not
being used, there must be someinvestigative connection to thatjurisdiction, i.e., some element of thecriminal conspiracy is occurring there.
Usually, the telephone or the premises islocated in the same jurisdiction where thegovernment will be monitoring (i.e.,
listening to or accessing) thecommunications, but that is not always
the case. In the scenario outlined above,
subject Blum uses a cellular telephone in
two jurisdictions, Washington, D.C., andMaryland, to commit his drug trafficking
activities. It would be permissible under
Title III to obtain the court order in either
place. In this instance, it is likely thegovernment would obtain the court orderfrom a judge in the jurisdiction where it
can monitor the communications.
Given the mobility of cellular
telephones and the ability to access theInternet from anyw here, traditiona lnotions of jurisdiction and where aninterception of a communication actuallytakes place no longer apply. In the case ofcomputers, consider this example: thesubject lives in jurisdiction A, where he or
she orchestrates a nationwide criminal
conspiracy using his or her homecomputer; the Internet service provider
that processes the communications is injurisdiction B, where the communications
are captured or intercepted, in technicalterms, for the first time; and the law
enforcement agency investigating the(5th Cir. 1977). Section 2517 does not authorize
disclosure of wiretap information to foreign law
enforcement officers. United Kingdom v. United
7

8

United States v. Rodriguez, 968 F.2d 130 (2d Cir.
1992); United States v. Denman, 100 F.3d 399

States of America, 238 F.3d 1312 (11th Cir. 2001).

(5th Cir. 1996); United States v. Jackson, 207

18 U.S.C. §2518(3).

F.3d 910 (7th Cir. 2000).

531

RESOURCE MATERIAL SERIES No. 59
case is in jurisdiction C, where someelements of the criminal conspiracy are
occurring and where it has the technicalcap abi lit y t o acces s t he s ubject ’scommunications from the service
provider. Arguably, jurisdiction could lie
in all three of these places. Most likely,
the government would obtain the court
order authorizing the interception of thesubject’s communications in jurisdiction
A, where the subject is actually using theco m pute r to com m it the cr im es a nd
w h e r e h e o r sh e w ill u lti m a te l y b eprosecuted for them.
Consequently, when considering thecourt’s jurisdiction to authorize theinterception of communications in today’s
technically advanced world, it isi m p o r t a n t t o co n si d e r t h e t y p e s o fcommunication devices that criminals use
to facilitate their crim es, law
enforcement’s ability to intercept thosecomm unications,andthetelecommunication industry’s ability toa ssist la w enforcem ent in this a rea.
Jurisdiction is no longer a concept defined
strictly by geographical b oundaries.
Technology has erased those boundaries
and now permits criminals a global reach,allowing them to facilitate thecommission of crimes in places far from
where they may be.

investigation. The initial training of themonitors involves two components. First,
the monitors must read the affidavit thatwas submitted for approval so that they
understand the investigation, know who
the subjects are, and what crimes arebeing committed. Second, the prosecutor
must instruct the monitors about theproper minimization procedures. 9 The
m o n it o rs m u st no t o n ly a tt e m p t tominimize the interception of innocent
comm unications, but also they musta vo id inte rc ep ti ng co m m un ica ti on s
between persons and their attorneys,
between husbands and wives, between
d o c t o r s a n d p a t ie n t s, a n d b e tw e e nparishioners and clergy. 10 Additionally,
the prosecutor must instruct the monitors
ab out how long they can intercept a
com m unica tion to d eterm ine if it iscriminal in na ture, 1 1 what to do if a
privileged com municationwasintercepted inadvertently, and how tomaintain the recordings in a way that

9

See Attachment E.

10 18 U.S.C. §2517(4). It should be noted, however,that if an attorney, spouse, doctor, or clergyman isi nvol ved in the cri mi na l co nspi racy, thegovernment may intercept the communications.
For example, in alien smuggling cases, attorneys
are often used to obtain fraudulent documents forthe illegal aliens. In insurance fraud c ases,

B. The Role Of The Prosecutor
1. Training the Monitors
The p rosecutor and the lead
investigating agent are responsible fortraining the monitors, those persons whowill be intercepting, listening to, andr ec ord ing the co m m unica tio ns. Th emonitors may not be law enforcement
agents, but could be support personnel
who wor k for the law enfo rcem ent
agency, foreign language translators, or
local police officers with no experience in
conducting an electronic surveillance532

doctors are often co-conspirators by performing
unnecessary medical procedures or providing
false documentation to support an insurance
claim. See United States v. Zolin, 491 U.S. 554(1962) (crime fraud exception to attorney-client
privilege); United States v. Dube, 820 F.2d 886(7th Cir. 1987)(clergy-penitent privilege did not
apply where person was seeking relief from his
obligation to pay taxes); United States v. Gotti,
771 F. Supp. 535 (E.D.N.Y. 1991) (o utline s
elem ents of a privileged attorn ey- cli ent
relationship); United States v. Cooper, 2000 WL
135248 (D.D.C.) (crime fraud exception applies tomarital communications).

119TH INTERNATIONAL TRAINING COURSE
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will preserve their integrity for use laterat trial.
Onc e the inte rcep tion be gins, theprosecutor and the lead agent will need tocontinue to ad vise the monitors,
particularly any new monitors, aboutdevelopments in the case of which they
are not aware. For example, they willn e e d t o i n f o r m t h e m o n it o r s o f : 1 )patterns of innocent conduct that aredeveloping and the need to minimize theinterception of communications relating
to it; 2) whether the subjects are involvedin crimes that were not listed in the
court’s order; 3) whether new subjects
h a v e b e e n id e n t if i e d ; 4 ) w h e t he r a
p r iv i l e g e d r e la t io n s h ip n o w e x i st s
involving any of the subjects; and 5) the
identification of locations that may be
used by the subjects to facilitate theircrimes.
2. Submission of Progress Reports
When the government applies for an
order to conduct electronic surveillance,
the judge routinely orders the prosecutor
to submit progress reports to him or her
every ten days during the 30-day
a u t ho ri z a t i on p e ri od . 1 2 Th er e is n ostandard format for progress reports but,
typically, they include information about:1) the total number of communications
intercepted; 2) the number ofco m mun ic atio ns that re late d to th e
11 The monitors often use a procedure called “spotmonitoring,” whereby the monitor will listen to atelephone call or face-to-face conversation for ash ort peri od of ti m e to d eterm i ne if th ecommunication is criminal in nature. If the call orconversation does not appear to be criminal, thec r im e s u n d e r i nv e st i g a t i o n ; 3 ) t h enumber of innocent communications
intercepted; 4) whether any new subjects
have been identified; 5) whether there
ha ve been seizures of contraba nd orarrests of any of the subjects; 6) whether
communications about crimes not listed
in the order were intercepted; 7) whether
there have been technical problems with
the interception; and 8) why theg o v e r n m e n t n e e d s t o c o n t in u e t h einterception to meet its investigative
goals.
Progress reports are meant to keep thejudge a pprised of d eve lopm ents andproblems in an electronic surveillance
investigation, thereby giving the judge
the opportunity to exercise his or her
discretion and terminate theinterceptions if the judge determines thatthe investigative goals have been met, orthat the government is not conducting theinterceptions in a lawful manner.
3. Providing Legal Advice and Support
The prosecutor should be an active
participant in the conduct of theelectronic surveillance, by supervisingand advising the law enforcement agents
conducting the investigation. Often,
problems will arise that require a legal
opinion that the law enforcement officers
are incapable of making because theylack the experience or training.
Generally, the prosecutor’s role is toensure the admissibility of the evidence
at trial, to ensure the development of thebest evidence, and to make sure that theele ctronic surveillance is conducted
prop erly. Consider the following
examples.

monitor will cease interceptions for a brief periodof time, and then resume listening to the call orconversation once again. This process may berepeated several times during the interception ofa call or conversation.
12 18 U.S.C. §2518(6).

Many times during a Title III
in ve s tig at io n, th e g o ve r nm e nt wil lintercept communications about crimes
that were not listed in the court’s order. If
the government wants to be able to use

533

RESOURCE MATERIAL SERIES No. 59
this evidence later, the prosecutor must
apply to the court for an order allowing
the government to use thesecommunications in furtherance of its
investigation, particularly in any court
p ro cee ding that m a y arise fro m theinvestigation.13 For instance, if the court
order authorized the interception ofcomm unications related to drugtrafficking, and telephone calls aboutp r o s t i tu t i o n w e r e i n te r c e p t e d , t h eprosecutor must submit an application to
the judge asking permission to be able touse the prostitution calls in its
investigation of the sub jects, a nd to
disclose the contents of those calls at a
subsequent trial of the subjects. In theinvestigation outlined above, it is likelythat conversations about crimes related
to the subjects’ drug-trafficking activity
will be intercepted. Given the subjects’
propensity for violence, the government
may intercept calls about attempts tocommit acts of violence in connection withthe subjects’ drug business. Likewise, thegovernment would have to obtain a court
order allowing it to use these calls in its
prosecution of the subjects. Alternatively,
if the government wants to extend theelectronic surveillance investigation
beyond the first 30 days of interceptions,the government may seek to expand its
investigation by including information
about these new crimes in the application
and affidavit in support of the extension
order. The judge may then issue an orderauthorizing the government to continue
to intercept communications about thesecrimes for a 30-day period.
It is also common during the course ofa n e le ctro nic surve illance nar cotics
investigation that the law enforcement
agents will develop evidence about where
drugs are being stored or how they arebeing transported, and the prosecutor

must advise the agents how to seize that
evidence legally, without compromising
the on go ing e lec tro nic s urv eillan ce
investigation. For example, thegovernm ent may intercept calls
indicating that a load of drugs will betransported in a vehicle from one location
to a n o th er . Giv e n d r ug tr a f f ic k er s’na tural wa riness that they could beunder investigation, the prosecutor andthe agents must decide when and how to
seize the drugs without alerting the
sub jects of the on going electronics ur v e il la n c e i n v e s ti g a t i o n . I n th i sscenario, the prosecutor could advise theagents to give a description of the vehicle
to the local police, telling them that thevehicle may contain drugs, 14 and ask
them to stop the vehicle on a pretext,
such as a traffic infraction.15 The police
officer could then ask the driver of thevehicle to consent to a search of the car. If
the driver does consent to the search,w h ic h i s c o m m o n , t he o f f ic e r co u ld
discover and seize the drugs.
When contemplating this action, theprosecutor must consider whether toadvise the local police to arrest the driver
if drugs are found. An arrest andsubsequent prosecution of the driver may
require divulging the existence of theongoing electronic surveillance
investigation before the government’s
in ve s tig at ive g o als ha ve be e n m e t,
because the primary reason the vehicle
was stopped was based on informationfrom the wiretap that the vehicle
contained drugs. In the investigation
outlined herein, there is another, moresinister risk. Given Gerard’s propensity
for violence, he may take retaliatory
action against the driver, if the drivercannot show that the drugs were seized
14 18 U.S.C. §2517(1).
15 Arkansas

13 18 U.S.C. §2517(5).

534v. Sullivan, 121 S.Ct. 1876 (2001)(pretext stops are permissible).

119TH INTERNATIONAL TRAINING COURSE
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by law enforcement. Gerard, suspectingthat the driver kept the drugs for himself,
may harm him.
C. The Role Of The Judge
When Congress enacted Title III, it
contemplated, by permitting or requiringt h e j u d g e t o a ss u m e c e r t a i n
responsibilities, that the judge who issued
the order authorizing the electronic
surveillance would be an active participant
in the investigation. Specifically, a s
discussed above, Title III permits the judge
to require that the prosecutor submit
p r og re ss re p o rt s d u rin g the 3 0 - d a yinterception period. In addition, if thegovernment intercepts communications
about crimes not authorized forinterception in the order, the government
must obtain permission from the judge tou s e t h o se c o m m u n ic a t i o n s in i t sinvestigationandp r o s e c u ti o n .
Additionally, the judge must order therecordings of the communications sealedf o r sa f e k e e p in g , a n d d i r e c t t h egovernm ent’s e ffo rts to notif y those
persons who were intercepted during thecourse of the electronic surveillance
investigation that they were the subject ofa wiretap.
Not only does Title III encourage ajudge’s active pa rt ici pati on in anelectronic surveillance investigation, butappellate courts are more forgiving ofgovernment mistakes or missteps in anelectronic surveillance investigation if thesupervising judge was awa re of, andcondoned, the government’s actions.16

16 United

States v. Bascaro, 742 F.2d 1335 (11thCir. 1984) (court authorized interceptions toco ntin ue o ver a te le pho ne w i th a di ffe r ent
telephone number); United States v. Ozar, 50
F.3d 1440 (8th Cir. 1995) (court approved thegovernment’s minimization procedures).

V. TERMINATION OF THE
INVESTIGATION
A. Policy Considerations
I n e v er y in ve s tig atio n , a t en sio nalways exists between tolerating ongoing
criminal activity known to have adevastating effect on individuals and thecommunity at large, and the need toaccumulate enough evidence to dismantle
the criminal organization and toprosecute the subjects successfully. For
instance, in a drug investigation, theintercepted communications and theaccompanying physical surveillance showthat cocaine is being sold on a daily basis
fr om a n a b a nd one d b ui l d in g ne a r aschool, and that this activity is putting
children at risk. In alien sm uggling
investigations, there is evidence that theillegal a liens a re be ing sub je cted todangerous conditions that might result intheir death. Child pornography
investigations may reveal that ap e d op h ile is c o nt ac tin g p o te nt iallyhundreds of children a month. In the
scenario set forth above, drug trafficker
Gerard has exhibited a willingness to use
violence in connection with his drugtrafficking activities, and retaliatory
action by unknown persons resulted inadditional deaths.
Occa siona lly, during an electronic
surveillance
investigation,
co mmunica tions ma y be intercepted
where the subjects are planning to killsomeone. Most of the time, the intended
vic tim i s a n o the r cr im i na l . I n tha t
instance, the law enforcement agency has
an obligation to warn the intended victim,
offer protection, and continue to monitor
the situation through the interception ofcommunications and other investigativetechniques. Other times, the intended
victim may be a law enforcement officer
or an innocent bystander, and there may
or may not be prior notice of the crime.

535

RESOURCE MATERIAL SERIES No. 59
In one investigation of a group of drugtraffickers, the government learned thatthe subjects were planning the murder ofa law enforcement officer who had been
instrumental in the conviction of one
their co-conspirators. The government
w anted to continue to the electronic
surveillance investigation of the subjects’d r u g- tr a f f i ck i ng ac ti vi tie s w hi le it
attempted to thwart the threat against
the officer’s life. Through the use of aconfidential informant, the government
was able to fake the officer’s death to thes a t is f a c ti o n o f t he su b j e c t s, a n d it
co ntinue d its inve stigatio n into thesubjects’ drug activity until it
accumulated enough evidence to convict
every member of the conspiracy.
In a public corruption investigationthat was conducted several years ago, theFBI intercepted calls over a cellular
telephone used by a corrupt local police
off icer. During one call, the FB I
intercepted a conversation between thep o l ice o f f i c e r a n d a c o - co n s p i r a t o r ,w he r e in th e of f i ce r o r d e re d th e c o conspirator to kill a woman who had filed
a c o m p l a i nt a g a i ns t hi m . T h e c a l l,
however, did not reveal enough details
about the intended murder victim or
where the murder was to occur. The FBI
learned later that the co-conspirator
killed the woman shortly after the calle nd e d . T h e e le ct r o n i c su r v e il la n c e
i nv e s ti ga ti o n w a s t e r m in a te d s o o nthereafter, and the police officer and his
co-conspirators were arrested. At somepoint, the risk of further investigation
outweighs the benefit of accumulating
additional evidence against the subjects.
B. Legal Requirements And
Practical Considerations
Title III requires that an electronics ur v e ill an ce in v e sti ga tio n m u st b e
t er m in a te d w h e n th e g o ve r nm e nt ’s
defined investigative goals have been536

met, i.e., the identification of a drug
supplier, sufficient evidence of a fraud
co nsp ir a cy, or the in terc ep tion o f aparticular criminal event. 17 When thegovernment is ready to end the electronicsu rv e ill an ce in ve s tig at io n, it m us t
perform certain administrative tasks
required by Title III, and formulate apla n tha t w ill result in the grea test
num be r of ar re sts and se izure s o fevidence.
1. Administrative Tasks
At the end of every electronic
surveillance investigation, thegovernment must seal the recordings ofthe intercepted communications, andnotify the subjects that they were thetargets of the wiretap.
As to sealing the recordings, Title III
requires that the government seal theoriginal
record ings
ofthecommunications immediately upon thetermination of the electronic surveillance
investigation in order to protect theirauthenticity and integrity for use attrial.18 In order to seal the recordings, thegovernment makes the recording savailable to the judge for inspection.19 If
the judges waive inspection of the tapes,
or after he or she inspects them, the tapes
are placed in containers and sealed. Afterthe containers are sealed, the judge, theprosecutor, and the lead investigative
agent initial and date each container. The
judge then issues an order, directing thelaw enforcement agency to maintain thesealed tapes in a secure location. Sealingof the recordings can be a n arduous
undertaking if the electronic surveillance
investigation has involved numerous
17 18 U.S.C. §2518(5).
18 18 U.S.C. §2518(8)(a).
19 United States v. Abraham, 541 F.2d 624 (6th Cir.

1976); United States v. Kincaide, 145 F.3d 771(6th Cir. 1998).

119TH INTERNATIONAL TRAINING COURSE
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telephones and locations, and spanned
several months. If the government fails toseal the tapes or fails to seal them in at im e l y m a n ne r , a n d c a n n o t o f f e r asatisfactory explanation for the delay or
failure to seal, the court may find thateither the defendant was prejudiced by
the government’s actions or that the
tapes were tampered with, and exclude
the evidence from the trial.20
Wit h reg ard t o t he notification
requirement, Title III and related judicial
opinions mandate that the government
no tify the subje cts of the electronic
surveillance that they were either named
as subjects in the court order or that theircommunications were intercepted during
the electronic surveillance investigation.21
Specifically, the government informs the
subjects whether the court granted its
application to conduct the surveillance
and, if so, the date of the court order,when the interceptions occurred, andwhether their com munica tions wereintercepted. Occasionally, the government
may not be able to identify all of thepersons who were intercepted during thecourse of the electronic surveillance and,
therefore, cannot provide them w ith
notice. In the investigation outlined
above, “J-Boy” may never be identified byhis true name, and if he was intercepted
during the investigation, he may neverreceive notice of it. O f course, if thegovernment cannot identify him, he will
not be prosecuted for his role in theconspiracy.
20 United

States v. Gangi, 33 F. Supp.2d 303(S.D.N.Y. 1999) (two-day delay in sealing thetapes was legally acceptable); United States v.
Wilkinson, 53 F.3d 757 (6th Cir. 1995) (court
found no prejudice to the defendant, tamperingwith the recordings, or any effort to gain a tacticaladvantage by failure to seal the recordings in atimely manner).
21 18 U.S.C. §2518(8)(d).

2. How and When to Terminate theInvestigation
The type of criminal organization underinvestigation will dictate how and when
the sub jec ts a re a rre sted a nd w he nlocations are searched for contraband or
documentary evidence. In cases involving
drug organizations, gangs, and aliensmuggling, for example, it is imperative tocoordinate the arrests and the searches onth e s a m e d a y, e v e n if th e c r im in a lorganization is a nationwide one withpersons and locations in different parts ofthe country. Once the existence of theinvestigation has become known, subjects
a r e m or e lik e ly to f le e a n d d e str o yevidence. Therefore, the largest number ofarrests and seizures of evidence will occur
if they a re d one sim ulta neo usly. T ofacilitate the “takedown” of a case, it isoften helpful to continue the electronic
surveilla nce inve stiga tio n a fter theindividuals have been arrested. It is notuncommon to intercept communicationsa b ou t th e id en tities o f sub j ec ts n ot
previously known to law enforcement or
locations where contraband is being stored
during the period after the takedown.
Under American jurisprudence, continuing
to intercept the communications of those
persons who have been arrested does not
violate the individual’s constitutionalrights against self-incrimination or right tocounsel.22
VI. TRIAL PREPARATION
A. Evaluating The Evidence
O n c e t h e e le c t r o n i c s u r ve il l a n c einvestigation has been terminated, theprosecutor must evaluate the evidence
and review how the investigation was
conducted. The prosecutor must
22 United

States v. Poeta, 455 F.2d 117 (2d Cir.

1972); United States v. Wong, 40 F.3d 1347 (2dCir. 1994); Patterson v. Illinois, 487 U.S. 285(1988).

537

RESOURCE MATERIAL SERIES No. 59
de termine if all of the technicalrequirements of Title III were met and, if
not, whether the technical violations arefatal to the case. It is the general rulethat if the government acted in good faithand without a reckless disregard for the
statute, wiretap evidence w ill not be
suppressed as long as the defendant was
not prejudiced by the errors. 23 On rareoccasions, the courts have suppressed
evidence when the affidavit supporting
the government’s request for the wiretap
contained misleading statements, 24 orwhen law enforcement agents made a
conscious decision not to comply withcertain provisions of Title III.25
B. Discovery Obligations Under
Title III
Und er 18 U.S .C . §2 518 (9), thegovernment must provide the defendantwith a copy of the application and orderunder which the electronic surveillance
was approved ten days before the trial,
hearing, or proceeding, at which evidenceof the communications will be
introduced.26 The purpose of thisprovision is to give the defendant “anopportunity to make a pretrial motion to
suppress” the evidence.27 It is within the
court’s discretion to order the government
to provide any other documentation,
includ ing the recordings of theco m m unic a tio ns the m se lve s, to thedefendant at this time.28
While section 2518(9) provides thedefendant with a right to the application,order, and related documents, section
2 5 1 8 ( 8 ) ( b ) m a k e s it c le a r t h a t t h edefen da nt is entit led to on ly th atevidence which is relevant to his or her
defense and is not prot ected fromdisclosure by some other right or
privilege. In some instances, courts haveordered information redacted from thea p p li ca ti o n a n d o r d e r b e f o r e t ho se
docum ents were provided to thedefendant.29
With regard to the recordings of theco mmunications, general rules of
discovery require that the government
provide the defendant with copies of thoserecordings which are relevant to his or
her defense. Typically, the government
will provide copies of all of the recordings

23 United States v. Donovan, 429 U.S. 413 (1977);

United States v. Ozar, 50 F.3d 1440 (8th Cir.

26 In

re Grand Jury Proceedings, 841 F.2d 1048

1995) (inadvertent interception of attorney-client(11th Cir. 1988) (the terms “application” andcommunications); United States v. Estrada, 1995

“order” include other related documents, such as

WL 577757 (S.D.N.Y) (inaccurate summaries of
conversations was careless but there was nointentional disregard for the truth); United States
v. Velazquez, 1997 WL 564674 (N.D. Ill.) (mistake
in initial identification of a subject did no t
constitute a k now ing false stateme nt and a
reckless disregard for the truth).
24 United

States v. Aileman, 986 F. Supp. 1228

(N.D. Cal. 1997).
25 United

States v. Luong, No.CR-94-0094 MHP

the affidavit and progress reports).
27 United

States Senate Report No. 1097, 90th

Congress, 2d Session, 1968.
28 18 U.S.C. §2518(10)(a); United States v. Orena,

883 F. Supp. 849 (E.D.N.Y. 1995).
29 United States v. Yoshimura, 831 F. Supp. 799 (D.

Hawaii 1993) (when revelation of the informationi s n ot n eces sa ry to the de fe nse an d m ay
jeopardize the safety of confidential informants, itdoes not have to be revealed to the defendant);(N. D. Cal. 7/14/98) (un pu blish ed) (lawUnited States v. Brown, 539 F.2d 467 (5th Cir.

enforcement officer admitted that he did not1976) (privacy rights of third parties who may bepe rform the chec k fo r prior applications asaffected by the disclosure of the information must

required by 18 U.S.C. §2518(1)(e) because it

be considered); United States v. Buckley, 586 F.2d

would have taken too much time.).

498 (5th Cir. 1978) (same).

538

119TH INTERNATIONAL TRAINING COURSE
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to the defendant to forestall any latera rgum ent by the defenda nt that the
government withheld evidence that might
have been exculpatory or helpful to thedefendant’s case.
VII. CONCLUSIONAs demonstrated herein, electronic
surveillance is a valuable technique to
use to combat crime. Congress, whileallowing law enforcement to use this very
invasive technique, has proscribed themanner in which it can be used,attempting to design a legal regime that
protects the individual from unnecessary
invasions into privacy and according theindividual certain due process rights tochallenge the evidence against him or
her.

539

RESOURCE MATERIAL SERIES No. 59

ATTACHMENT A
UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
IN THE MATTER OF AN
APPLICATION FOR AN ORDERAUTHORIZING THE INTERCEPTION
OF WIRE COMMUNICATIONSAPPLICATION FOR
INTERCEPTION OF WIRECOMMUNICATIONS
Lois Lane, an Assistant United States
Attorney, District of Columbia, being
duly sworn, states:
1. I am an investigative or law
enforcement officer of the UnitedStates within the meaning of Section
2510(7) of Title 18, United States
Code, that is, an attorney authorized
by law to prosecute or participate in
the p rosecution of offenses
enumerated in Section 2516 of Title
18, United States Code.
2. This application is for an orderpursuant to Section 2518 of Title 18,
United States Code, authorizing theinterception of wire communications
until the attainment of the authorized
objectives or, in any event, at the endof thirty (30) days from the earlier ofthe day on which the investigative orlaw enforcement officers first begin to
conduct an interception under the
Court’s order or ten (10) days after
the order is entered, of Gene Blum,
Robert Gerard, Katrina Karr, Nancy
P rim , “J -B oy, ” and o the rs a s yet
unknown to and from the telephone
bearing the number (202) 514-1234
and ESN 12CE568L, and subscribed
to by Julio Iglesias, 123 Main Street,

540

N.W., Washington, D.C., (hereinafter,
the “Target Telephone”) concerning
offenses enumerated in Section 2516
of Title 18, United States Code, thatis, offenses involving violations ofTitle 21, United States Code, Sections
841, 843, and 846, that are beingcommitted by Gene Blum, Rob ert
Gerard, Katrina Karr, Nancy Prim,“J- B oy” ( her einafte r the “Targe t
Subjects”), and others as yet
unknown.
3. Pursuant to Section 2516 of Title 18,
United States Code, the Attorney
General of the United States ha s
specially designated the AssistantAttorney General, any A cting
Assistant A tto rney Genera l, any
Deputy Assistant Attorney General or
any acting Deputy Assistant Attorney
General of the Criminal Division to
exercise the power conferred on the
Attorney General by Section 2516 of
Title 1 8 , U nite d S ta te s C o de , toauthorize this Application. Under the
power designated to him by special
designation of the Attorney Generalpursuant to Order Number 2 4072001, dated March 8, 2001, an
appropriate official of the Criminal
Division has authorized thisApplication.
4. I have discussed all of thecircumstances of the above offenses
with Special Agent Clark Kent of theFederal Bureau of Investigation, who
ha s d ire ct ed a nd co nd uc te d th isinvestigation and have examined theAffidavit of Special Agent Kent, which
is attached to this Application and isincorporated herein by reference.
B a se d u p o n tha t A f f id a vit , yo ur

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
applicant states upon information
and belief that:a. there is probable cause to believet ha t t he T a rg et S ub je ct s a n dothers as yet unknown havecommitted, are committing, andwill continue to commit violationsof Title 21, United States Code,
Sections 841, 843, and 846.
b. there is probable cause to believe
thatparticularwire
com munications of the Target
Subjects concerning the abovedescribed offenses will be obtained
through the interception of wirecommunications. In particular,
these wire communications willconcern the distribution of cocaine
and heroin, the identities of coconspirators, the sources of supply
for the drugs, and the methods bywhich the Target Subjects carryout their ille ga l activities. In
addition, the communications are
expected to constitute admissible
evidence of the commission of theabove-stated offenses;
c. normal investigative procedures
have been tried and failed,reasonably appear to be unlikely
to succe ed if tried , o r are to odangerous to em ploy, as is
described in further detail in theattached Affidavit;
d. there is probable cause to believethat the Target Telephone is being
used and will continue to be usedin connection with the commissionof the above-described offenses.
5. The applicant is aware of no previous
applications made to any judge forauthorization to intercept the oral,
wire or electronic communications
involving any of the same persons,facilities, or premises specified in thisapplication.

WHEREFORE, your applicant believes
that there is probable cause to believethat the Target Subjects and others as yet
unknown are engaged in the commissionof offenses involving Title 21, UnitedStates Code, Sections 841, 843, and 846,
and that the Target Subjects and others
yet unkno wn are using the T arge t
Teleph on e in con n ect ion w it h th e
co m m i ss io n o f t he a b o ve - d e sc r ib e doffenses; and that wire communicationsof the Target Subjects and others yet
unknown will be intercepted over theTarget Telephone.
Based on the allegations set forth in
this application and on the affidavit ofS p e c i a l A g e n t K e n t, a t t a c h e d , t h eapplicant requests this court to issue anorder pursuant to the power conferred
upo n i t b y S ecti on 25 1 8 o f T it l e 18 ,United States Code, authorizing agents of
the Federal Bureau of Investigation, ando f f ic e r s o f th e M e tr o p o l it a n P o l ic e
Department and the Prince George’s
County Police Department, and contract
personnel under the supervision of afederal agent, to intercep t wirecommunications to and from the Target
Telephone until such communications areintercepted that reveal the manner inwhich the Target Subjects and others
unknown participate in the specified
offenses and reveal the identities of theircoconspirators, places of operation, andnature of the conspiracy, or for a period of
30 days measured from the day on which
the investigative or law enforcement
officers firs t begin to conduct theinterception or ten days from the date ofthis order, whichever occurs first.
IT IS REQUESTED FURTHER thatthe authorization given be intended toapply not only to the target telephone
number listed above, but to any changed
telephone number subsequently assigned
to the instrum ent bea ring the sa me

541

RESOURCE MATERIAL SERIES No. 59
electronic serial number (ESN) as theTarget Telephone within the thirty (30)day period. It is also requested that theauthorization be intended to apply tobackground conversations intercepted in
the vicinity of the target telephone while
the telephone is off the hook or otherwise
in use.)IT I S REQUESTED FUR THE R,
pursuant to Title 18, United States Code,
Section 2518(3), that in the event that theTarget Telephone is transferred outside
the territorial jurisdiction of this Court,
interceptions may take place in any otherjurisdiction within the United States.
IT IS REQUESTED FURTHER that
this Court issue an order pursuant to
Section 2518(4) of Title 18, United States
Code, directing Killion Communications,an electronic communications service
provider as defined in Section 2510(15) ofTitle 18, United States Code, to furnish
a nd continue to furnish the Federal
Bureau of Investigation with all
informa tion, facilities and technicalassistance necessary to accomplish theinterceptions unobtrusively and with aminimum of inter ference with theservices that such provider is according
the persons whose communications are to
be intercepted, and to ensure an effective
a nd secure installation of electronicd evices capa ble of intercepting w ire
communications over the above-described
telephone. The service provider shall bec ompen sated b y the Appl ican t forreasonable expenses incurred inproviding such facilities or assistance.
IT IS REQ UESTED FURTHE R, toavoid prejudice to this criminal
investigation, that the Court order theprovider of electronic communication
service and its agents and employees not
to disclose or cause a disclosure of thisCourt’s Order or the request for

542

information, facilities, and assistance by
the Federal Bureau of Investigation or
the existence of the investigation to any
person other than those of their agentsand employees who require thisinformation to accomplish the services
requested. In particular, said provider
and its agents and employees should beordered not to make such disclosure to alessee, tele phone sub scriber, or a ny
participant in the interce pted
communications.
IT IS REQUESTED FURTHER thatt h i s C o u rt d ir e ct t h a t i t s O r d e r b e
executed as soon as practicable after it issigned and that all monitoring of wirecommunications shall be conducted insuch a way as to minimize theinterception and disclosure of thecommunications intercepted to thosecommunications relevant to the pending
investigation, in accordance with theminimization requirements of Chapter
119 of Title 18, United States Code. Theinterception of w ire communications
authorized by this Court’s Order mustterminate upon at tainment of theauthorized objectives or, in any event, atthe end of thirty (30) days measured fromthe day on which investigative or law
enforcement officers first begin to conduct
an interception or ten (10) days after theOrder is entered.
M onitoring of conversa tions must
immediately termi nate wh en it isdeterm ined that the conversa tio n isunrelated to communications subject tointerception under Chapter 119 of Title
18, United States Code. Interception
must be suspended immediately when itisdeterminedthroughvoice
identification, physical surveillance, oro t he rw i se , t h a t n o n e o f th e n a m e dsubjects or any of their confederates,when identified, are participants in theconversation unless it is determined

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
during the portion of the conversation
already overheard that the conversationis criminal in nature.
IT IS REQUESTED FURTHER that
the Court order that either the applicant
or any other Assistant United States
Attorney familiar with the facts of thecase provide the Court with a report on or
about the tenth, twentieth, and thirtiethdays following the date of this Ordershowing what progress has been madetoward achievement of the authorized
objectives and the need for continued
interception. If any of the aforementioned
reports should become due on a weekend
or holiday, it is requested further thatsuch rep ort be come due on the next
business day thereafter.
IT IS REQUESTED FURTHER that
the C ourt ord er that its Orde r, thisa p p l ic a t i o n a n d t h e a c c o m p a n y i n gaffidavit and any other orders, and allinterim reports filed with the Court withregard to this matter be sealed until
further order of this Court, except that
copies of the Order(s), in full or redacted
f orm, ma y b e se rve d o n the F ede ral
Bureau of Investigation and the service
provider as necessary to effectuate the
Court’s Order as set forth in the proposedorder accompanying this application.
DATED this 13th day of August, 2001.
Lois Lane
Assistant United States Attorney
SUBSCRIBED and SWORN to before
me this13th day of August, 2001.
UNITED STATES DISTRICT COURTJUDGEDISTRICT OF COLUMBIA

543

RESOURCE MATERIAL SERIES No. 59

ATTACHMENT B
UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
IN THE MATTER OF THE
APPLICATION OF THE UNITEDSTATES OF AMERICA FOR AN ORDERAUTHORIZING THE INTERCEPTION
OF WIRE COMMUNICATIONSAFFIDAVIT IN SUPPORT OF
APPLICATION
Introduction
Clark Kent, being duly sworn, deposesand states as follows:
1. I am a Special Agent with the Federal
B ure a u o f Inve s t i ga ti o n ( “ FB I ”) ,United States Department of Justice.
I have been so employed by the FBI
since August 1994. Since becoming aSpecial Agent, I have participated innumerous criminal investigations,
including investigations into
suspected narcotics trafficking. For
th e p a st f iv e ye a r s, I h a ve b e e n
assigned to the Washington, D.C.,
resident agency of the FBI, where I
am responsible for investigations
focusing on the distribution of
narcotics by violent drug trafficking
organizations. In that time, I havep a rti ci p a te d in the e x e cu tio n o f
numerou s search warrants andarrests, and have been the affiant on
three previous affidavits submitted ins u p p o r t o f t h e a u t h o r iz a ti o n t ointercept wire communications. As
such, I am familiar with the operationof illegal drug trafficking
organizations, and the methods used
to distribute narcotics.

544

2. I am an investigative or law
enforcement officer of the UnitedStates within the meaning of Section
2510(7) of Title 18, United States
Code, and am empowered by law to
conduct investigations and to makearrests for offenses enumerated in
S ec ti on 2 5 1 6 o f T it l e 1 8 , Un ite dStates Code.
3. This affidavit is submitted in supportof an application for an orderauthorizing the interception of wirecommunica tions occurring to a ndfrom a cellular telephone bearing thenumber (202) 514-1234, electronic
serial number (“ESN”) 12CE568L,
and subscribed to by Julio Iglesias,
123 Main Street, N.W., Washington,
D.C., 20005 (hereinafter referred to as“the target telephone”). As will be set
forth below, the investigation has
revealed that this phone is being usedby Gene Blum, aka “Little G.”
4. I
have
participatedintheinvestigation of the offenses set forth
below. As a result of my personalparticipation in this investigation,
through interviews with and analysisof reports submitted by other Special
Agents of the FBI, as well as others t a t e a nd l oc a l l a w en fo r ce m en t
personnel, I a m familiar with a ll
aspects of this investigation. On thebasis of this familiarity, and on thebasis of other information which I
have reviewed and determined to bereliable, I allege the facts to show
that:a. there is probable cause to believethat GENE BLUM, aka “Little G,”
ROBERT GERARD, KATRINA
KARR, aka “Kay Kay,” NANCY119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
PRIM, aka “Sweet Nancy,” First
Name Unknow n (FNU) Last
Name Unknown (LNU), aka “JBoy,” (hereinafter referred to as“the target subjects”) and others
as yet unknown have committed,
are committing, and will continue
to commit offenses involving the
distribution of, and possession
with intent to distribute narcotics,
including cocaine and heroin, theuse of communications facilities tofacilitate narcotics offenses, andconspiracy to commit the above
offenses, in violation of Title 21,
United States Code, Sections 841,
843(b), and 846.
b. there is probable cause to believe
thatparticularwire
communications of Gene Blum,
Rob ert G erard, K atrina K arr,
Nancy Prim, “J-Boy,” (hereinafterreferred to as the “interceptees”),
and others as yet unknown,concerning the above offenses will
be obtained through theinterceptionofsuchcommunications to and from thetarget telephone.
5. In particular, these communications
are expected to concern the specificsof the above offenses, including (i) thenature, extent and methods of thenarcotics distribution business of thetarget subjects and others; (ii) thenature, extent and method s ofop eratio n o f the drug tra fficking
business of the target subjects andothers; (iii) the identities and roles ofaccomplices, aiders and abettors, coconspirators and participants in theirillegal activities, including sources ofsupply fo r the narco tics; (iv) thed is tr ib u t i o n a nd t ra ns f er o f t h econtraband and money involved inthose activities; (v) the existence andlocation of records; (vi) the locationa n d s o u rc e o f r e so u r c e s us e d t ofinance their illegal activities; (vii) the
locat ion an d dis positi on of t heproceeds from those activities; and(viii) the locations and items used infurtherance of those activities. In
addition, these wire communications
are expected to constitute admissible
evidence of the commission of theabove-described offenses.
6. The statements contained in thisaffidavit are based in part onin fo rm atio n pr ov ide d by Sp ec ial
Agents of the FBI, on conversations
held with detectives and officers from
the Metropolitan Police Departmentof Washington, D.C., and the Prince
George’s County Police Department,
on information p rovided byconfidential sources and a named
source, and on my experience andbackground as a Special Agent of theFB I. S ince this affida vit is b eing
submitted for the limited purpose of
securing authorization for theinterception of wire communications,
I have not included each and every
fact know n to me concerning thisinvestigation. I have set forth only thefacts that I believe are necessary toestablish the necessary foundation for
an order authorizing the interceptionof wire communications.
PERSONS EXPECTED TO BE
INTERCEPTED
7. Gene Blum: As set forth in moredetail below, Blum, the user of thetarget telephone, has been identified
through source information as being a
me mb er of R ob ert G era rd’ s drug
distribution “cre w.” The FBI has
con ducted c ontr oll ed n ar cot ics
purchases with Blum.

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RESOURCE MATERIAL SERIES No. 59
8. Robert Gerard: Gerard has been
identified through source information,
set forth below, as the leader of a
Washington, D.C.-based narcotics
distribution network that sells multikilogram quantities of cocaine andheroin. Gerard resides in the Keeney
Heights area of Washington, D.C.,
and is believed to be responsible forthe murder of one of his narcotics
customers, who had failed to pay adrug deb t. A t this tim e, Gerard’s
narcotics suppliers are unknown.
9. Katrina Karr: In December 1994,
Karr was convicted of possession of
cocaine with intent to distribute in
Raljon, Maryland, and was sentenced
to two years incarceration and five
years probation. Karr is currently on
probation. Karr has been identified byconfidential sources as a member ofGerard’s narcotics distribution “crew.”
10. Nancy Prim: Prim has been identified
through source information, as set
forth below, as a member of Gerard’s“crew.” Prim has also been observed
accompanying Gerard and Blum to
the Starlight Motel, which Gerard
and Blum use as a location to conductnarcotics transactions.
11. FNU LNU, aka “J-Boy”: Several
confidential sources have stated that
J-Boy, who has not yet been
identified, is a narcotics distributor
for Gerard.
FACTS AND CIRCUMSTANCES
12. On February 22, 2001, your affiant
interviewed a confidential informant(“CI-1”). CI-1 has provided reliable
information in other investigations,and in those investigations, bought
drugs and introduced undercoveragents to the targets of those546

investigations. CI-1’s information has
been used previously in arrest andsearch warrants. The informationthat CI-1 has provided in this casehas been corroborated by physicalsurveillance of the subjects,
info rm a tio n f ro m o the r, re lia b leconfidentia l inf orma nts, and theanalysis of telephone records. CI-1
has a prior conviction for possessionof cocaine, and is cooperating with the
FBI in this investigation in hopes ofgaining leniency for a family member
who has pending drug charges.
13. During the interview on February 22,
20 01 , C I-1 told your af fia nt tha t
Robert Gerard and members of his
drug crew distrib ute cocaine andheroin in the Keeney Heights area of
Wa shington, D .C ., and tha t CI -1
bou ght cocaine from “J-Boy,” amember of Gerard’s crew, in
December 2000. CI-1 identified thefollowing other persons as members ofGerard’s crew: “Little G,” “Kay Kay,”and “S weet Na ncy.” Your af fia nt
showed CI-1 some driver’s licensep ho to g ra p h s a n d he w a s a b le toidentify Little G as Gene Blum, Kay
Kay as Katrina Karr, and Swee tNancy as Nancy Prim.
14. On March 30, 2001, your affiant
learned that Fred Hendricks w as
murdered that day in G erard’s
neighborhood in Keeney Heights.
Your affiant reviewed reports madeby the local police officers
investigating the murder. Based upon
those reports, your affiant learned
that Gene Blum, Bridget Lynn, andNatasha Spencer were present at thescene. The local police questioned
each individual about the murder,
and it was learned that Blum wasseen trying to leave the scene on a
motorcycle. Blum was detained and119TH INTERNATIONAL TRAINING COURSE
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he volunteered to answer somequestions. During the questioning,
Blum advised the police that there
was a quantity of cocaine inside alocked com partment in the
motorcycle. Blum gave the keys to thecompartment to the officer. Later thatday, the police obta ined a search
warrant for the motorcycle
co m par tm ent. T he ne xt da y, th e
search warrant was executed anda p p r o x i m a t e l y o n e q u a r te r o f akilogram of cocaine was found inside.
Blum was never charged with any
drug of fenses. S pencer a nd Lynn
claimed to know nothing about themurder.
15. On April 5, 2001, Gerard’s house wasburned to the ground. Your affiant
reviewed police reports of the incident
and learned that three unidentified
males entered the house carrying
gasoline, and set the house on fire.
Two persons, one of whom was an
infant male, were inside the housewhen the fire was set, and they diedas a result. Gerard was not at home at
the time of the fire.
16. On April 25, 2001, your affiant
interviewed Stephen Simon, who has
bee n indicted on charges of
distributing cocaine. Simon agreed toprovide the following information aspart of a plea bargain in his pendingcase. Simon told your affiant that he
was a member of a rival drug gang,
and he stated that he knows Gerard
and Blum. Simon stated that Gerard
had given Hendricks two kilograms of
cocaine on consignment, and whenHendricks failed to pay Gerard for thecocaine, Gerard had Hendricks killed.
Simon stated that he learned of thisinformation from Natasha Spencer,
his girlfriend, who was at the scene of
the murder. Simon stated further that

Gerard receives large shipments ofcocaine every few months, and that hesells cocaine for $17,500 per kilogram.
17. On May 5, 2001, the local police
interviewed an individual who was
willing to provide information about
Gerard’s drug trafficking activities.
Th is per son (“C I-2 ”) has neverprovided information to law
enforcement before and, therefore, his
reliability is unknown. CI-2 statedthat Gerard and Blum are heavily
involved in trafficking and are very
violent. On May 11, 2001, CI-2 told
th e loca l po lice that Ger ar d andmem bers of his crew w ere a t theStarlight Motel in Raljon, Maryland.
Based on this information, local police
officers established surveillance at
the motel. During the surveillance,
officers saw Ge rard, Blum, andseveral unidentified males come andgo from two motel rooms.
18. On May 20, 2001, CI-2 told the local
police that Gerard and Blum were at
the Starlight Motel, and that they
were selling drugs from a room there.
That day and the following day (May21, 2001) , surveillance agentsobserved Gerard and Blum coming inand out of room 1 23. In addition,
throughout the day, several
unidentified males were seen entering
room 123, staying a few minutes andthen leaving the room.
19. On May 25, 2001, CI-2 stated that
Blum had gone to the Starlight Motelagain to sell drugs. The local police
conducted surveillance of the motel
and saw Blum exit room 178. Blum
entered a Chevy Suburban truck thatwas being drive n by a fem ale.
Surveillance agents later identified
this fe ma le f rom pho to grap hs as
Nancy Prim. One hour later, agents

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RESOURCE MATERIAL SERIES No. 59
saw the Chevy Suburban return tothe motel. Blum exited the car andentered room 178.
20. Shortly after May 5, 2001, an
undercover police officer (“UC”) was
sent to the Starlight Motel to seek
employment there as a maintenanceworker. On May 25, 2001, the UC wasworking at the motel, when someone
from room 178 called the front desk tocomplai n ab ou t a ma int ena nce
problem. The UC went to room 178 to
fix the problem and observed Blumand two unidentified males inside ther o o m . W h e n t h e U C a r r i ve d , h eoverheard Blum refer to one of themales as “J-Boy.” While in the room,
the UC used the telephone to make acall to another police officer. During
the call, the UC mentioned going to a
party and getting some cocaine totake to the party. Blum overheard theUC’s call and offered to sell the UCs o m e co c a in e . T h e U C , w h o w a s
wearing a recording device, recorded
his conversation with Blum. During
the conversation, Blum stated, “I can
get you all the coke you want. How
much do you want?” The UC statedthat he wanted an ounce. Blum told
the UC to call him later at the motel.
The UC then left the room.
21. That evening, the UC called thetelephone in room 178 and spoke to
B lum . The UC recorded his
conversation with Blum. The UC andBlum agreed to a purchase price of$1,100 for one ounce of cocaine. Blumgave the UC his pager number andto ld th e U C to p a g e h im at that
number when the UC was ready to
conduct the drug deal.
22. On May 26, 2001, at 9:15 a.m., the UC
paged Blum at the number he wasgiven, and input th e telephon e548

number of his cellular telephone. At
9:20 a.m., the UC received a call from
Blum. The caller identification device
on the UC’s cellular phone revealed
that Blum was calling from a cellular
telephone with the number (202) 5141234. During this conversation, theUC told Blum that he was ready to
buy some cocaine from Blum. Blum
instructed the UC to meet him atroom 178 at the Starlight Motel at
10:30 a.m. Blum then ended the call.
The FBI later obtained telephonerecords for Blum’s phone, (202) 5141234 (hereinafter, referred to as the“target phone”). Those records showthat immediately after Blum ended
the call with the UC, the target phone
was used to call a pager. The FBI
obtained records for the pager andlearned that it is subscribed to in thename of Dorothy Gerard, Gerard’s
mother. At 10:30 a.m., the UC arrived
at the motel and met Blum in room178. The UC bought one ounce of
cocaine from Blum in exchange for$1 ,1 0 0 . M e a nw hi le , s urve illa nce
agents were outside the motel. Afterthe transaction, the UC left the motel
room , followed by B lum. Blume nte r e d a w h ite F o r d N a vi ga t or
sports utility vehicle and drove awayfrom the motel. Surveillance agents
followed Blum as he drove away. The
agents followed Blum to Interstate
Highwa y 9 5 . A t on e po in t, B lum
slowed down and was driving alongside of the surveillance agents. Blum
waived to the agents and then sped
off. Realizing that they ha d b een
detected, the agents discontinued
surveillance of Blum.
23. On June 2, 2001, the UC attempted tocontact Blum at the pager number
Blum ha d given the UC. The U Cnever received a call back from Blum.

119TH INTERNATIONAL TRAINING COURSE
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24. On June 22, 2001, a local police officer
contacted your affiant and advisedthat she had been contacted by aconfidential informant (“CI-3”). The
police officer advised your affiant that
CI-3 was reliable, and that CI-3 hadprovided credible information to him
in the past. The police officer advisedthat CI-3, who is a ssociated w ith
ma ny gang m embers, know s that
Blum uses the target phone to
conduct his drug business.
25. On June 28, 2001, your affiantl e a r n e d o f a n o t he r c o n f id e n t i a linformant working for the local police(“CI-4 ”). CI -4 has never provided
information before, but knows Blumand has bought cocaine from Blum on
several occasions within the last six
months, most recently in the
beginning of June 2001. CI-4 statedthat he has never bought cocaine from
Gerard, but knows that Blum works
for Gerard as a drug distributor. CI-4
indicated that he would be willing tocontact Blum to buy cocaine, but that
he was not willing to record any of his
conversations with Blum.
26. On August 1, 2001, at 1:20 p.m., CI-4
paged Blum and input the telephone
number where CI-4 could be reached.
At 1:45 p.m., Blum called CI-4. Phone
records for the target phone show thatat approximately 1:45 p.m., the target
phone was used to call CI-4’s
telephone. According to CI-4, he told
Blum that he wanted to buy an ounceof cocaine. Blum told CI-4 to meet him
at a gas station in one hour. One hourlater, CI-4 went to the gas station.
Before CI-4 arrived at the gas station,
Agent Kent searched CI-4 forcontraband, with negative results,
and gave CI-4 $1,100 in pre-recorded
go v e rn m en t f un d s. S ur ve illa nc e
agents then observed CI-4 approach

the gas station. A short while later,
Blum arrived at the gas station in a
red Lexus vehicle. Blum got out of his
car and walked over to CI-4. Agents
saw CI-4 hand something to Blum.
Blum returned to his car, reachedinside, and returned to CI-4. Blumhanded an object to CI-4. CI-4 left thegas station and Blum drove off. CI-4
rendezvoused with Agent Kent andgave him one ounce of a substancetha t la ter tested positive for thepresence of cocaine.
ANALYSIS OF TELEPHONE
RECORDS
27. On August 5, 2001, your affiant
obtained telephone records for theta r g e t p ho n e . A r e v ie w o f t ho s erecords show that between July 2,
and August 2, 2001, the target phone
was used to make and receive a totalof 1,14 4 calls. Sp ecifically, thoserecords reflect the following pertinentcontacts:
a. 34 calls to Gerard’s pager, withthe most recent call on August 1.
b. 22 calls to and from a telephone
subscribed to by Dorothy Gerard
at a residence located a t 12 53
Corey Lane, N.W. The most recent
call to this telephone was on July
2 3 , 2 0 0 1 . A ge n ts c o n d u c t i ng
physical surveillance have seen
R o b e r t G e r a r d e n te r i n g t h i s
residence on several occasions
since the fire at his home. Youraffiant believes that Blum callst hi s te l e p h o ne to s p e a k w ith
Robert Gerard.
c. 19 calls to a phone located at theStarlight Motel, with the mostrecent call on July 28, 2001. Basedo n p hy si ca l su rv e ill a n ce a n dsource information, your affiant
believes that Gerard, J-Boy, Prim,

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RESOURCE MATERIAL SERIES No. 59
and Blum use that motel as alo c a tio n to c on d uc t na r c ot ics
transactions. Surveillance agents
saw J-Boy at the Starlight Motelon July 28, 2001.
NEED FOR INTERCEPTION
Based upon your affiant’s training andexperience, and based upon all of thefacts set forth herein, it is your affiant’s
be lie f that th e in te rc ep t ion o f wir ecommunications is the only available
technique that has a reasonableli ke lih o o d o f se c ur ing th e ev id e nc enecessary to prove beyond a reasonable
doubt that the target subjects and others
as yet unknown are engaged in the abovede scribed offenses. In addition,
information recently obtained from C1-2
indicates that Gerard is expecting toreceive a large shipment of heroin during
early September 2001. It is hoped thatthe interception of wire communications
over the target phone will help to reveal
further information about this shipment.
Your affiant states that the following
investigative proced ures, w hich a reusually employed in the investigation ofthis type of criminal case, have been triedand have failed, reasonably appear to beunlikely to succeed if they are tried, orare too dangerous to employ.
ALTERNATIVE INVESTIGATIVETECHNIQUES
Physical Surveillance
Physical surveillance has been
attempted on numerous occasions during
this investigation. Although it has provenvaluable in identifying some activities
and associates of the target subjects,
p hysical surveilla nce, if not use d inc o nj un ct io n wi th o th e r te c hn iq u e s,

550

including electronic surveillance, is oflimited value. Physical surveillance, evenif highly successful, has not succeeded ingathering sufficie nt evid ence of thecriminal activity under investigation.
Physica l surveilla nce of the alleged
co nspirators has not establishedco nclusively the elements of theviolations and has not and most likely
w il l n o t e s ta b l is h c o n c lu s iv e l y th e
identities of various conspirators. In
addition, continued surveillance is notexpected to enlarge upon information now
availab le; rather, such prolonged or
regular surveillance of the movements ofthe suspects would most likely be noticed,
causing them to become more cautious in
their illegal activities, to flee to avoid
further investigation and prosecution, tocause a real threat to the safety of theinformants, or to otherwise compromise
the investigation.
Physical surveillance is also unlikely toestablish conclusively the roles of thenamed conspirators, to identify additional
conspirators, or otherwise to provide
admissible evidence in regard to thisinvestigation because the subjects appear
to be extremely surveillance conscience.
For example, as set forth above, Blum
detected law enforcement surveillance on
May 26, 2001. While surveillance agents
have attem p ted to fo llow B lu m andGerard while they were driving, both
Blum and G era rd tend to drive very
erratically by slowing down or speeding
up with little warning, turning without
signaling, and stopping on the side of theroad unexpectedly to watch cars as they
go by. Such counter-surveillancetechniques have made it difficult, if not
impossible , to maintain effective
surveillance of Blum or Ge rard.
Furthermore, Blum lives on a cul-de-sac
in a v e r y c lo se - k n i t n e i g hb o r h o o d .
Neighbors are often on the porches, andappear to be watching the activity in the

119TH INTERNATIONAL TRAINING COURSE
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neighborhood. On February 10, 2001,
surveillance agents attempted to conduct
surveillance near Blum’s residence byparking just outside the entrance to the
cul-de-sac. However, agents observed ane ighb or a pp ea r to be watching thevehicle from her porch. The neighbor
eventually began walking towards thevehicle, as if to confront the agents. At
that time, the agents drove away.
In my opinion, further surveillance
would only serve to alert the suspects of
the law enforcement interest in theiractivities and comp rom ise theinvestigation.
Use of Grand Jury Subpoenas
Based upon your affiant’s experienceand conversations with Assistant United
S ta te s A ttorney Lois La ne, w ho has
experience prosecuting violations o fcriminal law, your affiant believes thats ub p oe na i ng p er sons b el i eve d t o b e
involved in this conspiracy and theirassociates before a Federal Grand Jurywould not be completely successful inachi ev ing t he stat ed g oa ls of t his
investigation. If any principals of thisconspiracy, their co-conspirators andother participants were called to testify
before the Grand Jury, they would most
likely be uncooperative and invoke their
Fifth Amendment privilege not to testify.
It would be unwise to seek any kind of
immunity for these persons, because thegranting of such immunity m ight
foreclose prosecution of the most culpable
members of this conspiracy and could notensure that such immunized witnesses
w o u l d p r o v id e t r u t h f u l t e s t i m o n y .
Additionally, the service of Grand Jury
subpoenas upon the principals of theconspiracy or their co-conspirators would
only (further) alert them to the existenceof this investigation, causing them tobecome more cautious in their activities,

to flee to avoid further investigation orprosecution, to threaten the lives of theinformants, or to otherwise compromise
the investigation.
Confidential Sources
Reliable confidential sources have beendeveloped and used, and will continue tobe developed and used, in regard to thisinvestigation. However, CI-1 is merely apurchaser of narcotics from J-Boy, andhas not had any direct contact with Blumor Gerard. Although CI-1 is aware that JBoy obtains narcotics from Gerard, J-Boy
has never mad e any attempts tointroduce CI-1 to Gerard, or to any otherpossible sources of supply. While CI-1 cancontinue to make controlled purchases ofnarcotics from J-Boy, it is not believedthat further purchases would help toreveal the identities of Gerard’s sources ofsupply, or help to reveal the full extent of
the organization’s narcotics trafficking
activities. Although CI-1 is willing totestify if necessary, CI-1 has expressed afear for his safety and for that of his
family should his cooperation with law
enforcement become known. CI-1 hasstated that he knows the organization to
be very violent, and that he has seen JBoy carrying a gun.
CI-2 has provided useful information
regarding Gerard’s and Blum’s narcotics
trafficking roles, and has also been able
to advise law enforcement of thea p p r o x im a te d a t e s w h e n n a r c o t i c stransactions have occurred. However, CI2 has not been able to provide any specificinformation about Gerard’s narcotics
suppliers or couriers. In addition, CI-2’s
reliability is unknown, because he has
never p rovid ed inform atio n to law
enforcement in the past.
CI-3, who has provided usefulbackground information about violent

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RESOURCE MATERIAL SERIES No. 59
gangs in the Keeney Heights area of
Washington, D.C., and has confirmedthat Blum uses the target phone, has only
limited contact with Gerard. CI-3 hasseen Gerard with Blum, but CI-3 cannot
provide any direct information about
Gerard’s drug trafficking activities, anddoes not know who Blum’s or Gerard’s
narcotics suppliers are.
CI-4 has been used to make acontrolled purchase of narcotics from
Blum. CI-4 has also been able to provide
useful information about Blum’s role as
one of Gerard’s narcotics distributors.
While CI-4 can be used to makeadditional controlled narcotics purchasesfrom Blum, CI-4 is not in a position topurchase narcotics directly from Gerard.
In addition, it is unlikely that Blum or
G er a rd will intr od uc e C I - 4 to the ir
narcotics suppliers or to other narcotics
distributors of Gerard. Furthermore, CI-4
has refused to permit the FBI to record
any of his conversations with Blum andhas refused to testify against Blum forfear for his safety.
Undercover Agents
Undercover agents have been unable toinfiltrate the inner workings of thisconspiracy due to the close and secretive
nature of this organization. As detailed
above, during May 2001, an undercovera g e n t o b ta i ne d e m p l o y m e n t a t t h eStarlight Motel, and was able to conduct
a narcotics p urchase from B lum.
However, during that meeting, Blum said
that he rarely conducts transactions with“anyone new,” and that he agreed to meetwith the undercover agent because heknew him from the Starlight Motel. The
undercover agent was unable to obtain
any information about Blum’s narcotics
supplier. In addition, after Blumobserved surveillance agents after his
drug deal with the agent, he has not

552

returned any of the agent’s calls.
Accordingly, the FBI is unable to conduct
any additional narcotics transaction with
tha t undercover agent. Your a ffia nt
believes that there are no undercoveragents who can infiltrate the conspiracy
at a high enough level to identify all
members of the conspiracy or otherwise
satisfy all the goals of this investigation.
Furthermore, given the violent nature ofGerard’s organization, there are concerns
for the safety of any undercover agent
who participates in drug deals with theorganization.
Interviews of Subjects or Associates
Based upon your affiant’s experience, I
believe that interviews of the subjects ortheir known associates would produce
insufficient information as to theidentities of all of the persons involved in
the conspiracy, the source of the drugs,
the location of drugs, and other pertinent
information regarding the named crimes.
Y o ur a ff i a n t a l s o b e l i ev e s t ha t a n y
responses to the interviews would containa significant number of untruths,
diverting the investigation with false
le a d s o r o t h e r w is e f r u s t r a ti n g t h einvestigation. Additionally, suchinterviews would also have the effect ofalerting the members of the conspiracy,
thereby compromising the investigation
and resulting in the possible destruction
or concealment of documents and otherevidence, and the possibility of harm tocooperating sources whose identities may
become known or whose existence mayotherwise be compromised. When thepolice interviewed Natasha Spencer andasked her ab out the murder of Fred
Hendricks, she denied knowing anything
about it. However, her boyfriend, Stephen
Simon indicated to your a ffia nt thatS p e n c e r k n e w th a t G e r a r d o rd e r e dHendricks’ m urd er. A s to S im on, he
knows of Gerard’s and Blum’s activities

119TH INTERNATIONAL TRAINING COURSE
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only through his own past drug dealingsin the same neighborhood where Gerard
and Blum operate. Given that Simon iscurrently incarcerated, he can provide nof urth er inf or ma tio n a b o ut the d rug
activities of Blum and Gerard.
Search Warrants
The execution of search warrants inthis matter has be en considered.
However, use of such warrants would, in
all likelihood, not yield a considerable
quantity of narcotics or relevant
documents, nor would the searches belikely to reveal the total scope of theillegal operation and the identities of theco-conspirators. While some members ofGerard’s crew use the Starlight Motel asa loca tion to sell narco tics, it is notbelieved that members of that crew usethat location to store a large portion of
their na rcotics. The sea rch wa rrant
executed on the motorcycle driven byBlum yielded a quantity of cocaine, butthat evid ence in and of itself is not
sufficient to prosecute and convict all of
the members of this conspiracy. At thistim e , it is u nkn ow n w he re Blu m o r
Gerard store their narcotics. Further, it isunlikely that all, or even many, of theprincipals of this organization would bea t a n y o n e lo c a ti o n w h e n a s e a r c h
w a r r a n t w a s e x e c ut e d . T h e a f f ia n t
believes that search warrants executed at
this time would be more likely tocompromise the investigation by alerting
the principals to the investigation andallowing other unidentified members of
the conspiracy to insulate themselves
further from successful detection.
Phone Records
Pen register an d trap an d trace
i n f o r m a t i o n h a s b e e n u s e d in t h i sinvestigation, including a pen registerand trap and trace on the target

telephone, as described above. The penregister and trap and trace information
has verified freque nt telephone
co m m u ni ca tio n b e tw e e n t he t a r g e t
telephone and telephones suspected ofb e in g u se d b y c o - c o ns p ira to r s. Pe nregisters and traps and traces, however,
do not record the identity of the parties tothe conversation, cannot identify thenature or substance of the conversation,or differentiate between legitimate calls
and calls for criminal purposes. A pen
re g is t e r a n d t r a p a n d t r a c e ca nn o tidentify the source or sources of thecontrolled substances, nor can it, in itself,
esta blis h proof of th e con spiracy.
T e le p h o n e t o l l i n f o r m a ti o n , w h i c hidentifies the existence and length of
telephone calls placed from the target
telephone to telephones located outside ofthe local service z one, has the sa me
limitations as pen registers and traps andtraces, does not show local calls, and isgenerally available only on a monthly
basis.
PRIOR APPLICATIONS
Based upon a check of the records ofthe Federal Bureau of Investigation andthe Drug Enforcement Administration
conducted on or about August 1, 2001, noprior federal applications for an orderauthorizing or approving the interception
of
wire,
oral,
or
ele ctronic
com munications have been m ade
involving the same persons, premises or
facilities named herein.
MINIMIZATION
All interceptions will be minimized ina c c o r d a n c e w i t h t h e m i n i m iz a t i o nrequirements of Chapter 119 of Title 18,
United States Code, and all interceptions
conducted pursuant to this Court’s Orderwill terminate upon attainment of theauthorized objectives or, in any event, at

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RESOURCE MATERIAL SERIES No. 59
the end of thirty (30) days measured fromthe earlier of the day on whichinvestigative or law enforcement officers
first begin to conduct an interception
under the Court’s Order or ten (10) days
after the Order is entered. Monitoring of
conversations will terminate immediately
when it is determined that theconversationisunrelatedtocommunications subject to interception
under Chapter 119 of Title 18, UnitedStates C ode. Interception will bes u s p e n d e d i m m e d i a t e ly w h e n it isdetermined through voice identification,
physical surveillance, or otherwise, thatnone of the named interceptees or any of
their confederates, when identified, areparticipants in the conversation, unless it
is determined during the portion of theconversation already overheard that theconversation is criminal in nature. If aconversation is minimized, monitoring
agents will periodically spot check theconversation to insure that theconversation has not turned to criminal
matters.
Clark Kent
Special Agent, Federal Bureau of
Investigation
Sworn to bef ore me this 13th da y ofAugust, 2001.
UNITED STATES DISTRICT COURTJUDGEDISTRICT OF COLUMBIA

554

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSATTACHMENT C
U.S. Department of JusticeCriminal Division
Washington, D.C. 20530
MEMORANDUMTO:
Jimmy Olson, Director
Office of Enforcement
Operations
Criminal Division
FROM:

Perry White
Assistant Attorney General
Criminal Division

SUBJECT: Authorization forInterception OrderApplication
This is with regard to yourrecommendation that I, an appropriatelyd e s ig na te d o f f i ci a l o f t he C ri m in a l
Division, authorize an application to afederal judge of competent jurisdiction for
an order under Title 18, United States
Code, Section 2518, authorizing for ath irt y ( 3 0 ) d a y p e r io d, the o rig ina linterception of wire communicationso c c u r r in g to a n d f r o m t h e c e l l u la r
telephone bearing the number (202) 5141234, subscribed to by Julio Iglesias, 123
Main Street, N.W., Washington, D.C., inconnection with an investigation into
possible violations of Title 21, UnitedStates Code, Sections 841, 843, and 846,
by Gene Blum, Robert Gerard, Katrina
Karr, Nancy Prim, “J-Boy,” and others as
yet unknown.

applications for court orders authorizing
the interception of wire or oral
communications. As a duly designatedofficial in the Criminal Division, thispower is exercisable by me.
W H E R E F O R E , a ct in g u nd e r t hi sdelegated power, I hereby authorize theabove-described application to be madeby any investigative or law enforcement
officer of the United States as defined in
Section 2510(7) of Title 18, United States
Code.
The authorization given is intended toapply not only to the target telephone
number listed above, but also to any othertelep hone numbers subsequently
assigned to the instrument bearing thesame electronic serial number used by
the target telephone within the thirty(30) day period. The authorization is also
intended to apply to backgroundconversations intercepted in the vicinityof the target telephone while thetelephone is off the hook or otherwise inuse.
Perry White
Assistant Attorney General
Criminal DivisionDate

By virtue of the authority vested in the
Attorney General by Section 2516 of Title
18, United States Code, the Attorney
G eneral of the United States has by
Order Number 2407-2001, dated March
8, 2001, designated specific officials in the
C riminal Division to authoriz e

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RESOURCE MATERIAL SERIES No. 59

ATTACHMENT D
a p p l ie d . I n p a r t i c u l a r , t h e r e i sprobable cause to believe that theinterception of wire communications
to and from the telephone bearing thenumber (202) 514-1234, and ESN
12CE568L, and subscribed to by Julio
Igl es i a s, 1 23 Ma i n S t ree t, N .W.,
Washington, D.C. (hereinafter, the“Target Telephone”) will concern thespecifics of the above offen ses,
including the manner and means of
the commission of the offenses;

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
IN THE MATTER OF THE
APPLICATION OF THE UNITEDSTATES OF AMERICA FOR AN ORDERAUTHORIZING THE INTERCEPTION
OF WIRE COMMUNICATIONSORDER AUTHORIZING THE
INTERCEPTION OF WIRECOMMUNICATIONSApplication under oath having been
made before me by Lois Lane, AssistantU n ited S ta te s A tto rn ey , D istr ict o f
C o lu m b i a , a n i n v e s t i g a t iv e o r la w
enforcement officer of the United States
within the meaning of Section 2510(7) ofTitle 18, United States Code, for an Ordera uthorizing the inte rception of w ire
communications pursua nt to Section
2518 of Title 18, United States Code, andfull consideration having been given to
the matter set forth therein, the Court
finds:
a. there is probable cause to believe that
Gene Blum, Robert Gerard, Katrina
K arr, Na ncy Prim, “J -Boy,”(hereinafter, the “Target Subjects”)
a nd othe rs a s ye t unknown ha ve
committed, are committing, and willcontinue to commit violations of Title
21, United States Code, Sections 841,
843, and 846.
b. there is probable cause to believe thatparticular wire communications of theTarget Subjects and others as yet
u n k no w n co n c e r ni ng th e a b o v e described offenses will be obtained
through the interception for whicha uthoriza tion has herewith b een

556

c.

it has been established that normal
investigative procedures have been
tried and have failed, reasonab ly
appear to be unlikely to succeed if
tried, or are too dangerous to employ;andd. there is probable cause to believe that
the Target Telephone has been andwill continue to be used in connection
with commission of the abovedescribed offenses.
WHEREFORE, IT IS HEREBYORDERED that Special Agents of theFederal Bureau of Investigation (“FBI”),
o f f ic e r s o f t he M e tr o p o l it a n P o l ic e
Department and the Prince G eorge’s
County Police Department, and contract
personnel who are under the supervisionof the FBI, are authorized, pursuant to an
application authorized by a dulyd e si gn a t e d o f f ic ia l o f th e C r im ina lDivision, United States Department ofJustice, pursuant to the power delegatedto that official by special designation of
the Attorney General and vested in the
Attorney General by Section 2516 of Title
18, United States Code, to intercept wirecommunications to and from the Target
Telephone.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSPROVIDED that such interception(s)shall not terminate automatically after
the first interception that reveals themanner in which the alleged coconspirators and others as yet unknown
conduct their illegal activities, but may
continue until all communications are
i n t e r c e p t e d w h ic h r e v e a l f u l l y t h e
m a n n e r in w h i ch t h e a b o v e - na m e dpersons and others as yet unknown arecommitting the offenses described herein,
and which reveal fully the identities oft h e ir c o n f e d e r a t e s , t h e i r p l a c e s o foperation, and the nature of theconspira cy involved therein, or for aperiod of thirty (30) days measured fromthe day on which investigative or law
enforcement officers first begin to conduct
an interception under this order or ten(10) days after this order is entered,
whichever is earlier.
IT IS ORDERED FURTHER, pursuant
to Title 18, United States Code, Section
2518(3), that in the event that the Target
Telephone is transferred outside theterritorial jurisdiction of this court,
interceptions may take place in any otherjurisdiction within the United States.
IT IS ORDERED FURTHER that theauthorization apply not only to the target
telephone number listed above, but to any
changed telephone number subsequently
assigned to the instrument bearing thesame electronic serial number as theTarget Telephone within the thirty (30)day period. It is also ordered that thea ut ho r i z a ti o n a p p ly t o b a c k g ro u n dconversations intercepted in the vicinityo f t h e T a r g e t T e le p h o n e w h il e t h etelephone is off the hook or otherwise inuse.
I T IS O R D ER E D FU RT HE R tha t ,based upon the request of the Applicant
pursuant to Section 2518(4) of Title 18,
UnitedStates
Code,
KillionCommunications, an ele ctronic
co m m un ic a ti o n se r v ice p r o vi d e r a s
defined in Section 2510(15) of Title 18,
United States Code, shall furnish the FBI
with all inf o rm a tio n, f a c iliti es an dtechnical assistance necessary toaccom plishtheinterceptions
unobtrusively and with a minimum ofinterference with the services that suchprovider is according the persons whose
communications are to be intercepted,
with the service provider to becompensated by the Applican t forreasonable expenses incurred inproviding such facilities or assistance.
IT IS ORDERED FURTHER that, toavoid prejudice to the government’s
criminal investigation, the provider of theelectronic communications service and its
agents and employees are ordered not todisclose or cause a disclosure of the Orderor the request for information, facilities
and assistance by the FBI, or the
existence of the investigation to any
person other than those of its agents andemployees who require this informationto accomplish th e services h ereby
ordered. In particular, said provider andits agents and employees shall not makesuch disclosure to a lessee, telephone
sub s crib er or a ny Ta rge t Sub ject orparticipant in the intercepted
communications.
IT IS ORDERED FURTHER that thiso r d e r s h a ll b e e x e c u t e d a s so o n a spracticable and that all monitoring ofwire communications shall be conductedin such a way as to minimize theinterception and disclosure of thecommunications intercepted to thosecommunications relevant to the pending
investigation. The interception of wirecommunications must terminate upon theattainment of the authorized objectives,
not to exceed thirty (30) days measured
from the earlier of the day on which

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RESOURCE MATERIAL SERIES No. 59
investigative or law enforcement officers
first begin to conduct an interception ofthis order or ten (10) days after the orderis entered.
Mo nitoring of conversatio ns m ust
t erminat e immediately w hen it isd etermined that the conversation isunrelated to communications subject tointerception under Chapter 119, Title 18,
United States Code. Interception must bes u s p e n d e d i m m e d i a t e ly w h e n it isdetermined through voice identification,
physical surveillance, or otherwise, thatnone of the Target Subjects or any of theirc o n f e d e r a te s , w h e n i d e n ti f i e d , a r eparticipants in the conversation unless it
is determined during the portion of theconversation already overheard that theconversation is criminal in nature. If theconversation is minimized, themonitoring agent shall spot check toinsure that the conversation has notturned to criminal matters.
I T I S O R D E R E D F U R T H E R th a t
Assistant United States Attorney Lois
L ane or a ny other A ssista nt Unite dStates Attorney familiar with the facts ofthis case shall provide this Court with areport on or about the tenth, twentieth,
and thirtieth days following the date ofthis Order showing what progress has
been made toward achievement of theauthorized objectives and the need forcontinued interception. If any of theabove-ordered reports should become dueon a weekend or holid ay, IT IS
ORDERED FURTHER that such reportshall become due on the next business
day thereafter.
IT IS ORDERED FURTHER that thisOrder, the application, affidavit and any
related orders, and all interim reports
filed with this Court with regard to thismatter, shall be sealed until further orderof this Court, except that copies of the558orders, in full or redacted form, may beserved on the FBI and the service
providers as necessary to effectuate thisorder.
UNITED STATES DISTRICT COURTJUDGEDISTRICT OF COLUMBIA
Dated this13th day of August, 2001.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSATTACHMENT E
MINIMIZATION INSTRUCTIONS FORWIRE COMMUNICATIONSMEMORANDUM
TO:

Monitoring Personnel

FROM: AUSA Lois LaneRE:

Minimization Instructions

DATE:

August 14, 2001

1. All agents and monitoring personnel
must read the affidavit, application,order and these instructions and signthese instructions before monitoring.
2. The Order of August 13, 2001, only
authorize s the interceptio n ofconversations between the Target
Subjects and others occurring to andfrom the telephone number (202) 5141234, subscribed to by Julio Iglesias,
123 Main Street, N.W., Washington,
D.C., regarding offenses involving
Title 21, United States Code, Section
841, 843, and 846.
3. Personnel may monitor for areasonable period not to exceed two
m inutes to de ter mine whe the r a
subject is p articip ating in aconversation.
4. If, during this monitoring, it isdeterm inedthat
additional
individuals are engaged in a criminal
conversation, intercepts may continue
despite the fact that a named subject
is not engaged in the conversation,
until the conversation ends or
becomes non-pertinent. If individuals
other than a subject are participatingin the criminal conversation, continue

to monitor and advise the case agent
or supervisor immediately. If these
individuals can be identified, provide
this information also.
5. Ifasubject
is
engagedinc o n v e r s a t io n , in te r c e p t i o n m a y
co n ti nu e f o r a r e a so na b le t i m e ,usually not in excess of two minutes,
todeterminewhetherthec o n v e r sa t i o n c o n c e r n s c r i m i n a lactivities.
a. If such a conversation is unclear
but may be related to the drugtrafficking offenses, interception
may continue until such time as itisdeterminedthattheconversation clearly no longer
relates to that topic.
b. If such a conversation is unclear
but may relate to other criminal
activities, interception shouldcease after about two minutes
u nless it can be determinedwithin that time that theconversation does in fact relate toother criminal activities, in whichcase interception may continue.
6. The above instructions regarding thenumber of minutes of permissible
interception will vary once experiencehas been gained. If experience showsthat conversations between certainp e o p l e a r e i n v a r ia b l y i n n o ce n t,interception of such conversations
should be ended sooner. If experience
shows that other individuals always
discuss criminal activities, a longer
interception may be justified. This isespecially true for individuals who
can be identified as participants withthe subjects in possessing anddistributing controlled substances.

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RESOURCE MATERIAL SERIES No. 59
Read all of the logs of theinterceptions on a continuing basis
and notify the case agent if patterns
develop.
7. No conversation may be interceptedt h a t w o u ld f a l l u n d e r a n y l e g a lp rivile ge. T he f our c ate go rie s o fprivileged communications aredescribed below:
a. Attorney-Client Privilege: Neverknowingly listen to or record aconversation between a subject
a nd his o r her attorne y whenother persons are not present or
are n ot participati ng in th e
conversation. Any time that an
attorney is a party to ac on ve rs a tio n, n o tif y the ca s e
agent immediately. If it isdetermined that a conversation
involving an attorney constitutes
legal consultation of any kind,
notify the case agent, shut off themonitor and stop recording,unless you are able to determinef r o m t h e i nt e r c e p ti o n o f a n yconversation involving an
attorney that third parties who
a r e n o t in vo lve d i n t he l e ga l
m a tt e r s b e in g d i s c u s s e d a r e
present. If such third parties are
p r es e nt, a nd o nly if t he y a r e
present, may you intercept such
conversations following the abovedescribed rules of minimization.
In any event, notify the case agent
immediately.
b. Parishioner-Clergyman Privilege:
All conversations and conduct
between a parishioner and his or
her clergyman are to beconsidered privileged. Anelectronic surveillance order could
no t be ob tained to listen to a
subject confess his or her sins to apriest in a confessional booth;

560

similarly, a subject discussing his
or her personal, financial or legal
problems with his or her priest,
minister, rabbi, etc. may likewise
not be intercepted. Thus, if it isdetermined that a clergyman is aparty to a communication being
intercepted and that thecommunication is penitential innature, turn off the monitor, stop
recording, a nd notify the caseagent.
c. Doctor-Patient Privilege: Anyconversation a patient has with ad o c to r r e la ti n g to d ia g no si s,
sym pto m s, tre a tm e nt, or an yother aspects of physical, mental
or emotional health, is privileged.
If it is determined that a person istalking to his or her doctor andthat the conversation concerns the
person’s health (or someone else’s
health), turn off the machine andnotify the case agent.
d. Husband-Wife Privilege: As agene ral rule, ther e is also aprivilege covering communications
between lawfully married spouses.
Monitoring should be discontinued
and the case agent notified if it isdetermined that a conversation
solely between a husband and wife
is being intercepted. If a third
person is present, however, thecommunication is not privileged
and that conversa tion ma y bemonitored in accordance with thepr e vio usly d e scr ibe d r ule s ofminimization. If the conversation
is between the named subjects andthe ir r e sp e cti ve s p o use s, theconversation may be monitored inaccordance with the previously
described rules of minimization
regarding monitoring theseind ivid u a ls’ c on ve rs a tio ns tod e t e r m in e w h e t h e r t h e y a r e
discussing crimes. If the nature of

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
th e co n ve rsa t ion i s c rim in a l,monit oring may contin ue;
otherwis e, it may not bemonitored.
8. Abstracts or summaries of eachconversation are to be made at thetime of interception and are to be
included in the logs and the statisticalanalysis sheet. If the conversation is
not recorded entirely, an appropriate
notation should be made indicating
the incom plete nature of theconversation
and
why
the
conversation was not recorde dcompletely (e.g., “non-pertinent” or“privileged”).
9. The logs should reflect all activity
occurring at the monitoring station
c on ce rn ing bo th the inte rc e p te dconversations as well as theequipment itself (e.g., “replaced tape,”“malfunction of tape recorder,” “noconversation overheard”). These logs
will be used ultimately to explain them onitoring agent’s actions whenintercepting communications. It is
important to describe the parties toeach conversation, the nature of eachconversation, and the action taken.
All monitoring agents will record thetimes their equipment is turned on
and off.
10. All conversations that are monitored
must be recorded.
11. The Log
The m onitoring agents sho uld
maintain a contemporaneous log, by
shifts, of all communications
intercepted, indicating location ofeach communication on the cassettetape or computer disc; the time andduration of the interception; whether
the telephone call was outgoing or
inco ming; the telep ho ne num be r

called if the call was outgoing; theparticip ants, if known; and asummary of the content of thepertinent conversations. Any
peculiarities, such as codes, foreign
language used, or background sounds,
sh o u ld al so be no t e d . W h e n th einterception of a communication is
terminated for purposes ofminimization, that fact should be
noted. This log should record thenames of the personnel in each shift
and the function performed by each,
malfunctions of the equipment orinterruptions in the surveillance forany other reason and the time spans
thereof, and interceptions of possibly
privilege d conversations orconversations relating to crimes not
specified in the original interception
order. Each entry in the log should beinitialed by the person making it.
12. Protection of the Recording
The following procedure should be
followed d uring the period of
authorized interceptions:a. Either during or at the end of eachrecording period, copies of therecorded conversations should bem ade for the use of thei n ve s t i ga t i v e a g en cy a n d t hesupervising attorney;b. The original recording should bep laced in a sealed evidence
envelope and kept in the custodyof the investigative agency until it
is made available to the court at
the expiration of the period of theorder; andc. A chain of custody form should
accompany the original recording.
On this form should be a brief
statement, signed by the agent
su pe rvising the inte rce p tio n,
which identifies:

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RESOURCE MATERIAL SERIES No. 59(i) the order that authorized thereco rded inte rceptions ( bynumber if possible);(i) the date and time period of therecorded conversations; and(i) the identity (when possible) of
the individuals whose
conversations were recorded.
d. The form should indicate to whom
the custody of the originalrecording was transferred and thedate and time that this occurred.
Each subsequent transfer,including that to the court, should
be noted on the form.
e. The case agent should mark alabel attached to the original tapereel/cassette/computer disc inorder to identify it ascorresponding with accompanying
chain of custody forms. The dateof the recording should also be
m a rke d o n the la b e l a nd thisshould be initialed by the agent.
f. Each agent or other person
signing the chain of custody formshould be prepared to testify incourt that the original tape, whilein his or her custody, was kept
secure from the access of third
parties (unless noted to thecontrary on the form) and was notaltered or edited in any manner.
I t is the re spo nsib ility o f theinvestigative agencies to ensurethat original recordings in theircustody will be maintained insuch a w ay as to e nsure theiradmissibility in evidence at trial
over objections to the integrity of
the recording.
13. Procedure When No Recording Can beMade
In those unusual instances when norecording of the intercepted562

c o n ve rs a ti o n s c a n b e m a d e , th efollowing procedure should be used:a. The monitoring agent shouldmake a contemporaneous log or
memorandum that is as near to averbatim transcript as is possible;
b. The log or memorandum shouldc lo se w i t h a b r ie f s t a te m e n tsigned by the agent indicating theda te, time, an d plac e of theintercepted conversation. The
order authorizing the interception
should be identified. The agent
should indicate that the log or
memorandum contains thecontents of the interce pted
communication which he or she
overheard. This should be
followed by the agent’s signature;andc. This log should be treated by theinvestigative agency as if it werean origin al recording of theintercepted communication.
14. If the conversation occurs in alanguage other than English that noone at the monitoring post
understands, the entire conversation
should be monitored and recorded andthen minimized by a person familiar
with the investigation, but who is not
actively involved in it, in accordancewith the minimization rules set forth
above.
15. If any problems arise, please call the
ca se agent or the A US A. Se ve ra l
telephone numbers will be posted at
the monitoring post.
Assistant United States Attorney
Lois Lane

PARTICIPANTS’ PAPERS
CURRENT SITUATION OF ORGANIZED CRIME IN
HONDURAS
Gina Antonella Ramos Giron*
I. THE SPECIAL OFFICE AGAINSTORGANIZED CRIME
The special office against organizedcrime was created in July 1999, as a
response to the Honduran’s call for thedevelopment of new modalities to tackle
crime that threatens the internal securityof the country.
In Tegucigalpa, the capital, the main
office is located, but they have created
two more offices against organized crime,
one in the north zone of the country andanother in the south, which are in chargeof handling all the organized crime cases.
All the attorneys have been trained inthese specific areas, such as investigation
methods, prosecution, special legislation,
etc.
This special office has five sections:
1. Section against drugs
This section handles all the cases to
do with drug trafficking, e.g. people
that sell drugs in small amounts, etc.
2. Section against kidnappingThis also handles firearms trafficking
and illegal immigration, where illegal
p eop le pa ss through the c ountry
where their final destination is to get
into the United States.
3. Stolen vehicles section
4. Bank robbery, which has increased in
the last few months in Honduras* Public

Prosecutor,

Department

againstOrganized Crime Public Ministry, Honduras

5. Money laundering section
All these sections hav e spec ial
attorneys, and also investigators thatmanage a ll of the investiga tions.
These investigators come under the
Security Minister and there are two
branches; the uniform police and theinvestigation division, that also havesections with certain specializations
such as organized crime. They help
the attorneys to get all the evidence
that they need for the prosecution of
the cases.
The office itself has an intelligencesection that is in charge of taking theinformation from all the sections andputting it together so they can recognize
the different organized groups. Much of
the time, the same people that are bankrob bers are also kidna ppers and car
thieves. This section helps a lot in solvingcases; they have internet access and they
sha re info rma tion w ith other p olice
departments, and a telephone system
where they can access the telephonecompany system and find out the nameand the address of the ow ner of that
number.
One of the difficulties that we have isthat we have a very small budget, so we
do not have enough cars, not enoughattorneys, at the moment, but we hope in
the near future we will get more help
from the government, and also we work
really closely with other countries too,such as the American Embassy. They
help us a lot in sharing information about
drugs, w ith DEA (Drug Enforcement
Agency) people, with the Immigration

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RESOURCE MATERIAL SERIES No. 59
Department about illegal trafficking of
persons, etc. and with other governments
such as Japan. This kind of course helps a
lo t in the training o f atto rneys andenables them to share information withother countries.
II. ACTUAL SITUATION OF
ORGANIZED CRIME IN HONDURAS
Organized crim e in Honduras has
increased in the last 5 years. We started
having many bank robberies and, for the
first time, ranso m kidnappings.
Automobile theft has always occurred,
but not as much as in the last few years.
Now the criminals have become more
professional and steal cars to commit
other crimes. At present, we only have
two cases of money laundering that are
active in court, because the special law
against drugs covers money laundering
but only that related with drugs. Moneysometimes comes from drug trafficking
and we know that money has notnecessarily come from drugs, it could also
have come from stolen vehicles, bankrobberies etc. The attorneys that work inthe money laundering section right now
are working on a new money laundering
law that will regulate money laundering
crime. We hope this law will be approvedby the national congress very soon.
A. Situation of Drug Trafficking
D rug traf ficking ha s incre ase d in
Honduras in the last years also.
Honduras has a very good geographic
location, having tw o ocea ns and thetrafficking comes from both sides.
In the south of the country we have
trafficking coming from Nicaragua and El
Salvador, that enters the country throughthe borders, most of the time with cocaine
and marijuana hidden in big containers
and small cars. We found a large amountof cocaine of about 30kg in the roof and564

trunk of a small car and more than 100kg
in containers.
In the north of the country we have two
ports that have more active drugtrafficking, the port of La Ceiba on thenorth coast and the port of Roatan in the
Bay Islands. Usually drugs come from
Colombia, because Roatan, as an island,has small docks where any boat can stopand nobody would know about.
In La Ceiba we caught this speedboat
coming from Colombia with more than
2 0 0 k g o f c o c a i n e . W e a r r e s t e d tw oColombians and this has been one of thebiggest loads coming in that way.
Also in the Bay Islands we have thesecruise ships that come from Houston or
Miami, and sometimes the crew of theseships buy cocaine to take back to the U.S.
When I was working there we had several
such cases.
We can imagine that on the north sideof the country people use more drugs,
more than in central and southern areas.
The selling of marijuana and cocaine insmall amounts have become very popularin Honduras lately, we can find a numberof small houses in the middle of the citywhere people come at night to buy two or
three cigarettes of marijuana or 2 or 3
gram s of cocaine. Also in somediscotheques people can find cocaine.
Society is really concerned about thisb e c a u s e w e n e v e r sa w t h is k in d o fsituation before, but we know it is very
common, so as a result, the investigatorsthat work against drugs have more work
to do, trying to close these businesses andsearching houses, and conducting a lot of
undercover investigations.

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
B. Actual Situation of Kidnappings
S in ce 1 9 9 5 w e s ta r t e d h a v ing a n
increa se d incide nce of this crim e in
Honduras. One of the first kidnappings
for money was when these criminals
kidna p ped the son of a p residential
candidate, he is also a big business man
who use d to be the p resid ent o f thecentral bank. Since we had that case,kidnappings have become very common,
sometimes we finally arrest the people
and get the victim to safety, but in somecases we have not been that lucky and wehave found the victims dead, and thefamily had already paid the amount ofmoney demanded.
Most of the above cases happened inth e no rth z o ne. T he se a r e the mo st
co m plica te d ca se s b e ca use the y a r ecommitted by very well organized groups,that are also the groups that steal cars. In
the west we had a lot of kidnappings also
but most of the time we do not know
about them because the victims families
do not inform the police. They pay themoney for the rescue and the victims areset free. In this area, we had a lot of
farmers that work with coffee so they
have a lot of money, so that is the reason
k i d na p p e r s c h o o s e th is a r e a o f t h ecountry.
The families of the victims now arevery afraid that their relatives might get
killed, so that is why sometimes they
prefer to pa y the money and ask thepolice not to interfere in the negotiationand in the rescue. About 1 month ago we
had a case where they kidnapped a veryrich lady in the city of Tegucigalpa, andher family paid three million six hundred
thousand lempiras (Honduras currency)
to set her free the next morning. The
police did not interfere at all because thefamily asked them not to because theywanted her mother alive.

But in other cases we have found thevictims and rescued them without paying
the money. As you can imagine when we
have this type of case, a lot of people workon it for a long time; uniformed police,
investigators, attorneys, etc.
In 2 000 w e had 26 kidnappings in
Honduras, that is a lot, and in 2001 until
August we have had, at the moment, 18.
Most of them occurred in the north zone
and we have had some cases where thevictims have disappeared and we havenot found them yet.
C. Actual Situation of Firearms
Trafficking
In Honduras we have had firearms
trafficking since we had the war with El
Salvador and the contra of Nicaragua. So
much of the time the guns come from
Nicaragua. In the north zone, close to theborder with Nicaragua, we had theseplaces where Nicaraguan soldiers hide
the guns, and cover them with bombs, so
we have to localize these places, and wea r e w o r k i ng o n g e t ti ng s o m e b o m b
experts to recover those guns. That takes
time, and they have to be very careful.
Firearms trafficking is closely relatedwith d rug traff icking bec a use som e
Central A mericans, (Hondurans,
Nica ra gua ns, e tc.) m a ke de a ls w ith
people from south America and theyexchange the guns for drugs, so this is
another king of organized crime.
Three months ago we had a case wherew e a rr e s te d a L i e ut e n a n t f r o m th e
uniformed police with 88 AK-47 rifles. He
was transporting them from the south to
the north, he was wearing his uniform,
and the investigators arrested him withthe guns. A lso , th e ca r that he w a s
driving had been stolen in Guatemala. As
you can see we have corruption too, andthis is a very dangerous situation for thecountry.

565

RESOURCE MATERIAL SERIES No. 59
The problem that we have right now
with this crime is that our law does nottalk to much about gun trafficking, thelegislation only covers cases when guns
are used for terrorism purposes. They can
pay bail and then have to be released. We
are trying to get higher punishments forthese crimes.
Other big ca se s tha t we ha ve ha d
involvegangs,
becausethey
manufactured their own guns, homemade guns. Almost all juveniles that arepart of gangs carry one of these homemade guns, and also commit crimes withthem. We usually make searches in theirhouses, but this is very difficult to control
because they can manufacture more.
Most of the time we do not have many
complaints about these crimes, so theinvestigators have to do a lot of
undercover work to try to identify thesepeople trafficking in firearms.
D. Situation of Illegal Immigration
In Honduras we do not have too manycases of organ or children trafficking.
Most cases that we have is the traffickingof people to the United States. There arevery well organized groups from south
America to Mexico, who traffic people
f ro m S o uth A m e rica a n d pa ss the mthrough Central America to Mexico andth en ent er in to the United Stat es
illegally.
We have had big cases with people
from India and Cuba, but the biggest
problem is with Chinese people. A lot ofChinese enter the country and then try to
get into the United States. We have many
Chinese restaurants, and hotels, where
they keep people, and which are used as
offices. The immigration office has a lot of
work, they go to hotels to inspect
everyday and they always find Chinesethat are living in those hotels, staying

566

illegally in Honduras and waiting for theright moment to leave for the UnitedStates. Sometimes they are lucky and get
an American visa, but most of the timethey go by car to Mexico to enter theUnited States.
These Chinese groups are also very
well organized, and they can protect theirpeople a lot. In my office we had a lot ofthese cases related with Chinese gangs
and some of their some members are in
jail. But most of the time we deport themfrom Honduras back to China, because
there is no sense in putting them in jail;they have no family in Honduras and thepeople we need to arrest are the people
that create the procedures and ask themfor money. They provide them with a
Honduran passport so that it is easier forthem to get a visa to enter the UnitedStates.
E. Situation of Bank Robberies
Bank robbery has been a very common
crime in Honduras. Almost every week
we have a bank raid where robbers steal
millions of Lempiras and it is found thatthey are also kidnappers and car thieves.
I n C C T V v id e os o f th e b a nk s, w e
recognize a lot of gangs, and one man that
was arrested fo r kidnapping was
identified in the video of two bank raids.
This is a very serious crime, because
these men are really dangerous and they
do not care if they kill somebody. Anotherp r o b l e m i s t h a t s o m e m a n a ge r s o r
cashiers do not like to testify because
they are afraid of them. The thieves arevery well organized groups and they arevery p rof essio nal. T hese crim es a recommitted all over Honduras, even in thesmall towns, and also on the islands,
where they have speed boats ready toescape. These are the biggest gangs that
we have in Honduras.

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
F. Situation of Stolen Vehicles
There are a very well organized groups.
First, this crime happened only on thenorth cost and the west, but now it is allover the country. They steal more pick up
trucks and luxury cars. They take them,
most of the time, to Guatemala over theborder in the north and over the bordersof Nica ragua and El S alvador in thesouth. They manufacture false invoices,
registration documents of the vehicle andthe license plates.
Other times they steal the cars andthen use them during a bank robbery or a
kidnapping. Later we find these carsabandoned by the roads. We have a lot of
fancy cars that have been stolen in othercountries, they change the color and thenthey sell them here. We send cars back toother countries from which they havebeen stolen, mostly from El Salvador,
Guatemala and Nicaragua.
The investigators and attorneys thatwork in stolen vehicles are the ones thathave the most work to do, trying to findcars and identifying gangs, the average
number of stolen cars is about 20 cars a
day and we are not that lucky to find allof them. We recover about 50% of them.
G. Situation of Money Laundering
As I m entioned before, money
laundering as a crime in Honduras is only
related to drug trafficking. Before 1993,
money laundering crime did not exist, it
was only mentioned in one article of the
drug law, that was in 1998 when themoney laundering law was created but
only in relation with drug trafficking. The
attorneys that actually work with thatcrime are working on some reforms ofthat law and they are trying to establish
money laundry provisions related to othercrimes such as sto len vehicles,
kidnappings, bank robberies, humantrafficking, etc.

At this moment we only have three big
cases of money laundering, the biggest ofwhich is one of a Colombian organizedcrime group that came to Honduras tolaunder money. Three of the Colombians
began a business selling home appliances
a n d d o m e st ic e l e ct r ic a l go o d s. T h e
investigators began an investigation of
the business, because it was strange thatthese places were not open to the public,
people needed to use a doorbell to get in.
Also, the C olom bian p olice sent the
Honduran investigators information
about them because they found out thatsome drug dealers that were located in
the sea on boats had communication witha cell phone number in Honduras. So westarted an intensive investigation, andfinally found probable cause to present incourt. The business and their houses
were searched and all these people havebeen arrested or have arrest warrants.
During the search, we found about 60
ba nk a ccount b ooks, check vouchers
where they have paid pilots, they had
bought boats, and paid the boat captains,
and there was nothing related to thedomestic electrical goods business. The
judge ordered the arrest warrants andconfiscated about 8, 2001-model luxury
cars, froze all bank accounts and also all
the houses that they were building at a
cost of over 2 million lempiras.
When the investigators were doing theinvestigation they noticed that in someaccounts people received large amounts ofmoney. This money was in the bank for 5days and in the next week all the money
was gone, and the money transfer wasvery often from banks in Honduras toother banks, most of them in Miami, New
York, Panama and Mexico.
The total money that they uncovered
was several million dollars, and further
investigation revealed bank accounts
with other banks in Central, South and

567

RESOURCE MATERIAL SERIES No. 59
North America, and even in Spain and
Thailand.
We already know the people that send
and receive money in Colombia and weare working with assistance from thelegal authorities in Colombia.
III. INVESTIGATION TECHNIQUES
According to the criminal procedurelaw, investigators are not allowed tocarry out electronic surveillance. They dothis type of investigation but it is nota llo w e d to b e use d a s e vid e nce . W e
present this but only as an illustration to
the judge. We now have a new law and it
will be implemented by next February.
E le ctronic surveilla nce w ill then b eadmissible as evidence at future trials.
A. Undercover and Electronic
Surveillance Investigation
In drug trafficking investigations, thedetec tives use a lot of un derc overmethods. In the smaller cases they go andbuy the drugs and when the transaction
is done they arrest the people on the spot.
The people and the drugs are presented
in court for trial.
With the bigger cases, undercoverinvestigators
infiltrate
drugorgan ization s usi ng microph on es,
calculators, pencils, etc. A micro video
camera can identify the dealers. They
take part in the negotiations and when
the day and hour is set for the controlled
delivery they arrest the criminals at thatm oment. The und ercover agents areallowed to escape police movement, or
sometimes we arrest the undercoveragent also. Later he and any informants
are then released. To do this type of cases
we, as attorneys, have to talk in advancewith the judge and let him know what isgoing on so we avoid any problem of illicit
evidence.

568

B. Investigative Techniques in
Kidnappings
In kidnapping cases we have to use a
lot of peop le and tim e for theinvestigation. Sometimes the case issolved quickly but other times we canspend a lot of time trying to find thevictim.
M uch o f the time w hen w e ha ve akidnapping, two investigators go to thevictim’s house to be there and tell thefamily how they have to act, tell them
about the negotiation and how to ask for
proof that the victim is still alive. The
family can be nervous and confused andforget to ask for proof of life, also how andhow much to offer the kidnappers is
discussed, because we always offer lessthan the amount the kidnappers demand.
Only in cases where the kidnappers do
not want to negotiate will the family
accept the amount demanded. Also thetime that they spend in negotiation helps
the inve stigato rs to try to ge t m ore
information about them, listen to thephone calls and try to locate the place
where they are and also the place wherethe victim is hidden.
We have had cases in which we locatedthe kidnappers, the phone number andtheir location, then we follow them all thetime, because much of the time they go to
the place where the victim is being held,
so in th a t w a y w e ca n d is co v e r t helocation and search in that location to
rescue the victim.
Other wa ys of doing this is at thedelivery moment when we locate theplace where they choose to make thedelivery of the money, and when thefamily goes to leave the money we wait
until the kidnapers pick it up. In someca ses w e wa it until they release thevictim , in other ca ses w e a rrest the
kidnappers at that moment.

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
C. Other Types of Investigation
In other cases, such as stolen vehicles,
the investigators work most of the timewith informants. They can provide good
information about cars, because every
gang has their own area of operation,
which means that a member of a gangcannot enter and steal a car from anotherarea that does not belong to them.
Also they have a list of all the places
that the car thieves bring the cars tochange the color of different parts, tomake the car look different. Also in theseplaces they change the VIN (Vehicle
Identification Number). Investigators
work with some chemicals which they canapply to reveal the real VIN number.
Th e inv es tigators sh are a lot of
information with other police agencies,
and also with Interpol, and they have alist of a ll the stole n ca rs in Ce ntral
America. When they find a car that they
think that could be stolen, they check it
out on the system and they know if it isstolen or not.

punishment. With drugs, for example, if aperson is found with an amount that is
co n si d e r e d m o r e t ha n w o u ld b e f o r
personal use, then it is considered to be
trafficking and the punishment is 15 to
20 years in jail, plus a 1 to 5 million
lempira fine.
We are trying to make some changes inthat law because sometimes we arrest
people that, for example, sell marijuana
in small amounts and during a search wewill find about 10 to 50 pounds, and mostof the time they are poor people that selldrugs to live. We agree that they should
receive punishment, but 15 years in jail isconsidered too harsh for 10 pounds ofmarijuana and the fine is more than they
can pay. As attorneys, we try to find away to help people, asking them to tell us
about who gave them the drugs, so we cancatch the big players and we offer to talkwith the judge to obtain a more lenientpunishment.

W ith bank robberies it is very
important to make a very good study ofthe crime scene because in that manner
we can know the modus operandi of theg a n g a n d , i n t hi s m a n ne r , p e rh a p s
r e c o g n i z e t h e g a n g . A ls o t he v id e ocameras help a lot in these cases, to show
to the judges, and, most of the time, they
grant the arrest warrants.
IV. LEGISLATIONThe criminal law in Honduras regulate
car crime, kid nappings and bankrobberies. The Congress has improved
the p unishment fo r the se organize dcrimes.
We have a special law against drugs
and money laundering, with very severe569

TRANSNATIONAL ORGANIZED CRIME:THE INDIAN PERSPECTIVE
Shankar Pratap Singh*
I. A BRIEF OVERVIEW
Today, a criminal considers the world
as his field of operation. He commits acrime in one country, deposits the money
derived from criminal activities in an
offshore bank in another country andtakes refuge in yet another country. The
widespread political, economic, social andtechnological changes as well as
variations in legislation, procedures andpolicies in different countries on mutual
assistance in crimina l ma tters havea ll o w e d o r g a n i z e d c r im e g r o u p s t ob ecome i ncreasingly act ive in th e
i n t e r n a t i o n a l a r e n a . I nt e r n a t i o n a lcriminal organizations are taking fulla d va nta ge of glo b al i z a t io n o f w o rld
markets, dismantling of trade barriers,
the increased ease of international travel,
liberalized emigration policies, high-techcommunications equipment andsophisticated m oney laundering
techniques to enhance and further theircriminal efforts and to forge allianceswith other criminal groups. They are
engaged in such felonious activities as
illicit drug trafficking, money laundering,the use of violence and extortion, acts ofcorruption, trafficking in women andchildren, illicit manufacturing of andtrafficking in firearms, environmental
crime, credit card fraud, computer related
c r im e , il l e g a l t r a f f ic k in g o f s t o l e n
v e h i c le s, in d u s t ri a l e sp io n a g e a n d
sa b otage , m aritim e pira cy, etc. T he
problems raised by the current* Deputy

Inspector

Generalof

Police,Anti-

Co rru pti o n C el l I II , Ce nt ra l Bu re au o fInvestigation, India

570

acceleration of the globalization process
cannot be brought under control unlessva rious go vernments coordinate thestrategies and policies at the national
level with the strategies, policies andregulations issued at the international
level.
II. ORGANIZED CRIME—THE
INDIAN PERSPECTIVE
Criminal gangs have been operating inIndia since ancient times. There is nofirm da ta to indica te the num be r oforganized criminal gangs operating in the
country, their membership, their modus
operandi and the are as of their
op era tio ns. Tho usand s of o rganiz ed
criminal gangs operate in theco untryside. Their structure andleadership patterns may not strictly fallin the classical Italian Mafia module.
They may sometimes be operating inloose structures, but the depredations ofsuch criminal gangs are too well known tobe recounted. However, the purpose oforganized crime in India, as elsewhere in
the world, is monetary gain and this is
w ha t m akes i t a formi da bl e force i ntoday’s socio-political set up.
In India, organized crime is at its worst
in Mumbai, the commercial capital of thecountry. The first well-known organizedgang to emerge in recent times was thatof Varadharajan Mudaliar in the earlysixties. His illegal activities included
illicit liquor, gold smuggling, gambling,
extortion and contract murders. Threeother gangs emerged shortly thereafter,
namely, Haji Mastan (gold smuggling),

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Yusuf Patel (gold smuggling) and Karim
L a la ( d ru g s m u gg li ng ) . D ur in g t h eemergency in 1975, when there was a
crackdown on the Indian Mafia, newgangs emerged. Dawood Ibrahim, themost successful, came in conflict with the
Pathan gangs of Alamzeb and Amirzada
w hich led to bitter internecine gangw arfare. The Patha n gangs w ere
liquida ted to leave the field free forDaw ood Ibrahim. In 1985, there wasincreased police pressure which madeDaw ood Ibrahim flee the country. In
March 1993, Dawood Ibrahim was behindthe serial bomb blasts in M umbai inwhich 257 persons died and 713 weremaimed. Public and private property
worth several million rupees wasdestroyed. Investigation revealed thetransnational character of the conspiracy,
the objective of which was to cripple theeconomy, create communal divide andspread terror in the commercial capital ofIndia. Dawood Ibrahim, Tiger Memona nd M oh a mm e d D o s a a r e pr ese nt l yreported to be operating from Dubai.
Their field of activity primarily extends toextorting money from builders and film
p ro duce rs, m ed iating in m on etaryd ispute s, a nd und erta k in g co ntra ct
k i l li n g s . T h e o t h e r m a j o r g a n g s o f
Mumbai indulging in organized crime arethose of Chhota Rajan (Drug Trafficking
and C ontra ct Killings) , A run Gawli(Contract Killings and Protection Money),
Late Amar Naik (Protection Money) and
Choota Shakeel.
Organized crime exists in other cities
too, though not to the same extent as in
M umb ai. There are several gangs
opera ting in D elhi from neighboring
S ta te o f Uttar Pra desh indulging in
kidnapping for ransom. Om Prakash
Srivastava, alias Babloo Gang of Uttar
P radesh, has been responsible fororganizing kidnappings in Delhi andMumbai in which ransom amounts were

paid in foreign cou ntries th rou gh“ Ha w a l a ”. L a nd M a fia ha s p ol i t i ca lconnections and ind ulges in land
grabbing, intimidation, forcible vacation,etc. Of late, the ganglords of Mumbai
have started using Delhi as a place forhiding and transit. Chhota Rajan group isstrengthening its base in Delhi.
Ahmedabad city has been a hotbed ofliquor Mafia because of a prohibition
policy (banning of liquor). The Mafia
became synonymous with the name of
Latif, who started in the mid-seventies asa small time bootlegger and grew up to
set up a 200 strong gang after eliminating
rivals with intim ida tio n, e xto rtion,
k id na p p in g s a n d m u r d e r s . H e w o nmunicipal elections from five different
constituencie s w ith strong po litica lpatronage. He was killed by the police inan encounter in 1997.
A boom in construction activities in
Bangalore city has provided a fertile
breeding ground for the underworld.
Builders are used for laundering blackmoney. Forcible vacation of old disputedbuildings is a popular side business forthe underworld. The local gangsters in
the State of Karnataka have connections
with the underworld of Mumbai. One of
the Mumbai gang operations here is the
Chhota Rajan gang.
Brief profiles of three majortransnational organized criminal groups
are as follows:
A. Dawood Ibrahim Gang
Dawood Ibrahim group is the mostdreaded mafia gang with countrywide
network and foreign connections. He has
stationed himself in Dubai since 1985 andhas indulged in drug and arm s
trafficking, smuggling, extortion andcontract killings. His brother Ane es
Ibrahim looks after smuggling, drugs and

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RESOURCE MATERIAL SERIES No. 59
contract killings, Noora looks after film
financing and extortion; and Iqbal is incharge of the legitimate business which
includes stock broking in Hong Kong.
A nees is in legitima te b usiness to o,m ana ging the M ohd. A ne es Trad ing
Company in Dubai. His businessinterests in India are shopping centres,
hotels, airlines and travel agencies in
M umba i w it h a n a nnual turnover ofabout Rs.20000 million. Extradition ofo f f e nd e r s f r o m D ub a i h a s no t b e e npossible since there is no extradition
treaty with Dubai. Moreover, some ofthese offenders have strong social links
with politicians and other top
personalities in Dubai.
B. Chhota Rajan Gang
Chhota Rajan was a member of the
Dawood gang but parted company after
the 1993 serial bomb blasts in Mumbai.
He raised his own gang in 1994–95 whichis reported to ha ve a membership ofseveral hundred persons today. Chhota
Rajan himself is in a foreign country to
avoid elimination by the Dawood gang.
His gang indulges in drug trafficking andcontract killings. In collaboration withanother local gang, he organized thekilling of a trusted leader of the Dawood
Ib ra him gang, Mr. S unil S amant, in
Dubai in 1995.
C. Babloo Shrivastava Gang
Om Prakash Shrivastava in Babloo
Shrivastava is facing 41 cases of murder,
kidnappings for ransom, etc. He wasarrested in Singapore in April 1995 on
the basis of a Red Corner Notice issued by
INTERPOL and extradited to India in
August 1995. He has since been in jail but
his gang continued to indulge inorganized kidnappings and killings. The
ransom amount is received by them infor eign cou ntries th r ou gh haw ala(alternative non-banking remittance572

channel). The power of this gang has
dwindled after his arrest.
III. ILLICIT DRUG TRAFFICKING
Illicit drug tra fficking is the m ost
significant transnational organized crime
wh ich ha s become a s eriou s iss ue
co nfronting both developing anddeveloped countries. In most countries,
despite years of drug suppression andprevention efforts, the cycle of drugtrafficking and drug abuse continues. If
allowed to remain unabated, the drug
menace will considerably destroy thequality o f life of peo ple a nd ha mper
countries in their social, economic andcultural development.
I nd ia i s a va s t c oun tr y w it h l a ndborders extending over more than 15000
kilometers and a sea coast line of over7000 kilometers. India’s narcotic problem
need s to be visualized from its
geographical situation. India is flanked
on either side by two regions which areinternationally acknowledged as major
sources of illicit opiates namely, SouthWest Asia (Afghanistan and Pakistan)and South-East Asia (Myanmar, Laos,
Thailand). Additionally, N epal, a
traditional producer of cannabis, bothherbal and resinous, fringes the country
in the North.
India is a traditional producer of licit
o p i u m f o r m e d i c in a l a n d s c ie nt i f ic
purposes. It is grown in three states,
namely, Uttar Pradesh, Rajasthan andMadhya Pradesh under official control of
Narcotics Commissioner. A part of thelicit opium enters the illicit market indifferent f orms. Although opium
production is strictly under Government
control in India, illicit poppy plantations
ha ve b ee n re p or ted in som e p la c es.
Besides, there is illicit cultivation ofopium in the hill tracks of some states.

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Bangladesh. In the early eighties, theBorder State of Punjab became affectedwith narco-terrorism with the smugglingof narcotic drugs and arms from acrossthe border. This was also the time whenth e d ru g M a f i a e m e r g e d i n G o l d e n
Crescent countries.

India has a large presence of chemicalindustries producing precursor materials
like acetic anhydride, acetyl anthranilicacid, etc. for law ful purposes. Thesechemicals are also utilized for processing
and manufacturing heroin. The illicit
c ult ivat io n o f op iu m as w el l as th e
precursor chemicals can be used for them anuf a cture of hero in. For the last
several years, India has also become ab a se fo r the m anuf acture of heroin,particularly in and around the opium
producing districts of Uttar Pradesh,
Madhya Pradesh and Rajasthan.

Although the use of India by the drug
tr af ficke rs a s a t ra ns i t country ha sresulted in an increase in drug abuse dueto the spill-over effect, drug addiction inIndia has not assumed such a serious
magnitude as in some of the westerncountries, but there are no grounds forcomplacency. There have been reports ofdrug use among the students ofuniversities in Delhi, Mumbai, Calcutta
and Chandigarh. Indian society is notagitated too much. It is customary insome places to consume Bhang (crushed
lea ves of the ca nnab is pla nt) on the
popular festival of Holi. There is no suchtolerance for charas or ganja which also
derived from the same cannabis plant.

The illicit drug trade in India has
centered a ro und f ive m ajor narcotic
substance s na m ely he ro in, ha shish,
opium ,
herbalcannabisandmethaqualone. The Indo-Pak border has
traditionally been the most vulnerable todrug trafficking. Drug trafficking throughIndia consists of hashish and heroin from
Pakistan, hashish from Nepal, whiteheroin from Myanmar and heroin from

1. Quantities of the most common drugs and precursors seized in India during theyears 1997 to 2000
Name of the drug/precursor

Quantities seized in kilograms
1997

1998

1999

2000

Opium

3,316

2,031

1,635

2,524

Morphine

128

19

36

37

Heroin

1,332

655

861

1,198

Ganja

80,886

68,221

40,113

94,682

Hashish3,281

10,106

3,391

4,923

Cocaine

24

1

1

0.08

Methaqualone

1,740

2,257

474

1,095

Acetic Anhydride

8,311

6,197

2,963

1,337

2. Details of significant seizures ofnarcotic drugs and psychotropic
substances made during 2001(i) On 5 January 2001, the Directorateof Revenue Intelligence, Amritsar

R eg io n a l U n i t s ei z e d 1 7 , 9 0 0 kg
heroin from a truck at octroi post.
The suspected source of the seizeddrug was Pakistan and it wasconcealed in three packets kept in a

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RESOURCE MATERIAL SERIES No. 59
cabinet in a driver’s cabin and 15
packets in an LPG cylinder lying in
the tool box on the roof of the truck.
(ii) On 8 February 2001, the Narcotics
Control Bureau, Mumbai Zonal Units e iz e d 1 4 2 3 . 6 9 0 k g o f m a nd r a x
tablets from a truck at the premisesof M/s High Point Industries, MIDC,
Taloja.
(iii) On 17 April 2001, the Directorate of
Revenue Intelligence, New Delhi
seized 17.000 kg of heroin at
National Highway No.8, opposite
Shiva temple, Delhi-Gurgaon Road
when the occupants of two vehicles
were transferring the drug from one
vehicle to another. The suspectedso u rce o f t he s e iz ed he r o in w a s
South-West Asia.
(iv) In the first week of August, 2001, theDirectorate of Revenue Intelligence,N e w D e lhi se iz e d t w o t on ne s o fhashish from two godowns in
M o rd a b a d , n ea r D el h i . I t i s t h ebiggest ever seizure in Northern
India. The hashish was brought from
Nepal, wh ere it was processed
initially for over a period of 2 to 3
months. The bundles of 200 to 300
kgs of hashish were brought hiddenin a mini luxury bus over a period of
3 to 4 months, and stashed away in agodown in Mordabad. The bundles
were then covered in polythene bags,
wrapped with aluminum foils,
vacuum- pa ck ed a nd the bund les
shifted to another godown nearby.
The machine used in vacuum
packing was also recovered. A total of
4,000 packets, each containing 500
gms of hashish in cake form, wererecovered. The vacuum-packed
hashish concealed in packages ofhandicrafts was to be transported to
Mumbai docks and then shipped to
the United States.

574

The Government of India have taken
various legislative, administrative andpreventive measures to counter drugtrafficking in the country. Among theprominent legislative measures are theprovisions of deterrent punishment under
the NDPS Act, 1985 , a pplications ofpreventive detention of drug traffickers
un d e r t he C o ns e r va ti o n o f F o re ig n
Exchange and Prevention of SmugglingA c t iv i ti e s A c t , 1 9 7 4 ( C O F E P O S A ) ,notification of certain chemicals likeacetic anhydride as a ‘specified item’
under the Customs Act, 1962 and India’sland border with Myanmar falling within
the territories of the States of Arunachal
Pradesh, Nagaland , M anipur and
Miz oram h av ing been declared a s‘specified areas’ under the said Act for the
purpose of checking illegal trafficking
across the border. The creation of the
Narcotics Control Bureau as an apex
coordinating and enforcement agency at
the national level is one of the prominentadministrative measures taken by theGovernment.
The Narcotic Drugs & Psychotropic
Substances (NDPS) Act, 1985, which was
enforced with effect from 14 November
1985, provides for a minimum
punishment o f 10 years’ rigorous
imprisonment and a fine of one hundred
thousand Rupees extendable to 20 years
rigorous imprisonment and a fine of two
hundred thousand Rupees. In respect of
repeat offenses, the Act provides for thedeath sentence in certain circumstances.
In remaining cases, a minimum
punishment of 15 years rigorousi m p r i s o n m e n t a n d a f in e o f R s . 1 . 5
hundred thousand, which is extendable
up to 30 years rigorous imprisonment andfine of three hundred thousand Rupees.
The courts ha ve be en emp ow ered to
impose fines exceeding the above limits
f o r r e a s o n s to b e r e c o r d e d i n th e ir
judgments.

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
The N.D.P.S. Act also provides for:Constitution of a National Fund forControl of Drug Abuse to meet theexpenditure incurred in connection
with the measures for combating
illicit traffic and preventing drug
abuse.
(ii) Control over chemical substances
which can be used in the
manufacture of narcotic drugs andpsychotropic substances throughappropriate licensing and deterrent
punishment for violation thereof.
(iii) Total ban on suspension, remission
or commutation of sentences under
the penal provision.
(iv) Forfeiture of all illegally acquired
properties derived from or
attributable to illicit trafficking. All
enforcem ent agencie s ha ve b een
empowered to trace and freeze/seize
such property as are liable toforfeiture under the Act, subject toconfirmation within a period of 30days by the competent authority
appointed under this Act. The law
applies to all properties and assets oftraffickers acquired within a periodof six years immediately preceding
the date on which such a trafficker ischarged with an offense under thisAct.

and su p p o rti ng il le gal ac tiv itie s o forganized criminal groups.

(i)India is one of the few countries inwhich an adequately deterrent penal
system has been developed with regard to
drug trafficking. This is in conformity
with the UN Resolutions of 1961, 1971
and 1988 on Narcotic Drugs andPsychotropic Substances.
IV. ILLEGAL FIREARMS
TRAFFICKING
Firearms trafficking is a global
phenomenon and generally resorted to forgenerating profit, purchasing narcotics

In India, the states of Punjab which
w ere a ff ected by terrorist activitie s
during the 1980s and Jammu & Kashmir
have been particularly vulnerable toarms trafficking across the border. India
has a long border with Pakistan, Nepal,
Bhutan, China, Myanmar and
Bangladesh. The Border Security Force,
which guards the borders, continues toseize large quantities of AK Series rifles,
heavy machine guns, pistols andre v o lv e rs , r o c k et la u n ch e rs , ri f le s,magazines and ammunition.
In 1993, a consignment of AK-56 rifles,
magazines, live rounds and hand
grenades was sent from a Gulf country byland at the cost of Dighi Jetti in the Stateof Gujarat. Subsequently, huge quantities
of arms, ammunition and explosives weresm uggle d into Ind ia by sea route a t
Shekhadi in District Raigad. These wereused for bomb blasts in Mumbai on 12
March 1993, wh ich caused t error,
widespread damage, loss of 257 lives andmaiming of 713 persons. During
investigation, some of the arms recoveredin c l u d e d 6 2 A K - 5 6 r i f le s w it h 2 8 0
magazines and 38,888 rounds, 479 hand
grenades, 12 pistols of 9 mm make withammunition, 1100 electronic detonators,
2313 kgs. of RDX, etc.
The Police Authorities in the state of
Madhya Pradesh in central I ndia
recovered 24 AK-56 rifles, 5250
cartridges, 81 magazines and 27 hand
grenades on 4 November 1995.
On 17 February 1996, Delhi Police
recovered 361 pistols of 0.30 caliber withth e i n sc r i p ti o n “ M a d e in C h i n a b y
Norinco”, 728 magazines and 3738 live
rounds in a cavity in the undercarriage ofa caravan bus. In this ca se, a S w iss

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RESOURCE MATERIAL SERIES No. 59
national and an Iranian national living inPakistan since 1981, were detained andthe investigation disclosed that this infact was the second consignment, the first
one having been successfully smuggled
into India in 1995. 22 persons including
five foreign nationals have beenprosecuted in the court of law in this case.
A sensational case called the Purulia
arms drop case was an example of illicit
arm s traf ficking by air. On 17th
December 1996, an Antonov 26 aircraft
dropped over 300 AK47/56 rifles and20,545 rounds of ammunition, dragnov
sniper weapons, rocket launchers andnight vision devices in Purulia village inWest Bengal. The aircraft was boughtfrom Latvia for US$2 million andchartered by a Hong Kong registeredcompany Carol Airlines. Payments weremade mostly from foreign bank accounts.
The aircraft picked up a consignment ofa rms from Bulga ria using end-users
c e rt if ic ate iss ue d by a n e igh b o ri ng
country. The arms were airdropped overPurulia in the state of West Bengal.
This ca se was investigated by theCentral Bureau of Investigation and acharge she eted in the City Sessions
Court, Calcutta. After trial, the court
f ound the a ccused p ersons guilty o foffenses under the Indian Penal Code,Explosive Substances Act, Arms Act,
Explosives Act, and the Aircraft Act andsentenced Mr. Peter James Gifran Van
Kalkstein Bleach (British National), Mr.
Alexander Klichine, Mr. Igor Moskvitine,
Mr. Oleg Gaidash, Mr. Evgueni
Antimenko, Mr. Igor Timmerman (allLatvian nationals) and Mr. Vinay Kumar
Singh (Indian national) to various termsof rigorous imprisonment on 2 February
2000.

576

V. HUMAN (WOMEN AND
CHILDREN) TRAFFICKING
Emigration of human beings from one
country to another for trade, commerce,
religious and other purposes is as old as
human civilization itself. However, theword ‘traffic in human beings’ implies
illegal movement of people from one
country to another in violation of existingna ti o na l la w s a n d p r o c e d ur e s . T h e
countries of the West have become highly
vulnerab le on this count as they are
attracting hoards of illegal emigrants
mainly because of their relative economicp ros pe rity . I llite rate , inno ce nt andgullible persons from under developed
and developing countries, in their urge toearn m ore money from overseas
emplo yment, fall easy prey tounscrupulous and unauthorised agents.
Such activities in India have turned intoa lucrative business as the agents induce/
make the immigrants part with large
sums of monies towards theircommission/service charges, expenses onjourneys as well as for arranging
passports, visas and statutory clearance.
Often the travel documents are not validand sometimes they are simply dumped
into foreign lands without giving thempromised employment.
I nd i a h a s al so b ee n sign if ic antl yaffected by such immigrants. India isfound to be both the country of origin anddestination for trafficking in women.
According to intelligence reports, about1200 thousand em igrants from
Bangladesh have settled in the borderStates of West Bengal and Assam after
independence. The problem, however, hasspread as far wide as Mumbai, Rajasthan
and Delhi, which have an estimated 300
thousand emigrants from Bangladesh.
Similarly, a large number of Indians areworking abroad, particularly in the Gulf
region. A number of young girls from

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
southern India have been sent to the Gulf
countries. There have also been reportsthat India has served as a transit point
for trafficking of young virgins from
Nepal, Myanmar and Bangladesh to theMiddle East, mostly Dubai.
An estimated 5,000 to 7,000 Nepali
girls are annually sold into brothels in
India for prostitution. According to ap re ss re p o rt, 9 N ep a le se gir ls age d
between 14 and 25 years, were rescued at
Nepal-India border point at Kakarbhitta
in Eastern Nepal in September, 2000.
The rescued girls said that they were
lured by the agents on the pretext ofgetting them married or obtaining jobs
for them in India. According to anotherpress report, the Nepal police arrested
one Dhan Bahadur Gurung in November,2000 on charges of selling more than 300
women and girls. He is accused of luring
them into prostitution by falsely
p rom isin g m ar ria ge a nd job s in th e
circus e s i n I nd ia . In ea rly 2 0 0 1 , a nemigration racket, in which a nexus ofpolicemen deployed at the Hyderabad
airport and travel agents facilitated morethan 3,000 people sneaking out on fakepapers, came to light when nearly 40
women mostly illiterate were being sent
to the Gulf countries from Hyderabad
airport on fake papers.
Paedophiles now have a titillating new
tool—the Internet. It allows them toa ccess p ornogra phic p hotogra phs o fchildren, enter their homes, and ‘groom’them for rape. The first case of
paedophilia appears to have come to lightin India in April, 1991 when the police
raided the house of Father Freddy Peat,
who had been running an orphanage in
G oa, a nd recovered drugs and 2 ,3 05
photographs of children forced into sexualacts. Peat was arrested and later
sentenced for life. It is believed that
copies of a large num ber of pictures

seized from Peat in 1991 have made their
way onto the Web.
On December 16, 2000, a Swiss couple
William and Loshier Marty, who werepart of an international paedophile racket
with operations in the West, Thailand,
Sri Lanka and India were arrested at aresort in Madh Island, Mumbai with twominor gir ls. Acco rding to the po lice
sources, photos of the couple’s victims—
some as young as seven—were supplied
to paedophiles rings and were also postedon the Web. The internet has facilitatedthe organization of paedophiles, who can
now easily down load pictures, forward
them to friends, enter chat rooms andpick out targets and eventually lure theminto a meeting.
Another site came into the focus of
CBI’s Cyber Crime Investigation Cell
during routine surfing. The site sold itself
as a platform for those who would like tobuy or sell sex slaves. In business since1998, it offered members a sickening
variety of slaves: virgin, black, teen,
pregnant and more. A membership fee
could be waived if a person tortured aslave and sent in photographs. The CBI
set up a decoy customer and were
promptly offered a teenage girl. The site’s
pimp was learnt to be operating fromcybercafes in Delhi. At the last minute,however, he backed out of the deal andremained untraceable.
India’s first case of child porn on the
Net came to notice last year. The site inquestion had a deceptively innocent
homepage. But persist with the links andthe site brought out 27 files with titles
such as “Little bitches on the beach” and“All in the family”. By paying a little more
one could watch the “VIP series” andcustomized videos. Most of the girls
featured were under 10 and South Asian.
Investigation reveals that the site was

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created in Lima, Peru. But its domain
server was being provided by Arvind
Shyam Jagdam from Hyderabad. Jagdam
was arrested in September, 2000.
Information was sought from Peru police
but the response is still aw aited. Anintere sting fact revealed during
investigation was that the naked children
shown on the site were missing from theirhomes.
Child-porn sites showcase India as apaedophile’s paradise. However, mostIndians still discount child porn on the
net as a western perversion. Paedophilia
and more so its prevalence online is still
not a priority crime for the police in India.
The Indian mind set is such that few are
willing to accept that their children canbe at such risk.
India has sufficient legislation to deal
eff ectively with the problem ofSuppression of Immoral Traffic as well as
ille gal e migra tio n out o f Ind ia . T he
S u p p r e s si o n o f I m m o r a l T r a f f i c i n
Womens and Girls Act, 1956 to deal withthese offenses, was re-enacted under thename of Immoral Traffic (Prevention)
Act, 1986 to rectify some lacunae in theearlier Act.
The National Commission for Women
review s la ws, conducts inq uirie s for
red ressal of complaints, undertakes
promotional research for policies, advises
the Government and ensures custodial
justice for wom en. The C om mission
enjoys the powers of a Civil Court byv ir t u e o f S e ct io n 1 0 ( 4 ) o f N a t io n a lCommission for Women Act, 1992. It hasformed an Expert Committee and has
formulated a 10-year National Plan of
Action (1997–2006) to coordinate with the
9th and 10th Indian Five Year Plans.
The la w r elating to em igra tion o fcitizens of India was consolidated and578

amended by enacting the Emigration Act,
1983 which repealed the earlier Act of1922. In order to protect and aid, witha d v i c e , a l l in te n d i n g e m ig r a n t s , aprovision was made for the appointmentof a Protector-General of Emigrants andProtector of Emigrants by the Central
Governm ent. The Act prohibits a
recruiting agent to commence or carry on
the business of recruitment except under,
and in accordance with, a certificate
issued on that behalf by the ProsecutorGeneral of Emigrants or any other officer
notified as registering authority underthe Act. It further prohibited an employer
to recruit a ny citizen of In dia for
employment in a ny country or placeoutside India except through a recruiting
agent competent under the Act to makesuch recruitment or in accordance with avalid permit issued on this behalf underthe Act.
The Act provides for a punishment of
imprisonment for a term which may be
extended to two years and with a fine
wh ic h m a y e x te nd t o t w o th ou sa nd
r u p e e s f o r c o n tr a v e n i n g t h e a b o v eprovisions or collecting, from anemigrant, any charges in excess of theli m i t s p r e s c r ib e d un d e r t h e A c t o rcheating any emigrants, etc. All offenses
und er t he Em igrat io n A ct, 1 9 83 are
cognizable.
V. MONEY LAUNDERING
Crime pays and criminals naturally
want to be able to enjoy their profits
without worrying about the police or the
courts. This is not a new economic orsociologica l pro blem . Ho w ever, ge opolitical developments over the past 50
years together with economic
g lo b a l i z a t i o n h a v e m e a n t th a t t h einternational movement of money has
increased. The rapid expansion ofinternational financial activity has gone

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
hand-in-hand with the development oftransnational crim e, which takes
a d v a n t a g e o f p o l it ic a l b o r d e rs a n d
exploits the differences between legal
systems in order to maximise profits. The
gro ups involved are genuinely
multinational and pose a direct threat tot h e f in a n ci a l s t a b i li ty o f e c o n o m i csystems. They destabilise democracy
because they are backed by clandestinen e t w o r k s s u b je c t to th e la w o f t h eunderworld.
Money laundering cannot bedisassociated from other forms of crime.
It is a fact that it thrives on corruption.
Corrupt people use financial techniques
to hide their fraudulently obtained assets
and the continued successful applicationo f th ese tec hniq u es d ep e nd s on th e
involvement of influential accomplices.
Money laundering is therefore at thecentre of all criminal activity, because itis the common denominator of all othercriminal acts, whether the aim is to makeprofits or hide them.
Laundering operations are, in fact,
intended more to conceal the origin of themoney than its criminal nature, in otherwords to hide the traffic from which it isderived rather than the general criminal
activity which actually generated it. It istherefore essential to move the money inorder to scramble the route it takes. The
operation is wholly successful when thenature of the money is also concealed and
it is impossible to establish a link withany criminal activity because thed i f f e r e n t c ir c u its t a k e n gi ve it t h eappearance of legitimate income.
T he I n d i a n “ H a w a l a ” o r “ H u nd i”
system can be explained as a transfer ofm on ey thr ough unof f icia l ch ann els,
normally outside the banking channels
used by b usinessmen. The mone y sotransferred often includes the money

derived from criminal activities or in
violation of the country’s legislation.
Underground banking which conveys asense of a system may not strictly covermisuse of banking channel. It may refer
to, in a restricted manner, a system ofrendering services which are similar tobanking services, the most important inthis context being the transmission ofmoney. Hawala represents such services.
As a developing nation, India feels
seriously concerned not only becausemoneylaundering,
includingcompensatory payments known as
HAW ALA tr ansactions, have been
threatening the economy but also becausesuch practices contribute to the country’s
illicit drug trafficking and terrorist andsubversive activities leading to large
scale violence.
Of la te, an im p re ssio n is gaining
ground that I ndia is be coming
increasingly vulnerable to money
laundering activities and is becoming atransit point for drug traffickers andother criminals from the Golden Crescenti.e. Pakistan, Afghanistan and Iran and
the Golden Triangle i.e. Burma, Thailandand Laos. The Economic Intelligence
Council meeting of August, 1993 also
observed that money laundering is now amajor issue and has become a means offinancial clout and strength of economic
offenders and drug traffickers. India is
fast becoming a conduit for the South
East, Middle East, Far East and Latin
American countries. The Indian hawalasystem or underground banking is used
extensively fo r d rug tra fficking andre m i tta nc e s o f m o n e y by bo th no n resident Indians and resident Indians.
In 1992–93, there were press reports
on t he U .S . Sta te D epart ment ’s
investigations into the possible use ofIndian Banking Channels for laundering

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RESOURCE MATERIAL SERIES No. 59
drug money, including the possibility oflinks with the securities irregularities of1992. An article in the London Times ofMay, 1993 had suggested that India,
more specifically Bombay, was attracting
huge amounts of Narcotics money fromdrug cartels in Columbia.
There were also, in 1994, reports in thepress that the private sector in India ismaking its presence felt in the area ofquick transfer of cash across continents.
Travel agents and courier companies aretargeting Indians living abroad who want
to repatriate money. As no minimum/
maximum limits are prescribed, the time
taken to transfer money is much less. As
such private companies do not fall within
the direct control of the banking system,
it could perhaps lead to the facility being
used by money launderers, though there
is no such case reported so far.
The high tax rate and the Exchange
C ontrol Regulations (though now
considerably liberalised) have been them ajor rea sons for ha wa la a nd othereconomic crimes in India. The Indian
hawala system or underground banking
is used extensively for drug trafficking
and remittances of money by both nonresident and resident Indians. It is the
Hawala where the economic offenders
and the launderers meet. These offenders
easily become prey for money launderers,
or it can be said that these offenders on
the one side and the money launderers on
the other side close the circle.
In India, money laundering is also
indulged in by some corporate houses toevade taxes as well as by the organizedcriminal groups to launder dirty money.
Money laundering techniques include
smurf ing, establishment of front
companies, acquisition of commercial andnon-commercial properties, remittances
through Hawala (non-banking channels),

580

over- invo icing and double invoicing
legitimate business and foreign
remittances. Non-resident Indians havebeen given some special banking
facilities. These facilities are misused tobring back the money as white money.
For example, a portfolio account is opened
in a foreign country and the money islaundered back to be invested in the stock
markets. Another modus operandi is tolaun der th e money thr ough bogu sexports. The conversion of black money isdone b y over-invoicing the products.
Some shell companies are setup to issue
bills or invoices accompanied by bogustransport receipts in order to obtainfunds against these documents frombank/financial institutions and thendivert major parts of such proceeds by
issuing cheques in the names of none xist en t f ro nt c o m p a nie s o f ch e q ue
discounters. The cheque discounters thenhand over cash immediately to the party
after deduction of their commission. The
cheque discounte rs are generally
associated with commodities markets
where fake transactions in commodities
can largely go unnoticed. The chequediscounters also issue fake Letters of
C r e d it a n d f a l s e b il l s . T h e c h e q u e
discounters file income tax returns in
w h ic h t h e c o m m i ss i o n i s s h o w n a s
taxable income.
Money laundering per se has not been
made a criminal offence in India so far.
Certain activities like diversion of funds,
submitting false statements relating toinventories, multiple financing etc. which
could serve as means towards the end ofmoney laundering are also not consideredas crimes. The problem had so far been
dealt with mainly under the Foreign
Exchange Regulation Act, 1973, but witheffect from June 2000, FERA has been
replaced by the Foreign Exchange
Maintenance Act. A bill to enact a money
laundering la w to b e na med ‘The

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Prevention of Money Laundering Bill’ hasbeen introduced in Parliament by theGovernment of India but the same still
remains to be enacted as law. Moneyla un d e r ing ha s b e e n p ro p o s e d a s acognizable crime punishable withrigorous imprisonme nt of 3 – 7 ye ars
which could be extended to 10 years and afine of up to Rs. 0.5 million. Thea cq uisition, possession or ow ning o fmoney, movable and immovable assets
from crime, especially from drug andnarcotic crimes, would be tantamount tom o n e y la u nd e r in g . C o nc e a lm e nt o f
information on proceeds or gains from
crime made within India or abroad is
proposed to be an offence. An
adjudicating authority is proposed which
would have powers to confiscatep rop erties of mo ney la und ere rs. A n
a d m i nis t ra t o r m a y b e a p p o i n t e d t o
m a n a g e t h e c o n f is c a t e d a s se t s . A nappellate tribunal is proposed to be set up
with three members to hear appeals fromthe orders of the adjudicating authority.
The rulings of the adjudicating authority
would thus not be contestable in the local
courts. Fin ancial in stit uti on s are
expected to maintain transaction records
and furnish these to the adjudicatinga uthority. Fa ilure to do so would b epunishable too.
However, at present, there is certain
legislation to deal with such offenders.
Such legislation is specifically intended todeprive offenders of the proceeds andbenefits derived from the commission of
offences against the laws of the country.
Besides, such legislation also provides forthe con fisca tio n or fo rfe itur e o f theproceeds or assets used in connection
with the commission of certain crimes. In
the offences relating to narcotic drugs
and psychotropic substances inparticular, the very act of acquisition ofproperty derived from or used in illicit
trade and in relation to which

proceedings for forfeiture have b een
initiated has been made punishable, also
as a distinct offence (Sec. 68-Y of NDPS
Act, 1985).
To deprive persons of the proceeds andbenefits derived from the commission of
an offence against the law of the land
including forfeiture or confiscation ofsuch property, Indian legislation also
include the following Acts:(i)

Criminal Law (Amendment) Ordinance, 1944;(ii) Customs Act, 1962 (Secs. 119 to 122);(iii) Code of Criminal Procedure, 1973
(Sec.452);(iv) Smugglers & Foreign Exchange
Manipulators (Forfeiture of Property)
Act, 1976;(v) Narcotic Drugs & Psychotropic
Substances Act, 1985 (Secs. 68-A to68-Y);(vi) In addition, Indian statutes also
contain provisions for preventive
detention of fo reign exchange
racketeers under the Conservation of
Foreign Exchange and Prevention of
Smuggling Activities (COFEPOSA)
Act, 1974, and of the drug traffickers
under the Prevention of Illicit Trafficin Narcotic Drugs and Psychotropic
Substances (PITNDPS) Act, 1988.
In one of the cases of money laundering
dealt with by the Central B ureau of
Investigation, an organized group of
Hawala dealers operating from London
and Dubai used to receive remittancesfrom foreign banks for transferring thesame to India. A telephonic message incoded words would be passed to agents in
India to pay money in Indian currency.
The remittances so received by the above
mentioned persons in Dollars or Pounds
Sterling at London and Dubai were used
fo r purchase o f gold, drugs, ar ms,
ammunitions and explosives through the581

RESOURCE MATERIAL SERIES No. 59
underworld. The arms, ammunitions andexplosives were used to be smuggled into
I n di a a n d s ol d t o v a rio u s c ri m i n a l /terrorist groups while the drug used to be
distributed to the traffickers.
VII. CYBER CRIME
The exponential growth of computerrelated crime commensurate with theincreasing dependence of computers ino ur d a y- to -d a y live s ha s po se d ne w
c h a l le n g e s to t he l a w e n f o r c e m e n t
a gencies in India. With the physicalgrowth of the Internet over the past few
years, a number of new generation crimes
affecting the LAN, WAN and Internet
have created extraordinary situations.
Hacking, computer network breaches,
copyright piracy, software piracy, childpornography, password sniffers, credit
card frauds, cyber squatting are some of
the new terms in the average criminal
investigator’s d ictionary. Highly
intelligent persons commit these newgeneration crimes leaving hardly any
trace and making investigation highly
difficult and complicated. Recently, one oft he h u rd le s i n t he i nv e s tig a t io n o fcomputer-related crimes in India wasovercome by the enactment of legislationin the form of the Information Technology
A ct, 20 0 0, w hich cam e into force on
October 17, 2000.
The Act delineates two separate typesof penal provisions: contraventions andinformation technology offences. Whilec o nt r a v e n ti o n r e su l ts i n m o n e t a r ypenalty, the IT offences may result in theoffender being imprisoned or paying afine or both. Tampering with computersource codes, obscenity, ha cking,u na uth o ri z e d a cc e ss t o a p r o te ct e dsystem, misrepresentation before
authorities, breach of confidentiality andprivacy, publication of false particulars indigital signature certificates, etc. have582

been listed as criminal offences under
this Act. Amendments have also been
made to the Indian Penal Code, Indian
Evidence A ct, the Bankers’ Book
Evidence Act and Reserve Bank of India
A c t to f a c i l it a t e i n v e s t i ga t i o n a n dprosecution of cyber crime.
The Central Bureau of Investigation
has recently crea ted a Cyb er C rime
Research & Development Unit which
maintains close liaison with international
agencies like the FBI, Interpol and otherforeign police agencies to share skills andtechniques in investigating cyber crimes.
The officers of CBI associated in thisexercise share their expertise with theState police fo rces through regio na ltraining programmes held periodically.
VIII. CURRENCY
COUNTERFEITING
Currency counterfeiting is one of theorganized white collar crimes which has
assumed serious proportions globally. It
not only causes serious setbacks to theworld’s economy but also jeopardizes thegenuine busine ss transactions.
Nowadays, the counterfeiting of currency
notes is done with the help of modern
eq uip me nt such as co lo ur scanne rs,
colour copiers and printers, as well as byof f se t p ro c ess. M ost o f the se cur ity
features are copies from genuine notes byusing modern techniques to produce thecounterfeit currency notes very close togenuine currency notes. For achieving there quired finish in the art ofcounterfeiting, the advance computer
technology provides them withsophistication and perfection.
There has bee n a n up surge in theincidents of supply of counterfeit Indiancurrency notes from across the border ofIndia especially from the Indo-Pakistan
border and Indo-Nepal border. During

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERSt he year 199 9, c oun ter feit In di an
currency notes valued at Rs.18.4 million
were seized as compared to Rs.6.5 milliond u r in g 1 9 9 8 in d ic a tin g a th r e e f o l dincrease. During the year 1999, the three
States of Uttar Pradesh, Bihar and West
Bengal accounted for almost 40% of thetotal seizures. There are two recent casesof recovery of counterfeit Indian currency
notes which have internationalramifications:(i)

In January, 2001, the Uttar Pradesh
Police, with the arrest of a suspected
ISI agent, identified as Abal, from
Muzaffarnagar District, busted agang responsible for circulating fakecurrency notes across Western Uttar
Pradesh, Delhi, Haryana, Rajasthan
and Punjab. Currency notes worth
Rs.17,000/- in the denominations of
Rs.500/- and Rs.100/- were seizedfrom Abal.
(ii) In March, 2001, the Mumbai Police,in one of the biggest hauls, seizedcounterfeit currency notes worth
Rs.15 million in two separate cases.
Ten persons linked to a Dubai-basednotorious ISI agent Aftab Batki, werearrested. The counterfeit notes wereof R s.5 00/- den omi nati on . Th e
consignment had arrived from Dubai
by air a couple of weeks ago. The
notes w ere concea led in w ater
dispensers and TV sets. After being
smuggled into Mumbai, these werehanded over to the Dawood gangsters
for circulation. The interrogation of
the arrested accused revealed thatthey worked for Aftab Batki. The
police recovered from them a
sep arate consignm ent o f fakecurrency notes worth Rs.9 million
m e ant to be sup p lied to c er tain
businessmen in Mumbai.
India, as a signatory to the Geneva
Convention, 1929, is committed to extend

full cooperation to all other countries foreliminating or containing to the furthest
extent possible, the counterfeiting ofdomestic as well as foreign currencies.
Indian laws and enforcement measures
are in full conformity with the principles
laid down in the Convention. The Indian
Penal Code provides for punishment oflife imprisonment or imprisonment for up
t o 1 0 y e a r s f o r c o u n t e r f e i t in g a n ycurrency note or bank note, using as
genuine, forged or counterfeit currency
no te s o r ban k n o te s and m a k ing or
possessing instruments or materials forforging or counterfeiting currency notes.
I t a ls o p r o v id e s f o r p u n is h m e n t o f
imprisonment up to 7 years for possessionof forged or counterfeit currency notes orba nk no tes. The m ak ing o r using of
documents resembling currency notes orbank notes is also an offence punishable
with a fine. The investigation of cases
involving counterfeit currency is done byspecially trained staff of the State Police.
At the national level, the Central Bureau
of Investigation has created a separate
unit to ta ke up the inve stiga tion of
offences of counterfeit currency whichhave inter-state or internationalramifications.
IX. SPECIAL INVESTIGATIVETOOLS TO COMBATTRANSNATIONAL ORGANIZEDCRIMEThe use of traditional investigative
methods to combat transnationalorganized crime has proved to be bothve r y d if f i cu lt a n d in e f f e c t iv e . T hi s
demands that law enforcement agencies
utilise special investigative tools such as
controlled delivery, undercover
operations and electronic surveillance(wiretapping,
communications
interception etc.) to effectively fighttransnational organized crime. However,the use of these tools are often

583

RESOURCE MATERIAL SERIES No. 59
surrounded with controversy because
there is always public fear that theym ig h t i nf r i ng e o n h u m a n r i gh t s t oprivacy or are likely to be misused by thegovernment to oppress citizens.
A. Controlled Delivery
Controlled delivery techniques have
proven an important enforcement tool in
identifying the principles involved in
drug trafficking and other major
smuggling offences. It is particularly
important in countering the criminal
activities of drug traffickers who, by theuse of couriers, creation of f alse
documents and other deceptive practices,
carefully disassociate themselves and try
to be remote from the drug trafficking
operations.
The United Nations Conference for the
adoption of a Convention against illicit
traffic in narcotic drugs and psychotropicsu bstances h as defined controlled
delivery as follows:“Controlled delivery” means thete chni q ue o f a l l ow in g i l li c it o rsuspect consignments of narcotic
drugs, psychotropic substances,
substances in Table-I and Table-IIan nex e d t o t hi s C on ve nt io n, o r
substances substituted for them, topass out of, through or into theterritory of one or more countries,
with the knowledge and under thesu p e r vi s i o n o f t he i r c o m p e t en t
authorities, with a view to
identifying persons involved in thecommission of offences establishedin a ccordance with Article 3,
paragraph-1 of the Convention.”
Further, Article 11 of the Convention,
covering controlled delivery, reads asfollows:

584“1 . If perm itted by th e b asicprincip les of their respective
domestic legal systems, the Parties
shall take the necessary measures,within their possibilities, to allow
for the appropriate use of controlled
delivery at the international level,on the basis of agreemen ts or
arrangements mutually consented
to, with a view to identifying persons
involved in offenses established inaccord an ce wi th Article 3,
paragraph 1, and to taking legal
action against them.
2. D ecis ions to use c on tr olle ddelivery shall be made on a case-bycase basis and may, when necessary,take into consideration financial
arrangements and understandings
with respect to the exercise ofjurisdiction by the Parties
concerned.”
Section 4 of the Indian Narcotic Drugs
and Psychotropic Substances Act, 1985
provides:1. Subject to the provisions of this Act,
the Central Government shall take allsuch measures as it deems necessaryo r e x p e d ie n t f o r t h e p u r p o s e o fpreventing and combating abuse ofna rc ot ic dr ugs a nd p sych o tro pic
substances and the illicit traff ic
therein.
2. In particular and without prejudice tothe generality of the provisions ofsubsection (I), the measures which
the Central Government may takeunder that subsection include
measures with respect to all or any of
the following matters, namely:a. ..............
b. Obligations under the International Conventions;c. Assistance to the concerned
authorities in foreign countries

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
a n d c o n c e r n e d i n te r n a t io n a lo r ga ni sa tio n s w it h a vi e w t o
f a c ilitati ng c o or d ina tio n an duniversal action for prevention
and suppression of illicit traffic innarcotic drugs and psychotropic
substances.
The above provisions thus enable thedrug law enforcement agencies in India to
use the controlled delivery technique asan effective tool of investigation againstorganized syndicates, nationally andinternationally. However, before adopting
this technique, the originating country
and the recipient country should discussin detail the entire operation, maintainsurveillance simultaneously in both thecountries, keep close surveillance on the
movement of drugs either through cargoor through couriers, and time the final
strike operation simultaneously in botht h e c o u n tr ie s t o a c hi e v e m a x im um
re sults. I t will also be ne cessary toauthenticate the evidence gathered inboth the countries for successfulprosecution of the traffickers.
In India, the Narcotics Control Bureau,
the nodal agency for enforcement of laws
concerning narcotic drugs andpsychotropic substances, has undertaken
controlled delivery operations with anumber of countries from time to timeb o t h o n i t s o w n in i t ia ti v e o r w h e nsuitable cases are brought to its notice byother enforcement agencies.
The operation of controlled delivery isvery difficult and comp licated,
p a rticular ly whe n it invo lve s m a ny
countries and there is a difference intheir legal systems and practices. In
using this technique, there is always afear that the consignment of illicit drugs
may be lost d uring transit. The
u n if o r m ity o f l e g is la t io n a nd cl o s ecooperation amongst the law enforcementa g e n c ie s o f d i f f e r e n t co un t ri e s a r enecessary make this technique effective.
B. Electronic Surveillance
E le c t r o n i c s u r v e i ll a n c e c o v e r s
wiretapping, communications interception,etc. Te le phone interce ptio n and them o n it o r in gofa lle le c t r o n i ccommunications are the most controversial
aspects of electronic surveillance. Yet thesea r e v e r y u s e f u l i n a ss i s t i n g l a w
enforcem e nt agencies to com bat
tr ansnatio nal organize d crime .
Wiretapping or telephone interception isdefined simply as the interception of atelephone conversation between parties
without their knowledge, using equipmentthat is inserted into the electronic circuit
between the transmitter and the receiver.
In India, interception of messages,
transmitted or received by any telegraphis covered under subsection 2 of section 5of the Indian Telegraphic Act, 1885, when
it is necessary or expedient to do so in theinterests of the sovereignty and integrityof India, the security of the State, friendly
relations with a foreign country or for
preventing incitement to commission of
an offence. The issue of constitutional
validity of this provision came under
scrutiny of the Supreme Court of India ina writ petition filed by the People’s Union
for Civil Liberties. The Supreme Court
passed a judgment on 18th December,
199 6, up h o ld i ng th e co n st itu ti o na lvalidity of the Act but laid down certain
guidelines prescribing that the order forinterception will be issued by the Home
Secreta ries at the Centre and in theStates. A copy of the order should be sent
to the Review Committee within a week.
The order will cease to have an effectafter two months unless renewed. The
Review Committee will review the order
passed by the authority concerned within
two months of the passing of the order.

585

RESOURCE MATERIAL SERIES No. 59
The total period shall not exceed six
months.
The Government of India has made alegal provision in the licensing conditions
f o r m u la te d a lo n g w it h t he c e ll ul a r
operators to make it mandatory on thepart of the cellular companies to provide
p aralle l mo nito ring f acilities fo r a ll
co mm unica tio ns b eing rec eived a nd
emanating from a particular mobile set.
C ellular operators opera ting in four
metropolitan cities of Mumbai, Kolkata,D e lh i an d C he n na i ha ve m a d e th isfacility available whereas others arebound to provide this facility within threeyea rs of the initia tion of the mob ile
network.
C. Undercover Operations
The law enforcement agents, throughu n d e r c o v e r o p e r a t io n s , a r e a b l e t oinfiltrate the highest levels of organizedcrime groups by posing as criminals whenreal criminals discuss their plans andseek assistance in committing crimes. In
India, there is no legislation or
regulations to undertake undercover
operations.
D. Immunity Systems
Im munity re fers to the proce ss o f
exempting from prosecution a co-accused,in order to maximise the potential ofw itn ess co-operati on as a tool for
combating transnational organized crime.
The testimony of a person, who is party toa crime is very reliable because of his
relationship to any co-accused. During
investigation, a co-accused can reveal thetrue identities of other suspects, assist
the police in locating the victim of acrime, or point out the corpus delicti orbody of the crime. It is a very effective
tool in prosecuting terrorists or membersof criminal organisations.

Section 306 of Code of the Criminal
Procedure, 1973, provides for theobtaining of evidence of an accomplice bytender of pardon subject to his voluntarily
making a full disclosure of the facts andcircumstances relevant to the offence forwhich the accomplice and co-accused arebeing charged with or investigated for.
This provision is applicable in offences
punishable with imprisonment of sevenyears or more.
E. Witness and Victim Protection
Programmes
There is no legisla tion in India a t
present for protection of witnesses andthe members of their families. Section
17 1 of the Crim inal Proce dure C ode
prohib its police officers to ca rry thecomplainant or witness to court. The
intention of such legislation appears to be
to ensure independence of evidence givenby the witnesses without any influence
from the police.
X. CONCLUSION
National strategies are inherently
inadequate for responding to challenges
that cross multiple borders and involve
multiple jurisdictions and a multiplicityof laws. The rapid growth intransnational organized crime and thecomplexity of their inv estigation s
requires a global response. At present,
the me asures adopted to counterorganiz ed crime are not only
p r e d o m i n a n t ly n a ti o n a l, b u t th e s emeasures diffe r from one country toanother. It is absolutely imperative toincrease cooperation between the world’s
law enforcement agencies and to continue
to develop the tools which will help themeffectively counter transnationalorganized crime.
In India, the Extradition Act, 1962
deals with extradition of fugitive586

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
criminals. Extradition can be made if theoffence is an extraditable offence, i.e., an
offence provided for in the extradition
treaty with a State which is a treaty stateand for other countries, an offence whichis specified under the Second Schedule of
the Act. Under this schedule, there are 18
types of offences. India has extradition
treaties with Nepal, Belgium, Canada,
Netherlands, the United Kingdom, theUnited States of America, Switzerland,
Bhutan and Hong Kong and extradition
arrangements with Sweden, Tanzania,
Australia, Singapore, Sri Lanka, Papua
New Guinea, Fiji and Thailand.
Extradition treaties with Russia,
G erm any, UAE, Bulga ria, Thailand,
France, Ukraine, Romania, Oman, Spain,
Kazakhstan, Greece, Egypt, Malaysia
and Mauritius are under finalisation.
India has entered into Mutual Legal
A s sis ta n c e A g r ee m en ts /T r e a ti e s incriminal matters with the United
Kingdom (1992 agreement concerning theinvestigation and prosecution of crime
and the tracing, restraint andconfiscation of the proceeds andinstruments of crime, including currencytransfer and terrorist funds), Canada(1994), France (1998), Russia (1993),
Kyrgyzstan, Kazakhstan (all Mutual
Legal Assistance Agreements in Criminal
Matters), Egypt, China, Romania,
B ul g a r i a a n d O m a n . M u t u a l L e g a l
Assistance Treaties have been negotiatedwith United Arab Emirates but is yet to
be ratified. Negotiations are continuing
for signing treaties on Mutual Legal
Assistance in Criminal Matters withcountries such as Australia, Norway,
Mongolia, Turkmenistan, Bulgaria, Hong
Kong, Ukraine, Uzbekistan andAzerbaijan.
Section 166 of the Criminal Procedure
Code deals with reciprocal arrangements
regarding processes. A court in India cansend summons or warrants in duplicate
to a court in a foreign country for service
or execution and the said foreign court
w ill ca use the se rvice o r e xec ution.
Section 166-A of the Criminal Procedure
Code provides for letters of request to thecompetent authority for investigation in aforeign country. A criminal court in India
may issue a letter of request to a court or
a competent authority to examine orally
any person supposed to be acquainted
with the facts and circumstances of thecase, to record his statement made in thecourse of such examination and also to
require such person or any other person
to p ro d uc e a n y d o c um e n t o r t hi n g.
Similarly, Section 166-B provides forletters of request from a country or placeoutside India to a court or an authority
for investigation in India. Under thisprovision, the Central Government may
forward the letter of request received
from a foreign country to a magistrate
who may summon such person and record
his statement. The Central Government
can also send the letter to a police officer
who will investigate the offence.
India is a signatory to the South Asia
Association for Regional Cooperation(SAARC) Convention for Suppression ofTerrorism. SAARC consists of India,
Pakistan, Bangladesh, Nepal, Sri Lanka,
the Maldives and Bhutan. Pursuant to
the SAARC Convention, India enacted
the SAARC Convention (Suppression ofTerrorism) Act. Extra dita ble crim es
include unlawful seizure of aircraft;unlawful acts against the safety of civil
aviation; crimes against internationallyprotected persons; common law offences
like murder, kidnapping, hostage taking;and offen ces relat ing to firearms,
w ea p on s, e xp losive s a nd d a nge rou s
substances, etc. when used as a means top e r p e tr a t e in d is cr im in a te v io l e nc e
involving death or serious injury, or
serious damage to property.

587

CURRENT SITUATION OF AND COUNTERMEASURESAGAINST TRANSNATIONAL ORGANIZED CRIME IN
RELATION TO CORRUPTION IN MALAYSIA
Sazali Bin Salbi*
I. INTRODUCTION
Corruption ha s e xisted ever since
antiquity as one of the worst and, at thesame time, most widespread forms ofbe hav iou r, wh ich is inim ical to th eadministration of public affairs.
Corruption can occur in various form.
K laus M . Leisinge r d ivide s f orm s ofcorruption into ‘petty’ corruption, gift and‘big’ corruption.
‘Petty’ corruption is defined as small
payment to get someone empowered totake and enforce decisions to see to it thatsomething he or she is duty bound to do isactually done within a reasonable periodof time. These payments are used as
stimulus or nothing would happen or it
ha ppens with so me d ela y. The word‘petty’ in petty corruption refers to boththe size of the financial transaction andthe size of the obligation the transaction
buys. In some societies, petty corruption
pervades almost every public service
institution like the police and customs
department.
Gifts are another type of corruption. In
m a n y s o c i e t i e s g i f t s , i n c l u d in g a n
invitation to dinner or other favors, areconsidered as something to respect which
will strengthen a friendly relationship.
Refusing them would be an offence. In
other societies, accepting gifts may beclose to corruption. The problem lies not
only in the intention behind offering the* Assistant Commissioner, Anti-Corruption Agency,
Malaysia

588

gift but in the value of the gifts
themselves. If their values are too high,they are likely to be ethically suspect.
The intention of the giver is also relevant.
If the gift is intended to motivate thereceiver to do or not to do a certain thing
within a period of time in the interest of
the giver, it will be a corrupt practice.
A more serious type of corruption is‘b ig’ corrupti on. One of t he usual
practices in this type of corruption isgetting ‘commission’. In many developing
countries, b ig construction schemes,p ur c ha se s o f a r m a m e nt s a n d o th er
equipment like telecommunications andcommercial planes, the tenders who won
the bids had to give commissions to thepeople in the authority concerned. Since
the commissions are high, they are one of
the major attractions for political leaders
and top ranking public officials who want
to increase rapidly their personal wealth.
In which ever way one defines
corruption, the effect toward one’s society
due to the practices of corruption are
devastating in the way it:
•
•
•
•
•
•

erodes the moral fabric of every
society;violates the social and economic
rights of the poor and the vulnerable;
undermines democracy;subverts the rule of law which is thebasis of every civilized society;retards development; and,denies societies, and particularly thepoor, the benefits of free and open
competition.

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
In view of the seriousness of the effectof corruption in all societies, delegates of
the 8th International Anti-Corruption
Conference held in Lima, Peru from 7–11
September 1997 adopted that:
•
•
•
•

•

•

•

fighting corruption is the business ofeveryone throughout every society
the fight involves the defence andstrengthening of the ethical values inall societies;
it is essential that coalition be formed
between government, civil society andthe private sector;
a willingness to enter such a coalition
is a true test of an individual
gove rnment’s commitm ent to theelimination of corruption;
the role of civil society is of special
im portance to overcome theresistance of those with stake in thestatus quo and to mobilize people
generally behind meaningful reforms;
there must be a sustained campaign
against corruption within the private
sector as, with greater privatizationand deregulation , it assu mes agreater role in activities traditionallyperformed by the state;that top leadership sets the tone in allsocieties, as “You clean a staircase bystarting at the top”.
II. ANTI-CORRUPTION AGENCY
MALAYSIA

A. Perspective
The Anti-Corruption Agency (ACA)
Malaysia is one of the agencies under thePrime Minister’s Department. It was
officially established on 1st October 1967.
The setting up of the ACA is closely
linked to the hopes and intentions of thegovernment to create an administration
which is clean, efficient and trustworthy.
In line with this aim, it is the role andresponsibility of the ACA to eradicate
corruption and the abuse of power.
B. Objective
The elimination of all forms ofcorruption and abuse of power prohibitedby Government regulations and the lawsof the country.
C. Vision
1. Toward the creation of a Malaysiansociety free from elements ofcorruption and based on highspiritual and moral values, led by aGovernment which is clean, efficientand trustworthy;
2. To make the ACA a professional,
world class agency dedicated to theeradication of corruption, guided byprinciples of justice, resoluteness andintegrity.
D. Mission
The eradication of corruption and theabuse of power in an integrated, ongoingmanner in which:
1. All agencies and major institutions of
the Government are fully involved in
the enforcement of the relevant laws
and regulation in a just and firm way
in order to ensure the sovereignty of
the law and to protect the national
and public interest;
2. All levels of leadership, political,
administrative, corporate, religious
and non-governmental agencies are
involved in the task of nurturing andin te r na liz in g t he h ig he s t m o ra lvalues until there is a consensus in
Malaysian society that corruption isabhorrent and must be wiped out.
E. Function
1. To
detectandascertainthecommission of corruption and theabuse of powers based on informationand complaints obta ined through

589

RESOURCE MATERIAL SERIES No. 59

2.

3.

4.

5.

6.

7.

590

accurate, comprehensive and efficient
covert and open investigations;
To procure and compile concrete andcomp rehensive evidence to provecommission of corruption, abuse of
power and disciplinary misconduct
through prom pt and e ffective
investigation;
To ensure that public interest andjustice are continually safeguarded
under the guidance of the relevant
national laws and regulations
through legal counsel and fair trial in
ca se s of co rrup tio n a nd a buse o f
power;To assist heads of public and private
sectors in handling disciplinary action
against officers who have violated
w ork regulations a nd the cod e ofethics based upon comprehensive
ACA reports;
To curb roots and opportunities forcorruption and abuse of powers due toapparent weakness in the system ofmanagem ent that have been
ascertained from ACA investigation
results and analytical reports;
To assist in ensuring that only
candidates who are not involved incorruption and abuse of powers are
confirmed ba sed on the ACA ’s
expeditious and accurate vetting of:(i) The promotion, optional retirement,
conferment of prestigious awards
and titles including filling-up
vacancies for important posts in the
public sector; and,(ii) The filling of important posts incertain institutions as well as
conferment of prestigious awards
and titles in the private sector;
To enhance participation and garnerundivided and continuous support
from leaders, influential groups andthe general public in efforts to counter
corruption as well as the abuse of
power;

8. To ensure that actions taken by the
ACA in intelligence gathering,
investiga tio ns and pre ventio n ofcorruption and abuse of powers are
executed with discipline through its
relationship and cooperation with
relevant agencies at the national andinternational levels;
9. To create values of excellence byenhancingexpertiseandprofessionalism and fostering thesp irit of solid arity a mongst AC A
officers th roug h dedicated anddynam ic leadership as well asplanned and system atic tra ining
programmes;
10. To enhance the leadership capability
an d departme ntal manage me nt
quality of ACA officers at all levels
through development programmes inhuman resources, informatio n
tec hn olo gy an d sy ste m atic wo rk
processes.
F. Strategy
The ACA has identified the following
three principal strategies to achieve its
stipulated Vision and Mission.
1. Reinforcement Strategy
To enhance the effectiveness of the
ACA, this strategy focuses on reinforcing
the professionalism of its officers as wellas enhancing co-operation with otherinternational anti-corruption law
enf orc em ent age ncies an d the m a ss
media.
2. Encouragement and Prevention
StrategyThis strategy emphasizes unwavering
efforts to inculcate noble value, prevent
corruption and improve the supervisionsystem when enforcing laws andregulations.

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
3. Enforcement Strategy
New laws to enhance the powers of the
ACA so that they will include aspects ofmandatory punishment, burden of proof
on the accused found in possession ofproperty in excess of known legal income,seizure of property where no satisfactory
explanation of its source is provided as
we ll as th e ab il it y t o d e p lo y a g e n t
provocateurs in its investigations. These
aspects seek to generate a deterrent effecton the offender.

III. CURRENT SITUATION OF
CORRUPTION IN MALAYSIA

2000 which are still in the process ofgathering and analysis.

To have a clearer current situation ofcorrup tion in M a la ysia , figures a ndstatistics for the year 1999 will be used inplace of figures and statistics for the year

A. Information
For the fiscal year 1999 ACA Malaysia
received a total of 7,829 complaints andre p o rts t hr ou gh v a r iou s so u rc es a s
indicated in Table 1.

Table 1
No.

Source of Information

Total

%

1

Anonymous letters

2674

34.16

2

Official letters from individuals

1963

25.07

3

ACA officers

1921

24.54

4

Personal visits

434

5.54

5

Telephone call

405

5.17

6

ACA aerogramme

114

1.46

7

Electronic media (homepages, e-mail, facsimile)

106

1.35

8

Letters from private companies

69

0.88

9

Letters from government department/statutory bodies

43

0.55

10

Police

42

0.54

11

Printing media

40

0.51

12

Letters from political parties

11

0.14

13

Official letters from government companies

4

0.05

14

Public Complaint Bureau

3

0.04

7829

100

Total
After being processed and assessed,
only 3,526 or 45.05% of the information
received contained elements of corruption
capable of open and covert investigations
while 2,205 or 28.16% contained only
general complaints in connection to theservices and administration of certain
departments or private companies. The

information was then referred to ther e s p e c t i v e d e p a r t m e n t s o r p r iv a t ecompanies for their internal action. No
action taken on the rest of the 2,098
complaints or 26.80% as they had nobasis for investigation.

591

RESOURCE MATERIAL SERIES No. 59
B. Investigation
In 1999, 413 Investigation Papers (IP),
157 Preliminary Inquiry Papers (PIP),
2,282 Intelligence/Surveillance Papers(SP) and Project Papers were opened in
respect of the 3,526 complaints. Other
action such as making secretobservations together with opened IPs/
PIPs/SPs were taken on the remaining
674 complaints.

From 413 complaints investigated in
1999, a total of 406 involved offences
under the Anti-Corruption Act 1997 while
the remaining 2 , 1 and 4 complaints
involved the Prevention of Corruption Act
1961, the Emergency (Essential Powers)
Ordinance No. 22 of 1970 and the Penal
C o de re sp e c tive ly. Ta ble 2 sh ow s astatistical breakdown of the total IP(s)opened by types of offence under the
relevant laws.

Table 2No.
1
2Type of Offence
Prevention of Corruption Act 1961
Sec. 4 (c)- using of claims containing false particulars.

1999
2Anti-Corruption Act 1997
Sec. 10 (a) (aa) - Offence of accepting benefits from members of the
public.
Sec. 10 (a) (bb) - Offence of accepting benefits on account of being apublic servant.
Sec. 10 (b) (aa) - Offence of giving benefits by members of the public.
Sec. 11 (a)- Offence of accepting benefits by an agent.
Sec. 11 (b)- Offence of giving benefits to an agent.
Sec. 11 (c)- Using claims containing false particulars.
Sec. 15 (1)- Offence of using office/position for benefit.
Sec. 29 (b)- Obstruction of inspection and search.

2
201
61
82
29
1

3

Emergency (Essential Power) Ordinance No. 22 of 1970
Sec. 2 (1)- Offence of using an office/position for benefit.

1

4Penal CodeSec. 165

1Sec. 193
Sec. 409- Public servant accepting an item of value without
consideration.
- Fabricating evidence in court.
- Criminal breach of trust by a public servant.
Total

C. Arrest
By the end of the year 1999, a total of
289 persons have been arrested, of which
21 were detained for offences under thePrevention of Corruption Act 1961, 241
for offences under the Anti-Corruption
Act 1997, 5 under the Ordinance No. 22/
70 and the remaining 22 for offences
under the Penal Code. The total amountof gratification gleaned from the arrests

592

23
7

2
1
413

was RM 39,063,674.54 while thec o m p a r is o n o f a r r e st s a cc o r d in g tocategories of person is shown in Table 3.

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Table 3Comparison of Arrests According to Categories of person in the year 1999
No.

Category

Total

1Management & Professional182Support staff/group

136

3

Members of public/private sector

127

4

Politicians

2

From the figures and statistics above,it’s safe to say that the general public in
Malaysia is well aware of the existence of
ACA and it’s function as an agency whichis responsible to eradicate corruption andabuse of powers. This is clearly shown by
the amount of information received by
ACA, excluding information gathered by
ACA officers, totaling 5,908. Althoughm o r e t h a n h a l f o f t h e i n f o r m a t io n
received from the public does not containelements of corruption or abuse of power,
it does reflect the general obligation of
the public to fight, hand-in-hand with the
ACA, to eradicate corruption and abuse of
power in Malaysia.
The statistics from Table 2 show thatmost offences of corruption in Malaysia
are related to accepting of benefits by anagent. An ‘agent’, under Section 2 of theAnti-Corruption Act 1997 means:“any person employed by or acting
for another, and this includes anofficer of a public body or an officer
serving in or under any public body,a t ru s t e e, a n a d m i n i s t r a t o r o r
executor of the estate of a deceased
person, a sub-contractor, and aperson employed by or acting forsu c h t r us t e e, a d m i n i s t ra t o r o r
executor, or sub-contractor”,
As such it shows that most of the IP(s)open for investigation under the offenceof accepting benefits involve agents of acertain body, whether public or private

sector. Mostly the accepting of benefits
which are investigated under Section 11(a) of the Anti-Corruption Act 1997 isregarded as ‘stimulus’, as stated by Klaus
M. Leisinger, or inducement or reward for
doing or forbearing to do, or for having
done or forborne to do, any act in relation
to th e agen t’s prin cipal affair s orbusiness, or for showing or forbearing toshow favour or disfavour to any person in
relation to the agent’s principal affairs orbusiness.
The second most investigated offence
in relation to the Anti-Corruption Act
1997 for the year 1999 is in relation to
Section 11 (c) in which 82 IP(s) were
open. Section 11 (c) stated that:“any person knowingly gives to anagent, or if an agent knowingly useswith intent to deceive his principal,
an y receip t, accoun t or otherdocument in respect of which theprincipal is interested, and whichcontains any statement which isfalse or erroneous or defective in any
material particular, and which to
his knowledge is intended to mislead
the principal”.
Looking at the above given figures andstatistics, it is not wrong to say that thelarger portion of corruption offences that
occur in Malaysia are those that could be
categorized as ‘petty’ corruption. The actof corruption is done more on the basis of
one’s personal gains. Although many of593

RESOURCE MATERIAL SERIES No. 59
the offences are done by one person, it can
not be denied that there exists syndicatedor organized corruption. The nearest
example that could be put forward is theinvestigation in the year 2000 against
officers of the Forestry Department whichis said to receive large benefits fromill eg al log gers. Also t here was aninvestigation against officers of the Road
And Transport Department and driving
school instructors with regard to theissuing of driving licenses without theapp licant going through the norm al
driving test conducted by the department.
Whatever it is, petty or syndicated,
corruption in Malaysia is basically aninternal problem that has to be dealt withby all segments of society. In view of this,the government, public agencies, privates e c t o r s , n o n - g o ve r nm e n t a g e nc i e s ,political parties and the public have arole to play.
IV. COUNTERMEASURES AGAINSTCORRUPTION IN MALAYSIA
A. Anti-corruption Act, 1997
1. Efforts in combating corruption
started in the colonial days of theB r itis h ad m in istr a tio n w ith t hesetting up of a commission which is
responsible to investigate malpractices
in the public service sector. When
Malaysia achieved its independence,t he g o v e rn m e n t s e tu p t he A nt iCorruption Agency in 1967 which ise q uipp ed w ith the Pre ve ntio n ofCorru ption Ac t 1961 an d thep re scrib ed la ws a s i ts w ea pon i ncombating corruption.
2. Having considered the past trends
a nd current challenges, theMalaysian Government, has carriedout a comprehensive evaluation of thec ir c um s ta nc e s a nd s ym p to m s o f
c o r r u p t io n a n d i t s e f f e c t a t t h e594

national and international level. As aresult, a new Anti-Corruption Act has
been passed by the Parliament in1997 to combat corruption and related
cr im e s . I n t hi s ac t, s e ve r a l n e w
provisions to widen and enhance thescope of the Anti-Corruption Agency
and the Public Prosecutor’s functions
in areas of detection, enforcement andpunishment of corruption, abuse of
public position or powers and related
crime which are lacking under the oldPrevention of Corruption Act, 1961.
3. Among the important aspects of thisnew Act was the inclusion ofprovisions pertaining to the forfeitureof property and the explanation ofexcessive properties acquired or held.
The ACA 1997 doesn’t have a specificprovision which has a “money
laundering” word in it or specificallysp e lls ou t the of f e nc e o f “m on e ylaundering”. Nevertheless, Section 18
of the act provides a provision whichmakes it an offence for any person
whether within or outside of Malaysia
to be inv o lve d in a ny d e aling i n
relation to any property which is the
sub jec t m a tte r of the co rru ptio noffence.
4. As with any other legislation that
intends to penalize the criminals, theACA 1997 provides the Agency withseveral provisions which are to be
used for the purpose of “asset
trac ing”, s eizu re and f o rf e itur e.
Among the provisions of the ACA
1997 are as follows:

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS(i)

Dealing in Property (Laundering)No
1

EffectOffence or
Non-Compliance(NC)

Besides the accused person, thisprovision also allows investigationand prosecution of any person who
assists or abets the accused.

Fine < RM50,000orJail < 7 years
or bothProvision
S. 18
Dealing inproperty(ii) Investigation Powers in Relation to“Asset Tracing”
Offence or
Non-Compliance
(NC)

No

Provision

Effect1

Officer’s Powers(Direct)
S. 22 (1)(b)Order to produce
documents.

Compel any person to produce
documents without having toconduct a search.

NC—S. 22 (10)and punishable by
S.58.
Fine < RM10,000
or Jail < 10 years
or both2

S.22 (8)Recording of
witness’statement

Witness shall not refuse or answer
questions which are incriminating.
Used as a source of information
pertaining to property acquired/
held, details of incomes/expenditure, network analysis, etc.
Statement to be admissible asevidenced
for
forfeitureofproperty.

S. 19—giving false
statement or amisleading one.
Fine < RM100,000orJail < 10 years
or both3

S. 23 (3)Search without
DPP’s Order

Search can be done immediately
and as such reduce the possibilitiesof documents or properties being
destroyed.

S. 29—obstruction
and punishable by
S. 58.
Fine < RM10,000orJail < 2 years
or both595

RESOURCE MATERIAL SERIES No. 59

NoProvision

4

S. 45 (3)Recording ofaccused’s
statement

5

Officer’s Powers(through DPP)
S. 23 (1)
Search with
DPP’s Order

Offence or
Non-Compliance(NC)

EffectCompel the accused to give his
defence or else if he holds backuntil in court, then he/she will beless likely to be believed by the
court.
Used as a source of information
pertaining to property acquired/
held, details of incomes/expenditure, network analysis etc.

Search done with aauthorization from DPP.

writtenS. 29—obstruction
and punishment
by S. 58.
Fine < RM10,000orJail < 2 years
or both6

S. 27 (1)
Solicitors todisclose
information by
High Court
order.

Overcome ‘privileged information’barrier in respect of dealing ofproperties under investigation.

NC—S. 27 andpunishable by S.
58
Fine < RM10,000orJail < 2 years
or both7

S. 31 (1)
Order allowing
investigation of
any bank
account.

Supersedebankingsecrecyprovision.
Banking documents are used to
trace movements of money and toascertain modus operandi.

NC—S. 31 (4)Fine < RM10,000orJail < 2 years
or both8

S. 32 (1)Notice fordeclaring assets
to the accused or
any person, andto the bank fordisclosure of any
account of theabove party.

An avenue for investigators tohave detailed information pertaining to any property owned/held
within or outside Malaysia.

NS—S. 32 (2)Mandatory Jail> = 14 days < 20years and fine< RM100,000

596

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

No

Provision

Effect9

S. 32 (3)Explanation on
excessiveproperties (onlyfor officer of apublic body)

The accused or any person to
furnish a detailed explanation on
how properties are owned/held.

Offence or
Non-Compliance(NC)
Failure to explain
satisfactorily.
Mandatory Jail >=14 days < 20 years
and fine >= 5times the value ofthe excess or
RM10,000
whichever higher.
NS—S. 32 (4)Mandatory Jail >=14 days < 20 years
and fine >= 5times the value ofthe excess or
RM10,000
whichever ishigher(iii) Seizure

No

Provision

1

Officer’s Powers(Direct)
S. 23 (1)Seizure ofmovableproperty (except
under bank’s
custody.

2

DPP’s Powers
S. 33 (1)Seizure ofmovableproperty underbank’s custody.

EffectOffence or
Non-Compliance(NC)

Allows property to be seized forfurther due course.

S. 29—obstruction
and punishable by
S. 58.
Fine < RM10,000
or Jail < 2 years or
bothAllows seizure/restraining order onbank accounts for further due
course.

NC—S. 33 (3)Fine < 2 times theamount paid out incontravention of
the order or
RM50,000
whichever ishigher andmandatory Jail < 2
years

597

RESOURCE MATERIAL SERIES No. 59

NoProvision

EffectOffence or
Non-Compliance(NC)

3

S. 34 (1)Seizure of
immovable
property.

Allows seizure/restraining order on
property for further due course.

NC—S. 33 (3)Fine < 2 times thevalue of theproperty or
RM50,000
whichever higher
and mandatory
Jail < 2 years

4

S. 35
Property outside
Malaysia (byHigh Court
order)

Prohibit any dealing on property
owned/held overseas.

NC—S. 57 andpunishable by S.
58. Fine <RM10,000 or Jail <2 years or both(iv) Forfeiture

No

Provision

Effect1

S. 36
Forfeiture uponprosecution(application to
High court)

Allow property to be forfeitedwhether the offence is proved or
not.

2

S. 37
Forfeiture
without
prosecution(application to
High Court)

Allow property to be forfeited
without prosecuting the accused(within 12 months of seizure).

Offence or
Non-Compliance(NC)(v) Evidence

No
1

598

Provision
S. 43
Evidence of
unexplained
wealthEffectAny evidence of unexplained
wealth shall corroborate any
evidence
relating
tothecommission of the offence underthe Act.

Offence or
Non-Compliance(NC)119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

No

Provision

Effect2

S.44
Evidence of an
accomplice andagent
provocateur

Evidence of an accomplice andagent
provocateur
shallbeadmissible in court.

3

S. 46
Admissibility ofstatements anddocuments ofthe dead or
untraceable
personStatements or documents given bya person who died later or isuntraceable shall be admissible incourt.

Offence or
Non-Compliance(NC)

B. Integrity Management
Committees
To complement and in tandem with the
new legislative anti-corruption measure,the Prime Minister’s Directive No. 1 of1998, provides that the Special Cabinet
Committee On Management Integrity, be
entrusted with more functions and wider
scope of duties to oversee and monitor theactivities of similar Integrity
Management Committees (IMC) setup at
Ministerial, Federal Department, even atstate and district levels. This directive is
to consolidate a further integrity systemof administrative management of theGovernment of Malaysia to enable efforts
in combating corruption and malpractices
among civil servants to be enhanced byagencies of the Government of Malaysia
internally,
comprehensively,
systematically and continuously.

disciplinary referrals, corruption, abuseof powers and malpractices prohibited byregulation, laws and religion.”

The objective of the IMC is: “to create a
Government and Public Administrationthat is efficient, disciplined and imbued
w ith th e hi gh e st in te gr it y t hr o ug henhanced inculcation of moral values over
and above tackling p roblems andweakness particularly in the areas ofGovernm ent f ina ncia l m ana ge ment,p u b lic a d m in i st ra ti o n, h a n d l in g o f

By that Malaysia has responded to thecall of the international community byenacting the Anti-Money Laundering Act
2001 expeditiously. It is hoped that thelaw, with 119 serious offences including
drug trafficking, corruption, kidnapping,robbery, human trafficking, gambling
and fraud, will provide a strong
found a tion fo r M ala ysia ’s e ffo rts in

C. Anti-Money Laundering Act
As a member of Asia Pacific on Money
Launde ring Gro up (A PG ) since M ay
2000, Malaysia have seriously taken
steps to met the 40 Recommendations of
the Fina ncia l A ctio n T a sk F or ce on
Money Laundering (FAFT). Malaysia
have made a commitment to implement
legislation and other measures based on
the 40 FATF Recommendations. As such,
Malaysia, as a member APG, iscommitted in providing a regional focus
for co-operation against money
laundering, especially in theimplementation of the 40 FAFT
Recommendations in legal, financial andlaw enforcement sectors.

599

RESOURCE MATERIAL SERIES No. 59
countering money laundering. The Act
provides comprehensively for prevention,
detection, investigation and prosecutionof money laundering and forfeiture ofproperty derived from, or involved in,money laundering activities. In addition,
the law incorporates the requirement ofcustomer identification, record-keeping
and reporting of suspicious transactions
by reporting institutions. With the newlaw Malaysia has adopted the majority of
the FAFT’s 40 Recommendations.
V. CONCLUSION
The fight against corruption involves
the defence and strengthening of ethicalvalues in all societies. The lack or absenceof the element of a ccountab ility andresponsibility is a frightening symptom ofmoral decadence and the real threat ofincreasing economic crimes, corruption,
violence and crimes of all sorts in every
part of the world. Mankind, therefore,should seriously start looking beyond
codes of ethics, criminalized or otherwise.
No laws, regulations or codes of ethics, nomatter how good and comprehensive theya re, unless e ffectively enforced, canwholly eradicate crime, greed, corruption,
incompetence or sin. For this reason
again we have to fall back on religion andthat god is the source of correct principles
and that our conscience should be guided
by the divinely-inspired values, principles
ethics and norms.

600

TRANSNATIONAL ORGANIZED CRIME IN THAILAND
Sittipong Tanyapongpruch*
I. INTRODUCTION
Crime is unwanted in every society,but it seems that crime inevitably exists
in every country. No matter how hard wetry to suppress, prevent or eliminate
crime, we still hear reports of crimes
every day everywhere in this modern
world. Moreover, some of the criminals
nowadays have changed their activities
and taken advantage from the progress ofeasy communication and transportation.
They organize and build up their
netw orks and sprea d their activities
across the borders of countries. Only
minor crime seems to happen in
individual countries while serious crime
has become borderless and transnationalin nature . Thus, the impa ct of the ir
activities is greater than before andusually involves more than one country.
Organized criminal groups in Thailand
exist in many forms and engage in manyac tivitie s. Th ai c rim inals jo in withforeign criminals and operate illegala ctivitie s in Tha ila nd which ha ve a
impact in other countries. They are wellorganized and difficult to detect. The
examples of such transnational organizedc ri m e a c t i v it i e s i n T h a i l a n d a re a sfollows.
II. SPECIFIC CRIMES IN THAILAND
A. Drug Related Crimes
The most serious criminal problem inThailand is illegal drugs trafficking.
Thailand is one of the countries that
* Judge,

CentralIntellectual

Property

International Trade Court, Thailandandencounters the full sca le of criminal
activities in the illegal drug trade, fromproducing, trading, smuggling and thewide use of illegal drugs among Thaip e op l e . I ll eg a l d r ug s a n d na r c ot ic s
popularly used in Thailand arem eth am p he tam ine o r “sp e e d p ills”,
heroin, cannabis, opium, ecstasy andcocaine. Heroin is the most dangerous
drug and is very popular. However, theNarcotic Suppression Office has triedve ry ha rd to a rrest and prevent thetrafficking and smuggling of heroin. In
recent years we have seen the decreasing
significance in the trafficking of heroin
but we have seen an increase inprod ucing
andtraffickingofmethamphetamine or speed pills instead.
The rea sons are that speed pills areeasier to produce and more difficult tocatch. With a simple machine ea silyfound in markets and a vehicle like aminivan which can be modified to be amobile factory. To make the situationmuch worse, people tend to have a wrong
attitu de th at sp ee d p ills are n ot as
dangerous as heroin. All of these factors
allow speed pills to penetrate schools anduniversities and every section of society.
Students use speed pills, believing thatthey can stay up all night long preparing
for examinations and they will never
become addicted to them. Truck drivers
use speed pills in order to be able to work
all day long without exhaustion. Thus,
the re is ne w s o f m e tha m p he ta m ine
traffickers having been arrested everyday
with more than one hundred thousand
pills seized at a time. The manufacturing
plants for speed pills are located along
the Thai-Burma border. The chemical,
namely “Ephedrine” used as the601

RESOURCE MATERIAL SERIES No. 59
precursor, is smuggled from the Southernborder of China down to the Thai-Burmaborder. The Thai intelligence service
estimates 600–700 million speed pills
would be produced this year (2001) inside
Burma. Forty million methamphetamine
pills are ready for gradual smuggling into
Thailand. On July 13, 2001 the Thai
Army patrolling the border clashed withthe smugglers, seizing about 2.6 million
pills. One Thai soldier was killed in the
clash. Meanwhile, the narcotics police
seized 74 kilograms of heroin and seizednearly 90 million baht ($2 million) in cash
a n d b a n k d e p osit s. T he d r ugs w er esmuggled from laboratories in Pangsang,
Burma’s Northern Shan State, throughLaos to Chiang Saen district in Chieng
Rai, Thailand. The drugs were seized in
Bangkok and were believed to be destinedfor the United States. The suspects wereplaced under police surveillance for sometime before the arrest. They were also
known by the Thai and U S Drugs
Enforcement Administration to havec l o s e t ie s w it h W e i H s u e h - k a n g , a
f u gi t iv e d r u gs w a r lo r d , w h o h e a d s
methamphetamine production in the
United Wa State Army in the Shan State.
B. Prostitution
The expansion of the city and changing
of the Thai society from an agricultural toindustrial society has accelerated thepractice of prostitution. Many of thewomen and children have been lured to
be prostitutes in the big city such as
Chiengmai, Ubonrathchatanee, Hatyai,
Pattaya and Bangkok. However, many
foreign women from Eastern European
countries are also coming voluntarily towork as prostitutes in Thailand.
On the other hand, there is also a gang
supplying Thai women to foreigncountries for prostitution. On July 18,
2001 three Thai me n posing as
parliamentary officials were arrested on

602

charges of falsifying and using official
documents to smuggle Thai women to
Hong Kong for prostitution.
C. Illegal CD Copying
Copyright infringement is also anotherpractice that many people are involved inand can get very good rewards. The costof producing an infringed CD is just only
20 baht or almost 50 cents but it can besold at 150 baht or almost US$3.
Moreover, the machines and materials to
p r o d u ce t he in f ri n g e d C D s a r e n o tdifficult to obtain while the CDs can beproduced in a large number in a rather
short period of time. The infringed CDs
are sold not only in Thailand but also in
the neighboring countries, such as Laos,
Cam bodia, Burm a and M alaysia.
Recently, the police and customs officers
have seized the infringed CDs disguised
as export goods to Mexico.
D. Money Laundering
The Office of Anti-Money Launderinghas been set up after the Money
Laundering Control Act B.E. 2542 (1999)
came to effect. After only 9 months ofoperation, the amount of money it has
confiscated is more than 240 million baht.
It is believed that much more money is
being laundered in Thailand.
E. Illegal Firearms Trafficking
Geographically, Thailand is locatedamong the neighbor countries that havepolitical unrest in their countries i.e.
Burma and Cambodia. In the past 10
years, a number of firearms have beensmuggled in and out of Thailand into
those two countries. Firearms control in
Thaila nd seem s to f ail. M any of the
400,000 handguns imported since 1995
were brought in on fake import licenses.
Guns imported on fake licenses weremainly sold to third parties. This illicit
but highly profitable business was a

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
ma jor ob sta cle to the suppression ofcrimes.

M a la ys ia a n d S ing a p o r e h a v e b ee nsmuggled for sale in Thailand.

F. Human Trafficking
The growth and development ofThailand in the past 10 years, comparedto neighboring countries, have induced
foreign people to make every effort tom igra te to Tha il and . S ome of them ,mostly Chinese, try further to make their
way to a third country illegally with thehelp of organized crime gangs. Firstly,
the criminal networks that help sendpeople into a third country will send theirpeople into Thailand to operate as a
travel agency in order to disguise theiropera tions. The travel a gency, then,brings in foreign tourists, mostly Chinese
who later on will jump their visa, stay inThailand and wait for a new passport.
T he t r a v e l a g e nc y w i l l g et t he re a lpa sspo rts from m any countries, e.g.
Singapore, Japan, Thailand, Taiwan, etc.
in the amount of 15,000–35,000 baht per
passport. For someone who already has avisa the cost is about 100,000–200,000
baht. Then, the travel agent will change
the photos in these passports into thephotos of the immigrants. Each
imm igrant needs to study Japanese,
English or the Korean language
depending on what passport he shall get.
Then, a group of immigrants is ready to
travel to th e des tination cou ntry.
Obviously, the proceeds in this activity
are quite large.

H. Financial and Securities Fraud
On July 26, 2001, a total of 85
foreigners and 17 Thais were arrested at
the offices of the Brinton Group a nd
Benson Dupont Capital Management,
two companies accused by securities
regulators of running unlicensed
securities services and defrauding foreign
investors. Total damages incurred byforeign investors were estimated at 300
million Australian dollars or 6.9 billion
baht. The raids were led by the Securities
and Exchange Commission, Anti-Money
L a un d e r ing O f f ic e , ec o n o m ic c r im e
suppression police, immigration a ndlabor officials with the co-operation in
investigation of the US Federal Bureau of
Investigation and the Australian Federal
Police. The foreign suspects included 30
Englishmen, 1 4 Americans, 1 0 Irish
nationals, 10 Australians, 6 Filipinos, 5
Canadians, 2 Singaporeans, and one
p e rs on e a c h f ro m B u r m a , J a m a ic a ,Liberia, New Zealand, Malaysia, Spain,
Scotland and India. This is the largest
case of its kind in Thailand.

G. Smuggling of Stolen Vehicles
Many vehicles, particularly pick-up
vans and motorcycles, in Thailand arestolen everyday and have been smuggled
to C am b od ia , B urm a a nd La o s. Th estolen vehicles are sold at a very cheap
price. The vehicles are stolen at night andare driven to the border the next morningwith fake license plates and then they aretaken across the border. However, there
are reports that some vehicles stolen fromThe criminal nowadays is getting morecom plex in te rms of activity andorga niza tio n. P eo ple invo lve d in an
organized criminal group are of manynationalities. They may plan in one state
to take action in another state. However,every domestic law of every country isapplicable within its jurisdiction only. It
is almost impossible for one state alone toco m b a t a g a i n st s uc h t ra ns na t i o na lorganized crimes. In Thailand there aremany laws and regulations which are
outdated and have not been amended todeal with this new kind of organizedcriminal group. A lack of sharing
informa tion am ong law enforcement
agencies has been seen as one obstacle

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RESOURCE MATERIAL SERIES No. 59
where our officers need to improve theirperformance.
II. MEASURES TAKEN TO STEP UP
INTERNATIONAL COOPERATION
A. Cooperation in Criminal Matters
Among States
A better way of combating organizedcrime is to prevent it from occurringinstead of suppressing it. To guarantee
successful crime prevention, the accuracyo f inf orm atio n is a vita l p ar t of theoperation. Since each law enforcement
age ncy in e very cou ntry still wo rks
independently within its jurisdiction,c o m b a t i ng t ra n s na t i on a l or ga n iz e dcrimes shall never be successful withoutc o - o p e ra ti o n b e tw e e n th e s ta te s insharing information and other mattersneeded to get the criminals brought tojustice.
Th e A ct o n M utu al A ssi stan ce in
Criminal Matters B.E. 2535 (1992) has
been enacted in order for law enforcement
to be able to co-opera te w ith foreigna u t h o r it i e s i n t he s e m a t t e r s w h e n
r e que ste d . T he “A ss istan ce ” m e ans
assistanc e re gard ing in vestigatio n,
inquir y, prosecution, for feiture ofproperty and other proceedings relatingto criminal matters. The Office of the
Attorney General shall be the central
authority that has the authority andfunction to be the coordinator inproviding assistance to a foreign state orin seeking assistance from a foreign state
under this Act.
The duties of the central authority are
as follows:
1. To receive the request for assistancefrom the Requesting State andtransmit it to the Competent
Authority;604

2. To receive the request seeking
assistance presented by the agency of
the R o ya l Tha i Go ve rnm e nt a nddeliver to the Requested State;
3. To consider and determine whether toprovide or seek assistance;
4. To
follow
andexpeditetheperf orm ance of the Com petent
Authorities in providing assistance toa foreign state for the purpose of
expeditious conclusion;
5. To issue regulations or announcements
for the implementation of this Act;
6. To carry out other acts necessary forthe success of providing or seeking
assistance under this Act.
The assistance that may be rendered is
as follows:
1. Taking statements from persons,providing out of court documents,
articles and evidence;
2. Serving documents, searching andseizing of documents or articles;
3. To locate a person;
4. Taking the testimony of witnesses;
5. Forfeiture or seizure of properties;
6. Transfer of persons in custody fortestimonial purposes;
7. Request for initiating criminal
proceedings.
B. Extradition
To prevent any criminal from escaping
fro m justice, no m atte r ho w f a r thecriminal runs, the law shall be able to get
him brought back to justice. The mosteffective tool to get the runaway criminalfrom another state is to ask the authority
in such state to send him back home fortrial. T his is k now n as e xtradition.
Thailand has had an Extradition Act
since B.E. 2472, since 1929. The person
accused or convicted of crimes committed
within the jurisdiction of other States
may be sent to such States, provided thatby the law of Thailand such crimes are119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
punishable with imprisonment of not lessthan 1 year. In addition, Thailand also
has bilateral agreements with Belgium,
the Philippines, Indonesia, the United
K i n g d o m a n d t h e U n it e d S t a t e s o f
America. Thailand has extradited one
Thai politician alleged of sending tons ofcannabis to the US. Recently, Thailand
has requested the extra dition of one
executive of a financial company alleged
to have committed financial fraud in
Thailand from the UK but the result was
not successful.
III. MEASURES TAKEN TO
IMPROVE RELATED LAWS AND
REGULATIONS
A. Measures Against Drug
Trafficking
The Act on Measures for the
Suppression of Offenders in Offences
Relating to Narcotics B.E. 2534 (1991) isenacted with the objective to cut thegrowing trade in narcotics by seizing any
property related to the narcotic offences
and any tools, machines, transportation
vehicles and prope rties used forcommitting narcotics offences. Property
re la ted to na rco tics o ff e nces m ea ns
money, proceeds received in relation withth e na rc otic o f fe nc es inc lud ing a ny
property derived from such proceeds ormoney. All of the seized properties andproceeds shall go to the Narcotic
Supp ression Fund for use in the
suppression of such crimes.
B. Anti Money-Laundering Law
In 1999, the parliament enacted the“Money Laundering Control Act B.E.
2542 (1999)” in order to combat money
laundering practices. The Act requires
the financial institutions to report everytransaction in the amount exceeding 2
million baht to the Office of the Money
Laundering Control for investigation. The

Off ice also has the p owe r to gather
evidence for the purpose of taking legal
proceedings against offenders of predicate
offences, which is any offence:
1. relating to narcotics;
2. relating to sexuality in respect ofprocuring, seducing or taking away
for an indecent act a woman and childfor sexual gratification of others,
offence of taking away a child andminor;
3. relating to public fraud;
4. relating to misappropriation or fraud
or ex e rtio n o f a n a c t of vio le n ce
against property or dishonest conduct
under the law governing financial
institutions;5. of malfeasance in office or judicial
office;6. relating to extortion or blackmailcommitted by claiming an influence ofa secret society or criminal
association;
7. relating to smuggling under thecustoms law.
C. Capital Punishment
On July 26, 2001 the Criminal Court
sentenced 19 drug traffickers to deathand two others to life in five different
cases involving over 2 million
methamphetamine pills and 9 kilogramsof heroin. Only 5 days later, the Criminal
Court sentenced another 14 drugtraffickers to death. They were charged
with the possession of methamphetaminet o t h e t o t a l o f 4 5 0 ,0 0 0 p i l l s a nd 3 0
kilograms of heroin. The death penalty
has been a hot issue for debate amonglawyers in Thailand about its
justification for combating crime. It is not
so long ago that the government amended
the narcotics law by changing
methamphetamine from a stimulant
substance to a narcotic. The result is thatthe traffickers shall face capital
punishment. It is submitted that the605

RESOURCE MATERIAL SERIES No. 59
death penalty is still useful in Thailand
although it is argued by the human rights
activity groups that there is no concrete
evidence that the death penalty helps
decrease crime.
D. Plea Bargaining
The concept of “Plea bargaining” isquite a new legal concept in Thailand. It
is believed that one who commits thec rim e d e se rv e s to b e p un ish e d a t acertain level. However, since criminal
activities are getting more complex as
they are organized into groups and theiractivities go beyond the geographicalborder of the state, therefore, thedefendant who has been arrested may
hold some useful information from theirgroups which, once revealed, may be
useful to law enforcement to be able toarrest the ring leader. Recently, there is a
discussion of how we shall implement theplea bargaining concept into Thai laws.
There are several studies and seminars
about the appropriate solution to
implement plea bargaining practices incriminal proceedings. It is felt that therea re some difficulties, since the Thaicriminal procedure allows an injured
party to file criminal cases in court. The
use of plea bargaining might have some
affect on such injured parties. Therefore,
it is felt that plea bargaining shall be
used only in illegal drug cases where thestate is the injured party.
E. Witness Protection Scheme
Witnesses in criminal cases normally
try to refuse to testify in court against
influential suspects, including organizedcriminal groups, in fear of danger tothemselves and their families which
result in the dismissal of cases. Every
year, 20% of all criminal cases are thrownout of court because the prime witnesses
are too afraid to take the stand. The
Ministry of Justice has proposed the“Witness Protection Bill” in order to606

overcome such fear. Under the draft bill,protection will be the responsibility of thepolice to carry out this task until the
Witness Protection Office is established.
T he re s ha ll b e ge n e r a l an d sp e c ia lme asure s for w itness p rotectio n. I n
general ca ses , the investig ator or
p ro se cu to r, w ith the re q u es t o f thewitness, may ask the Witness Protection
Office to order protection for up to 30
days subject to necessity in the case.
However, in an emergency situation, theinve stigator o r pro secuto r w ould b eempowered to order the police protection
for their witness for up to 5 days at atime. The special measures are designed
to apply to cases involving trading in
narcotics, w o men a nd child ren. The
Minister of Justice may order special
measures for witness protection. The
measures include relocation of a witness
residence, changing of witness identity
and records, as well as providing theliving allowances job training for up to 2
years. Both general and special measures
can be extended to the witness’s spouse,
parent, children a nd person in close
relationship with such witnesses.
Although there is a worry about the
shortage of budget, this witness
pr ote ction p rogr a mm e is in evita b ly
necessary to combat organized crime.
Moreover, the use of modern technology
in trials are also being introduced. To
reduce the fear of witnesses taking thew it n e s s st a nd a nd c o n f r o n ti n g th e
defendant who may be an influential
person or member of an organized crimegang, the use of video conferencing where
witnesses testify in front of the video
camera in a room separate from the trial
ro o m sh o uld b e use d inste a d of theordinary method. This should make thewitnesses feel more relaxed andcomfortable to tell the whole truth. The
proposed bill to amend the Thai Criminal
Procedure Code for allowing the use of

119TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
video conferencing is at the scrutiny of
the Office of the Council of State.
IV. CONCLUSION
Transnational organized crime has
spread and done harm to many countries.
The cooperation of every state to suppress
such crime is important and needs to beestablished as soon as possible. Moreover,the need of harmonizing the domestic
l a w s in o r d e r t o m a k e c o o p e r a t i o npossible is also vital.

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REPORTS OF THE COURSEGROUP 1PHASE 1ANALYSIS OF CURRENT SITUATION OF
ILLICIT DRUG TRAFFICKING
Chairperson

Ms. Gina Ramos(Honduras)

Co-Chairperson

Mr. Bechem Eyong-Eneke(Cameroon)

Rapporteur

Mr. Saad Imtiaz Ali(Pakistan)

Co-Rapporteur

Mr. Takahiro Satou(Japan)Members

Mr. Bulatov Timur(Kyrgyzstan)

Mr. Miguel Moran(Peru)

Ms. Mayumi Ichikawa(Japan)Ms. Reiko Ota(Japan)Mr. Masayuki Takeda(Japan)Prof. Toru Miura(UNAFEI)

Prof. Sue Takasu(UNAFEI)

Prof. Kei Someda(UNAFEI)

Advisers

I. INTRODUCTION
Ordinarily, drugs should be used totreat or control diseases. To this end, theuse of drugs is entirely lawful and poses
no problem. The problem, however, arises
when the drugs are used abusively, forexample, to intentionally activate such a
degree of ecstasy in the subconscious thatit leads to negative degeneration anddevastation of the social fabric.
Illicit drug trafficking is accelerating at
an unprecedented pace, spreading very
rapidly across the globe, as a result of
rapid globalization. The IT revolution has
reduced the world to a small village andhas made communication exceptionally
fast and easy. The drug trafficker has
f ound very usef ul to ols to re ach hisdesired destination with ease and with ah igh degree of secrecy, speed an dspecificity (three S).

608

Illicit drug trafficking is one, if not, thebiggest of all transnational organizedcrimes. A large variety of drugs are
invo lved , le ad ing am on gst w hich isca nna b is ( m a r iju a n a a nd ha shi sh) ,opiates (opium and heroin), stimulants
and cocaine. According to the United
Nations O ffice for Drug Control a nd
Crime Prevention, cannabis continues tobe widely cultivated and trafficked. Morethan 155 countries reported seizures ofcannabis in 1999. In the Central Asian
Republics, fields of cannabis cover several
thousands of hectares and these
constitute the major source of supply forthe illicit Russian drug market. Indoor
cultivation of ca nna bis continues todevelop especially in the Netherlands,
Canada and the U.S.A. Opium production
was, however, in decline in the year 2000
in some countries. It is mainly produced
in Afghanistan, Myanmar, Laos,
Thailand, Colombia and Mexico.

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
In
spite
of
the
versatile
countermeasures taken by the various
countries of the world to fight illicit drugtrafficking, the trade continues to grow.
Several reasons have been advanced to
explain the survival of this heinous andillicit business. Corruption of governmento ff i cia l s a pa r t, t he d rug t ra ff i cke rs
employ a wide range of other means toestablish and expand their trade throughvarious trafficking modes which include
concealment in “double-bottom” bags;
hide-outs in sea vessels, trains, cargocontainers, aircraft, vehicle fuel tanks
and tyres; using children as innocent
carriers, the list is exhaustive. It is thus
difficult to stop this illicit drug trade. But
it is the view of this group that consumer
countries, in order to stop production,must take all necessary measures not toallow this material to reach theircountries and if it does reach it should not
be distributed. All this can be done bypersuasion through various media andgroups. This will not only discourage thetraffic in narcotics but also the
distribution and even the users of thesedrugs.
II. CURRENT SITUATION
A. Global Situation
T he re cen t in cre a se in the sc op e ,intensity and sophistication of crimearound the world threatens the safety of
citizens everywhere and hampers
countries in their social, economic andcultural development.
Drug abuse is a global phenomenon. It
effects almost every country, although its
extent and intensity differ from region toregion. Drug abuse trends around theworld, especia lly among youth, havestarted to rise over the last few decades.
Crimin al g roups h ave establish edinternational networks to carry out theira c tiv it ie s m o r e e f f e c tiv e ly th ro u gh
sophisticated technology and by
exploiting today’s open borders, in somecountries.
Illicit cultivation of opium and cocabush is now mostly concentrated in the
territories of two and three counties
respectively. The year 2000 recorded a
decline in global opium production and astabilization in cocoa production. The
total increase in cultivation in the year
2000 is due to a 19,200 ha increase incultivation in Myanmar, partly offset by a
8,400 ha decrease in Afghanistan and a
3,500 ha decrease in Laos.
In the year 2000, close to 50% of the
global illicit poppy cultivation areas werelocated in Myanmar, 36% in Afghanistan,and 10% in other Asian countries. The
Americas, Colombia and Mexico
ac counte d togethe r f or 4 % o f glob a lcultivation. Overall, the cultivation of
cocoa bush, the production of cocoa leaf
and the potential production of cocaine
remained more or less stable in the year
2000 due to (1) continued eradication in
Bolivia; (2) a decline of cultivation in
Peru; (3) some increase in Colombia. In
the absence of reliable information on
global cannabis cultivation, seizures seemto confirm that cannabis continues to be
widely cultivated and trafficked.
According to Interp ol, “the indoor
cultivation of cannabis continued todevelop during the year 2000, especiallyin the Netherla nds, Ca nada and the
U.S.A. An increasing amount of cannabis
from Colombia and Jamaica made its way
to Europe during the year. The Central
Asian Republics, where vast fields ofca nna b is cov er se ver a l hun dr ed s o fhectares, remain for the time being amajor source of supply for the illicit
Russian market.

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RESOURCE MATERIAL SERIES No. 59
Cannabis ranked first, both in terms ofnumbers of seizure cases and amounts
se ize d. L ar ge sc ale se iz ure c ase s o f
cocaine, notably when it is trafficking bys ea , a r e m or e l i k ely t h a n h er oi n o ramphetamine-type stimulants.
The m ost significant incre ases ins e iz u re s in 1 9 9 9 w e r e r e p o r te d f o ramphetamine-type stimulants (ATS),
reflecting increasing levels of trafficking
and law enforcement activities in Eastand South-East Asia. Seizure of opiates,
expressed in heroin equivalents, grew by
14%, largely reflecting the 1999 bumper
harvest in Afghanistan.
The estimates show that worldwide themost widely consumed substances arecannabis (144 million people), followed byamphetamine-type stimulants (29 million
people), cocaine (14 million people) andopiates (13.5 million people of whom some
9 million are taking heroin). The total
number of drug users was estimated atsome 180 million people, equivalent to 3%of the global population or 4.2% of the
population age 15 and above.1
B. Country Specific Situation
1. Cameroon
Cameroon is in a region where drugtrafficking is expanding. It is more of atransit than a producing country. It
however produces a very insignificant
quantity of marijuana when comparedw ith the volume of production of theworld. Much of what is consumed in the
country is smuggled into it from theneighbouring countries, especially from
Nigeria. Cameroon does not grow cocaine.
The illicit drug traffickers employ awide range of modus operandi to go ahead
with their illegal business. These include,
1

Global Illicit Drug Trends 2001, UNODDCCP

610

inter alia, the concealment in doublebottom bags, hide-outs in sea vessels,cargo containers, aircraft and vehicles.
Wo men ma y ha ve it hid de n in the ir
plaited hair. In some cases, children may
be innoce nt carriers on theunderstanding that they are generally
less suspected. In extreme cases, thetraffickers take the risk to swallow small
water-proof balls of the drug. Some others
have had incisions in some parts of theirbodies on which the drug is placed andthe broken portion of the body stitched.
Here, medical people are involved in theillegal business.
For now, there are no known groups inthe illicit drug business in Cameroon.
2. Honduras
Drug tra fficking in Honduras ha sincreased in the last few years because it
has a very good geographical location, i.e,
it lies in the heart of Central America
and, adjacent to two oceans. That is anadvantage for the drug traffickers.
In the south of the country the drugs
are smuggled in by land, most of the timefrom Nicaragua and El Salvador, and in
the north of the country the trafficking ismore often carried out by sea, and drugs
from Colombia reach Honduras via speedboats.
Honduras is not only a transit country
but it also has a lot of consumers. The
trafficking is not only inside the country
but there is international trafficking
among the countries of South and Central
America. Traffickers use Honduras as atransit country to the final destination,that is, the U.S.A.
(i)Drugs more currently used
The d rugs more currently use d in
Honduras are:

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
•
•
•
•
•

Marijuana (Cannabis)
Powder cocaine
Crack cocaine
HeroinAmphetamines(ii) Principal countries
Based on the experience and analyzing
the current situation of the countries in
the area we can say that the principal
countries related with drugs are:Producing: Colombia and Mexico
Transit:Central America
MarketU.S.A.
(iii) Modus operandi
The modus operandi more frequently
u sed is bring ing t he cocaine from
Colombia in speed boats or by plane. The
traffickers drop it in Honduras, either inthe water or on the land where there isusually someone waiting to collect it byboat or by car and take it to the borders in
Guatemala and then Mexico. From where
it goes into the U.S.A. Another way is bybringing the drugs in big containers from
Nicaragua, which go across Honduras tothe borders with Guatemala, and Mexicoand finally to the U.S.A.
(iv) Organized Groups
I n Honduras, there are manyorganized groups, inside the country andabroad. Police have identified three majororganized groups inside the country thatdeal only with Marijuana, and also two
big international organized groups thathave members from Colombia,
Nicaragua, El Salvador and Mexico.
3. JapanThe most frequently abused drugs in
J a p a n a r e s t i m u la n t d ru gs ( m o s t l ymetamphetamine) and the second iscannabis. In the year 2000, the seizure of
Stimulant drugs totaled 1,02 6.9 kg.
A rrests made in violations of the

Stimulant Drug Control Law totaled
18,942. The seizure of dried cannabis
amounted to as much as 306.4 kg.
The main sources of stimulant drugs
are traced to China and North Korea.
Most of the cannab is cam e from thePhilippine s, Thailand and theNetherlands.
E a ch sm uggling c ase h as com e to
involve a large amount of drugs. On abeach in K agosh ima prefecture in
O ct ob e r 1 9 9 9 , po lice a nd c onc erne dauthorities seized 564.6 kg, the largest
single seizure ever. While most of theillicit drugs in circulation in Japan havebeen sm uggled from abro ad byinternational drug and criminal
syndicates, visiting foreign nationals
have been found operating as consignees.
These illicit drugs have been smuggled
by vessels or cargo aircraft disguised asbona fide articles. Some arrivals were
found carrying parcels of illicit drugs
concealed about their persons or in theircarry-on luggage. Approximately 76% of
the total volume seized was in smuggling
in c id e nt s u s in g v e ss e l s i n 2 0 0 0 . I t
appeared that there were also criminal
acts that attempted to unload substancesfrom regional ports as well as coastal
area s o utside the p orts by me tho d s
including the tra nsfer of ca rgo frommother ship to small boats andconcealment in trading vessels.
Boryokudan, traditional organizedcriminal groups, were quick to realizethat the stim ulant d rug traff icking
yie ld ed hu ge p ro f its b e ca u se o f thesignificantly large margins between thewholesale coasts and retailing prices.
Moreover, a stab le dema nd could be
expected as abusers develop dependency
for the drug. Boryokuda n group s
sm u g gl e d in t he s ti m u la nt d r ug in

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RESOURCE MATERIAL SERIES No. 59
p a rtn e r shi p w it h tr a n sb o r d e r d r ug
s ynd i ca te s a nd do m ina t e d d om e sti c
tra ffickers, thus contrib uting to the
spread of abuse.
In 2000, a quarter of arrested
Boryokudan members were Stimulant
Drug Control Law violations. And thisfigure accounts for 40.8% of the totals t i m u la n t d r u g o f f e n d e r ’ s a r r e s t s .
B oryokudan mem bers often use
sophisticated methods, for example, using
cellular phone s with a system ofprepaying charges for calls to be made inwhich the users can remain anonymousand conclude drug sales without meetingthe buyers.2
4. Kyrgyzstan
I n K y r g yz s ta n t h e m o s t c o m m o nabused drugs is o piate s (o pium andheroin). Cannabis is gradually increasing.
A small amount of stimulant drugs suchas ecstasy are also abused.
Opium is produced in Afghanistan.
M o st o f th e op iu m is tra nsfe rre d toEurope and the USA through Russia, andthe rest are consumed in Kyrgyzstan.
Cannabis is produced in Kyrgyzstan.
A p p r o x i m a t e ly 9 0 % o f c a n n a b i s i se x p o rte d to R u ssi a, an d th e r e st is
consum ed in Kyrgyzsta n. S timula nt
d ru g s l ik e e c s ta sy a re p ro d u ce d inEurope, and trafficked to Kyrgyzstan
through Russia and consumed in
Kyrgyzstan.
The world cen ter of illegal drug
production is shifting from the so-called
Golden C rescent (area of Iran,Afghanistan, Pakistan and northern partof India) to Afghanistan intensively. It
h a s re sulte d in a n in cre a se o f d rug
2

White Paper on Police 2001,National Police
Agency Government of Japan, and Japan Coast
Guard Annual Report 2001, Japan Coast Guard

612

trafficking in its neighboring countries,
mainly in Central Asia. The mass
production of illegal drugs in Afghanistan
has led to a decline of price in the world
drug market. It also has a great influence
on Kyrgyzstan, and drug abusers haveincreased more than before.
At present there are four major routes
to sm uggle drugs from Tajikistan to
Kyrgyzstan:Route 1:

Route 2:

Route 3:

Route 4:

Kyzyl-Art, covering OshKhorog highway andperipheral zones, bordering
Mt. Badakhshan.
Altyn-Mazar, which begins
at Raushan plateau of
Zaalay mountain range andsp rea ds to the Chon Ala ivalley.
Batken, including mountainroutes, used to cross throughJergital and Garm rayons to
Batken and Kadamjai
rayons of Osh Oblast.
Leninabad, including all of
the highways, starting with
Laylak rayon and adjoining
a re a s of Uz b e k is t a n a nd
oblast centers.

Automobiles can be used in route 1 androute 4. Therefore, drugs are hidden
inside the containers of vegetable andfuel tanks loaded on large size trailer
trucks. Route 2 and route 3 are located in
the high mountain areas, thus, drugs aretransferred by horses and people.
No stable organized groups arerecognized in the country.
5. Pakistan(i) Illicit Drug Trafficking
Drug trafficking is presently, in mostprobability, one of the biggest illegal
national and transnational activities

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
earning titanic profits (and generatingother transnational crimes) andthr eate ning the p re sent and f utur eeconomies and generations.
The drugs situation in Pakistan has
improved almost miraculously so much so
tha t by 19 99 –2 000 only 16 .8 tons o fheroin yield was possible as compared to
800 tons in 1979–1980. Pakistan is thus
struck off the list of producer countries
and on the other hand has becom e a
victim and a transit country.
The increase in poppy cultivation in
Afghanistan since 1993 and growth in thesophistication of the Afghan drug trade isputting enormous pressure on the GOP’s(Government of Pakistan) border control
efforts and Pakistani society. Successfulinterdic tion operations occu r, buttraffickers have superior fire power andfaster vehicles, the territory is enormousand law enforcement is widely dispersed,
with little mobilization capacity. Thismeans more problems in fighting thiscrime.
B o t h A f gha n or i gi n ca nn a b i s a n d
opiates transit through Pakistan.
Afghanistan produced an estimated 3656
metric tons of opium in 2000. However
drug abuse escalated after the
introduction of heroin in 1980, (Soviet
invasion of Afghanistan). Since, it has
affected every class, every age group andevery income bracket all over Pakistan.
According to a rough survey there areabout 4 million addicts half of whom areheroin addicts as against only 5000 in
1 98 1. T he so cial i mpa ct i s of cours eimmeasurable.
Presently, Drug law enforcement isdone by a number of agencies. These
include the Anti-Narcotics Force,
Pakistan customs, Pak. Rangers, Frontier
constabulary, Pakistan Coast Guard,

Frontier corps NWFP and Balochistan,
Provincial Police Forces, and the Airport
S e cu rit y Fo r ce ( A S F ) . H o w e ve r t heprincipal agency is the Anti-Narcotics
Force (ANF), whose only mandate is tocoordinate and control drug trafficking.
Acet ic An hy dride, the ess enti al
chemical required for conversion of opium
into heroin, was previously on the “freelist” for purpose of import in the licit
industry. But it has been placed on the“Restricted list” and its import is allowed
to legitimate industrial consumers, afterdue verification.
Pakistan is a signatory to the major
instruments on international drug controlof 1961, 1972 and 1988, and to the UN
convention on TOC, December 2000.
Pakistan is a victim state in that it has
become a transit and a consumer country
for Afghan opiates and cannabis. GOP’s
cooperation with the world is viewed as
excell en t by t he U.S.A. and otherd e ve lo p e d c o un tr ie s. I nt e nsi ve la w
enforcement efforts by the ANF haveforced the narcotic traffickers to adopt a
low profile. Interdiction of heroinincre ased t o 8 5 % a nd s evera l m ajor
traffickers have been arrested. The GOP
has prevented the re-emergence of large
h e r o i n p r o c e ss i n g la b o r a t o r i e s . A s
apparent from the above, the main drugsof abuse in Pakistan are heroin, hashish(c ha rs) a nd o piu m. O the r co untrie s
involved in the region are Afghanistan,
India, Iran, China, Central Asean Statesand Myanmar.
(ii) Organized Groups
As per the latest reports released there
are no well known organized groups inPakistan involved in drug trafficking. In
Pakistan the scenario is a bit different,
being not a producing country, but being

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RESOURCE MATERIAL SERIES No. 59
used mainly as a transit country and tosome extent a market country.
In Pakistan transit is being helped toreach its destination by individuals whoare called Narco-barons. They usuallybelong to the tribal areas of the NWFP
province. The infrastructure of theiractivities does not fit into the definition ofan organized group. Groups have equal
partners, a hierarchy, specializations
assigned and even research being done.
Then they have alliances with each other,
globally known organized groups like the
Boryokudan, Colombian cartels, Nigerian
criminal organization, Turkish drug
tra ff ick ing o rganiz ation, Ukra inia ncriminal syndicates, Polish criminalgroups,Dominican
criminalorganizations, etc. while individual drugor Narco-barons in Pakistan, e.g. Rehmat
Shah Afridi, has his own chain ofe m plo ye es w ho a ct a s h is a ge nts o r
subordinates and carry out orders of theboss through managers. It is not known,
neither could it be proved till now thatthese Narco-barons of Pakistan have verystrong bonds, partnerships, linkages, etc.
to the known organized groups in othercountries.
(iii) Modus Operandi
The common modes to transport drugs
used in Pakistan are through airports
and shipping camouflaged containers.
They use different airlines operating inPakistan. PIA has often been suspected ofbeing involved but it has never been
proved according to reports.
Other common methods used include
b o d y w ra ps , u se o f fa l s e b o t t o ms o f
lu ggage, con cealmen t in imported
e q u i p m e n t , c o n c e a lm e n t i n h id d e ncompartments of vehicles, ships andcontainers as mentioned above, delivery
by courier services, installing it in humanbody by operations or human babies.

614(iv) Due to usage of these Modes—the
Arrests, Extradition and Freezing ofAssets etc. carried out to date
So far, by using one or more of themodus operandi 21 Narco-barons or drugtraffickers (transit helpers) of Pakistan
have been extradited to the U.S.A. from1991–2000. Seven are yet to be arrested,
four cases are pending in court and two
are out of the country. The total amountof frozen assets of drug traffickers from1999 to April 2001 is Rs.4718.76 million,
and the total value of assets forfeited isRs.305.75 million and the total number ofcases registered during the above period
is 141. In addition, to foil any designs oftraffickers to take advantage of refuge inanother country by manipulating its laws
or due to an absence of specific law s
there, Pakistan has extradition treaties
with 27 countries to date and is a party to
several regional and bilateral agreements
pertaining to drug traffic controls.3
6. Peru
In Peru, the most frequently abused
dru gs are cocaine an d mariju ana.
Ho we ver late ly, he roin and ec stasy
appear in the drug scenario.
In South America, producers of cocaine
are from Colombia, Peru and Bolivia.
Peru produces marijuana for domestic
consumption.
The principal routes of exporting drugs
are Colombia, Panama , El Salvador,
Honduras, Mexico, the U.S.A., Europe
a nd A sia . A noth er rou te is Ch ile toEurope and Brazil to Europe.
The modus operandi most used is air
mail. Also drugs are transferred to the
U.S.A from Peru through Colombia and
Mexico. By sea, drugs are hidden inside3

Saad

ImtiazALI,

UNAFEI

Presentation, 21 September 2001

Individual

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
containers on the ships sailing to the
U.S.A., Europe, Spain, Italy and Mexico.
Organized groups of drug trafficking
are Mexican cartels, Colombian cartels,
Peruvian groups and Bolivian groups.
The activities of the Mexican cartels andthe Colombian cartels extend throughout
the world. These cartels run plantations,process the drugs, package them, put
their original logos on the product andd eliver to m a ny co untries, just lik erunning big companies. The activities of
the Peruvian groups and Bolivian groups
are domestic.
III. CONCLUSION
After analyzing the current situation
with special reference to our respective
countries, we can say that drugtrafficking is a gigantic concern, speciallywhen we have such well organized groups
that really threaten the internal securityof the countries and the world.
T h e a n a ly s is f u r th e r s h o w s t h a tformerly transit countries are
p r o g r e s si ve l y b e c o m in g c o n s u m in gcoun tri es . The modu s operan di oftransporting these drugs is changing day
by day both in scope and complexity andit often requires devising new methods ofdetection and adequate controls.

fo r he ro in) . T he se n um b e rs a re no t
cumulative because of poly-drug use. The
strongest increases recorded in 1999 were
for cannabis and ATS consumption. At
the regional level, cocaine consumptionr e m a i n e d st a b l e i n N o r t h A m e r i c a(though significantly down compared tothe mid-1980s), but increased in West
Europe, as in a number of countries inSouth America in 1999.4
To reduce or eliminate drug abuse,
Governments and UNDCP need up-todate statistics on who is taking drugs andwhy. Drug abuse cuts across age, class,ethnic and gender lines. People with drug
abuse problems have different needs.
Women, the young, the poor, refuges andethnic and religious minorities needeasier access to early intervention andservices. Once in treatment, drug abusers
ma y ne ed job training a nd refe rra l,
assistance in finding hou sing andreintegrating into society. Drug abusers
who commit crimes require alternative
treatment in order to break the cycle ofdrug abuse and crime.

1999 seizures show that about one
third of all drugs were seized in North
America, a quarter in West Europe, af i f t h in A s i a a n d a t e n t h i n S o u t h
A merica. 1999 interception rates(quantities seized/quantities produced)
were 39% for cocaine and 15% for opiates.
UNDCP estimates 180 million people
consume illicit drugs (annual prevalencei n t he l a te 1 99 0 s ) t hi s include s 1 44
million for cannabis, 29 million for ATS,
14 million for opiates (of which 9 million

4

Global Illicit Drug Trends 2001, UNODDCCP

615

GROUP 2
PHASE 1ANALYSIS OF CURRENT SITUATION OF
ILLEGAL FIREARMS TRAFFICKING AND HUMAN(WOMEN, CHILDREN AND MIGRANTS) TRAFFICKING
Chairperson

Mr. Zafarullah Khan

(Pakistan)

Co-Chairperson

Mr. Yasunari Hataguchi(Japan)Rapporteur

Mr. Sittipong Tanyapongpruch(Thailand)

Co-Rapporteur

Mr. Takashi Maruoka(Japan)Members

Mr. Nouphanh Mahaphonh(Laos)Mr. Zainal Rashid Bin Hj Abu Bakar(Malaysia)

Mr. Bhola Prasad Kharel(Nepal)Mr. Muchwangali Charles(Uganda)Mr. Takao Hamada(Japan)Prof. Yasuhiro Tanabe(UNAFEI)

Advisers

Prof. Hiroshi Tsutomi(UNAFEI)

Prof. Mikiko Kakihara(UNAFEI)

I. INTRODUCTION
Although this planet has many
beautiful things for us to enjoy, in thedark side of it still exists the unpleasantactivities of transnational organizedcriminal groups. Their operations exist in
various forms, including but not limited
to, illegal firearms trafficking and humantrafficking.
Illegal firearms trafficking has recently
developed to be a serious problem. It is
not only posing dangers to the countries
concerned but also the global community
as a whole. Many of the firearms arem ainly smuggled, to be use d for theinternal purposes of one nation. However,there are a certain amount of firearms
that have been smuggled by the criminalgroups for making profits as well as for
fueling the operations of international
terrorism. Illegal firearms trafficking has

616

a direct impact on the world economy andsocial values. Moreover, it has indirectly
damaged the democratic institutions.
Human trafficking especially women,children and migrants is another areathat recently has increased in terms ofvolume and practice. The International
Org an ization for Mig ration (IOM)
estimated that the global humantrafficking industry generates up to US$8
billion each year from this “trade on
human misery.” Nearly 2 million children
are abused and trafficked globally every
year. South Asia and South East Asia
take the lead in the volume of trafficking
in ch ildr e n fo r se xu a l e xp lo ita tio n.
Und erstand ing ho w these activitie s
operate is a vital part before an
appropriate countermeasure is taken.
Thus, this paper is a production of aneffort to point out and analyze some

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
current situations of illegal firearms
trafficking and human trafficking which
occur in some parts of this world.
II. ILLEGAL FIREARMS
TRAFFICKING
The term “illegal trafficking” includes
any form of transfer where firearms,
parts, components or ammunition movefrom one country to another without theapproval of the countries concerned.
Basically there are three categories ofcountry involving in this trafficking asfollows:(i) Illegal manufacturing countries(ii) Transit countries(iii) Effected countries
A. Global Perception of Firearms
Trafficking
Firea rms trafficking is comm itted
internationally by organized criminalgroups and it poses a significant threat
not only to the lives of people but also to
the security and development of eachcountry. Some trafficked firearms are
considered illegally manufactured or
surpluses from military conflicts. For
example, it is estimated that America’s
proxy war with Russia has left
approximately 3 million weapons of allkind unused (packed and greased) on
Afghanistan’s soil.
[ A n e s t i m a t e d $ 6 – 8 b i l l io n w e r e
allocated by Washington for the supply oflight weapons only {Chalk, Peter; Focus}.
The International Institute of Strategic
Studies (I.I.S.S) in London estimate theillicit global market at $5 billion a year
(Focus, Vol. 3, No. 13).]
1. African Continent
I n Uganda, sma ll a rm s come fromneighboring countries that are faced withcivil wars. These countries are Sudan,
Somali, Congo and Rwanda.
The Karamojong, a nomadic tribe in
the Northeastern part of Uganda has inits possession about 200,000 guns, mainly
from Sudan and Somali, and they areusing the arms for cattle rustling. The
firea rms ori gina l ly i m por te d b y t he
Government of Somalia eventually findtheir way out of the country. Rebel groups
and criminals are using these arms in
Uganda to commit atrocities.
In Tanzania, the illegal firearms comefrom its neighboring countries which are
R w a n d a , B u r un d i , U ga nd a , C o n go ,Mozambique and Somali. These guns findmarkets in Tanzania and they are used incommitting offences or are taken to othercountries for illegal use.
In Nigeria, the Nigerian Civil War,between 1967–1970, exposed the country
to an influx of fire arm s. The illegal
firearms trafficking to N ige ria fromneighboring countries has fueled ethnic/
religious armed conflicts and armed
robbery in the country.
2. Asian Continent
In the Islamic Republic of Pakistan
certain categories of weapons are illegally
manufactured in its tribal area. These
illegal weapons are sold on profit inside ofPakistan and gets into the hands ofcertain sectarian organizations—who inturn use them for terrorist purposes
inside the country. More over some ofthese weapons trickle down toneighboring countries such as India,
Afghanistan and Iran.
B u t P a k i st a n i s a l so a n e f f e c t e dcountry. The reason being the period from
1979–1988, when the people ofAfghanistan fought a war with the former
Soviet Union, many categories of617

RESOURCE MATERIAL SERIES No. 59
weapons entered this country. These
weapons were supplied almost all bywestern countries, especially the U.S.A
and its allies, moreover to this were also
added countries like Egypt, Saudi-Arabia
and other Muslim countries who wereagainst the communist ideology of the
USSR. This brought in its wake a culture
known as the “Kalashnikov-culture”.
Organized criminal groups therefore
m ade good m oney by selling andsmuggling them to other countries like
India, Iran and Kashmir, where alreadycertain internal discord existed, and thed emand b y terrorist groups existed.
These weapons were supplied by bothland and sea routes.
As far as Nepal is concerned, this is aneffected country. Due to an increase in
Maoist activities internally and terrorism
by T amil-Nadu, in Sr i-L ank a, th etrafficking of arms has increased todangerous levels. In Nepal firearms are
m a inly sm uggle d for the p urpo se o f
Dacoits and political activities from theneighboring countries. It is said that
Nepalese Maoist (political party) has
many types of firearms which have been
illegally kept and used.
Whereas in India, the state of Punjab
was affected by terrorist activities during
the 1980’s and Jammu and Kashmir havebeen particularly vulnerable to arms
trafficking across the border. India has along borde r with Pakistan, N epal,
Bhutan, China, Myanm ar and
Bangladesh.
Thailand is geographically locatedamong the neighboring countries thathave political unrest in such countries as
Burma and Cambodia. In the past 10
years, a number of firearms has beensmuggled in and out of Thailand into
those two countries. A total number of

618

400,000 firearms have been imported
since 1995 and were brought in on fake
import licenses. Those illegal firearms
were then sold to the third p ar tie s/
countries. Tha iland is f ound to b e atransit and effected country.
In the Philippines these activities
works in two ways. The organized crimegroups smuggled the U.S made firearms
into the countries and these firearms areused by the rebel gro ups in fighting
against the government. On the other
hand , locally mad e handguns
manufactured in the Province of Cebu, inCentral Philippines, are smuggled toother countries, pa rticula rly J apa n,
Taiw an a nd othe r AS EAN countrie s
through air and sea. The Philippines is
an illegal manufacturing and effected
country.
Firearms trafficking is not considereda serious problem in Malaysia and many
criminals fea r the ma nd atory dea thsentence that they are liable to face ifarrested with a firearm. For the past two
years (till June 2001) statistics show that
only 413 such firearms comprising mostly
pistols, revolvers and shotguns wereseized and the number of arrests wereabout 461. In 1999, a few have been shotdead in East Malaysia but they wererather foreigners who were involved in
activities such as piracy. Investigation
show s that most of the f irearms are
smuggled from neighboring countries
such as Thailand and the Philippines
either by organized groups or individuals
where they can be obtained quite cheaply
and easily. It is very easy to bring infirearms into the country via the borders,
especially land and sea where it is next to
impossible for the authorities to conduct
thorough observations. Firearms are usedmainly in committing crime. It isestimated that the actual number offirearms made in this country could be 20

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
times or even more than the firearms
seized. Malaysia is an effected country.
Papua New Guinea is also faced with
the increase of illegal firearms
traffickin g. Reports in dica te t hat
firearms trafficking occur in areas likethe highlands where people have beenusing them in their tribal fights. Highpowered firearms are also being used in
the cities of Port Moresby and Lae as wellas in Bougainville. It is evident that
firearms trafficking in Bougainville wereconveyed from the Solomon Islands andIndonesia. It is noted that firearms are
smuggled into PNG by shipping cargocontainers, light aircraft, parcel port,
f i sh in g t r a w l e r s , a n d sm a l l b o a t s ,crossing the Solomon and Indonesianborder. Papua New Guinea is consideredan effected country.
In Japan, the possession of firearms isstrictly controlled by the Firearms andSwords Control Law. Strict regulations
contribute to the relatively low rate of
firearms-related crimes in Japan, and it
is almost impossible to produce firearms
illegally inside Japan. However, it is also
the fact that occasionally firearms areused in crimes, especially in robberycases. In 1999, police seized 837
authentic handguns (down 92 from theyear before) and the majority of themwere trafficked into Japan from foreignc o un trie s b y cr im e syn d ica te s. T h e
countries where they were made range
from the U.S, the Philippines, Thailand,
to Russia, Korea, China, Brazil, andTurkey. They are cunningly brought into
Japan by such means as being taken into
pieces and hidden in containerized cargo.
In th ese contexts , Japan cou ld b e
categorized a s one of th e effect ed
countries by trafficking of firearms.

3. Latin American Continent
In countries such as Argentina and
Venezuela, illegal firearms trafficking is
a new problem to them. The weapons of
Syrian origin have been smuggled toArgentina. However there is no record on
any organized crime group involved inthose two countries.
Likewise in Honduras, the problem offirearms trafficking started since theirwar with El Salvador and the Contra ofNica ra gua . Th e w e a pon s com e fro m
Nicaragua through their boundaries in
the northern zone. There is a record
where some of the firearms trafficking
have been linked with drugs trafficking
because some Hondurans make deals
with organized crime groups in South
Africa where they exchange weapons
with drugs. The situation becomes worse
where a few organized gangs in Honduras
have a capability in manufacturing theirown hand made guns and almost all thejuveniles in those groups have one eachand they often use them in committing
crime. Honduras authorities find it hard
to control this because more hand madeguns can be manufactured any time.
B raz il also has the sam e p rob le mwhere weapons have been smuggled from
Paraguay through the Port of Rio deJaneiro and Santos in Sao Paulo.
Firearms are used by members oforganized criminal groups to commit
crimes of threat and murder. There isalso evidence that a group involved inillicit drug trafficking in Brazil haveexchanged firearms for cocaine w ith
terrorist groups from other neighboring
countries.
III. HUMAN (WOMEN, CHILDREN
AND MIGRANTS) TRAFFICKING
Trafficking in human beings implies
illegal movement of people from one

619

RESOURCE MATERIAL SERIES No. 59
country to another country in violation ofexisting national laws and procedures. In
human trafficking activity, the attention
has be en pa id mostly to wom en andchildren because they are more often thevictims. Basically, there are 2 categories
of country involved in this humantrafficking as follows:(i) Source countries(ii) Destination counties
Focusing on the trafficked person,
there are two types of human trafficking:Som e persons, mainly w omen a ndchildren, are forced to engage in labor
including prostitution in exchange formoney and are exploited. Thus, they areso called forced laborers. On the other
hand, some persons voluntarily engage inillegal work with the purpose of getting
money. Thus, they are so called illegal
immigrants.
A. Global Perceptions of Human
Trafficking
1. African Continent
Apart from South Africa and Libya, theo ther countries in A frica are source
countries of human trafficking.
Nig eria is a source, transit anddestination coun try for tr affick ed
persons. The majority of trafficking from
Nigeria involves females destined forEurope. Italian authorities estimate that
10,000 Nigerian prostitutes work in Italy
and many of them are victims of
trafficking. Nigerians, primarily womenand children are trafficked to work on
plantations in other African countries,
including Gabon, Cameroon, Equatorial
G uinea and Benin. Other significant
d estina tion co untries fo r tra ff icke dNigerians include the Netherlands, theC z e c h R e p ub l i c , S p a i n, F ra nc e a n d

620

countries in the Middle East. Nigeria also
serves as a transit hub for trafficking inWest A frica a nd t o a lesser extent a
destination point for young children fromnearby West African countries. Womenand children are also trafficked within
Nigeria. There are illegal syndicates
operating within and outside Nigeria
doing huma n trafficking. The entire
business is shrouded in secrecy and someof the victims are transported outside
Nigeria in the guise to pursue educationand gainful employment. The traffickers
employ subtle force, coercion, fraud ando utr igh t d e ce it to ac co m p lis h the ir
objectives.
M a l i i s a s o u rc e a n d d e s t in a t io n
country for trafficked persons, primarily
children. Children from M ali aretrafficke d to Ivory Coa st to w ork o n
co t t o n a n d c o co a p la nt a t io ns o r f ordomestic servitude. Women from Nigeria
are trafficked to Mali for sexual
exploitation.
Due to the prevailing civil war in thenorthern part of Uganda, the country has
become a source of trafficked persons,primarily women and children. The Lords
Resistance Army (an antigovernment
re bel group) based in Sud an has
kidnapped about 10,000 persons from
Uganda to southern Sudan; and forced
them to become soldiers, forced laborers
and sex slaves. Also some women arebeing taken to Europe and the Middle
East by organized groups for purposes of
prostitution. Some of the children taken
to Sud an are sold into slavery to
Sudanese Arabs or exchanged for guns.
The Democratic Republic of Congo is asignificant source country for trafficking
in persons. Wo men are trafficked toEurope, mainly France and Belgium, forsexual exploitation; and boys are119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
trafficked by rebel groups within Congofor forced military services.
Ugandan and Rwandan soldiers, inaddition to Congolese for Democracy
Rebels, reportedly in the recent past haveabducted many Congolese women andgirls from the village they raided andforced them into sexual servitude.
South Africa is a destination country
f o r t r a f f ic k e d p e r s o n s. W o m e n a r e
trafficked within South Africa and fromother African countries (e.g. Angola,
Zimbabwe, Lesotho, Swaziland, Zambia,
Cameroon, Malawi and Rwanda), Asia
(specially Thailand and Taiwan), Eastern
Europe, Russia and the new independent
States. South Africa is also a transit pointf o r t r a f f ic k in g o p e r a ti o n s b e t w e e ndeveloping countries and Europe, theUnited States and Canada.
Generally, human trafficking networks
in Africa are often informal and secretive
in nature, which makes the identificationof networks and traffickers extremely
difficult.
2. Asian Continent
Many pe ople seeking gainful
employment from underdeveloped anddeveloping countries travel on unusualroutes to reach their destination where
there is relative economic prosperity(developed countries). Laos has had thisproblem since 15 years ago.
Some countries are also found to beboth countries of origin and destination
for human trafficking such as India,
China, Thailand, etc.
The growth and development ofThailand in the past 10 years comparedto the n eighbo ring co untrie s h av e
induced foreign people to migra te to
Thailand. Persons from Burma,

Camb odia and Laos are the prim ary
trafficked persons to Thailand to work in
f a r m s, i n d u s tr ia l p la c e s a n d o th e r
sectors. A large number of Thai persons,especially young women and girls, havebeen trafficked internationally to Japan,
Taiwan, Malaysia, Singapore, Europe
and the United State chiefly for sexual
exploita tion a nd, to a lesser degree,
sweatshop labor. Besides, Thailand has
been used as a transit country and thenum b er invo lved is o bviously large.
P e r s o n s e s p e c i a ll y f r o m C h i n a a r e
trafficked through Thailand to a numberof d eveloped countries and more
prosperous neighboring countries. The
organized crime groups bring them as
tourists and later will arrange for forgedvisas and passports. Related foreign
languages are arranged while waiting for
those documents ready. With the cooperation of certain airline officers, they
then traffic persons to the destination
countries.
Malaysia is both a source anddestin ation c ou ntry for t raffic ked
persons. Young women from Indonesia,
Thailand and the Philippines aretraf f ic k ed in to M a lays ia f or se xu al
exp loitation. So me, w ith the help oforganized criminal groups, misuse theirto urist visa s while m any have b een
cheated by these groups. They entered
M a l a ys i a w it h o u t a n y v a l id t r a v e ldocument or through other illegal landing
point and were forced to work until they
pay the organized crime group
substantial amounts of money, normallyunaffordable figures, under threat ofphysical harm and under threat to expose
their illegal alien status to theauthorities. A number (3,625) of them
have been arrested in the last two years
and will be/are being sent back to theirc o u n tr y o f o r i gi n a f te r u nd e r g o i ng
punishment for violation/illegal entry tothis country. Also, a small number of621

RESOURCE MATERIAL SERIES No. 59
yo ung M a laysia n wo me n, p rimarily
ethnic Chinese are trafficked to Japan,
Canada, the United States and Taiwan
also for sexual exploitation.
In the context of Nepal as a source
country, the main reasons for children
and women trafficking include naturald isa ster, poverty, illitera cy, divorce
between the parents, death of parents,
child labor, sexual abuse, unemployment,
migration, child marriage, polygamy,
violence in the family, etc. Most of thewomen and girls have b een taken to
many countries and sold to brothels forthe purpose of prostitution. Organizedcriminal gangs have been found to be
active behind such inhuman crime andcruelty. This type of crime is mostly
committed outside the national boundary.
I t ha s b ec om e ve ry d iff icu lt f o r th e
criminal justice authorities to arrest andpunish the criminals. It is said that 5,000
to 7,000 women are sold every year fromN e p a l to o t he r co u nt r ie s. T he y ar e
trafficked either forcefully or on thepretext of finding a good job or marriage
or false promise and also are sold as
maids. In recent years some Nepalese
girls, especially from rural areas, havebeen trafficked to the Middle East, East
Asia and South East Asia for commercial
sex purposes. Most of them would notknow where they are taken until thepeople w ho b rought them to stra nge
places have slipped away and they are in
the custody of some strangers who start
to abuse them. Moreover, the children aretrafficked for labor and begging purposes.
Nepal has to face some illegal migrantproblems from Tibet.
Pakistan’s domestic flesh trade does
not a ppear to be backed by powerfulorganized criminal networks as known ino t h e r c o u n tr ie s o f t h e w o r l d . T i n yoperations are clandestine and behindthe curtains.

622

In India and Pakistan the commercial
sex trade is profitable. However women
are kidnapped and end up as prostitutes
domestically. A large number of Indian
young girls from southern India havebe en se nt to Saudi A rabia and Gulf
countries for the same purpose of sexual
exploitation. Moreover certain syndicateshave been identif ied w ho indulge insending men and children for purposes oflabor to western and far easterncountries, including Japan and certain
rich Arab countries.
After the break-up of the U.S.S.R.,
women trafficking in Iran increased in
the sense that these two countries are
acting as transit countries because of
their close pr oximity. H ow eve r, thetrafficked women cannot stay for long inPakistan and Iran because of stringent
immigration laws and Islamic laws.
I n J a p a n, a l th oug h t he re a re f e w
instances of trafficking in the strict sense,th e r e a r e m a ny il le g a l im m i gr a nt s
(smuggling). However, trafficking in the
broad sense is probably not rare because
transnational crime organizations are
involved in almost all these smuggling
cases. The number of persons taken into
custody involved in collective smuggling
cases was 770 (44 cases) in 1999 and 90%of them were Chinese nationals. Most of
the cases were linked to Chinesetransnational crime organizations, Snake
Head, which is a generic term applied toorganizations in charge of smuggling
Chinese people into Japan and othercountries. Snake Head solicits would-be
illegal immigrants and undertakes, inexchange for considerable amounts of
payment, not only their transportation to
Japan but also their shelter after theirarrival in Japan and prepares forgedpassports and other necessary
documents.

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
IV. ANALYSIS
A. Causes
1. Illegal Firearms Trafficking
Focusing on the causes of the abovementioned two kinds of trafficking, somefactors could be seen in common.
Apparently, one of the common causes isthe fact that these two kinds oftrafficking could bring enormous sums ofmonetary benefit, both in cash and kindto the transnational crime organization.
In addition to that, there are somefactors peculiar to each type of trafficking
like warfare in the source country andeffected country as well as demand forterrorist a nd crime activities in theeffected country.
It is an alyz ed th at il legal arms
proliferation is a global phenomena. It
has extracted a heavy toll in terms ofhuman lives and socio-econom ic
development of entire regions.
In Asia, especially Afghanistan, thedeath toll has passed 200,000 (dead andinjured during the war) and is still rising.
In India, Pakistan, Cambodia, Sri-Lanka
and some African states, they continue to
see conflict related deaths in hundreds.
In Latin American countries such as
Argentina, Brazil, Honduras, etc.
firearms were found to be exchanged forillegal drugs and money making. The
relationship between arms and narcotics
dealers overlap, thus creating a deadly
combination.
It is analyzed that illegal trafficking ofarm s disturbs the public peace,
tranquility and disturbs the balance ofthe economy—thus reducing reliance ofthe public on government organization,
thus causing anarchy.

2. Human Trafficking
There are some factors peculiar to eachtype of trafficking, like economic
imbalances between source country andeffected country, social and politicalinsecurity in the source country a nd
demand in effected country.
It is analyzed that the favorite
destinations of illegal migrants are thedeveloped industrialized nations like the
U.S.A., Japan, Canada, Germany andFrance. Most women from underdeveloped countries wind up as sex slaves
or maidservants in the above-mentioned
countries.
The problem has increased in both sizeand seriousness by the growing
involvement of organized crime groups.
These groups have disrupted theimmigration policies of the governments.
Therefore, there are substantial
h um a n it a r i a n c o n c e r n s a n d i s su e s
related to the global problem of aliensmuggling.
This
also
poses
administrative problems to concernedcountries.
F o r e xa m p le , E u r o p e a n c r im in a lorganizations may pay $6,000 to Asian
Synd ica te s to b uy Chi nese m en a nd
women. The person may have to pay more
tha n $ 1 5 ,0 0 0 to the ir e m p lo ye r s topurchase their freedom. The profit is$9,000 plus free labor.
It is analyzed that at least 700,000
persons, especially women and children,
are trafficked each year acrossinternational borders (UN Human Rights
Report).

623

RESOURCE MATERIAL SERIES No. 59
B. Modus Operandi
1. Illegal Firearms Trafficking
Th e m od us o pe ra ndi (h er ein a fte r“m.o.”) of the tra fficking route is asfollows:
a. Firearms arrive in receiving country
as undeclared or misdeclared items
a n d i n c lu d e d w i t h o t h e r g o o d s ,consigned to fictitious names andaddresses;b. Firearms can also be dismantled into
pieces and included among metal
item s or ma chinery pa rts legallyimported or exported in containerizedcargo;
c. Firearms are sometimes thrown fromvessels, boats, etc. at pre-arranged
areas some distance from the shore
where they are later picked up by
small boats and brought toundisclosed places.
2. Human trafficking
The m.o. of the trafficking route is asfollows:
a. Somepersons
arriveatthedestination hiding in the container
cargo. This sea route is the typicaland traditional m.o;b. Some persons take airlines with
forged or altered passports and othernecessary documents. This air routeis a relatively new one.
C. Effect and Conclusion
Looking at the current situation weanalyzed in our Group Work Shop, it isindispensable to take necessary
c o u n te r m e a s u r e s u r g e n t ly a g a i n st
tra fficking in firearms and hum ans.
These crimes have tremendous harmful
eff ects on each country involved.
Firearms trafficking cause even social
a nd political instability, and humantrafficking results in the disruption of624

families in source countries and economic
and social disorder in effected countries
as well as violations of human rights ofvictims, especially women and children.
Intern ational law an d oth er leg al
f r a m e w o r k s h a v e r e g r e t ta b ly b e e ninsufficient to combat these crimes. Law
enf orcement in each country andinternational cooperation in this field
se e m s to h a ve b e e n ine f f e cti ve a ndin e f f ic ie n t s o f a r . T a k i n g i n t o d u econsideration such a situation, the U.N.
C o n v e n t io n a g a i ns t T r a n s n a ti o n a l
O r g a n i z e d C r im e a n d t h e P r o t o c o lagainst trafficking in persons, especiallywomen and children, and the Protocol
against the smuggling of migrants wereadopted in November 2000. The Protocol
against Illicit Trafficking, Parts, Its
Components and Ammunition was also
a d o p t e d i n M a y 2 0 0 1 . A ll a g e n c i e s
involved in criminal justice have to makeevery effort to eradicate trafficking infirearms and humans by fully utilizingthese new legal tools.

GROUP 3
PHASE 1ANALYSIS OF CURRENT SITUATION
OF MONEY LAUNDERING
Chairperson

Mr. Shankar Pratap Singh(India)Co-Chairperson

Mr. Masakazu Ameku(Japan)Rapporteur

Mr. Jan Samuel Maringka(Indonesia)

Co-Rapporteur

Mr. Oscar Antonio Goyanes(Argentina)

Members

Mr. Sazali bin Salbi(Malaysia)

Mr. Tsunekazu Kobashi(Japan)Ms. Azumi Misawa(Japan)Mr. Rafael Romero(Venezuela)

Mr. Taizo Yokoyama(Japan)Deputy Director Keiichi Aizawa(UNAFEI)

Prof. Yuichiro Tachi(UNAFEI)

Prof. Kenji Teramura(UNAFEI)

Advisers

I. A BRIEF OVERVIEW
M o n e y l a u n d e r i n g b r ie f ly m e a n s“making dirty money look clean.” It canbe defined as, “the processing of thecriminal proceeds to conceal their illegalo rig in.” T he ob j ec tive o f the m o ne ylaunderer is to disguise the illicit origin of
substantial profits generated by criminal
activity, so that such profits could be used
as if they were derived from a legitimate
source.
Money laundering is at the center of all
c r im in a l a ct ivi ty , b e ca us e i t is th ecommon denominator of predominantly
all other criminal acts. Since it cannot bedisassociated from other forms of crime,
money laundering becomes an integral
pa rt o f any tra nsna ti ona l orga nize dc r i m e . T h e tr a n s n a t io n a l c r im i n a lorganizations have resorted to money
laundering in different countries in aneffort to legitimize the proceeds of crime.

It needs to be emphasized that money
la u n d e r in g is n o t a n e w e c o n o m ic ,sociological or legal problem. However,geo-political developments over the lastfew decades, together with increased
economic globalization have resulted inincreased international movement ofmoney. The rapid expansion ofinternational financial activity has gone
hand in hand with the development oftransnational organized crime, whichtakes advantage of political borders andexploits the differences between the legal
systems in order to maximize profits. The
organized criminal groups involved are
genuinely multinational and pose a very
serious threat to the financial stability of
all economic systems viz, theunderdeveloped, the developing and also
the highly developed nations of the world.
The extent of money laundering isdifficult to estimate since it is an illegal
ac tiv ity f o r w hic h no e xa ct d a ta o r

625

RESOURCE MATERIAL SERIES No. 59
statistics are available. However, theInternational Monetary Fund (IMF) has
estimated that the aggregate size ofmoney laundering in the world could besomewhere between two to five percent of
the world’s gross domestic product (GDP).
U sing 1996 statistics, this would
translate into approximately US $590
billion to US $1.5 trillion, which reflects
the magnitude of the problem.
In view of the fact, that the goal of the
predominant majority of the criminal acts
is to generate profits for the individual or
the group which carries out the criminalact, the process of the criminal proceeds
to disguise their illegal origin becomes
essential. It enables the criminal to enjoy
the profits derived from crime without
jeo pard iz ing the ir source. S ince theactivities of organized crime, including
drug trafficking, trafficking in illegal
firearms, smuggling, prostitution, etc.,
can generate huge amounts of money,
they create an incentive to “legitimize”
t he il l-g o tte n gain s thr ou gh m o ne ylaund e ring. Whe n c riminal ac tivity
g en er ates su bstantial pr ofits, th e
individuals or groups involved must finda w a y t o co n tro l t he f u nd s w ith o ut
attracting attention to the underlying
criminal activity or the persons involved.
C riminals do this by d isguising thesources, changing the form or moving thefunds to a place where they are less likely
to attract attention.
Ex pe rien ce in dif fe re nt c oun triess h o w s t h a t th e g e n e r a l t e c h ni q u e s
e mployed to launde r mone y are as
follows:(i)

investing dirty money in legitimateb usiness either through shell or
fictitious companies or in genuine
companies under a false identity;(ii) acquisition of assets by paying therequisite taxes;

626(iii) deposit of money in tax heavens or inbanks in non-cooperative countries
and remittances back to the hostcountry through normal banking
channels;(iv) use of the underground banking
channels for transfer of money;(v) over invoicing of goods in an
apparently normal exports business
transaction;(vi) routing of money through safe tax
heaven countries.
Experience further discloses that amoney laundering operation basicallyconsists of three phases or stages. The
first phase is the “placement”, i.e. where
cash enters the financial system. The
second phase consists of “layering”, i.e.
where the money is routed through a
num b er o f t ra ns a cti on s s o t ha t an y
attempt to trace the origin of money islost. The last or the third phase consistsof “integration”, i.e. the money is broughtback into the eco nomy with thea pp e a ra nc e of l egit i m a cy a nd t hus,
integrated within the lawful economy
leaving no trace of the illegal money tothe various law enforcement agencies ofthe different countries.
II. GLOBAL CONCERN
Realizing the gravity of the problem,
the United Nations (UN) adopted theVienna Convention, 1988 against theIllicit Traffic in Narcotics, Drugs, andPsychotropic substances which, interalia, incorporated incrimination of money
laundering in an international treaty forthe first time.
T he F in a n cia l A ct io n T a s k F o r ce
(FATF) was founded in 1989 by the G7
summit in Paris, to examine methods tocombat money laundering. It publishedits report in 1990, in which the Forty
Recommendations were made to combat

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
the menace of money laundering. The UN
saw it’s convention against Transnational
Organized Crime adopted in November
2000 and this was opened for signatureby member states in December 2000. It
requires member countries to further
intensify and fortify their efforts againstmoney laundering.
The above convention suggests a seriesof measures to combat the evil of money
laundering, including attempts to define
the definition and scope of the subject
incorporated in Article 6 and 7.
III. LEGISLATIONThe current situation with regard tomoney laundering, as it presently exists
in the mem ber countries of theparticipants attending the course, is very
briefly summarized as follows:
In Japan, in order to enforce the UN
Convention Against Illicit Traffic in
Narcotic Drugs and Psychotrop ic
Substances, which was adopted in 1988
a t t h e U N D r u g C o m m it te e T r e a ty
C onference,
and
the
Forty
Recommendations suggested by FATF in
1 9 9 0 , t he “ L a w C o nc er nin g S p e ci a l
Provisions for the Narcotic andPsychotropic Control Law, etc., and Other
Matters for the Prevention of Activities
Encouraging Illicit Conducts and Other
A ctivities Involving Controlle d
S u b s ta n c e s T h r o u gh I n te r n a ti o n a l
Cooperation” (hereinafter, the Special
Narcotics Law) was concluded on October
2, 1991 and enforced from July 1, 1992.
Furtherm ore, the “Law for the
Punishment of Organized Crime and the
C ontrol of Criminal Earnings”(hereinafter, the Law for the Punishmentof Organized Crimes) was concluded on
A ugus t 12 , 1 99 9, and enforced fromFebru ary 1, 20 00, after t he Forty

R e co m m e n d a tio n s w e r e m a d e m or ecomprehensive.
This law widens the predicate offenses
a nd p ro vid es the p ro visio ns fo r thelaundering of illicit proceeds generated
from not only drug-related crimes but
also other major offenses which have notbeen covered under the Special Narcotics
Law.
The Special Narcotics Law and theLaw for the Punishment of Organized
Crimes include the following features:
1. Provisions concerning punishments
for money laundering and thedisposal of illicit proceeds generated
from crimes;
2. Confiscation of intangible property
such as bank accounts;
3. A system to secure the subject
property so as to ensure forfeiture andcollection of equivalent value;
4. Cooperation in conducting confiscation trials in foreign countries;
5. Provisions requiring financial institutions to report suspicious transactions, as countermeasures againstmoney laundering of illicit proceeds
generated from crimes.
In Malaysia, before the introduction of
the Anti-Money Laundering Act 2001, thecountry did not have any specific law onmoney laundering. However there arevarious substantive laws making it an
o f f en c e f o r ‘la un d e ri ng ’ o f ille g a lly
obtained money or assets. One of themost effective le gislation is theDangerous Drug (Forfeiture of Property)
Act 1988 (the FOP Act). Drug abuse anddrug trafficking is regarded as the most
severe and grave crime in Malaysia since1983.The government of Malaysia feltthat individua ls or groups of peop leinvolved in this criminal activity should
not be allowed to enjoy the benefit of their627

RESOURCE MATERIAL SERIES No. 59
ill-gotten gains. Although there is no
definition or usage of the term “money
laundering” under the FOP, but there is ap ro visio n which state s that it is anoffence for any person either by himself or
on behalf of another, to commit the act oflaundering of illegally obtained property.
One very important legislation whichis related to money laundering activities
is the Anti-Corruption Act 1997. Under
this legislation, o fficers of theenforcement agency, that is the AntiCorruption Agency, have been given thep owe rs, either directly or indirectly
through the Public Prosecutor or theHigh Court, to act in relation to any
dealing in property (laundering), seizure
a nd forfeiture of property which are
regarded as proceeds from corruption
offences.
Another country in the Asia region,
Indonesia, also pays serious attention tothis ma tter. The G overnment of the
Republic of Indonesia is truly concernedr e g a r d in g m o ne y l a u n d e ri n g, a s isreflected by its ratification of some of thefollowing im portant conventions
connected with Money Laundering, suchas:
1. Ratification
ofConventionon
Psychotropic Substances 1971 (byLaw No. 8 Year 1996);
2. Ratificationof United
Nations
Convention Against Illicit Traffic andPsychotropic Substances (by Law No.
7 Year 1997).
The draft of the Anti-Money
Laundering Act is still at the discussion
stage in the legislature but implicitly
a lready exists in The Criminal Code
Article 39, 480 and 481 and within Draft
of Criminal Code Revision chapter 601
and 604 which generally puts restriction
on anyone who possesses, saves,628

transfers, invests, pays, buys, deposits
suspicious crime-resulted funds and its
violation could result in imprisonment
and fines.
In Thailand, the Money Laundering
Control Act BE 2542 (1999) was
introduced with the setting up of the
Office of Anti-money Laundering by theGovernment of Thailand. During the first
9 m o n th s o f it e x is t e n c e t h e o f f i c emanaged to confiscate a total of morethan 240 million bahts. Under the above
Act, financial institutions are required toreport every transaction of the amountexceeding 2 million bahts to the Office ofAnti-money Laundering for investigation.
The office also has the power to gather
evidence for the purpose of taking legal
pr oce e ding a ga in st the o ff en de rs of
predicate offence, which are:
1.
2.
3.
4.

relating to narcotics;
relating to sexuality;
relating to public fraud;
relating to misappropriation or fraud
or exertion of an act of violent against
property or dishonest conduct;
5. of malfeasance in office or judicial
office;6. relating to extortion or blackmail byclaiming an inf luence of a secretsociety or criminal association;
7. relating to smuggling under thecustom law.
In N epal, the extent of money
laundering is very difficult to estimate. It
is an illegal act for which no statistics areavailable.
In India, money laundering is indulged
in both by businessman and corporate
business houses to evade taxes as well as
by the orga niz ed crim inal groups tolaunder dirty money. Money laundering
techniques include sm uggling,e s t a b li s h m e n t o f f r o n t c o m p a n i e s ,119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
a c q u i si t io n o f c o m m e r c i a l a nd n o n
co m me rcia l pro pe rties, rem ittanc es
through Hawala or Hundi. Over invoicing
and double invoicing of goods throughforeign remittances and through tradingin stock and shares.
T h e I n d ia n “H a w a l a ” o r “H u n di ”
system of transaction can be explained astransfer of money through unofficial andnon banking channels. The money sotransferred often includes the moneyd e r iv e d f r o m cr im ina l ac ti vi tie s inviolation of the country’s legislation. As adeveloping nation, India feels seriously
concerned because Hawala transactions
not only undermine the nation’s economy,
but also seriously jeopardizes th ecountry’s security through terrorist andsubversive activities which are often
funded from the proceeds of illegal drugs
and arms trafficking.
It needs to be emphasized, that at
p r e se n t t h e r e is n o s p e c if ic m o n e ylaundering law in operation in India. A
bill to enact the money laundering act“The prevention of Money LaunderingBill” has been introduced in Parliamentby the Government of India but the same
still r em a ins to be e nacte d as L a w.
However, at present there is already a setof legislation existing in India intended todeal with the economic offenders. Suchlaws/legislation are specifically intended
to deprive the offenders of the proceeds
and benefits deprived from thecommission of offences against the laws of
the country.
Besides, such legislation also provides
for the confiscation or forfeiture of theproceeds or assets of certain crimes.
These include:(i)

Criminal Law (Amendment) Ordinance,
1944(ii) Customs Act, 1962(iii) Code of Criminal Procedure, 1973(iv) Smugglers and Foreign Exchange
Manipulators (Forfeiture of Property)
Act, 1976(v) Narcotic drugs & Psychotropic
Substance Act, 1985(vi) In addition, Indian Statutes also
p r ov ide p re ve ntive d ete nt ion o fforeign exchange racketeers under
the conservation of foreign exchange
and prevention of smuggling
activities (COFEPOSA) Act, 1974(vii) And the preventive detention of drugtraffickers under the prevention of
Illicit traffic in Narcotic drugs andpsychotropic substances (PITNDPS),
Act 1988.
In Argentina, the new legislation (Lawenacted on March 5, 200 0) considers
money laundering as an autonomous
crime. It means that the laundering ofassets is not only penalized when it isobtained from the traffic of narcotics, butalso includes other illegal activities suchas terrorism, traffic of weapons, of humanbeings or other human organs, crimes
against the Public Administration, andsuch other offences where the Penal Codeprovides punishment with a minimum of
3 years in jail. The same law includes theobligation on the part of certain people,
that the text specifically mentions, ofdenouncing operations and/or suspicious
activities.
In Venezuela, the anti drugs law wasenacted and made more comprehensive
on September 30, 1993. This law wasmade to adapt to the current problem
relating to drugs and it includes theprocedure in cases of money laundering,
their prevention, control and inspection of
the bank and financial entities by theauthorities. With this enactment of theanti-drug la w a ll of those that havebenefited from drug trafficking and othercrimes are pen alized. Besides the629

RESOURCE MATERIAL SERIES No. 59
trafficker, it also penalizes the persons
that direct the operation, who finance itand those who facilitate the traffic ofdrugs in any way. The reform was madeto article 37 which now penalizes
laundering.
The Venezuelan national assembly has
also discussed the future enactment of alaw that would fight against organizedcrime. The police, w ho can carry out
op erations as hidden agents, caninvestigate the laundering of money andthe tra ffic of drugs. E qually, it a lso
i m p o se s o n b a nk s t he o b lig a ti on o f
informing the authorities when there iss usp i cio n o f a n o p e r a tio n o f m o ne ylaundering. The punishment for thecrime of money laundering isimprisonment between 15 and 25 years.
An anti-corruption law that penalizes theoffences relating to public officials has
also been provided in Venezuela.
In Peru, the Law only punishes money
laundering when it emanates from theillicit trafficking of drugs. When them oney re la tes to othe r o ffences like
corruption, fraud, kidnapping, robbery,etc. it is not covered by money
laundering. Thus, in Peru, the activity ofmoney laundering is confined only to thecase where drug money is involved. It isa lso inco rp orated b y la w (ordinancelegislative) of April 10, 1992, that banks
report any unusual or suspicioustransaction above ten thousand dollars to
the authorities in each case.
Money laundering in Honduras is only
related to drug trafficking. Before 1993
the money laundering law did not exist. It
was only mentioned in one article of the
drug law. Since 1998 the money
laundering law has been enacted, but ito nly re la tes to d rugs. H owe ver, theattorneys that deal with the said crime
are working on some reforms in the law.

630

They are trying to establish a money
laundering law related a lso to othercrimes such as stolen vehicles,
kidnappings, bank robberies, humantrafficking etc.
Uganda is a developing country with alo w e co n o m ic b a se . B e c a us e o f th iscriminals finds it easy to invest theirp r o c e e d s f r o m i l le g a l a c t i v i t ie s i n
Uganda. Since the government needs
investors to uplift the economy, little
scrutiny is done to establish the origin ofhuge amounts of money. Currently, there
is no legislation in place to cater to moneyla un d e r in g . T hi s i s a n e w c o n c e p t.
However, there is an anti-money
laund er ing c om m ittee con sisting o f
e x p e r ts f r o m t h e U g a n d a R e v e n u eAuthority, police, immigration,commercial banks and Bank of Uganda.
The committee is charged with drafting alaw on money laundering. In East Africa,
a training workshop on combating money
laundering was held in Arusha, Tanzania
in A u g u s t 1 9 9 9 a n d h a s l e d t o t h e
c r e a t i o n o f a N a t io na l A n t i- M o n e yLaundering Committee, which areaffiliates of the Eastern and Southern
Africa Anti-Money Laundering Group(E.A.S.A.A.M.L.G.).
IV. INSTITUTION OF STRs/FIUs
A s f ar as Jap an is concerned, theSuspicious Transaction Report (STR)
system was first introduced into
Japanese legislation by the enactment of
the Special Narcotics Law. Subsequent tothis, the La w for the Punishment ofOrganized Crimes was enacted in 2000,
which introduced a comprehensive STR
system. The scope of predicate offenses ofm on ey la und e ring wa s ex pa nd e d toalmost all organized crimes. Based on theabove law, the Japan Financial
Intelligence Office (JAFIO) wasestablished in the Financial Agency as

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
the Japanese Financial Intelligence Unit
(FIU).
At present, depository institutions(banks), insurance companies, securities
brokers and other non-bank financial
institutions are co vere d in the STR
system. However, non-financial
institutions or other relevant
professionals (so-called “gatekeepers”)
are not covered. Compliance by financial
institutions is mandatory but no legal
sanction is provided for non-disclosure of
STRs.
The records of the Narcotics Division of
the Malaysia Police Department revealthat the traf fickers in M a la ysia aremostly individuals or small groups who
capitalize on drug trafficking industry for
personal gains. Drug pro ceeds are
sometimes concealed within theproximity of their home or invested inother illegal activities such as loansharking and book markings.
Taking into consideration the Forty
Recommendations of the FATF on money
laundering, the government of Malaysia
in the middle of the year 2001 introduced
the Anti-Money Laundering Act 2001. It
is hoped that the law, with 199 serious
o ff ence s including d rug tra ff icking,corruption, kidnapping, robbery, humantrafficking, gambling and fraud, will
provide a strong foundation in countering
money laundering in or outside Malaysia.
In Indonesia, the Criminal Proceeding
Act, 1981 provides that Investigators
shall be:a. an official of the state police of the
Republic of Indonesia;
b. a certain official of the civil service
who is granted special authority bylaw.

Referring to this statement, inpractice, the police official is aninvestigator for general crimes such as
murder, theft, robbery and so forth. A
public prosecutor is also authorized to be
the investigator for special crimes such as
corruption cases.
In cor ruption ca se s, the A tto rney
General’s Office has successfully handled
a lot of corruption cases, and saved alarge amount of the state’s assets.
In India, a number of law enforcement
agencies (primarily operating under the
Ministry of Fina nce , Go vernment of
I n d ia ) a r e e n g a g e d i n c o ll e c ti o n o f
intelligence and also investigation of
economic offences and frauds, including
money laundering. Some of theprominent agencies are as follows:(i)

The Directorate of Revenue Intelligence(DRI)(ii) The Directorate of Enforcement(iii) The Economic Intelligence Bureau(EIB)(iv) The Central Board of Direct Taxes(CBDT)(v) The Central Board of Excise &Customs (CBEC)In addition to the ab ove a gencies,
functioning directly under the Ministry of
Finance, the Government of India, theEconomic Offences Wing (EOW) of thepremier police investigating agency in thecou ntry, vi z, the C e ntra l B ure a u o fInvestigation (CBI) also specializes inhandling complex investigations relating
to economic and financial frauds,
including money laundering.
Argentina contemplates setting up a
Commission for dealing with activities
relating to money laundering (Unidad deInfo rma ción F ina nciera — U .F.I . —Financial Information Unit). U.F.I. forces

631

RESOURCE MATERIAL SERIES No. 59
c e r t a in p e o p le a n d c o r p o r a t io ns o r
companies to inform of diverse data thatlooks suspicious. The promulgation ofthis Law has proved to be very significant
for Argentina, which has incorporated
most of the Forty Recommendations of
the FATF.
I n V en ez uel a , t he p e n a l a ctio n is
carried out by the District Attorney (D.A.)
of the Public Ministry and it is the D.A.
w ho directs the investigation, giving
instructions to the Police in relation to
the investigation of the crimes. Since theabove law is not as yet approved by the
National Assembly, Venezuela does not
yet have a legislative instrument toc om bat mo ne y laundering and thecriminal organizations involved.
V. PROFILE OF MONEY
LAUNDERING CASESPROSECUTED IN JAPANIn Japan, as a result of enacting theSpecial Narcotics and the Law for The
Punishment of Organized Crimes, theprosecution of money laundering cases
has developed increasingly. However, it isdifficult to evaluate the effectiveness ofmoney laundering measures because
there are only about ten cases utilizing
those laws as indicated below:
1. Cases of the Special Narcotics Law
a. In November, 1992, an accused got
7,000 ,000 yen after handing overstimulant drugs to someone, anddeposited this money into an accountunder an assumed name in a bank in
Gifu-city, to disguise the acquisitionof illegal profit.
b. In December, 1995, an accused
entrusted an acquaintance to remit tothe bank account of the acquaintancein Tokyo 800,000 yen as the proceedsof stimulant drug sales, to disguisethe acquisition of illegal profits.

632

c.

From June, 1995 till October, 1996,
an accused, who was the boss of ag a n g n a m e d “K o k u r y u u k a i” g o t
290,000 yen every day from stimulant
traffickers in his sphere of influenceor territory. So he received a total of
147,900,000 yen in illegal profits.
d. From April till June, 1997, an accusedgot 52,752,500 yen as the proceedsfrom stimulant drug sales and heremitted the money to a bank accountin the United Arab Emirates using
the name of his brother to disguisethe illegal profit. This case was thefirst prosecution example in Japan for
the act of the overseas remittance ofillegal profits.
e. From October, 1997 till March, 1998,
an accused got 31,180,10 0 yen inproceeds from stimulant drug sales,
and he remitted the money under an
a s s um e d n a m e to a b a n k i n th e
Islamic republic of Iran, addressed tohis mother, to disguise the acquisitionof illegal profits.
f. From December, 1998 till July, 1999,
an accused got 25,068,000 yen as theproceeds for the sale of regulation
dr ugs ( i.e . stim ula nt dr ugs) a nd
deposited the money into the accountin his common-law wife’s name in abank in S hizuo k a P r ef e ctu re , todisguise the crime profits.
g. In July, 1999, the accused let his
customer remit to a bank account in
Higashiosaka-city, held under a falsename 55,000 yen as the proceeds ofstimulant drug sales.
2. Cases of the Law for the Punishmentof Organized Crimesa. An accused got 3,920,000 yen inproceeds after he h anded some
obscene videos over to someone anddeposited the money into an accountwith a false nam e which heestablished at a post office in Osakacity.

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
b. An accused let his customer, remit toa bank account held in a false name inTokyo 5,907,720 yen as the proceeds
for an obscene CDR.
c. An accused runs an enterprise of thecorporation by using illegal profit.
The accused undertook new stock of
T a i syo L if e I n su r a nc e C o m p a n y(hereinafter “Taisyo”), by using ofproperty that he got through fraud.
The accused and Claremont Capital
Holding Co. Ltd. (which the accused
acted as Representative Director of)acquired the position of stockholder inTaisyo and he ruled over about 66.8%
of Taisyo’s published stock. Then, theac c us e d us e d hi s au th o r ity as asto ck ho lde r of the comp any, in a
general meeting of the stockholders of
the company held on April 3, 2000,
with the purpose of influencing themanagement of Taisyo to appoint him
and three others as director of thecompany.
VI. PROFILE OF MONEY
LAUNDERING CASES INHONDURASAt the moment Honduras has three big
cases of money laundering, the biggest ofwhich is one of a Colombian organizedgroup. Those members came to Honduras
to launder money there, three of them
Colombians. They began a business ofselling home appliances and electrical
domestic equipment. The investigators
began an investigation of thosebusinesses, because it was strange thatthese places were not open to the public,
people needed to use a bell door to get in.
A lso , the Co lo mb ian police se nt the
Honduran investigators informa tion
about them, because they found out thatsome drug dealers that were located in
the sea on boats had communication witha c ell num b er in H ond ura s, so th ey
started a very deep investigation. Finallythey found the probable cause to present
in court, they began to make searches inthe business and in their houses. People
got arrested and in the search they foundab out 6 0 ba nk account boo ks, check
vouchers where they had paid pilots, they
had bought boats, and paid the b oa t
ca p t a i ns , n o th i ng r e l a t e d w it h th edomestic electrical appliance business, so
the judge ordered the arrest warrants
and confiscated about 8 luxury cars. Theyfroze all the bank accounts and also all
the houses that they were building with acost of over 2 million lempiras. When theinvestigators were
doing theinvestigation they noticed that in someaccounts people received a big amount ofmoney, this money was in the bank for 5days and in the next week all the money
was gone, so the money transfer was very
often from these banks in Honduras tothe other banks, most of them in Miami,
New York, Panama and Mexico. The totala m o u nt i nv o l v e d r u n s i n to se v e r a lmillions of dollars, and with a further
investigation they related bank accounts
with other accounts in Central, South andN o r t h A m e r ic a , e ve n i n S p a in a n d
Thailand.
VII. CONCLUSION
In summation, it can be safely statedthat national strategies are inherently
inadequate in respond ing to thechallenges pose d by transnationalorganized crime, in cluding mon ey
laundering, since they cross multiple
borders, involve multiple jurisdictions
and a multiplicity of laws.
The rapid growth in transnationalorganized crime and the complexity of theinvestigation requires a truly glob alresp on se. A t p rese nt, th e me a sure s
adopted to counter organized crime are
not only predominantly national, but also
different from one country to another. It

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RESOURCE MATERIAL SERIES No. 59
is, thus, absolutely imperative to increase
global cooperation between the world law
enforcement agencies and to continue todevelop the tools which will help themeffectively counter the transnationalorg anized crime, including money
laundering.

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GROUP 1
PHASE 2TOOLS FACILITATING THE INVESTIGATIONOF ILLICIT DRUG TRAFFICKING
Chairperson

Ms. Gina Ramos(Honduras)

Co-Chairperson

Mr. Bechem Eyong-Eneke(Cameroon)

Rapporteur

Mr. Saad Imtiaz Ali(Pakistan)

Co-Rapporteur

Mr. Takahiro Satou(Japan)Members

Mr. Bulatov Timur(Kyrgyzstan)

Mr. Miguel Moran(Peru)

Ms. Mayumi Ichikawa(Japan)Ms. Reiko Ota(Japan)Mr. Masayuki Takeda(Japan)Prof. Toru Miura(UNAFEI)

Prof. Sue Takasu(UNAFEI)

Prof. Kei Someda(UNAFEI)

Advisers

I. INTRODUCTION
The use of traditional investigative
methods to combat illicit drug trafficking
h a s p r o v ed t o b e ve r y d if f i cu lt a nd
ineffective. This state of affairs therefore
calls for the use of special investigativet o o l s s u c h a s c o n t r o ll e d d e li v e r y,
undercover operations and electronic
surveillance (wiretapping, communications
interception, etc.) by law enforcement
agencies to effectively control illicit drugtrafficking.
However, there is controversy
surrounding the use of these techniques
and thus, to a certain extent,
discouragement for the law enforcement
agencies to utilize them. Their abuse may
a f f e c t th e r u le o f l a w , m a y le a d t oinfringement of human rights. There is afear that governments may use them too p p re ss ci tiz e ns un de r th e g uise o fnational interest. Their use therefore

often sparks off politically sensitive
debates.
The biggest question, therefore, is how
to use these techniques consistent withthe rule of law and respect of humanrights. The answ er to this cannot beuniversally obtained and this will dependon the legal system, practice and cultureof each country. There is a need therefore,
to strike an agreement as to what extent
the privacy rights of individuals can berespected and at the same time keeping
people safe from the effects oftransnational organized crime.
The use of these techniques varies fromcountry to country, for this reason thegroup had to focus on them individually.
How eve r the group ha s ad op te d thedefinition of controlled delivery that is
co ntained in A rticle 2 of the United
Nations
Convention
AgainstTransnational Organized Crime, 2000.

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RESOURCE MATERIAL SERIES No. 59
TheElectron ic
Surveillance
investigative method was the theme of alot of discussions in the group, since every
country has its own methods and devices,
but one thing that all the participants areaware of is the fact that criminal
investigations are becoming increasingly
more difficult as criminal techniques
become even more sophisticated. The
challenge for criminal investigators is tokeep pace with crime modus operandi; byu sing increasing ly sophisticatedinvestigative techniques. One of them thathas been extremely successful is theelectronic surveillance, including bothsilent video surveillance and interceptionof wire, oral, or electronic communications.
Although the concept of undercover
operations is the same but the practice isquite different in foreign countries vis-avis the concept represented by the groupfrom Japan. In foreign countries,
undercover operations mean aninvestigation involving a series of related
undercover activities over a period of timeby an undercover employee.
I n th a t ve i n, t hi s p a p e r s e e k s t oanalyze these tools with emphasis on thecurrent situation, problems as well as
proposed solutions, in every participant
country.
II. CONTROLLED DELIVERY
CD, as an anti-drug trafficking
t e c hn i q u e , ha s b e e n d iv id e d in to 3
categories in our group, namely:
A. Country in which it is stipulated bylaw; (Japan)
B. Country in which it is in the processof being stipulated by law; (Honduras)
C. Country in which it is not stipulated
by law; (Cameroon, Kyrgyzstan andPakistan)636

A. Country in Which Anti-Drug
Trafficking Technique of CD is
Stipulated by Law
1. Current Situation
J a p a n sign ed th e Un ited N a tion s
Convention Aga inst Illicit Traffic in
Narcotic Drugs and Psychotropic
Substances on December 20, 1988 at theUnited Nations Drug Committee Treaty
Conference. In order to enforce this treaty
in J a p a n, a s p e ci a l l a w c o n ce r n in g
narcotics was enacted on July 1, 1992.
This law enabled law enforcement officers
to utilize transnational live/clean CD.
The number of CD cases carried out is
24 cases in 1995, 19 in 1996, 19 in 1997,
29 in 1998, and 19 in 1999.
2. Problems and Solutions
LCD has a risk of losing control andspreading drugs into civil society. On theother hand, CCD involves the risk offailure in arresting the receiver, because
exchanging contents may cause a changeof the appearance of the drug container.
Also, delay of delivery of drugs may makedrug traffickers nervous and cautious.
That means investigators that do nothave enough time. If investigators try toarrest the receivers too fast, they tend todeny realization of the contents. On theother hand, if it is too late, it gives them achance to conceal the drugs or to run
away. In addition, it is importa nt to
id entity the se nd er a nd receiver, toanalyze the breakdown of bank accounts
used by these traffickers, telephone callsfrom or to them, etc.
So it must be encouraged to train staff
members and cooperate internationally.

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
B. Country in Which Anti-Drug
Trafficking Technique of CD is
Semi-Stipulated by Law
Honduras has adopted a definition ofcontrolled delivery as given in Article 2 of
the United Nations Convention Against
Organized Crime.

3. Solutions
Honduras had received a lot of help
from the U.S. governm ent, more
specifically from the Drug Enforcement
Administration (DEA), and with their
help Honduras has successfully
conducted some investigations.

The technique is used for allowing
illicit or suspect consignments to pass outof, through or into the territory of one ormore states, with the knowledge andunder the supervision of their competentauthorities, with a view to thein ve sti ga tio n o f a n o f fe n ce a nd th e
identification of persons involved in thecommission of the offence.

In the new Penal Procedures law thiskind o f I nve stigation is includ ed as“special investigative methods” and it will
be held under the supervision of theJudge.

1. Current Situation
H o n d u ra s us e s t he in v e s ti ga ti v etechnique as a very useful tool against
illicit drug trafficking.

1. Current Situation
Cameroon, Pakistan and Kyrgyzstan
do not have a specific law to deal with
controlled delivery and in that sense CD
there
is
not
form alizedorinstitutionalized by law. CD is used as apart of the normal police practical work
including all other investigation/detection
techniques.

M o s t o f th e ti m e , t hi s t e c h n iq u einvolves the Central American countries,
such as El Salvador and Nicaragua, butalso with the United States, when people
from Honduras take some amount ofdrugs inside the United States, under thesupervision of the authorities, to identify
all the people involved.
2. Problems
To use this investigative technique,police agencies must have some budget,because investigators have to travel outof the country and with the help of the
Police of the destination country makethe surveillance and also conduct further
investigation.
T ha t i s o n e o f t h e p r o b l e m s th a t
Honduras is facing right now, because
this technique is not contemplated in the
Honduran Law.

C. Countries in Which Anti-Drug
Trafficking Technique of CD is
Not Stipulated by Law

All these countries are not destination
but transit countries for other nations,e.g. Pa kista n is mainly a transit for
Afghan opiates and Cameroon is a transit
mainly for cocaine from Asian countries,
and through Kyrgyzstan opiates fromAfghanistan is the main transit drug. In
Pakistan, under the law, CD can be usedby the Intelligence Bureau (IB) and Inter
Services Intelligence (ISI) and this has
been sanctioned under an ordinance. But
the main mandate of these agencies is there sp o n s ib ili ty f o r t he in te r n al an dexternal security of the state and hence
they seldom deal with CD cases.
In the case of Pakistan however it issignatory to many bilateral and regional
agreements in which it has agreed tosupport the signatory countries to help in

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RESOURCE MATERIAL SERIES No. 59
C D o pe rations if they are throughPakistan territory if requested.
2. Problems and solutions
The p ro blem s b eing faced a nd theviable solutions for the three countries
are as follows:(i)

There is no specialized training
imparted to custom and especiallypolice officers which they can
im plement in the workplace
efficiently and effectively. A change
in training curriculum including the
te a c hin g o f th e se t ec hn iq ue s a t
le ng th inc lud in g C D is a viab lesolution for this problem.
(ii) Secondly, the biggest problem
confronting the three countries andprobably all developing andunderdeveloped countries isinadequate finances for affordingthese latest anti-drug trafficking
techniques. T he so lution to thisproblem is obviously provision of
optimum finances to the pertinentagencies. This will enable them toutilize the money for new training
initiatives, purchase/procure theinevitable technology and equipment
for CD operations and other latest
techniques
likeelectronic
surveillance, etc.
(iii) Thirdly, the main problem is thatthese practices, including CD, haveup till now not yet been formalized or
institutionalize d. B y do ing so it
wo uld bec om e e asie r, f rom thelegit imacy perspect ive, for all
p e r ti n e nt a g e n ci e s t o u se t he mwithout fear or favour as is the case
now in Japan.
III. ELECTRONIC SURVEILLANCE
With the exception of wire-tapping,w hich has been stipulated b y law inJapan, Japanese law enforcement officers

638

like their counterparts in Cameroon,
Honduras, Kyrgyzstan and Pakista n
generally carry out electronic
surveillance as part of their practicalwork in the course of investigations.
A. Cameroon
1. Current Situation
The use of electronic devices to trackdown or watch or record the activities of
cr i mi n a l s ma y w el l b e d e s cr ib ed a selectronic surveillance. This anti-drugtrafficking technique is also used by thelaw enforcement officers in Cameroon aspart of their normal routine duty in thecriminal investigation process.
The la w enforcement o fficers ma yresort to wire-tapping to secretly follow
up or monitor unlawful arrangements,
between criminals on target telephones.
The instant case calls for theindispensable assistance of the Posts andTelecommunications Department. The
phone or the location would require to bemonitored 24 hours a day, seven days aweek and, perhaps even much longer.
Equipped with micro ca meras, video
cameras and micro tape recorders of all
so r ts, the la w e nf o r ce m e n t o f fi ce r s
equally obtain or record vital informationfrom criminals without alerting them.
2. Problems and Solutions(i) Wire-tapping improperly used would
amount to an unlawful interferencewith the constitutional protection of
a n ind ividual’s comm unications.
S imilarly, the abusive use of spy
cameras would violate the citizen’s
constitutional rights to his privacy.
(ii) Lack of adequate trained personnel
to conduct electronic surveillance fort he p r o c e ss re q ui re s m a n p o w e r
intensive operation. Such personnel
should have people who can speak

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
many languages and also have theskills to interpret coded language.
(iii) Lack of adequate finances to train
the required p ersonnel and topurchase sophisticated equipment.
(iv) No legislation in force to tightly
control the use of this and other toolsof anti- drug tra fficking to a void
abuse o f the technique s and toprotect ind ividual p rivacy, as
constitutionally required.
B. Honduras
T he p olice a ge ncie s in Ho nd ura s,
mainly those that investigate illicit drugtrafficking, have a series of electronic
devises that are indispensable tools forthe electronic surveillance, among them
we can mention:

resource and the scarcity of personnel
and the great quantity of cases is anotherproblem.
3. Solutions
Next February, the new penal
procedure will come into force which
includes the use of this type of equipment
when it refers to the special procedures ofinvestigation.
It is hoped that the government will
lend adequate economic support. This
would solve in great measure thelogistical problems and with the requisite
recruitment of personnel in the concerned
agencies the problem of lack of humanresources is expected to be overcome soon.
C. Japan

1. Tools Used(i) Intervention of phone conversations(wire tapping)(ii) Microvideo
cameras(pencils,
calculators, sun glasses, wallets, etc.)(iii) Wireless microphones in miniature(iv) Night vision
2. Problems
The big problem tha t the police of
Honduras now face is that electronic
surv eillanc e is not conte m plated inl e g i s la t i o n a n d s o f o r a v i d e o o r arecording to have probatory validity thejudge should authorize it previously.
In addition, these agencies have scarceequipment, since enough microphones,c a m e r a s , e tc . a re n o t a v a i la b l e . I n
addition the whole personnel are nottrained to use this equipment. Anotherimportant thing is that these tiny devises
have high costs w hich the concerneda ge ncies ca nnot a ff ord w ithin th eir
limited budgets.
Usin g these devices implies th einvestment of time and of hum an

1. Tools Used
In Japan, interception of telephone orotherelectric
communications(wiretapping including e-mail tapping,etc.), video taping and audio tapping
using microphones are the main tools ofelectronic surveillance.
The Law Concerning Interception ofComm unications ca me into effe ct inAugu st 2000. Befor e th is law wa senacted, the interception of electronic
communications was conducted on thebasis of the interpretation of the Code of
Criminal Procedure. By enacting theabove law, strict requirem ents,
procedures, etc., for the interception ofelectronic communications related to thep e r p e tr a t io n o f o f f e n s e s h a v e b e e nstipulated. In this law, “communication”
mea ns te lephone or other electronic
communication made in whole or in partthrough the use of wire between the pointof origin and the point of reception, orcommunication using a switching station
between the point of origin and the pointof reception. In this law, “interception”

639

RESOURCE MATERIAL SERIES No. 59
means the reception of live
communication between third parties,
conducted for the purpose of acquiring its
contents without the consent of either
party. If one member of a party agrees,
investigators can conduct wiretapping or
e-mail tapping etc., of course, but it is not
b a s e d o n th i s l a w . T hi s l a w c o ve r s
particular crimes, such as drug-relatedo f f e nc e s, f i r e a r m - r e l a te d o f f e n s e s ,smuggling of immigrants in groups, ando rga nize d homicid e. But there is no
actual case carried out that is based on
this new law yet as of October 2001.
Video taping and audio tapping using
m ic ro p ho n es a re no t go ve rn e d b y a
specific law but by interpretation of theCode of Criminal Procedure Law. Thesemethods are often conducted to gather
information or to collect evidence.
2. Problems and Solutions(i) Interception of telephone or otherelectronic communications
The new law covers only particular
types of crime. As mentioned above.
There should be continuous
examination on coverage and bestpractice of this new law.
Also, training staff to conduct thisnew method is important.
(ii) Audio tapping by using micro phones,
video taping
These methods have to be carried out
s ui ta b l y a c co rd in g to n e c e s si ty
because they may cause an invasionof privacy.
D. Kyrgyzstan
1. Current Situation
In wire tapping the bugging of rooms
and living space takes place.
These measures are realized in two
ways:

640

(i)

Listening to the crime plan via
instruments.
(ii) Listening is also used for gathering
evidence. The difference between
these two forms is,• Information received by the firstm e t ho d c o u ld n o t b e u s e d a sevidence in the court.
• Secondly, by sanction of the
districtprocurator.
The
information received can be usedas evidence in the court. Thesemethods of electronic surveillance
help operative units of law
enforcement agencies with thetechnical support of special units.
E. Pakistan
1. Tools Used
T h e f o l l o w i n g t o o ls a r e u s e d f o r
conducting electronic surveillance inPakistan.
(i) Wire tapping or phone bugging(ii) Video camera(iii) Audio tapping(iv) Laser beams for bugging(v) Still camera while following thesuspects(vi) Mobile surveillance of the suspects(vii) Electronic bugging by plugs, pens etc.
2. Problems(i) Financial constraints
The problem in the main is
i na d e q u a te f u nd s f o r e le ct ro nic
surveillance (ES). All the equipment
is costly and sometimes cannot be
repurchased when old and obsolete.
(ii) Labour Intensive
W ire tapping is quite labour
intensive and we have a shortage of
operating staff.
(iii) Video camera and audio aids
This is again costly equipment andenough of these equipment is not

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
available. In addition there is always
the chance of it being abused.
(iv) Mobile surveillance and still camera
Both of these ES technique s arelabour intensive and tim e
consuming. In addition there are notenough incentives for the employees
who operated them.
(v) Decoding and language problems
O f t e n t he tr a f f i ck e r s u se c od e dlanguage or some foreign language.
It is very difficult for staff to decodethe coded language or understandthe foreign languages.
3. Solutions(i) There should be adequate budget andif possible some reserves also for the
ES infrastructure.
(ii) Shortage of strength of staff etc.
should be fulfilled by recruitment.
(iii) There must be sufficient motivation/
incentives for the staff/employees.
(iv) If abuse of ES is detected, an
exemplary punishment should beawarded to deter others and makethe work job-oriented and not for
fulfillment of personal needs.
(v) Experts in requisite languages areneeded who can also translate theminto the desired language.
(vi) Staff or employees dealing withdecoding should be sent for
specialized training in establishedinstitutions at home and abroad.
IV. UNDERCOVER OPERATIONSAll countries represented in this groupdo not have any special legislation on
UndercoverOperations.
Notwithstanding, their law enforcement
officers, use the Undercover Operations
as an essential investigative tool.

A. Cameroon
1. Current Situation
Law enforcement officers are known to
use trickery and deceptio n to a rrest
persons involved in a criminal activity.
Undercover operations embrace both
trickery and deception. This anti-crime
control and prevention technique is usedin cases involving big organized criminal
operations. For example, the technique
may be used in drug controlled delivery
operations.
Undercover operations are commonlyused by the law enforcement officers in
Cameroon for a wide variety of offences.
Frequently, a civilian agent is used tocover up the criminal activities of thecriminal group. In some cases, a trained
officer is used as an agent. The agent gets
into the organized crime group with theprimary intention to study its operations
and to furnish all relevant and vital
inf orm a tio n to the law enf orce me nt
department. To do this, he gets to be
identified by the members of the crimegroup as one of theirs; live and behave
like them. This role apart, he may be
used generally by the low enforcement
department as an agent provocateur.
When satisfied that sufficient
information has been received from theagent, officers of the law enforcement
department would arrest the criminals
and would pretend to arrest the agent if,
at the time of carrying out the arrest, he
was amongst the gang. At the hearing of
the case against the criminals, the agent
is used as a prosecution witness.
U nd e rc ov e r op e r a tio ns d e m a nd a
sizeab le num ber of la w enforcement
officers and are generally time
consuming. A complex and sophisticatedcrim e network may take quite areasonable amount of time to investigate,

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RESOURCE MATERIAL SERIES No. 59
using, besides, a large number of officers
and agents. Equally, it is worth
mentioning the risk to life posed by these
operations involving very dangerous
crime groups.
2. Problems and Solutions(i) Inadequate personnel. Undercover
operations need more personnel andare time consuming.
(ii) Improperly used undercover operations
may assist a criminal design. Here acase built from such operations is likely
to collapse on the ground of entrapment
and other related defenses.
(iii) Risk to life. Some of these operations
involve very high risk to the lives ofthe officers and their agents, duringa nd, even af t er t he hea ri ng a ndconviction of the offenders. Hence,
they need protection.
(iv) Legislation. There is need for special
legislation in this country to define,l a y d o w n g e n e r a l p r o c e d ur e o f ,protection of officers, agents and, ther ig ht s o f in d iv id u a l s u n d e r th e
constitution.
B. Honduras
1. Current Situation
In Honduras, the undercovero p e r a t i o n s m e a n a p o l ic e a g e n t o r
investigator getting inside of anorganized group to identify the suspects
and also getting to know all the illegal
activities that the organized group is
actually involved in.
In Honduras, the police agencies use
this technique, but only in big cases orwhen it is extremely necessary, because it
involves a lot of resources, a lot of timeand it is also very dangerous.
2. Problems
One of the biggest problems is that it
takes a lot of tim e, because the642

undercov er agen t has to become amember of the group, and he/she needs
time to get to know the whole operation
and also try to gain the susp ects
co nf id e nc e, so m o st o f th e tim e theoperation takes weeks and even months.
The undercover agent has to be very
well trained with a lot of experience, andhaving the ability of acting or responding
properly in any dangerous situation, thatis why police agencies do not have enoughagents to do this kind of job. Because
after an undercover agent has finished
his job, he can not continue doing thesame job, so only if the new case is in adifferent city, far away from the first andin a different organized group, but this isalso highly risky.
In addition, another agent has to workfrom outside and ta ke ca re of thepersonal security of the undercover agent.
3. Solution
Police agencies are now training newagents to do this kind of job. Honduras isgetting a lot of assistance fromneighboring countries, and also from theUnited States, in training investigatorsand exchanging, concerned personnel.
C. Japan
1. Current Situation
Japan does not have general provisions
concerning undercover operation.
However, article 58 of the Narcotics andPsychotropics Control Law provides thata narcotics agent can receive a narcotic
drug from any p erson “under thepermission of the Minister of Health,
Labor and Welfare”. There is a similar
regulation in Article 45 of the Opium
L a w , a nd a l so , A r tic le s 2 7 - 3 o f t he
Firearms and Swords Control Law which
provides that, under the permission of thePrefectural Public Safety Commission, a119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
police officer or a Coast Guard officer canreceive or borrow guns or their parts, orreceive live cartridges of guns from any
person. According to judicial precedent,
the courts have decided each case ofundercover operations whether it was
legitimate or not according to the degreeof necessity and suitability.
G e n e r a l ly sp e a k in g , o f f e r in g t h echance to commit an offense to the person
who has already had the intention tocommit it may be legal, but that
implanting an idea to commit an offensein the mind of an innocent person andinducing him/her to commit the offense
may be illegal.
2. Problems and solutions
I n order to conduct undercover
operations, m asterf ul skills ininvestigative techniques are required andsince the investiga tor m ust p lay a n
und ercover role, there is significa nt
danger involved. Trainingof
investigators is needed.
D. Kyrgyzstan
U ndercover operations in the
Kyrgyzstan Republic have no legislativebasis. Therefore, undercover operations
are regulated by secret departments inevery law enforcement organization, forexample in national security service, thati s t h e m i n is tr y o f in te rn a l a f f a ir s .
Information acquired through undercover
operations is not legal evidence andcannot be used in court.
E. Pakistan
1. Current Situation
The technique’s common uses are tocollect information about criminal gangs,
their methods of operation and their
future plans for drug smuggling. Throughsuch operations the law enforcement

agencies are able to infiltrate the highest
levels of organized groups.
Nevertheless we visualize that theAfghan internal war with the Northern
Alliance and the air attacks on
Afghanistan by the U.S.A. may increase
illegal drug trafficking by organizedgangs to a considerable extent. Therefore
the Taliban followers involved in thislucrative trade will try to smuggle out
their stockpiles of drugs to generate
fund s f or the on going inte rna l a nd
ex te rn a l w a r. S uc h a l a rge sc a le o f
expected smuggling may be difficult tohandle by our agent due to resources andother constraints.
2. Problems(i) Understaffing
Enough staff is not present tocomprehensively handle undercover
operations so consequently, there isshortage of strength.
(ii) Lack of incentives
I n a d e q ua t e f in a nc ia l a n d o t he r
i nc e nt iv e s w hic h m o tiv a t e s th eworkers.
(iii) Dangerous for agents and theirfamilies
These operations can be fatal if theagent is exposed, due to versatilereasons e.g. lack of proper training
etc. and most probably his family
would be in danger too.
(iv) Inadequate budget
As with all other techniques
insufficient finances is the main andmost crucial issue. This hinders theoperations from every aspect.
3. Solutions(i) Recruitment
Adequate recruitment on merit isprobably the best solution forunderstaffing.
(ii) Provision of incentives
Sufficient and attractive benefits

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RESOURCE MATERIAL SERIES No. 59
should be given to the personnel toinstill motiva tion and diligence,
which are one of the keys to success.
(iii) Specialized training
The pertinent personnel must be
given specialized training in thesetechniques to enable them to achievem axim um r esults w ithout b eing
exposed or putting their families atrisk. The standardized, recognized
and required level of training can be
imparted in domestic and overseas
institutions.
(iv) Allocation of budget
The allocation of requisite budget forundercover operations, which areq u i te c o st ly , is th e o n ly w a y t oremove the titanic obstacle tos m o o t h , e f f e c t iv e a n d e f f ic i e n tworking.
(v) International co-operation
To overcome the problems, for thepresent, international co-operation
with Pakistan in the form ofassistance is inevitable. Thea ssista nce can be in the fo rm o foverseas training of our concerned
personnel, provision of requisite
equipment , sen din g experts totransfer skills etc. This assistancecan be rendered more effectively by
the d ev elo p e d/ a f flu e nt a nd a lso
affected countries.
V. GROUP VISION
From the foregoing presentation it isimportant to note that all three
investigative tools pose common problems
and require common solutions for thecountries represented in the group.
1. Problems(i) Lack of adequate trained personnel(ii) Inadequate finances to train andequip their personnel(iii) Labor intensive and time consuming(iv) No existing legislation

644(v) No efficient international cooperation,
especially with regard to CD.
2. Solutions(i) Countries
totrain
specialized
personnel(ii) Provision of optimum finances totrain and agencies that will provide
adequate equipment.
(iii) Formulation of special legislation todefine all terms, lay down generalprocedure of protection of officers
agents, and the rights of individuals.
(iv) Encourage international cooperation.
VI. CONCLUSION
In conclusion, employment of the newinvestigative tools is highly necessary tofight against the ever growing threat of
TOC. Undercover operations, controlled
delivery and electronic surveillance standout as the most effective investigative
tools against TOC and given the fact that
where they have been used, they haveexhibited a high level of ability to deliver
goo d re sults. Ho we ver, like all ne w
innovations, the use of these tools has toovercome a lot of problems, ranging fromlack of ineffective legislation, lack oftrained manpower, challenges from civilsociety and admissibility of evidence
ob tain ed thro ugh the ir app lication.
Governments and enforcement agencies
th e r e f o r e n e e d t o e s t a b li s h p r o p e r
guidelines and controls o n theirapplication by agents to avoid abuse.
W e e m p h a s iz e th e r e le v a n ce a n deffectiveness of these techniques, we need
our states to review domesticarrangements for these techniques and to
facilitate international cooperation inthese fields, taking account of humanrights.

GROUP 2
PHASE 2CRIMINALIZATION OF PARTICIPATION IN AN ORGANIZEDCRIMINAL GROUP AND CONSPIRACY, IMMUNITY SYSTEM,
AND WITNESS AND VICTIM PROTECTION PROGRAMMESChairperson

Mr. Zafarullah Khan

(Pakistan)

Co-Chairperson

Mr. Yasunari Hataguchi(Japan)Rapporteur

Mr. Sittipong Tanyapongpruch(Thailand)

Co-Rapporteur

Mr. Takashi Maruoka(Japan)Members

Mr. Nouphanh Mahaphonh(Laos)Mr. Zainal Rashid Bin Hj Abu Bakar(Malaysia)

Mr. Bhola Prasad Kharel(Nepal)Mr. Muchwangali Charles(Uganda)Mr. Takao Hamada(Japan)Prof. Yasuhiro Tanabe(UNAFEI)

Prof. Hiroshi Tsutomi(UNAFEI)

Prof. Mikiko Kakihara(UNAFEI)

Advisers

I. INTRODUCTION
Nulla poena sine lege (no person may
be punished except in pursuance of astatute which prescribes a penalty)1 is awell established criminal law concept
which is followed by the majority of theworld community. However, to bring themembers of organized crime groups tojustice is more difficult than one can
expect. Organized criminal groups do
exist in some countries for a certain
period of time, and the authorities in suchcountries try every effort to cope withthem . Efforts have be en made by
applying the concept of “conspiracy” and/or creating the new offence of“participation in an organized criminalgroup” in order to get the culprits toj u st ic e . O n c e th e s u sp e c t ha s b e e n
1

Jerome Hall, General Principles of Criminal Law,
2nd edition, Bobbs-Merrill Company, Inc. 1960.

a rre sted , the le ga l p ro ce ed ing thenbegins, and, the final stage of criminal
proceeding is to prove beyond reasonable
doubt th at su ch cr imes hav e beencommitted by certain defendants.
Against this background, the United
Nations
Convention
againstTransnational Organized Crime(hereinafter “TOC Convention”) requires
State Parties to ensure that their laws
crim inalize either co nspiracy orparticipation in an organized criminalgroup, or both in Article 5 (see appendix).
It is basically un de rst oo d th at th isprovision offers the State Parties two
options and comes from the precedingarguments and practices of the European
Union.
In addition, organized criminal groups’
activities are not easy to detect.
Generally, the witness may be an insider
645

RESOURCE MATERIAL SERIES No. 59
o r a c c i d e n t a l ly w it n e s s t h e c r i m e .
However, they have the tendency to avoid
involvement in any legal proceedings forfear of their safety. Therefore, special
tools, namely an Immunity System andWitness and V ictim Protection
Programmes, carefully constructed toease this obstacle is indeed important.
Hence, this report is the production ofefforts of the members of Group 2 to try
and explore some difficulties in applying
the concept of “conspiracy” and“participation” as well as making these
two too ls available in the m emb ers’jurisdictions.
II. CRIMINALIZATION OF
PARTICIPATION IN AN
ORGANIZED CRIMINAL GROUP
AND CONSPIRACY
In effectively tackling the threat oft r a n s n a t i o n a l o r g a n i z e d c r im e , i nparticular, criminal justice authorities
ha ve a need to intervene a s soo n as
possible in order to prevent crime, breakup criminal organizations and apprehend
the offenders. It is ideal that they shouldbe able to arrest offenders before an
offence has been committed. Otherwise,
there is the considerable risk that theoffenders will be able to carry out theo f f e nc e a n d e s ca p e a c r o ss na tio n a lborders, thus evading justice.2
In civil law countries, the concepts ofa tte m p t a nd in ci te m e n t ar e w id e ly
recognized, but conspiracy is not. The
general position in civil law countries isthat mere planning of an offence, without
an overt act to put the plan into
operation, is not criminal. For example,
mere planning of a robbery, and even2such preliminary stages as an
examination of the premises,arrangement for a getaway car or the
recruiting of assistants, do not constitutecriminal conduct. The offenders may bearrested and brought to trial only when
they have gone so far.
The concept of conspiracy arose inco mmon law during the 1600s in
England, from where it spread to otherco mmon law countries. According toEnglish common law, the mere
agreem ent to commit an offence
constitutes conspira cy. I n a dd ition,
several civil law countries have enacted
legislation dir ecte d at m o re tightly
defined forms of participation orconspiracy in the case of particularly
serious offences. Finally, several civil law
countries have enacted legislation thatcriminalizes active participation in an
organized criminal group.
It was this joint action which
contributed to the definition adopted in
the TOC Convention.
A. TOC Convention
Article 5 is one of only fourcriminalization obligations contained in
the TOC Convention adopted at Palermo,
Italy. As mentioned above, it requires
State Parties to ensure that their laws
criminalize either conspiracy orparticipation in an organized criminalgroup, or both.
Conspiracy is thus defined as:••Group 2 is much indebted to visiting expert, Dr.
Matti Joutsen. He contributed greatly to our
discussion by participation in our group discussion
as well as giving us lectures and papers.

646•

Intentionally agreeing with one ormore other persons,
To commit a serious crime for a
purpose relating directly or indirectly
to the obtaining of a financial or othermaterial benefit and,
Where required by domestic law,
involving an act undertaken by one of

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
the participants in furtherance of theagreement or involving an organizedcriminal group.
Participation is defined as:•••

Conduct by a person who,
With knowledge of either the aim andgeneral criminal activity of ano r g a ni z e d c r im in a l g r o u p o r i ts
intention to commit the crimes inquestion,
Intentionally takes an active part in:
Either the criminal activities of theorganized criminal group or
O ther a ctivities of the orga nize dcriminal group in the knowledge that
his or her participation willcontribute to the achievement of theabove-described criminal aim.

B. Analysis of Current Situation
I n L a o s, M a la y s ia , P a k i sta n a n d
Uganda, the concept of conspiracy has
been adopted. In addition to that, under
the Pakistan Penal Code, participation in
an offence in any capacity is criminalized
under Section 34, 149, 120 and 120A of
the Pa kistan Pena l Code. M oreo ver,according to Section 120B of the Malaysia
Pe na l Cod e, w hoever is a pa rty to acriminal conspiracy to commit an offence
punishable with death, imprisonment fora term of 2 years or upwards, shall bepunished in the same manner as if he had
abetted such an offence.
I n N e p a l , n e i th e r t h e c o n c e p t o fconspiracy nor participation has been
adopted so far. In Japan, the situation is
the same as Nepal in principle, although
there are several conspiracy provisions
exceptionally as regards some extremely
serious offences in the Penal Code andsome laws such as Subversive Activities
Prevention Act and Explosive Control
A ct, and only preparation is also
p u nis ha b le r eg a r di ng s om e se r io us

offences. In addition, in Japan, Anti
Boryokudan Law prohibits designatedcrimina l organiz ation from co ercing
p e o p l e to j o i n t h e B o r y o k ud a n a n dobstructing voluntary withdrawal fromm e m b e r sh ip , o r d e m a n d m o ne y f o r
withdrawal. If a member of designatedorganization violates the prohibition, thepolice may issue an order not to do so.
They can be punished if they do not obey
the order.
In Thailand, the concept
participation has been adopted.

ofC. Benefits
As expected, the application of theabove mentioned concepts has broughtlots of benefits as follows:3
a. The criminal justice authorities would
have the possibility of intervening at
a n e a r lie r s ta g e o f t he c r im i na lactivity;b. All people concerned could be charged
with conspiracy or participation even
if their roles had been marginal;c. The prosecutor need not prove
complicity in each and every act ofcrime;
d. The concepts of conspiracy andparticipation allow, in effect, double
punishment: one for conspiracy orparticipation, and one for the offencesco mm itte d in f urt her a nce of theconspiracy or participation;e. Legislation referring to conspiracy
and organized criminal groups could
provide the framework for the use ofcivil measures in addition topunishment;
f. The citizens could be kept away from
criminal acts and organized criminalgroups (deterrent effect).

3

Dr. Matti Joutsen’s lecture (except f)

647

RESOURCE MATERIAL SERIES No. 59
D. Drawbacks
Through the experience and practice ofEU countries, drawbacks are pointed out
as follows:4
a. The concepts are ambiguous andconfusing, in particular if juries arein vo lve d. T he leg a l p r actic e hass h o w n th a t t h e c o n c e p t s c a n b e
confusing even to trained lawyers;b. There is a possibility that theconcepts might violate the principle oflegality, which requires definition of
p recise ly wha t a cts or o missions
constitute criminal conduct;c. This ambiguity raises concerns
regarding legal safeguards, such as
ensuring that the defendant knows
exactly what conduct he or she ischarged with having committed;
d. The ambiguity also raises concernsthat the concepts w ill be used to
expand the scope of criminal behavior
to an unacceptable extent; ande. The concept of conspiracy has been
used, in the view of some, to “convert
innocent acts, talk and association
into felonies”. The discussion within
the European Union regarding thejoint action requiring Member Statesto criminalize participation in an
organized criminal group shows thatthese same qualms exist regarding
this latter concept. The concern hereis that the concepts may be abused byover-zealous prosecutors.
III. IMMUNITY SYSTEM
Effective investigation and successfulprosecution play an important role in thesystem of criminal justice administration.
Evidence is the most important factor toconvict the criminals and the court will
always seek concrete evidence to convict a
criminal which plays a significant role in
4

Dr. Matti Joutsen’s lecture648

the court of law. So the testimony of somepersons such as police, general witnesses,
the victims and sometimes the accusedalso is essential to prove the charge toother accused or a suspect or a member ofa criminal group. In general, immunity
refers to the process of exempting oro m it ti n g f r o m p r o se cu t i o n o f so m eaccused.
A. TOC Convention
Article 26 of the TOC Convention (seeannex) is particularly encouraged withthe measures to enhance co-operation of
the accused with law enforcement
authorities. There are various reasons
why immunity is suggested. Principally,
the statement of a person who is involvedin crime is very reliable because of his
relationship with his co-accused. If any
statement obtained from him has thecredibility and materiality, it can always
strengthen a case. At the tim e ofinvestigation, a state witness can reveal
the identity of other suspects which leads
to further investigation to arrest thecriminal, seize and forfeiture of crime
proceeds, etc. In such a situation his
statement can also assist the investigatorfor investigation.
B. Analysis of Current Situation
In Pakistan and India (according to theP e n a l C o d e ) , t hi s sy s te m h a s b e e nprovided by law in the High Court andCourt of Sessions according to the tenureof imprisonment.
In Pakistan, according to Sec. 337 of
the Penal Code, in the High Court or in
the Court of Se ssions, the tend er ofpardon can be given as to any offence
punishable with imprisonment extending
to 10 years or any offence punishable
under Sec. 211 of the Code withimprisonment extending to 7 years.

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Likewise, in India, Sec. 306 of the Codeof Criminal Procedure 1973 provides for
obtaining evidence of an accomplice bytender of pardon subject to his voluntarily
making a full disclosure of the facts andcircumstances relevant to the offence forwhich the accomplice and co-accused arebeing charged with or investigated for.
This provision is applicable for an offence
punishable with imprisonment of 7 years
or more.
Whereas in Japan this system has notbeen adopted in legislation, in some cases
the court has reduced the punishment on
t he a cc u se d b y c o n si d e ri ng h is/ h e r
w i l li n g n e s s t o c o - o p e r a te w i th t h eprosecution. Moreover, in Japan, there isa preced ent that a co nf ession is not
ad m issible if it was ind uc ed by th epromise made by the authorities thatthey would not indict him/her. Thus,
because the grant of immunity seems to
be inconsistent w ith this rule, muchconsideration would be needed to
introduce this system in Japan.
In Laos, Malaysia, Nepal, Thailandand Uganda, the immunity system has
not been applied. In these countries only
the mitigation of punishment for someaccused persons can be considered if thea cc u se d as si sts th e in ve s tig at o r t oinvestigate the crime.
C. Benefits
Granting immunity from prosecution
has actually led to solving many serious
crimes. The victim may also benefit fromthis system if it is properly used. The
investigator can investigate the crime
easily. Organized criminal groups andorganized crime may decrease from thisworld.
D. Drawbacks
The possibility the criminal can escapefrom his/her liability is very high in thissystem. If prosecutors a buse his/her
power to grant immunity, it may increase
negative perceptions of criminal justice inthe general public. It is also violation ofequality and rule of law of the country.
The citizen may not have confidence inth e j u d i ci a ry a n d la w e n f o r c e m e n t
authorities of that country.
As for the unjust evasion of criminal
responsibility, for example, the federal
immunity statute in the U.S. is construed
as “use and derivative-use immunity”,
that is to say, the federal government
must be prohibited from making any useof immunized testimony and its fruits in
any later prosecution against him/her,and therefore, as long as all evidence iswholly derived from legitimate
independent sources, he/she ma y be
sub je ct e d t o f u tur e p ro se c uti on . I nparticular, in case the offence involved
was heinous and some impo rtant
evidence was found independently after
he/she had given immunized testimony, it
can be said that he/she deserves to be
p r o se c u t e d a n d p u n is h e d f r o m t h eviewpoint of the interests of justice. In
light of the effectiveness of immunity inobtaining credible testimony, there issome argument that witnesses are lesswilling to testif y if im munity is no tcomplete and he/she might be faced withsubsequent prosecution. On the other
hand, proponents of immunity say thatsuch immunity can rather encourage thewitnesses to provide as much detail as
possible in order to make it difficult toprove that prosecutors make no use ofthat testimon y in any subs equ en t
prosecution.
Regarding the possibility of abuse of
power, any appropriate procedure should
be required. For example, in the U.S., theUnited States Attorney Manual describes
som e fa cto rs to be consid ere d whengranting immunity in order to make sure649

RESOURCE MATERIAL SERIES No. 59
it meets the public interest. On the other
hand, as mentioned previously, inPakistan, the role of judges in making
such decisions is more active, which
m ight also be advisable for othercountries.
IV. WITNESS AND VICTIMPROTECTION PROGRAMMESThe courts go by evidence on record toe s ta b li s h t h e g u il t o f t h e a c c u s e d .
Because of the violent nature of organizedcrime/terrorism, witness intimidation is asignificant problem as many witnesses
are reluctant to testify in open court forfear of reprisal at the hand of criminalgroups/terrorists. Ca ses of threat orc r im in a l i nt im id a ti o n o n p o t e n ti a lwitnesses are often recounted and insome instances, some of them have evenbeen killed by related criminal organized
g roups/terroris ts. In T hailand forexample, every year, 20% of all criminalcases are dismissed because the prime
witnesses are too afraid to take the stand.
A. Need for Reform
It is essential to protect witnesses fromthe wrath of crimina l groups. Hencelegal, physical and financial protection
should be provided to important
witnesses especially in sensitive cases sothat they can feel comfortable without
any fear in the court. It is not only toprevent threats/violence to the witnesses
b ut a l s o a s a gua ra nt e e t o ga i n t heconfidence of witnesses in supporting theprevention and detection of organizedcrime. Article 25 of TOC Convention (seea nnex) e ncoura ges na tio ns to a do pt
m e asur es wh ic h will g uarante e th eprotection of witnesses from threats,
intimidation, corruption or bodily injury
in relation to testimony given in cases
involving transnational organized crime.

B. Analysis of Current Situation
After discussion, Group 2 realized that
the Witness Protection Programme could
be categorized as:••••Countries with Witness Protection
Programmes in their legislation
Countries with Witness Protection
Programmes annexed as a new article
in an existing Act
Countries that are still in the processof drafting the BillCountries that are still considering
the implementation of a Witness
Protection Programme

T h e U n i t e d S t a t e s s t a r t e d t h e ir
Federal Witness Security Programme in
19 70 w hich sought to gua ra ntee thesafety of witnesses who agreed to testify
for the government in organized crime
cases. Witnesses are admitted to theprogramme when they are able to supply
significant evidence in important cases
and there is a perceived threat to theirsecurity. From 1 970 to 199 8, a total
number of 6,818 witnesses with 8,882 of
their families were given this protection
and US$75,000 per witness per year and
US$125,000 per family has been spent. 5
Even though the programme is costly, theresult has made it worth the cost. Over
10,000 defendants have been convicted
through the testimony of witnesses and it
is said that after the enactment of thisA ct, th e auth or ity co uld sec ure theconviction of several notorious mafia
leaders.
In Brazil, the national programme forthe protection of victims and witnesses
took effect in August 1999. The persons
who may benefit from this programme
5Frank J. Marine, “Response to the Threats Posed
by Transnational Crime and Organized Crime
Group”, Visiting Expert, 108th International
Course.

650

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
are those without decreed imprisonment
and their relatives who live with them.
The programme includes the following
measures:
•
•
•
•
•
•
•
•

Transferring the residence of thewitness;
Monthly financial aid for each
witness;
Supply of food and clothing;
Police protection when traveling;
Helping the witness find a job in thework market;
Retention of benefits by a public
employee who is removed from theservice;
Social, psychological and medical
assistance; andChange of identity.

Italy has enacted legislation whichs p e c i f i c a l ly p r o v i d e s f o r w i tn e ss e sprotection and relocation.
In the Philippines, the Witness
Protection, Security and Benefit Act(Republic Act No. 6981) was enacted on
21 April 1991, with the Department ofJustice as the lead implementing agency.
As a result of admission into the Witness
P r o te c tio n a nd B en e f it P r o gr a m m e(WPP), which (in addition to the above
mentioned benefits) has a substantial
budgetary allocation, the witness shallenjoy the following benefits:6•••

Secure housing facility until he has
testified or until the threat,
intimidation or harassm ent
disap pears or is reduced to a
manageable or tolerable level;
Travel expenses and subsistence
allowance during the inquiry;
Burial benefits, in case of death due
to his participation in the WPP; and•Free education for children, fromprimary to college level in any Stateor private school, college oruniversity, if the witness dies or
becomes permanently incapacitatedto work.

The protection could be extended toany mem ber of the witness’ fam ily. 7
However, a witness admitted into theprogramme shall have the duties andresponsibilities, such as, to testify before
and provide information to all
appropriate law enforcement officials
concerning all appropriate proceedings inconnection with or arising from theactivities involved in the offense charged,
to avoid the commission of a crime, tocomply with legal obligations and civil
judgments against him, etc.8
I n J a p a n, the W itn ess Pr ote ction
Programme has been embodied in the
Code of Criminal Procedure (CCP), Ruleof Criminal Procedure, Constitution,
Penal Code and Anti-organized Crime
Law. For example, exception to bail (arequest for bail may be rejected when
there are reasonable grounds for
suspecting that the defendant may injure
the body or damage the property of thewitness or his relative, or threaten themas stipulated in Article 89(5) of the CCP;
Order for the defendant to leave thecourtroom (Article 281-2 of the CCP),
Ord er fo r the sp ecta tor to le ave thecourtroom (Article 202 of the Rule of
Criminal Procedure), Trials conductedprivately (Article 82 C lause 2 of theConstitution), Intimidation of a witness(Article 105-2 of the Penal Code, Article
7(3) of the Anti-Organized Crime Law).

7

Section 3, the Witness Protection, Security and
Benefit Act (Republic Act No. 6981)

6

Section 8, the Witness Protection, Security and
Benefit Act (Republic Act No. 6981)

8

Section 5, the Witness Protection, Security and
Benefit Act (Republic Act No. 6981)

651

RESOURCE MATERIAL SERIES No. 59
A presiding judge may control any
questions asked by persons concerned in
the trial, if the questions relate to thedwelling or the office of a witness or his/her relative, where he/she or they areusually staying and there are reasonablegrounds for suspecting that they or theirproperty may be damaged (Article 295
C lause 2 of the C CP ). H ow eve r, theinformation to identify witnesses may beseen as the constitutional rights of the
defendants, so he/she can have the fullopportunity to examine all the witnesses,
so it could be difficult to hide completely
all information to identify the witness
from the defendant.
Article 157-4 Clause 1(3) of the CCP
provides that a court may, if it deems
necessary, according to the circumstancesof the crime and the witness, examine thewitness with a video link system. The
method involves taking the witness toanother room and exa mining him bymeans of audio-visual tools.
Article 1 57-3 Cla use 1 of the CC P
provides the court may, where the court
believes a witness would be unable totestify fully with the pressures of being
before the defendant and according to thec ircum sta n ce s o f the c rim e a nd th ew itne ss, ord er a scre en to b e set up
between the witness and the defendant tomake the witness invisible during theexamination. Moreover, Clause 2 of theabove article also provides that a court
may order a screen to be set up between
the witness and the public gallery.
A r t i c l e 4 o f th e L a w C o n c e r n i n g
Measures Accompanied with Criminal
P roc ed ure fo r Pr otec tio n o f V ictims
provides that a victim can request the
court in criminal cases to record themutual consent between him/her and thedefendant in the record of trial in order toobtain compensation.

652

The Law to Provide Compensation for
the Victims of Crime provides that statecompensation may be supplied to thevictims of crime whose relatives havebeen killed, or who have suffered serious
injuries from a criminal act.
In Thailand, the Witness Protection
Bill proposed by the Ministry of Justice isunder discussion at the Pa rliament.
Under the draft bill, the protection will be
the responsibility of the police to carryout this task until the Witness Protection
Office is esta blished. There shall be
general and special measures for witness
protection. I n general cases, theinvestiga to r or prosecutor, w ith therequest from the witness, may asked the
Witness Protection Office to order theprotection for up to 30 days subject to thenecessity of the case. However, in an
emergency situation, the investigator orprosecutor would be empowered to orderthe police protection for their witness forup t o 5 d a ys a t a t i m e . T h e s p e c i a lmeasures are designed to apply to cases
involving trading in narcotics, womenand children. The Minister of Justice mayorder the use of special measures forwitness protection. The measures include
relocation of witness residence, changing
of witness identity and record, as well as
pro vid ing living allow a nces a nd jo b
training for up to 2 years. Both generaland special measures can be extended to
the witness’s spouse, parent, children andperson in close relationship with such
witness. Although there is the worry
about the shortage of budget, this witness
pr ote ction p rogr a mm e is in evita b ly
necessary to combat organized crimes.
Moreover, to reduce the fear of witnesses
in taking the witness stand and having to
confront the defendant whom may be an
influential person or a member of anorganized crime group, the use of videoconferencing where a witness testifies in
fro nt of the vide o ca m era in a ro om

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
separately from the trial room is also
introduced. This should make the witness
feel more relaxed and comfortable to tell
the whole truth. The proposed bill toamend the Thai Criminal Procedure Codefor allowing the use of video conferencing
is being scrutinized by the Office of theCouncil of State.
W e learned that Nepal is now
considering utilizing the Witness
Protection Programme. Anyhow there arestill many countries that do not have thisprogramme.
C. Benefits
W itness and Victim Protection
P ro gr a mm e s will en co urag e the c o operation of people in the fight against
transnational organized crimes, since
they are assured that in giving evidence
their life, property or that of their family
will be safe from the criminalorganization in question. The protection
can be given d uring the time ofinvestigation, proceeding or thereafter.
Therefore the witness may be either theaccused who is granted immunity, thevictim or a third party.
D. Drawbacks
Due to the large amount of finances
required and human resource constraints
to devise or even implem ent thisprogramme, many countries may fail toadopt it.
It is also difficult to define the scope of
the witness protection. It is not clear as
when and for how long the witness should
be provided with this protection
programme. A question also arises as towhether the protection should be limited
only to the witness or should be extended
to his family. It is also not clear as to howmuch assistance should be provided.

V. CONCLUSION
All states should be required to ensure
th a t t h e i r l e g i sl a t io n c r im i n a l i z e s
conspiracy and/or participation in an
organized criminal group. The definitionof participation was drawn to require‘active participation.’ It was this joint
action which contributed to the definition
adopted in the TOC Convention in Article
5.
Furthermore, in responding to thethreat of transnational crime, criminal
justice authorities have felt it necessary
to intervene as soon as possible in orderto p revent crim e, brea k-up crimina lorganizations and apprehend offenders
before they ma ke go od their escape.
S t a te s p a r ti e s a r e a l s o r e q u i r e d t ocarefully choose the best options, keeping
in mind their domestic legal and social
systems.
I m m unity ge ne r a lly r e fe rs to theprocess of exemption from prosecuting aperson accused of a crime. It seems that
immunity from prosecution has actually
led to the solving of many serious crimes
in countries such as Pakistan and India.
Detailed immunity systems of othercountries like Malaysia, Uganda andThailand were also discussed. In Japanthe system is not legislated. The absenceor existe nce of a n im munity systemdepended on a country’s culture, history,
national sentiment and their domestic
laws.
Regarding witness and victim
protection, we identified participant
states into 4 categories as above
mentioned. It was appreciated that thestatement of accomplices has proved
useful in prosecution involving organizedcrime cases, as it helps law enforcement
agencies to penetrate such gangs. In
response to this, some countries have653

RESOURCE MATERIAL SERIES No. 59
found it advantageous to enact legislation
to protect witnesses and/or oblige
w itn esse s to tes tif y truth fu lly , an dprovide sanctions if they refuse to do so.
It was identified that although someco untries c urr ently ha ve no serious
problems with transnational organizedcrime, the state of affairs may change inview of the rapid and continuing spreadof it. It is therefore important to establish
li ne s o f c om m u nic a tio n a n d sha r e dunderstand ing of co mmon goals
throughout the world.
These strategies have been endorsedby the TOC Convention since the year
2000. Since the TOC Convention provides
and covers all effective countermeasuresagainst transnational organized crime forus, it is imperative to ratify andimplement the Convention as soon as
po ssible , taking into due accountharmony with the domestic legal systemof each country.

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119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

APPENDIX
Article 5
Criminalization of participation in an
organized criminal group
1. Each State Party shall adopt such
legislative and other measures as
ma y be necessary to establish as
criminal offences, when committed
intentionally:(a) Either or both of the following as
criminal offences distinct fromthose involving the attempt orcompletion of the criminal
activity:(i) Agreeing with one or moreothe r p erso ns to c om mit a
serious crime for a purpose
relating directly or indirectly
to the obtaining of a financial
or other material benefit and,
where required by domestic
law, involving an act
unde rtak en by o ne of theparticipants in furtherance of
the agreement or involving anorganized criminal group;(ii) Conduct by a person who, withknowledge of either the aim
and general criminal activityof an organized criminal groupor its intention to commit thecrimes in question, takes anactive part in:a. Criminal activities of theorganized criminal group;b. Other activities of theorganized criminal groupin the knowledge that hisor her participation willcontributetotheachievement of the abovedescribed criminal aim;(b) Organizing, directing, aiding,abetting,
facilitatingor
counselling the commission ofserious crime involving anorganized criminal group.
2. The knowledge, intent, aim, purpose
or agreement referred to in paragraph
1 of this article may be inferred fromobjective factual circumstances.
3. States Parties whose domestic law
requires involvement of an organizedcriminal group for purposes of theoffences established in accordancewith paragraph 1 (a) (i) of this article
shall ensure that their domestic law
covers all serious crimes involvingorga niz ed crimina l gr oups. Such
States Pa rties , a s w el l a s Sta te sParties whose domestic law requires
an act in furtherance of theagreement for purposes of theoffences established in accordancewith paragraph 1 (a) (i) of this article,
shall so inform the Secretary-Generalof the United Nations at the time of
their signature or of deposit of theirinstrument of ratification, acceptanceor approval of or accession to thisConvention.
Article 25
Assistance to and protection of victims
1. EachState
Party shalltake
ap pr op riate m ea sure s w ithin its
mea ns t o pro vid e a ss i s ta nce a ndpr ote ctio n to victim s of of f en ce s
covered by t his Con venti on , inp a r t i c u l a r in c a s e s o f t h r e a t o f
retaliation or intimidation.
2. Each State Party shall establish
appropriate procedures to provide
access to comp ensation andrestitution for victims of offences
covered by this Convention.
3. Each State Party shall, subject to its
d o m e s ti c l a w , e n a b l e v ie w s a n dconcerns of victims to be presented

655

RESOURCE MATERIAL SERIES No. 59
and considered at appropriate stageso f c r im i n a l p r o c e e d i ng s a ga in st
offenders in a manner not prejudicial
to the rights of the defence.
Article 26
Measures to enhance cooperation withlaw enforcement authorities
1. Each
State
Party
shall
take
appropriate measures to encourage
persons who participate or who haveparticipated in organized criminalgroups:(a) To supply information useful tocompetent authoritie s forinvestigative and evid entiary
purposes on such matters as:(i) The identity, nature, composition, structure, location or
activities of organized criminal groups;(ii) Links, including international
links, with other organizedcriminal groups;(iii) Offences that organized criminal groups have committed or
may commit;(b) To provide factual, concrete help
to competent authorities that may
contribute to depriving organizedcriminal groups of their resources
or of the proceeds of crime.
2. Each State Party shall consider
p r o v id in g f o r t he p o s si b il ity , inap p ro pr iate ca se s, o f m itigating
punishment of an accused person who
provides substantial cooperation in
the investigation or prosecution of an
offence covered by this Convention.
3. Each State Party shall consider
p r o v id in g f o r t he p o s si b il ity , inaccordance with fundamental
principles of its dom estic la w, o fgranting immunity from prosecution
to a person who provides substantial
cooperation in the investigation or656

prosecution of an offence covered bythis Convention.
4. Protection of such persons shall be as
pro vid ed fo r i n a rt i cle 2 4 of t hi s
Convention.
5. Where a person referred to inparagraph 1 of this article located in
one State Party can provide
substantial coo peration to thecompetent a uthorities of anotherS t a t e P a r t y , t h e S t a te s P a r t ie s
concerned may consider entering intoa gre em e nts o r a rra nge m en ts, inaccordance with their domestic law,concerning the potential provision by
the other State Party of the treatment
set forth in paragraphs 2 and 3 of thisarticle.

GROUP 3
PHASE 2
COUNTERMEASURES AGAINST MONEY LAUNDERING
Chairperson

Mr. Shankar Pratap Singh(India)Co-Chairperson

Mr. Masakazu Ameku(Japan)Rapporteur

Mr. Jan Samuel Maringka(Indonesia)

Co-Rapporteur

Mr. Oscar Antonio Goyanes(Argentina)

Members

Mr. Sazali bin Salbi(Malaysia)

Mr. Tsunekazu Kobashi(Japan)Ms. Azumi Misawa(Japan)Mr. Rafael Romero(Venezuela)

Mr. Taizo Yokoyama(Japan)Deputy Director Keiichi Aizawa(UNAFEI)

Prof. Yuichiro Tachi(UNAFEI)

Prof. Kenji Teramura(UNAFEI)

Advisers

I. INTRODUCTION
In view of the fact that money
laundering is at the center ofpredominantly all other criminal acts, it
becom es an integral part of any
transnational organized crime. Hence,
any genuine effort to combat
transnational organized crime has tonecessarily address the serious issue of
adopting countermeasures to fight the
menace of money laundering.
Since the goal of a large number ofcriminal acts is to generate a profit forthe criminal that carries out the act, thep roc essing o f the crimina l p roc ee ds
through m oney la undering a ssum es
critical importance, as it enables thecriminal to disguise their illegal origin
and helps him in enjoying the proceeds of
his crime w ithout any threat. Thus,
m o ney la und e re rs a r e co ntinuo usly
looking for new methods and routes forlaundering their ill-gotten proceeds from
crime. The criminals do this by effectively

exploiting the differences between thenational anti-money laundering systems
an d te nd to mo ve th eir ne twork s tocountries and financial systems withweak or ineffective countermeasures.
Therefore, the possible social and politicalconsequences of money laundering, if leftunchecked or dealt with ineffectively, canbe very grave and serious for any country.
M ost funda menta lly, since money
laundering is inextricably linked to theunderlying criminal activity thatgen erated it, targeting the money
laundering aspect of criminal activity anddepriving the criminal of his ill-gotten
proceeds of crime would automaticallymean hitting him where it hurts themost, i.e. where he becomes financiallymost vulnerable. Without a usable profit,
the criminal activity cannot continue.
This, inevitably brings to the fore theneed for having an effective andorganized system to deal with money

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RESOURCE MATERIAL SERIES No. 59
laundering by adopting suitablec o u nte r m e a s ur e s i n th e le gi sla tiv esystems and law enforcement mechanismof various countries. In a broader sense,
som e o f the co unte rmea sures would
include making the act of money
laundering a crime; giving theinvestigative agencies the authority to
trace, seize and ultimately confiscate theproceeds derived from criminal activity
and building the necessary framework forp erm itting the a gencies involved to
exchange information am ongst
themselves and their counterparts inother countries. It is, therefore, criticallyim po rtant that all co untrie s should
develop a national anti-money launderingp rogra mm e. This should , inter ali a,
include involving the law enforcementa gencies in e sta b lishing a f ina ncialtransaction reporting systems, customer
identification system, record keeping
system and also a method for verifying
compliance.
However, it needs to be emphasizedthat national strategies by themselves
would prove inherently inadequate in
responding to the challenges posed bytransnational organized criminal groups
i n th e ir a c t iv it y r e l a t in g t o m o n e ylaundering since they cross multiple
borders, involve multiple jurisdictions
and multiplicity of laws. Hence, thec o un t e r m e a s u r e s to c o m b a t m o n e y
l a u n d e r i n g c a ll s f o r a t r u ly g l o b a l
response making it absolutely imperative
for increased global cooperation between
the law enforcement agencies of different
countries in effectively dealing with them ena ce of mo ney laund ering b y thetransnational organized criminal groups.
II. THE GLOBAL RESPONSE
Realizing the gravity of the problem,
the international comity of nations has
tried to come up with a global response.

658

The United Nations adopted the Vienna
Convent ion, 1 98 8 a gainst the Ill icit
Traffic in Narcotic Drugs andPsychotropic Substances, which, interalia, incorporated the incrimination ofmoney laundering activity as a criminal
act in an international treaty for the firsttime.
In response to the mounting concern
over money laundering, the Financial
Action Task Force On Money Laundering( FA T F ) w a s e sta b lish e d b y t he G - 7
Summit held in Paris in 1989. The FATF
was given the responsibility of examining
the money laundering techniques andtrends, reviewing the actions which had
already been taken at the national andinte r natio nal le ve l and the fu rth er
measures which w ere req uired to betaken to combat money laundering. In
April 1990, FATF issued a report
co ntaining a set of the Forty
Re comm enda tions w hich provided a
detailed plan of action needed to combat
money laundering. The Forty
Recommendations were further revised
and made more comprehensive by the
FATF in 1996.
Thus, drafted in 1990 and revised in
1996, the Forty Recommendations of the
FATF pr ovide a ver y detailed andcomprehensive blue print for action in thefight against money laundering. The
Forty Rec ommen dations cov er thecriminal justice syste m and law
enforcement, the financial system and its
regulation and more importantly the
intrinsic need for international
cooperation to combat money laundering.
The Forty Recommendations of the FATF
h a v e c o m e t o b e r e c o g n iz e d a s t h einternational standard with regard toanti-money laundering programmes. The
Forty Recommendations of the FATF set
out the basic framework for anti-money
laundering efforts and are designed to be119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
of universal application. However, it wasrecognized at the outset, that different
countries have diverse legal and financial
systems and therefore could not takeidentical
m easures.
The
Recommendations, therefore, only lay
down the basic principles for different
countries to implement, within theirconstitutional frameworks and thus allow
the countries a degree of flexibility. The
measures suggested by the FATF arefound to be absolutely essential for thecreation of an anti-money laundering
framework.
III. THE FORTY
RECOMMENDATIONSThe Forty Recommendations of the
FATF, apart from the general framework,
can be broadly classified under threemajor heads viz:
A. The existence or creation, within thelegal framework of each country, a
law criminalizing the act of money
laundering, as defined by the Vienna
Convention of 1988 on NDPS.
B. Theexistenceor
creationor
st ren gt hen ing of t he lega l an dfinancial systems in different
countries, which would provide thelaw enforcement and investigating
agencies effective tools to combat
money laundering.
C. Strengthening of the International
Coop eration between different
countries at all levels, so as to enable
an organized and concerted effort ofthe various law enforcement agenciesof the different countries, in
successfully combating money
laundering.
The gist of some of the very importantr e co m m e n d a tio n s, u nd e r t he a b o v ereferred three m ajor heads, areenumerated as follows:

A.(i)Each country should take suchm e a s u r e s a s m a y b e ne c e s s a r y,
including legislative ones, to enable
it to criminalize money laundering,as set forth in the Vienna
Convention. Further, the offence ofm oney la und ering should not b emerely confined to drug offences but
should be extended to all serious
offences which could be designated as
money laundering predicate offences(R. 4).
(ii) The concept of knowledge relating tomoney laundering may be inferredfrom objective factual circumstances(R. 5) and that corporationst h e m s e l v e s , a n d n o t o n ly th e ir
e m p lo ye e s, shou ld b e sub j ect tocriminal liability (R. 6).
B. The further perusal reveals that a
predominant majority of the Forty
Recommendations of the FATF falls
within the ambit of major head (B).
The gist of some of the very important
recommendations are briefly
summarized as follows:(i) Countries
shouldadopt
measures, including legislative
ones, to enable their competente n f o r c e m e n t a u th o r i ti e s, t oconfiscate laundered property or
the proceeds from thecommission of any money
laundering offence. This may
a ls o i n c lu d e c o n f i s c a t io n o fproperty of corresponding valueof the offending party (R. 7).
The above re com m endationf u r th e r st ip u la te s , th a t th emea sures should include theauthority to (1) identify, traceand evaluate property which issu bjec t to con fi sc ation, (2)provide for measures such as
freezing and seizing to preventany dealing, transfer or disposalof such property and (3) take any

659

RESOURCE MATERIAL SERIES No. 59
further appropriate investigative
measures toward this end.
The FATF has made very specificrecommendations with regard to thestrengthening of the financial
systems of different countries. The
gist of some of the very useful andimportant recommendations can besummed up as follows:(ii) Financial
institutionsofdifferent countries should not
permit opening of and operationsin anonymous accounts or
accounts in fictitious na mes.
T h e y s h o u l d b e n e c e s s a r il yrequired by law or regulation toestablish the correct customer
identity while op ening an
account, renting safe deposit
lockers or while entering intolarge monetary transactions (R.
10).
(iii) Financial institutions in eachcountry should maintain, at least
for a period of five years, allnecessary records relating tof inan cial tr ansa ctio n s, bo th
domestic and international, so as
to enable them to comply swiftlywith information requests fromthe competent authorities. Such
records should be sufficient to be
used as evidence for prosecution,
if required (R. 12)(iv) Countries should pay special
attention to money laundering
threats inherent in new ordeveloping technologies thatmight f avour anonym ity a ndtake suitable measures, if
required, to prevent their use inmoney laundering schemes (R.
13).
(v) Financial
institutionsindifferent countries should pay
special attention to all complex
and unusually large patterns oftr a n s a c t io n s w h ic h h a v e n o

660

apparent lawful purpose. Suchunusual transactions should bevery closely examined and thefindings should be m adeavailable to the law enforcementa gencie s (R . 14 ). If f inancia linstitutions suspect that funds
emanate from a crim inal
activity, they should be required
to report prom ptly theirsu sp icio ns to the co m p e ten t
authorities (R 15).
(vi) The various functionaries of thefinancial institutions should beprotected from criminal or civil
liability for reporting suspicioustransactions in good faith (R. 16).
The financial institutions andtheir functionaries should not beallowed to warn their customers
for having rep orted any
suspicious transaction to thecompetent authorities (R. 17).
Financial institutions should
comply with instructions fromthe competent authorities (R.
18).
(vii) The financial institutions indifferent countries should
develop programm es a gainstmoney laundering including:a. the development of internal
policies, procedures andcontrols,b. an ongoing employee
training programme,c. an audit system to test thefunctioning of the actual
implementation of thescheme (R 19).
In addition to the above, the FATF
has also made certain further
recommendations to avoid money
laundering and to cope with countries
ha v ing n o o r ins uf f icie n t m on e ylaundering laws/measures. Some of
the important recommendations inthis regard are as follows:

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(viii) Financial institutions should
give special attention to businesstr a ns a c ti on s w it h c o un tr ie s
having no or insufficient antimoney laundering laws/measures. There should be ave ry t h o r o u gh s c r ut i ny a n dmonitoring of such transactions(R. 20 & 21).
(ix) Countries
shouldtry
toimplement suitable measures tode te ct and m o nito r ph ysicaltransborder transaction of cash
andbearernegotiable
instruments (R. 22). They should
try to implement a system ofreporting all d omestic orinternational
currencytransactions above a specified or
fix ed amoun t to a n ational
central agency having acomputerized data base. Such
info rm atio n sho uld be m a d eavailable to the competent law
enforcement agencies of eachcountry as and when required(R. 23). Countries should try todevelop safe money management
te c h ni q u e s i nc l ud i n g u se o fchecks, payment cards, etc. torepla ce cash tra nsa ctions ortransfer of money (R. 24). They
should ensure that the money
launderers are not able to abuse‘s hel l corpora ti ons’ a nd
str en gth e n the ir s yst em s t o
pr event a ny su ch u nla wful
misuse (R. 25).
(x) The competent authorities indifferent countries should ensurethat adequate laws andregulations are in existence to
pro vide safe guards againstmoney laundering. They should
also ensure that the enforcement
authorities in each country havea very high level of co-operationand co-ordin ation among stthemselves in combating money
laundering activity (R 26). They
should ensure sufficient
safeguards to protect taking overof control or acquisition of any
financial institutions bycriminals or their associates (R.
29).
C. The
FATF
has
very
heavilyemphasize d the strengthening ofinternational cooperation between the
different countries with a view toeffectively deal with the criminals
in d u l g in g i n m o n e y l a u n d e r i n gactivities. Some of the very important
recommendations in this regard are
enumerated as under:(xi) The
first
part
of
the
‘Recommendation’ pertains togreater and increased level ofexchange of information, bothgeneral and those relating tosuspicious transactions.
It states that countries shouldhave a system of recording
international cash flows, bothin f l o w s a n d o u tf l o w s, in a l lcurrencies so that an estimate
could be made with regard to
movement of money whichshould be made available to theInternational Monetary Fund(IMF) and the Bank forInterna tional Settlements tofacilitate international studies(R.
30).
Further,the‘I N T E R P O L ’ a n d th e ‘ W or ld
Customs Organization’ should be
g iv e n t he re sp o n si b i li ty f o r
ga thering and disseminatingsuch inform ation to thecompetent authorities indicating
the latest developments inmoney laundering and money
la u nd e ri n g t e c hn iq u e s. T h eabove exercise should also bedone by the Central Banks andcompetent authorities in

661

RESOURCE MATERIAL SERIES No. 59
different countries domestically(R. 31). Countries should further
ensure that there is a system of aspontaneous or “upon request”
exchange of information relating
to su spic iou s transac tions,persons and corporations
involved between the different
countries. This international
exchange of information should
be in conformity with thenati on al and in tern ational
provisions on privacy and dataprotection (R. 32).
The
seco nd
partof‘Recommendations’ emphasizes
on other forms of co-operation atinternational level including
those relating to confiscation,
mutualassistanceandextradition.
The FATF has suggested thatdifferences in the laws and theund ersta nd ing of the m on ey
laundering definition andactivity in va rio us countries
should not prove to be ahindrance or obstacle inprovid ing each other withmutual legal assistance (R. 33).
International co-operation
should be further strengthenedby bilateral and multi-lateralagreements and arrangementswith the inte n t to f a c ilita temaxim um mutual assistance
between different countries (R.
34). Further, countries should
tr y to ra t if y an d im p le m e nt
relevant
international
conventionsonmoneylaundering including the 1990
Council of Europe Convention on
Laundering, Search, Seizure andConf iscatio n of the Pro ce eds
from Crime (R. 35).
(xii) The concluding part of the Forty
Recommendations pertaining to662

e nh a n cin g in te rn atio n a l co o p e ra tio n b et w e en d iff e r en t
countries suggest some of thefollowing important measures:
There should be increased coo p e ratio n , wh ile c o nd uc tin g
investigations between different
countries including usage of theeffective technique of controlled
delivery related to assets known
or suspected to be the proceeds ofcrime (R. 36). There should beprocedures for providing mutual
assistance in criminal matters,
including production of records
by financial institutions, thesearch and seizure of persons
a n d p r e m i s e s f o r o b t a in in gevidence in money laundering
investigations and prosecutions(R. 37 ). An authority to take
immediate action on requests
from foreign countries to
id entify, freeze, seize andconfiscate proceeds of crime or
the underlying crime behind themoney laundering activity (R.
38).
The FA TF further suggested
that conflicts relating tojurisdiction should be avoided
and the accused should beprosecuted in the best venue, in
the interest of justice, if morethan one country is involved.
Further, there should also be
arrangements for coordinating
seizure and confiscatio nproceedings, including sharing ofconfiscate d assets ( R. 39 ). It
lastly suggested that different
countries should have anarra ngem ent for extradition,
where possible, of individuals
charged with a money
laundering offence. All countries
should recognize money
laundering as an extraditable

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
offence and should try to simplify
their legal framework relating to
extradition proceedings. (R. 40).
IV. NON CO-OPERATIVECOUNTRIES AND TERRITORIESThe FATF continued to further review
the Forty Recommendations from time totime with regard to their effectiveness indealing with the crime relating to money
laundering and also the implementationby the various countries of ther ecommen dations
made
more
comprehensive in 1996. On 22 June 2001,
the FATF published its Twelfth Annual
Re po rt which outlin es its m ainachievements, including the significant
progress made in relation to work on Non
Co-operative Countries and Territories(NCCTs). The FATF has revised andupdated its list of NCCTs which now
includes the following countries/
territories; Cook Islands, Dominica, Egypt,
Guatemala, Hungary, Indonesia, Israel,
Lebanon, Marshall Islands, Myanmar,
Nauru, Nigeria, Niue, the Philippines,1
R us s i a , S t . K i t t s a nd N evis a nd S t .
Vincent and the Grenadines. The FATF
has suggested that all countries should be
especially vigilant in their financia ldealings/transactions with the above
mentioned ‘NCCTs” and if necessary, takeadditional countermeasures.
V. THE UNITED NATIONSCONVENTION AGAINSTTRANSNATIONAL ORGANIZEDCRIMETh e United Nat ion s Con vention
against Transnational Organized Crime(TO C) 2000 has effectively combined
m a ny o f the an ti- mo ne y la unde ring1

It needs to be emphasized that the Philippines

mechanisms explored at the internationalle v e l in t o o ne c o m p re h e n si ve l e ga l
instrument. The convention on TO C
addresses a number of issues, raised
through several international initiatives,
which in many instances were earlier notlegally binding, into an internationalle gal in str um e nt h a vin g f o rc e. T he
convention has recognized that a
considerable amount of valuable work
re la te d to t h e f i gh t a g a i n st m o ne ylaundering has been undertaken by anumber o f organizations and hassuggested that countries should seek
guidance from such initiatives.
The UN Convention on TOC borrows
from the 1998 General Assembly Political
Declaration and extends the definition ofmone y la undering to include money
derived from all serious crimes which arede fined a s those of fence s w hich a repunishable by a maximum sentence of atleast four years or more.
In its focus on issues more directly
related to fina ncial institutions, theconvention requires member countries toestablish comprehensive regulatory andsupervisory regimes for banks and also
non-banking financial institutions. It
r e q ui r e s t h a t s u c h r e g i m e s s h o u l dspecifically address the issue of customer
id e n t i f i c a t io n , r e c o r d k e e p i n g a n dsusp icious transa ction repo rting. I t
stresses the importance of the exchangeo f i n f o rm a t i o n a t t he na t i o n a l a n dinternational levels and in that context
highlights the role of Financial
Intelligence Units (FIU) for the purposeof collecting, analyzing and disseminating
information. It also highlights the needfor co-operation am ongst the law
en fo rc em e nt, j ud icia l a n d f ina nc ia lr e g ul a to r y a u th o r i t ie s o f d i f f e r e n t
countries.

has since enacted the Anti-Money Laundering Act
on 29 September 2001.

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RESOURCE MATERIAL SERIES No. 59
For a fuller and more comprehensive
understanding of the issue relating tomoney laundering, as adopted by the UN
Convention on TOC, 2000, the complete
reading of Article 6 and Article 7 and also
articles 12, 13, and 14 is deem ed
imperative.
VI. SOME COUNTERMEASURESAGAINST MONEY LAUNDERINGThe workshop, after having deliberated
at length and in detail, highlight threesubjects which are regarded to be very
important in strengthening theimplem entation
of
the
Forty
Recommendations.
A. Knowing Your Customers
Money la undering is conducted bydepositing proceeds of crime in financial
institutions, hiding such proceeds ofcrime, and disguising them as if they
origina ted from legitimate economic
activity.
In order to detect money laundering in
the most effective way, it is important toobtain illegal proceeds at an early stage.
Therefore, the Forty Recommendationsprescribe countermeasures, including
identification of the person at the time ofthe opening of his or her bank account.
It was discussed, however, that thescope of the identity of the customer by
the bank and other financial institutions
should not be expanded. It is prescribedunder law in most of the participant’s
countries that financial institutions
identify the person by such means as hisor her ID card at the time of the openingof his or her bank account. It was pointed
out while it is effective to extend thescope of obligation for identification to theareas such as occupation, original capitaland deposits, it may impose excessive
burdens on the financial institutions.

664

Most of the participants, how ever,opined that the financial institutions
obligations should be extended in order tocontrol money laundering crime. It was
discussed whether or not sanctions be
imposed upon such financial institutions
if and when they fail to me et the
obliga tions on their part in order to
e n s u r e t he p r a c ti c a l e f f e c t o f s u c hobligations. On this point, some argued
th at i t is n o t r e as o na b le to im p o se
sanctions upon the financial institutions.
Most of the participants argued that somecountries already have such sanctions
and that it is useful to have provisions on
sanction in order to achieve the mosteffective control over money laundering.
Another topic to keep in mind is thatthe crime of laundering assets is born asconsequence of the seizure of earnings.
Th e p ro f its o r instr um e nts a nd theeconomic benefit must be confiscated.
And this is the key to criminal politics onmoney laundering. We have to attack
their economic interests, their results,
and their earnings. The important thing
for criminal organiza tions is not thecrime itself but the earnings that theygene rate. Here, a ga in w e m eet withanother inconvenience from thelegislative point of view.
In relation to the effective normative
frame, and referring that is to say to thematter that concerns us, the financial
system, diverse legislation is necessary
for the identification of clients.
Also another regulation exists and it
re fers to the obligation of taking“a c co un tin g b o o ks ” w he r e th e t ot a loperations are registered and banks may
preserve the bank documentation for 10
years from the date of its registration.
Additionally other regulations arenecessary to highlight, such us:

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
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Register payments of checks andmake it an obligation to maintainregistrationondetermine doperations;
Enforce financial entities to inform
about certa in transactions w here
specifically it is require d for the“Prevention of money laundering
coming from illicit activities”;
Regulations that include the Agencies
and Offices of Change;
To designate, in each entity, a
responsible official for the specifictopic of money laundering.

In relation to future perspectives, weshould point out that the crime of money
laundering should be considered as aninternational crime. It is necessary tohave different tools that should accord
with those that have already be en
implemented in other countries.
However, such laws must include an
obligation on certain people to denounce
operations and/or suspicious activities.
B. Asset Forfeiture System
An asset forfeiture system is averitable tool for law enforcement andjud ic ia l crim ina l p roce ss to d ep rive
criminals of illegally acquired proceeds,
and plough back such proceeds to thecommunity for the greater good of society.
The legal provisions regarding an asset
forfeiture system differ from country tocountry. Generally they have this system
in a criminal proce eding act. B ut
especially in countries like Venezuela andArgentina, they have a forfeiture systemin their Money Laundering Act, the sameas in Malaysia relating to the Dangerous
Drugs (Forfeiture of Property) Act which
was enacted in 1988.
In Indonesia, the Anti Corruption Act,
1971 (amended in 1999) deals with theproceeds of crime. Such goods (from theproceeds of crime) can also be confiscatedin the interests of the investigation.
The Japanese assets forfeiture systemfor organized crime is embedded in the
Organized Crime Punishment Law, 1999.
In this law, the system of confiscation andcollection of equivalent value is provided,
which is helpful for the asset forfeituresystem. There is also provision for assets
illicitly received in relation to property
obtained by the parties during
engagement in drug-related offences, if
the value is deemed unreasonably large
then such property or equivalent thereofis liable to be confiscated.
However, it is very difficult toc o n f i s c a t e e f f e c t i v e ly e v e n f o r t h ecountries which have a special forfeituresystem against money laundering. In
other words, one of the most serious
problems that countries deal with, in theconfiscation procedure, is where the 3rdparty is disguised as bona fide to avoid
seizure by the criminals.
It is hard to prove that a 3rd party hasreceived illicit proceeds, knowing it was
the product from crime. A s a result,criminals keep their illicit proceeds. We
should make a 3rd party prove he/she isbona fide.
Indonesia introduced this issue underthe Anti-Corruption Law, 1999 aboutburden of proof. This article makes thedefendant prove his innocence and to
sho w th at h e is n ot co nd ucting any
corruption. This article contradicts theburde n of proof regulation in the
Criminal Procedure Code, which states
tha t th e bu r den of pr oof i s in th eprosecutor’s hand. It is the prosecutor’s
duty to prove whether the defendant is
guilty or not. The Anti-Corruption Law
reversed this burden of proof in limited

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circumstances, because the prosecutor
still has to prove his indictment.
Thus, the transfer of the burden of
proof can be an effective weapon for thelaw enforcement agent, but at the sametime can also impose excessive burdens
o n a 3rd party. In c ase the m o neylaunderer has transferred the proceeds ofcrime to the 3rd party, the 3rd party
receiver must prove that he/she has notknown of the source of the money. In thissense, to prevent the burden of proof frombeing excessive, the scope and extent ofsuch a b urden should be a dequately
considered.
C. Gatekeepers
Th e p ro ce ss o f lau nd e ring ille gal
m one y norm ally goes thro ugh thre edifferent sta ges, that’s ‘investment’,‘layering’ and ‘integration’. Naturallyt h e se t h re e st a g e s a r e u se d b y t h elaunderers as a means to circumvent
m one y la und ering counterm ea suresthrough more complex schemes. This
increase in complexity means that thoseindividuals desiring to launder criminal
proceeds must turn to the expertise oflegal professionals, accountants, financial
consultants, and other professionals toa i d th e m in t h e m o v e m e n t o f s u c hproceeds. The types of assistance thatth ese pr of e ssion a ls p ro vid e a re th e
gateway through which the launderers
must pass to achieve the above stages.
Thus the legal and accounting
professionals serve as sort of‘gatekeepers’ since they have the ability
to furnish access (knowingly or
unwittingly) to the various tools thatmight help the criminal move or conceal
the funds.
The functions that are most useful tothe potential launderers include:

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Creation of corporate vehicles or othercomplex legal arrangement (trusts,
for example). Such constructions may
serve to confuse the links between theproceeds of a crim e and theperpetrator;
Buying or selling of property.
Property transfer served as either thefunds (layering stages) or else they
represent the final investment ofthese proceeds after having passed
th r o u gh t he la u n d e r i ng p r o c e s s(integration stage);
Performing financial transactions.
Sometimes these professionals may
carry out various financial operationso n b e ha lf o f th e la u n d e re r s ( f o r
example, cash
deposits or
w i t hd r a w a l s o n a c co u nt s, r e t a i lforeign exchange operations, issuingand cashing cheques, purchase andsale of stocks, sending and receiving
international fund transfers, etc.);
Financial and tax advice. A criminal
with a large a mount of mo ney toinvest ma y pose as an individual
h o p i n g t o m i n im i z e h i s / h e r t a x
liabilities or desiring to place assets
out of reach in order to avoid future
liabilities.

In some of these functions, thepotential launderer is obviously not only
re lying on the expertise of these
professionals but is also using them andtheir professional status to minimize
suspicion surrounding their criminal
activities. In view of the vast services
these professionals provide, these socalled ‘gatekeepers’ would have access toimportant and useful information that
could be used to implicate the launderero f a n o f f e nc e o f m o n e y l a u nd e r in g.
However to obtain such incriminating
information from the gatekeepers is notan ea sy task due to the p rivilege ofconfidentiality between the ‘gatekeeper’and their clients, in particular the legal

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
profession. This traditional professional
confidentiality is now extended to othernon-advocacy ‘gatekeeper’ functions.
One solution to overcome the above
problem is to include these professional
gatekeepers under the same anti-money
lau nd er ing o b ligatio ns as f in a ncial
intermediaries when they perform theirprofessional functions. In other words,t he s e p r o f e ss io n a l ga te k e e p e rs a r erequired to identify the client with which
they are dealing and to channel a ny
suspicious transaction reports (STR) to
the relevant authority/financial
intelligence unit (FIU) or to face thepenalties which come with failing to doso.
VII. CONCLUSION
It may, thus, be seen that the problem
of money laundering is being seriously
viewed by the international community
w ith the concern it rightly deserves.
Subsequent to the September 11 2001
terrorist attacks on the World Trade
Center and the Pentagon in the USA, theissue of money laundering has suddenly
assumed altogether a new dimension interm s of the funding of terrorist
organizations all over the world and the
predominant use of money laundering by
t e rr o ri st c r im in a l o r g a ni z a t io ns infunding their activities. However, theglobal response to the challenge posed
has been overwhelming, as is evident by
the media coverage (CNN: October 23,2001) where it has been reported that
more than 140 countries from all parts of
the world are co-operating in tracking
down funds of criminal organizations andmore especially terrorist funds which ares u s p e c t e d t o b e i n v o l ve d i n m o n e ylaundering activity at different stages invarious countries. It is, indeed, very
heartening to note, that out of the above
140 countries, seventy countries haveactually gone ahead and frozen certain
accounts in banks and financial
institutions, which were believed to be
involved in suspicious financialtransactions. The intent behind the above
exercise is to chase the ‘money trail’ usedby the criminals/terrorists and after
identifying such suspicious accounts,
freeze, seize and finally confiscate thefunds/assets involved so that organizedcriminal gangs/terrorist organizations
are finally starved of funds.
It needs to be emphasized, however,that moving forward in the twenty first
century is going to pose new threats andc h a l le n g e s t o t h e l a w e n f o r c e m e n t
authorities in different countries withregard to combating organized crime,
including money laundering. A case inpoint would be the financial frauds which
can now easily be committed over the
In tern et. C e rta in ins ta n ce s o f suchfinancial frauds have already come tonotice and preventive action needs to betaken as a priority.
The workshop, after having deliberated
at length and in detail, is o f theconsidered view that new challenges
posed by the money launderers calls for
new initiatives, techniques and tools tocombat the menace of money laundering.
To this end, the new techniques and tools
wou ld neces sarily hav e to include‘controll ed deli very’, ‘ele ct ronic
surveillance’ including ‘wire tapping’,
whenever necessary, and also ‘undercover
operations’. It is the considered view ofthe workshop, that the domestic laws ofdifferent countries should provide for theusage of the above modern investigation
techniques and tools, with the intent ofeffective enforcement of money
laundering laws. However, the above
specialized techniques are not meant tototally replace but only to strengthen and

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RESOURCE MATERIAL SERIES No. 59
supplement the existing investigation
techniques and tools.
The workshop is also of the consideredview that there should also be a provisionin the domestic laws of each country forprosecution of the so called “gatekeepers”
i.e. the legal professionals, accountants,
financial consultants and otherprofessionals who provide the requisite
expertise, without which it would not be
possible for the organized criminal groups
to invest large sums of money without
getting detected. Such professionals
indulge in money laundering activity by
way of providing professional accounting
and legal advice to the criminal so as toenable him to conceal the origin of theillegal proceeds of crime. In the view ofthe workshop, such professionals alsoneed to be simultaneously prosecutedwith the criminal, in the same manner,
for abetment of the offence of money
laundering.
The workshop is also unanimously ofthe view that all the investigating andintelligence agencies within each country
need to co-operate and interact morec l o s e ly in t h e f i g h t a g a i n s t m o n e ylaundering. It is also felt desirable thatfor successfully combating the menace ofmoney laundering, all investigating andintelligence agencies in different
countries need to necessarily adopt a very
pro-active attitude towards the collectionof intelligence relating to money
laundering, i.e. instead of just reacting,they need to actively act on gathering
intelligence on the subject.
Lastly, with regard to international cooperation, there is total unanimity that it
would be in the best interests of all
countries to strengthen and enhanceinternational cooperation at all levels, i.e.
a t t he r e g io n a l, i nt e r- r e g io n a l a n dinternational levels by way of bilateral,

668

multi-lateral and international treaties
providing for mutual legal assistance andextradition, where necessary.
In view of the workshop, there are still
a lot of gen uin e impediments a nd
difficulties being experienced by many
countries in the implementation of the
Forty Recommendations of the FATF and
the TOC UN Convention, 2000. However,
it is the genuine belief of the workshopthat all such obstacles and hindrances
could be, over a period of time, removed
backed by the all important political willof the leadership of such countries.