Prosecuting Organized Crime - A Comparative Analysis Of Laws In India And The UK

Author: LawSphereX

Category: Criminal Law

Published: 2026-08-23T20:47:57.599642+00:00

Updated: 2026-08-26T17:10:00.855+00:00

PROSECUTING ORGANIZED CRIME: A COMPARATIVE

ANALYSIS OF LAWS IN INDIA AND THE UK

Sanskar Aggarwal, Advocate (LLM in criminal law from University of Edinburgh, U.K.)

ABSTRACT

This paper undertakes a comparative doctrinal analysis of the procedural legal frameworks governing the prosecution of organized crime in India and the United Kingdom—two common law jurisdictions grappling with difficulties of a highly adaptive and transnational criminal phenomenon. Through an examination of statutory provisions, case law, and the special powers granted to law enforcement authorities, the study reveals divergent institutional approaches: India's reliance on fragmented, special legislation with limited scope versus the UK's integration of specialized provisions within generally applicable legal structures. Despite differences in socio-political contexts, both systems exhibit a reactive, crisis-driven evolution in combating organized crime. The paper critiques this trajectory for undermining due process, fostering over-criminalization, and compromising foundational principles such as the presumption of innocence. It further argues for the need for context-sensitive legal responses, enhanced procedural protections for peripheral offenders, and stronger safety provisions against jury and witness intimidation. The paper concludes that existing legal mechanisms, while partially effective, remain inadequate for preventing organized crime, and advocates for proactive, coherent, and rights-respecting legal reform.

Chapter 1 - Introducing Organised Crime 1.1. Introduction ‘The study of organised crime is part science, part gossip, part theology’1 Organised crime has been present in societies for centuries but gained its popularity in the criminological study sphere in the early 1920s USA when the La Cosa Nostra brought in a huge unprecedented crime wave.2 Whenever organised crime is talked about, most readers try to form images inspired by Hollywood’s portrayal of the Italian mafia which is not entirely correct. The image of organised crime stemmed from these movies and shows depicts a highly organised group with principles and ethics which operating on a much larger scale, whereas in reality, organised crime is not as organised and powerful as it is shown3. Sometimes organised crime is treated as a national security level threat by the state and politicians, which is often argued as not that big of a threat.4 It could be argued that it possesses a potentially big threat of forming business alliances with some anti-national elements like terrorist outfits for example supplying arms or using networks inside government to form security breaches. Nevertheless, be it a national threat or not, it still represents one of the major threats to any peaceful society. Organised crime has existed, in India and in the UK, but no monumental development could be seen in the laws when compared to some other larger jurisdictions like the US. Challenges in prosecuting and investigating organised crime are real and recognised by many states today. Despite specialised legislation, it is generally observed that police and prosecutors still rely on the conspiracy provisions in the code to prosecute and not the specialised act to try these criminals; in England and Wales, prosecutors still tend to rely on part 2 of the serious crimes act while charging the criminals involved in organised crime.5 Corruption remains one of the key contributing factors that help these organised crime groups escape prosecution for a 1 Hobbs, Dick. Lush Life: Constructing Organized Crime in the UK / Dick Hobbs. Oxford University Press, 2013; Lacey, Robert. Little man: Meyer Lansky and the gangster life. Lb Books, 1992. 2 Fijnaut, Cyrille. “Searching for Organized Crime in History.” The Oxford Handbook of Organized Crime, Oxford University Press, 2014, https://doi.org/10.1093/oxfordhb/9780199730445.013.023. 3 Reuter, Peter. Disorganized Crime: the Economics of the Visible Hand / Peter Reuter. MIT Press, 1983. 4 Campbell, Liz. “Organized Crime and National Security: A Dubious Connection?” New Criminal Law Review, vol. 17, no. 2, 2014, pp. 220–51, https://doi.org/10.1525/nclr.2014.17.2.220. 5 Campbell, Liz. “Organised Crime and the Criminal Justice and Licensing (Scotland) Act 2010.” The Edinburgh Law Review, vol. 18, no. 2, 2014, pp. 225–44, https://doi.org/10.3366/elr.2014.0205.

long time.6 It is observed that organised crime is unable to flourish in societies where it is hard to develop corrupt alliances with government and enforcement agencies.7 These groups tend to be financially resourceful as material gain is the foremost goal of their organisation and resources spent on corruption is a mere operating cost for them to run their illegal enterprise smoothly. The illicit relationship between these organisations and political parties also turns out to be a vicious combination at times of elections where these groups are ready to do anything so that their allies can get into a position of power.8 Use of force or threat of violence is yet another factor that is used to intimidate the witnesses and increase insurgency in society for their own ends, in 1997 a famous music producer from Bollywood was shot dead by a group for not paying the extortion money9. This is one of the many examples of how these groups use violence to form insurgency which again helps intimidate any future witnesses against giving any testimonies in the court. Similarly, a US attorney claimed intimidation of victims and witnesses through threats of violence to be the reason for a huge delay in taking down a known gang leader from Harlem.10 This controlling position also helps these groups in other illicit trade markets such as the drug trade to maintain their monopoly by eliminating or managing the competition, this power is used to eliminate newer, smaller and weaker criminals trying to enter the market. 11 More power turns into more profit and thus increases the capacity to form corrupt alliances to avoid prosecution. Another major challenge is the lack of evidence by the prosecution to establish adequate charges in a trial. Investigating these groups is also not an easy task, among many factors two important characteristics of organised crime are, loyalty and continuity. The aim of this paper is to draw a comparative study of the existing laws to help prosecute and counter organised crime. The flow of this paper will be as follows, in this chapter scope of organised crime will be discussed. In the second chapter, both jurisdictions, India and the UK, 6 van Duyne, Petrus C. “The Phantom and Threat of Organized Crime.” Crime, Law, and Social Change, vol. 24, no. 4, 1995, pp. 341–77, https://doi.org/10.1007/BF01298354. 7 Campbell, Liz. “Organized Crime and National Security: A Dubious Connection?” New Criminal Law Review, vol. 17, no. 2, 2014, pp. 220–51, https://doi.org/10.1525/nclr.2014.17.2.220. 8 ALESINA, ALBERTO, et al. “Organized Crime, Violence, and Politics.” The Review of Economic Studies, vol. 86, no. 2 (307), 2019, pp. 457–99, https://doi.org/10.1093/restud/rdy036.

9 Sumita, Sarkar, and Arvind Tiwari. “Combating Organised Crime: A Case Study of Mumbai City.” Paper

presented at the All India Criminology Conference, National Institute of Criminology and Forensic Science, Ministry of Home Affairs, Government of India, New Delhi, November 1–3,

2001. http://www.satp.org/satporgtp/publication/faultlines/volume12/Article5.htm.WorldCat

10 Curry, Philip A., and Steeve Mongrain. “What Is a Criminal Organization and Why Does the Law Care?” Global Crime, vol. 10, no. 1-2, 2009, pp. 6–23, https://doi.org/10.1080/17440570902782402.

11 Ibid.

will be introduced in the context of this paper. In chapters four and five, a comparative analysis of the existing laws will be carried out dividing them into pre-trial and trial stages and then finally conclusion. 1.2. Defining the scope of organised crime It has been said that organised crime is what people so label12, maybe because to date many scholars and jurisdictions do not agree on a common definition.13 Defining a crime is important for the accurate adoption of an approach to tackle the problem that is being defined. On a basic dissection of the term; ‘crime’ and ‘organised’ it is the latter than the former that creates more intricacy. Crime, in itself, is an agreed-upon concept; vaguely, there is one type of crime that represents wrongful behaviour by the moral code of conduct, for example, murder, rape, theft, etc. and another type that represents behaviour that is made wrongful by the declaration of the state, for example, gambling, prostitution, etc, but the classification of crimes mostly agreed upon by states and scholars.14 Although there are certain crimes that are easier to commit with more manpower and use of force, for example, extortion, bootlegging, etc, which again happen to be two of the most important characteristics of it, simply can’t be termed as organised crime for that reason. Finckenauer while combining the works of Hagan and Maltz, identified certain characteristics which, according to him, should be present to call any association a criminal organisation and crime committed by that organisation should be identified as organised crime.15 Characteristics include ideology, organised structure, continuity beyond a person, use of force, restricted membership, unlawful object, penetration of legitimate business and corruption.16 Ideology stands out from the rest of the characteristics as it forms a demarcating line between an organised crime group and a terrorist organisation.17 Terrorist groups have political ideologies and intend to propagate those ideas to the masses and thus strive to gain more attention whereas

12 Maltz, Md. “DEFINING ORGANIZED-CRIME - DEVELOPMENT OF A DEFINITION AND A

TYPOLOGY.”

Crime and Delinquency, vol. 22, no. 3, 1976, pp. 338–46, https://doi.org/10.1177/001112877602200306. 13 van Duyne, Petrus C. “The Phantom and Threat of Organized Crime.” Crime, Law, and Social Change, vol. 24, no. 4, 1995, pp. 341–77, https://doi.org/10.1007/BF01298354. 14 Finckenauer, James O. “Problems of Definition: What Is Organized Crime?” Trends in Organized Crime, vol. 8, no. 3, 2005, pp. 63–83, https://doi.org/10.1007/s12117-005-1038-4. 15 Campbell, Liz. “Organised Crime: Defining, Measuring and Criminalising the Problem.” Organised Crime and the Law, Bloomsbury Publishing (UK), 2013, pp. 12–40, https://doi.org/10.5040/9781472561282.ch-002.

16 Supra, n 14.

17 Ibid; Ferrari, Morgane. “OVERLAPS BETWEEN ORGANISED CRIME AND TERRORISM.” International

Comparative Jurisprudence (Online), vol. 4, no. 2, 2018, p. 90–, https://doi.org/10.13165/j.icj.2018.12.002.

organised crime groups prefer to stay as invisible as they can to avoid unwanted attention.18 Generation of profit and control of illicit markets is the primary focus for organised crime groups rather than any grasping of power for political ends.19 Thus it is in best interest that terrorism and organised crime should be treated as distinct.20 The Challenges discussed above define how it is pertinent to attack these organisations rather than their acts to secure a long-term solution in the fight against crime, otherwise, new soldiers would be brought when old soldiers get caught and the cycle will go on. Take an example of a drug-trafficking organised group in a state, here, the illegal drug trade is a crime committed by the members but the whole act of participating in the affairs of organised crime makes a separate offence of organised crime and the whole group could be tried at once for this latter offence. The Home Office approaches organised crime as individuals working in concert with others, with the capacity to commit a serious crime on a continuing basis, which involves elements of planning, coordination and control, and the motivation behind is a material gain for all, which is mostly but not always financial.21 The Serious Crimes Act defines the offence as ‘a person who participates in the criminal activities of an organised crime group commits an offence’22 where criminal activity is an offence already punishable, in England and Wales or elsewhere, with imprisonment for seven years or more23; and organised crime group is a group of three or more people formed for carrying out the criminal activity for material gain24. It was a wellneeded step to lay down the scope of organised crime on a national level and introduce organised crime as a distinct offence. Although this approach only considers serious offences as criminal activity and leaves out space for many offences to be included in the category, for example, organised groups of pick-pockets or thieves, etc. Organised Crime, in India, is defined under the Maharashtra Control of Organised Crime Act (MCOCA), 1999 as:

18 Ibid.

19 Campbell, Liz. “Organized Crime and National Security: A Dubious Connection?” New Criminal Law Review, vol. 17, no. 2, 2014, pp. 220–51, https://doi.org/10.1525/nclr.2014.17.2.220. 20 See Zameer Ahmed Latifur Rehman Sheikh vs State of Maharashtra and Ors. (AIR 2010 SC 2633)-A decision by the Supreme Court of India. 21 Home Office, Local to Global: Reducing the risk from Organised Crime (London, Home Office, 2011) 5.

22 See Sec 45(1), Serious Crimes Act 2015.

23 See Sec 45(3), (4) & (5), Serious Crimes Act 2015.

24 See Sec 45(6), Serious Crimes Act 2015.

‘Any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or any other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency’25 where ‘continuing unlawful activity’ is also clearly defined as any cognizable offence committed in respect of which more than one chargesheet has been filed before the competent court in a span of ten years and the court has taken cognizance for the same.26 The requirement of more than one chargesheet is to separate the possibility of mistaking isolated instances of crime from acts committed in furtherance of membership or instruction of an organised crime group which essentially makes it liable to be tried under the offence of organised crime apart from the act of crime being committed. The definition is comprehensive and attempts to establish a nexus between the continuance of crime and habitual offenders so that no alien act of crime falls under this more serious form of crime. Both the above definitions contain expansive features of an organised crime group, the; The Criminal Justice and Licensing (Scotland) Act 2010 defines organised crime as: ‘crime involving two or more persons acting together for the principal purpose of committing or conspiring to commit a serious offence or a series of serious offences, where “serious offence” means an indictable offence committed with the intention of obtaining a material benefit for any person, or which is an act of violence committed or a threat made with the intention of obtaining such a benefit in the future’.27 the Scottish Act focuses on individual actus rea, contrary to criminalising association with the organisation, an approach opted for by the Home Office, moreover, the minimum criteria of two persons cannot be justified as organised crime group and could be easily confused with mere co-offending.28 The definition laid down by this Act is not in line with traditional approaches to counter organised crime though this cannot be said with certainty that it will or will not work in attaining its objective.

25 See Sec 2(e), MCOCA 1999, Also see Sec 111, The Bharatiya Nyaya Sanhita 2023.

26 See Sec 2(d), MCOCA 1999, Also see Sec 111, The Bharatiya Nyaya Sanhita 2023.

27 See Sec 28 ‘Serious Organised Crime’, Criminal Justice and Licensing (Scotland) Act 2010.

28 Campbell, Liz. “Organised Crime and the Criminal Justice and Licensing (Scotland) Act 2010.” The Edinburgh Law Review, vol. 18, no. 2, 2014, pp. 225–44, https://doi.org/10.3366/elr.2014.0205.

Chapter 2- Introduction of Jurisdictions: the UK and India 2.1. United Kingdom context In the UK, for the longest time organised crime was not considered a distinct category of offence which makes it almost impossible to trace data through history.29 Perhaps one way of looking at it could be looking at the evolution and increase of serious crimes that eventually resulted in criminals forming structured groups and committing crimes in a more organised way. The roots of British organised crime can be traced back to pre-World War II times when the supply of vice to the urban rich funded motivation and pockets of the rising small organised gangs.30 With the onset of WWII, there rose scarcity of both essential and vice products in the market paving the way for the black markets in the country for every type of good.31 At the same time, racecourse gangs started emerging in the horse race betting industry which would gain power in the times to come.32 In the Post-WWII times, gangs in London became more visible in the media, public and the police like the Kray twins, arguably because of their cinematic style and portrayal of the Hollywood gang stereotype which made them famous in the public accounts of gossip and rumours.33 Corruption was one of the biggest enablers of the spread of these organised crime gangs in London.34 Drugs dominated the organised crime market and a rise of a more entrepreneurial mindset was seen aiming to gain more profits through illicit trades. The menace of organised crime was brought into the limelight and made a high-profile policy matter by politicians and media which resulted in two new legal developments; first, a Home Affairs committee on organised crime was constituted in 1995 and secondly, National Crime Squad (NCS) was formalised as an arm of National Crime Intelligence service (NCIS) in

1997.35 A separate, more focused, legislation came into force in 200536 by virtue of which a

29 Hobbs, Dick. The nature and representation of organised crime in the United Kingdom. Organised crime in Europe: Concepts, patterns and control policies in the European Union and beyond (2004): 413-434. 30 Harding, Arthur, and Raphael. Samuel. East End Underworld : Chapters in the Life of Arthur Harding / [edited by] Raphael Samuel. Routledge & K. Paul, 1981. 31 Thomas, Donald. An Underworld at War: Spivs, Deserters, Racketeers and Civilians in the Second World War / Donald Thomas. J. Murray, 2003.

32 Ibid.

33 Pearson, Geoffrey, et al. Middle Market Drug Distribution. The Home Office, 2001.

34 Levi, Michael. The making of the United Kingdom's organised crime control policies. Springer Netherlands, 2004. 35 Gregory, Frank. “Classify, Report and Measure: The UK Organised Crime Notification Scheme.” Transnational Organised Crime: Perspectives on Global Security, 2003, pp. 78–95, https://doi.org/10.4324/9780203633854.

36 Serious Organised Crime and Police Act 2005.

dedicated police force Serious Organised Crime Agency (SOCA) was constituted that was finally merged into the National Crime Agency (NCA)37. The 2005 Act brought in specialised provisions to help investigate and prosecute organised crime groups but it didn’t introduce organised crime as a separate offence which was only introduced in 2015 when the Serious Crimes Act made it a serious offence38. It also introduced punishment for participating in the activities of organised crime group.39 The United Kingdom, as it stands today, is a combination of three broad jurisdictions, England and Wales, Scotland and Northern Ireland. Westminster Parliament in London holds the highest legislative powers, but in the 1990s, some legislative powers were given to the Scottish Parliament, the national assembly of Wales and the Northern Ireland Assembly. In substance, Scotland and Northern Ireland possess the competence to formulate laws that may affect the bid to address organised crime adopted by England. In 2010, Scotland introduced Criminal Justice and Licensing Act and defined ‘serious organised crime’ as a separate offence along with various other provisions like defining and criminalising involvement40, direction to commit a crime41, and failure to report42, which was said to be a significant step in this direction at the time. Scotland has taken a step towards introducing organised crime as a substantive offence in contrast to a general approach recommended by the home office to criminalise organised crime as an enterprise itself.43 2.2. The Indian context Organised criminal groups existed in India even before the East India Company started to capture the territorial land and were simply called Thuggees or thugs at the time, a moving group of people mostly consisting of men, looking to rob merchants and travellers.44 These gangs had close-knit hierarchical structures and were often linked with the idea of ‘criminal communities’ believing that a whole tribe or clan is made up of thugs and has no other means

37 See Sec 15, Crime and Courts Act 2015.

38 See Sch. 1 para 13A, Serious Crimes Act 2015.

39 See Sec 45(9), Serious Crimes Act 2015.

40 See Sec 28, Criminal Justice and Licensing (Scotland) Act 2010.

41 See Sec 30, Criminal Justice and Licensing (Scotland) Act 2010.

42 See Sec 31, Criminal Justice and Licensing (Scotland) Act 2010.

43 Campbell, Liz. “Organised Crime and the Criminal Justice and Licensing (Scotland) Act 2010.” The Edinburgh Law Review, vol. 18, no. 2, 2014, pp. 225–44, https://doi.org/10.3366/elr.2014.0205. 44 Broadhurst, Roderic, and Nicholas Farrelly. “Organized Crime ‘Control’ in Asia: Experiences from India, China, and the Golden Triangle.” The Oxford Handbook of Organized Crime, Oxford University Press, 2014, https://doi.org/10.1093/oxfordhb/9780199730445.013.016.

of living.45 Their intention behind robbing was only financial gain and not anything else, there is no evidence of any attacks targeted towards the Europeans at that time; the menace of the thugs grew to the extent that the East India Company had to introduce The ‘Thuggee’ Act46 and a thuggee department, to try and punish all the members of such groups and stop the then rising crime.47 When Sleeman was appointed as the Superintendent of the thug police, to suppress the increasing crime he conducted studies and wrote accounts to effectively counter the crime.48 The act defined the crime as ‘whoever shall be proved to be a part of the gang of thugs, either within or outside the territory of the East India Company, shall be punished with imprisonment for life and hard labour’, which could be termed as the first attempt at defining organised crime in the Indian context. On a brief analysis of the definition, it is strange to point out here that the act does not explain what the crime of “thuggee” essentially includes. This granted huge discretionary powers to the judges and the police to arrest and try people from ‘criminal communities’ under the act, inside and outside their territorial limits. Dacoity, one of the oldest forms of organised crime in India, has been extensively legislated in the penal code, it even criminalizes association with any such ‘gang’ of the decoits49. As India raced towards independence, the intentions behind organised crime groups turned more political and sedition laws were introduced to counter them and after independence, new and unprecedented waves of crime were recorded by a newly constituted state with transnational crimes, drug trafficking, anti-national elements like Maoists in the east, etc. which demanded new and distinct laws. Due to the federal system of governance, there are 28 states and 8 Union territories which have their own legislative assemblies50 and a parliament at the central level make laws according to their respective subject matter jurisdictions laid down by the constitution.51 The state governments make laws to maintain public order in the state and the centre only makes laws to curb serious crimes transcending state borders and becoming a nationwide issue. To date, there is no central, comprehensive, piece of legislation specifically to tackle organised crime. The crimes committed by these groups are already criminalised by various acts and the Indian

45 Singha, Radhika. “‘Providential’ Circumstances: The Thuggee Campaign of the 1830s and Legal

Innovation.” Modern Asian Studies, vol. 27, no. 1, 1993, pp. 83–146., doi:10.1017/S0026749X00016085.

46 The ‘Thuggee’ Act (XXX act of 1836).

47 Supra, n 44.

48 Sleeman, W. H. (William Henry). Ramaseeana or a Vocabulary of the Peculiar Language Used by the Thugs: with an Introduction and Appendix, Descriptive of the System Pursued by That Fraternity and of the Measures Which Have Been Adopted by the Supreme Government of India for Its Suppression / W.H. Sleeman. Cambridge University Press, 2011.

49 Sec 400, Indian Penal Code (Now Sec 313, The Bharatiya Nyaya Sanhita 2023).

50 Out of 8 only 3 Union territories have legislatures- Delhi, Jammu & Kashmir and Puducherry.

51 See Seventh Schedule read with Art. 246 of the Constitution of India.

Penal Code 1860 (IPC). Sections 120A and 120B52 of the IPC were, and in many cases still, used to prosecute the members or the leaders of any such gang along with other charges of the unlawful activities committed. But in some states, these laws became less than adequate and organised crime groups started to escape punishments due to the inadequacy of the procedural and evidential laws present at the time.53 As the country saw more socio-economic progress and globalisation, organised crime became more threatening in some states than the others. Uttar Pradesh was one of the first states to legislate a special act recognising organised crime, by introducing The U.P. Control of Goondas Act 1970 which was then replaced by the Uttar Pradesh Gangsters and anti-social Activities (Prevention) Act 1986, which formally introduced terms like ‘gang’ and ‘gangsters’ in the legal sphere. The other monumental change occurred in the 1990s when organised crime in Maharashtra skyrocketed and a dire need arose for special laws to counter organised crime.54 As a result, the Maharashtra Control of Organised Crime Act (MCOCA) was passed in 1999 which was one of a kind act at the time. The act defined and punished ‘Organised crime’ and ‘organised crime syndicate’ for the first time and contained some revolutionary provisions like interception of communication55, Witness protection scheme56, etc which aided in the investigation as well as prosecution of such crime groups. The same Act was widely accepted by the lawmakers and adopted by other states like Karnataka in 2000, Andhra Pradesh in 2001, New Delhi in 2002, Gujarat in 2015 and Haryana in 2023, which indicates the success of the act in applicability. Even though the judiciary has increased the flexibility on the application and territorial nexus of the act in a recent judgment57 need for uniform central legislation can’t be denied so that the act can criminalised in the states that lack such laws.58 52 Sec 120A and 120B, Indian Penal Code- Defines and Penalizes criminal conspiracy respectively (Now Sec 61, The Bharatiya Nyaya Sanhita 2023). 53 Sharma, Madan Lal. "Organised crime in India: problems & perspectives." Resource material series 54 (1999): 82-129. 54 WEINSTEIN, LIZA. Mumbai’s Development Mafias: Globalization, Organized Crime and Land Development. International Journal of Urban and Regional Research, vol. 32, no. 1, 2008, pp. 22–39, https://doi.org/10.1111/j.1468-2427.2008.00766.x.

55 See Sec. 14, The Maharashtra Control of Organised Crime Act, 1999.

56 See Sec. 19, The Maharashtra Control of Organised Crime Act, 1999.

57 State (NCT of Delhi) v Brijesh Singh (2017) 10 SCC 779.

58 Recently, some provisions have been introduced in the Bharatiya Nyaya Sanhita 2023 to define and introduce organized crime uniformly, although its impact could not be traced due lack of data.

Chapter 3 - Comparing pre-trial laws

3.1. Special provisions relating to the Investigation agencies

Series Organised Crime Agency (SOCA) was established in 2005 by succeeding its predecessor NCIS with the aim of detection and prevention of organised crime along with recovery of assets and gathering and analysing information on serious and organised crime in the country.59 SOCA was then succeeded by National Crime Agency (NCA) in 2013.60 NCA was established as a UK-wide crime-fighting integrated agency with its one command solely focusing on combating organised crime throughout the country.61 The functions conferred to SOCA in the

2005 act are now administered by the NCA.62 In India, states are responsible for the

formulation of their police forces. Even though central agencies like the Central Bureau of Investigation (CBI) and the National Investigative Agency (NIA) exist none of them is formed for tackling organised crime as their primary objective. Just like laws, states have the power to form specialised branches in their police departments to counter organised crime in their respective states like Crime branch in Maharashtra, CID in U.P., Delhi Police Special Cell in Delhi, etc are some different names but they all deal with serious and organised crime and act as the “competent authority” specified in legislations inspired by MCOCA.63 The 2005 UK Act absolves powers like arrest and searches to the constable or any other person acting in the capacity.64 The same act also substitutes Sec 24 and 25 of PACE with new provisions related to the arrest in cases falling under the act.65 It confers wide powers of arrest without a warrant to the police as earlier police officers had to determine between the arrestable and non-arrestable offences before making an arrest even while witnessing the act of offence or getting first-hand information of the same. However, no changes have been introduced to increase the period of detention, which can be extended up to 72 hours only on the approval of a magistrate in England & Wales66 and is much less in Scotland67, for the accused charged with

59 See Sec. 2, SOCPA 2005.

60 See Sch. 8, Crime and Courts Act 2013.

61 See Home Office, Crime and Courts Bill: Fact Sheet 2 of 12 on the National Crime Agency. On

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/98445/fs-ncawhat-how.pdf (last visited on 27 June 2023); Sec. 1 (7) & (8), crime and courts act 2013.

62 See Sec 15 read with Sch. 8. Para 157-165, Crime and Courts Act 2013.

63 See Sec 13, MCOCA 1999.

64 See Sec 110 & 111 for powers of arrest and Sec 66 & 113 for search and seizure, Serious Organised Crime and Police Act 2005.

65 See Sec 110, SOCPA 2005.

66 See Sec 41-44, PACE 1984.

67 See Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.

organised crime. Whereas, Section 21 of the MCOCA, and corresponding sections in other state acts in India, lay down modified applicability of provisions of the criminal code pertaining to bail and custody of the accused persons. The offences falling under the act/acts shall be construed as ‘cognizable offences’ which empowers police to arrest without a warrant.68 The maximum period of police custody (detention) allowed by a magistrate is increased to thirty days, in total and not necessarily in one go whereas it is no more than fifteen days in any other offence.69 The period of completing an investigation and filing of the charge sheet by the police, while the accused is in judicial custody, is also increased to ninety and one-eighty days wherever read as sixty and ninety, respectively, in the code, failing which the accused is bound to be granted a default bail.70 These provisions of increased time in custody provide more than adequate time to complete the investigation and restrict the accused from the outside world. In the UK, General provisions apply to the offenders charged under these offences as any other offence; which are fifty-six days in the cases triable in a magistrate’s court and one eighty-two days for the cases triable in the crown court, however, this is only an oversimplification and many factors affect the custody time limits.71 Looking at both jurisdictions, the need to have a specialised combating force is visible, be it on the national level or state level. The UK’s approach to forming a national-level command to monitor and combat organised crime is a great step in countering big groups that have spread their operations throughout the country whereas in a vast and diverse country like India investigation and prosecution of such organisations could be very tricky because of lack of operational jurisdiction for the regional police teams. The presence of a common set of laws and a common force in the UK can overcome any jurisdictional challenges throughout the country and can ring down large organisations whereas, even though uniform, territorial jurisdiction is a big challenge while prosecuting and investigating a nationwide criminal organisation. Investigating organised crime groups is also a bigger challenge than assumed; often the long duration of the investigation enables the accused persons to hinder the process by intimidation and corruption. The endeavour made by the provisions in India is to give ample time for an adequate investigation and evidence collection to build a strong case. The attempt of the legislation to increase the custody time of the accused is highly debated and often

68 See Sec 2(c), Criminal Procedure Code, 1973 (Now Sec 2, Bharatiya Nagrik Suraksha Sanhita 2023).

69 See Sec 167(2), Criminal Procedure Code, 1973 (Now Sec 187, Bharatiya Nagrik Suraksha Sanhita 2023). 70 See Sec 167(2), Criminal Procedure Code, 1973 (Now Sec 187, Bharatiya Nagrik Suraksha Sanhita 2023). 71 See Part 14.18 of The Criminal Procedure Rules 2015 read with the Prosecution of Offences (Custody Time Limits) Regulations 1987.

criticised on the grounds that it curtails the personal liberty of a person for longer than needed and harms the presumption of innocence.72 UK on the other hand don’t have specialised provisions but they ordinarily have ample window for the investigation as compared to India.

3.2. Bail

In the UK, the Right to Bail is a statutory right conferred by the Bail Act 197673 and an accused has the right to bail only except in certain serious charges like Murder and manslaughter, Sexual offences, or any other indictable offences74. There are no separate provisions relating to bail laws in cases of organised crime, though the offences of organised crime are indictable offences that make bail a discretion of the judge, who considers a number of factors before granting or refusing bail75. In India, Bail cannot be claimed as a matter of right in non-bailable offences76 and is to be sought at the discretion of a judge having competent jurisdiction. In the case of organised crime laws, there are slightly modified by virtue of specialised acts on the provisions ordinarily applicable in criminal cases. One of the highlights to note here is that the act nullifies the provision of pre-arrest bail for a person apprehending arrest laid down in the Criminal Procedure Code for those charged under the MCOCA77 or similar Act so that the accused can’t evade arrest by getting judicial immunity. Furthermore, the act lays down a set of guidelines to be observed by the court in addition to part thirty of the procedure code while considering a bail application of the accused. Before considering granting bail a court should give a fair opportunity to the prosecution to oppose such an application,78 the court should be satisfied that the accused is innocent and not likely to commit any offence while on bail79. Although it was later clarified in a case that the courts at the stage of bail should not delve into the merits of the case and the words “not guilty” is only used to mandate the ‘reasonable satisfaction’ of the court before granting bail and not comment on any merits of the case.80 Also, the act lays 72 Ujjwal Kumar Singh. “Repeal of POTA: What About Other Draconian Acts?” Economic and Political Weekly, vol. 39, no. 33, 2004, pp. 3677–80;

73 See Sec 4, The Bail Act 1976.

74 See Sch. 1, The Bail Act 1976.

75 Ibid.

76 See Sec 2(a) and Sch. 1, the Criminal Procedure Code, 1973.

77 Sec 21(3), MCOCA 1999.

78 See Sec 21(4), MCOCA, 1999.

79 See Sec 21(4)(a), MCOCA, 1999.

80 Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra (2005)5 SCC 294; State of Maharashtra v.

Vishwanath Maranna Shetty (2012) 10 SCC 561.

down a situation where no bail shall be granted at all when the accused is alleged to commit an offence under the same act while being on bail.81 The bail provisions in organised crime laws in India have been called harsh for making it very difficult for the accused to get bail82 but the supreme court has defended them time and again citing the objectives of the state to tackle the menace through specialised provisions83. Looking at the extended custody periods and investigation time limits and bail laws, any person charged under these laws could spend substantial time in restraint, which could be justified to have a deterrent effect from a state’s point of view but on the other hand, contravenes the presumption of innocence principle by putting an accused in restrained before conviction and in some cases, before the charges are framed and the actual trial starts. The burden falls on the judiciary to ensure the balance between the two. The UK doesn’t have any special bail provisions like India, though it makes all offences indictable which makes the matter of bail at the discretion of the court that can take into account factors given under the relevant Act84 and deny bail if necessary. The bail provisions in Indian laws are way more stringent than their counterparts in the UK laws. Chapter 4 - Comparing Trial Laws 4.1. Courts and Prosecutors In the UK, all organised crime offences are made indictable offences85 that are to be only tried in Crown Courts; except for Scotland, which has its own court systems, where indictable offences could be tried either in a sheriff’s court or High court depending upon the severity of the offence and powers to grant punishment given to them.86 All the indictable offences are tried in front of a jury of their peers. The trial is conducted before a judge and a jury and the outcome of the trial is decided by the jury. But unlike the UK, India banned trial by juries in

1960 and the courts are only presided by a judge since then.

81 See Sec 21(5), MCOCA, 1999.

82 Ujjwal Kumar Singh. “Repeal of POTA: What About Other Draconian Acts?” Economic and Political Weekly, vol. 39, no. 33, 2004, pp. 3677–80. 83 Nandan, Shyam, and Deepa Kansra. "Bail under Special Legislation." Bail: Law and Practice in India, Publication of the Indian Law Institute, Delhi (2019); n 76 (SC cases).

84 Sch. 1 Pt. 1 para. 2(1), The Bail Act 1976.

85 See Sec 45(9), Serious Crime Act 2015; Sec 28(4), Criminal Justice & Licensing (Scotland) Act 2010.

86 See Sec 3, Criminal Procedure (Scotland) Act 1995.

In England, Wales and Northern Ireland, it is permitted to hold a trial without a jury in certain cases when a judge can be satisfied that there is a real and present danger of jury tampering.87 The legislation does not give any particular list of cases for default applicability of non-jury trials but the judge has to be convinced in each case separately. The danger of intimidation of jurors or tampering in any form is high in cases when the defendants on trial have connections to any kind of organised criminal group, but the provision is used rarely.88 The right to trial by jury is deeply embedded in the constitution of the country and as a precedent, it is expected of a judge to make every endeavor to protect that right even if it involves reasonable costs and resources of the state.89 It is, however, still debated whether it is fair to allow possible risk to common civilians in the name of national duty or allow significant resources of the state to be spent on protective measures of those jurors when a single-judge trial could be an equivalent, if not better, alternative. Special courts have been set up by state governments in India with all the powers of a sessions court to hold trials in organised crime offences.90 These special courts are presided by a judge appointed by the chief justice of that state who shall not be below the rank of sessions judge.91 These legislations also create an exclusive jurisdiction of these special courts over the offences laid out in the specialized acts. Wide powers have been granted to these courts that include, the power to try an offence summarily wherever necessary, take cognizance of an offence ex-parte, the power to tender pardon in certain cases, etc. with the aim to equip the courts to fairly held trials.92 Moreover, state governments can also appoint, wherever necessary, a special public prosecutor for a case or group of cases,93 for someone having legal expertise in the relevant area of legal knowledge. In the UK, no endeavor has been made by the government to constitute special courts to try organised crime offences. In India, a special court is formed in each jurisdiction, depending upon the population, to hear all the cases falling under special Acts to highlight the seriousness

87 See Sec 44-50 (part 7), Criminal Justice Act 2003.

88 Campbell, Liz. “The Prosecution of Organised Crime: Removing the Jury.” The International Journal of Evidence & Proof, vol. 18, no. 2, 2014, pp. 83–100, https://doi.org/10.1350/ijep.2014.18.2.445.

89 R v Twomey (R v H, R v C, R v B ) [2009] EWCA Crim 1035.

90 See Sec 9(4), MCOCA, 1999 and corresponding sections in other state acts.

91 See Sec 5, Ibid.

92 See Sec 9, Ibid.

93 See Sec 8, Ibid.

of those offences and facilitate speedy trials in overly burdened criminal courts.94 Though the need for special courts is subjective from jurisdiction to jurisdiction, provisions allowing the appointment of public prosecutors with a niche practice expertise could be a helpful step in effectively trying cases of organised crime. 4.2. Confessions Confessions are an important piece of evidence as they are direct admission of guilt that could be proved adversely against the person making them or their co-accused in a trial. It makes the most desirable form of evidence for a state as it cuts down all the hard work, time and costs involved in a long trial, because of that, confessions are called ‘queen of evidence’ in French jurisprudence95 and must be construed with most diligence by a court. In the UK, confessions made to anyone or recorded in any form are admissible in a trial against that person.96 Although, the statement should satisfy the court of the conditions laid down under Sec 76(2) of PACE wherein a confession should not be made under any type of oppression or under any circumstances that leave the confession unreliable. The second condition is vague and is left at the discretion of the judge to decide the fairness of the evidence;97 inducement, aggressive or hostile questioning, failure to record accurately, etc. are some of the instances where a confession could be held unreliable.98 Although, the discovery of any new fact from a confessionary statement should not be affected by its unreliability in the trial. In the UK, no separate provisions have been laid down in the case of organised crime trials. Apart from Scotland, where even confessions need to be corroborated with one more piece of evidence,99 in the rest of the country admissible confessions are enough to establish the guilt of a defendant. Whereas in Indian courts, as a matter of evidentiary rule, any confessionary statement made to the police is not admissible in a trial against that person or co-accused.100 Confessions made only to a judicial magistrate with free will and without any coercion are considered admissible as a general practice of law.101 But the specialized laws introduce a modified application to the 94 Garimella, Sai Ramani. "Rattiram vs. Union of India–Methodology for the Special Courts." AJIL (ISSN 0973-

5097) 7.1-2 (2012).

95 Barret, Christophe. “The confession, queen of evidence? The confession in criminal proceedings.” Annales médico psychologiques, vol. 171, no. 7, 2013, pp. 464–67, https://doi.org/10.1016/j.amp.2013.05.011.

96 See Sec 76 read with Sec 82, Police and Criminal Evidence Act 1984.

97 R v. Quinn [1990] Crim. L.R. 581

98 R v. Fulling [1987] 2 All E.R. 65

99 Morton v HM Advocate 1938 JC 50 on rule of corroboration.

100 See Sec 25, Indian Evidence act 1872 (Now Sec 23, Bharatiya Sakshya Adhiniyam 2023).

101 See Sec 164, Criminal Procedure Code 1973 (Now Sec 183, Bharatiya Nagrik Suraksha Sanhita 2023).

general rule where some confessions made to police officers could be considered.102 Confessions only made to high-ranking police officers, under free will and without any type of coercion, threat, or inducement could be held admissible in a trial against the accused making that statement or co-accused. Since the provision is contrary to the rule of evidence practiced in Indian criminal trials, the provision was contested in the Supreme Court when it was upheld and the court observed that it is the duty of the courts to ensure that the confession was made under a free atmosphere and should pursue any suspicion in case of the contrary.103 Free will is the essence of a valid confession, which is stressed in both comparator jurisdictions. In India, extra-judicial confessions have been considered a weak form of evidence and can only be used by an independent corroboration by other evidence, because of the uncontrolled circumstances in which it might have been recorded.104 But in the UK, it is not the case as long as the defendant or the court doesn’t dispute it. The existing laws governing confessions in the UK are expansive enough to consider confessions made in different circumstances. But, the admissibility of confessions made to a high-ranking police officer, in India, is a step forward in putting some faith in the extra-judicial confessions and providing some assistance to the state to ably prosecute, an already difficult-to-investigate, type of offence. 4.3. Accomplice Evidence The role of accomplices cannot be undermined while prosecuting organised crime.105 It is the nature of organised crime groups that they are closely bound together which makes it very hard to know the workings of the group from the outside. In this case, it is only feasible to seek evidence from a co-conspirator at the time of trial to gain reliable information about the inner workings and leadership of the organisation. The effectiveness of such evidence cannot be denied in bringing down some big organised crime groups in the past, testimonies of Tommaso Buscetta played a pivotal role in prosecuting an Italian mafia and their ties with the Cosa Nostra in the US.106

102 See Sec 18, MCOCA 1999 and corresponding sections in other state acts.

103 Zakir Abdul Mirajkar v. State of Maharashtra SCC OnLine SC 1092, decided on 24-08-22.

104 Sahadevan v. State of Tamil Nadu (2012) 6 SCC 403: (2012) 3 SCC (Cri) 146.

105 Campbell, Liz. Organised Crime and the Law: a Comparative Analysis / Liz Campbell. Hart Pub., 2013. 106 Acconcia, Antonio, et al. “Accomplice Witnesses and Organized Crime: Theory and Evidence from Italy: Accomplice Witnesses and Organized Crime.” The Scandinavian Journal of Economics, vol. 116, no. 4, 2014, pp. 1116–59, https://doi.org/10.1111/sjoe.12080.

In the UK, the prosecution is the deciding authority whether to use the statement of an accomplice as evidence or not, immunity from prosecution to that accomplice could be grated in case the evidence is up to mark for the purposes of the prosecution, though such immunity could be revoked any time if it seems that the accomplice didn’t deliver their part of the bargain.107 In Northern Ireland and Scotland, a reduction in sentence is also considered rather than granting full immunity to the accomplice.108 It is a matter of concern how much reliance can be placed upon the testimony of a person who was already actively involved in the commission of the same offence in the first place and for that reason, it is somewhat distasteful practice for the state and judiciary and has been subject to criticism and concerns from time to time109. In the UK, earlier, special warnings of caution in cases of uncorroborated accomplice evidence were given to the jury by the judges but it is not mandatory anymore in any of the jurisdictions and is only at the discretion of a judge from case to case; although the rule of corroboration still exists in Scotland where the testimony needs to be corroborated by another piece of evidence.110 In India, a similar practice of tendering pardon to the accomplice in return for evidence against the accused is bestowed on the courts in the cases of organised crimes.111 The power has been given to the judges presiding trials and not the prosecution as in the UK. The prosecution may inform the judge about their intention of introducing the accomplice as a witness but the final decision rests with the court.112 In the absence of jury trials in India, the question of reliability again falls on the judge. Though it is not illegal to have a conviction based on an uncorroborated statement of the accomplice113, Like in Scotland114, it is general practice in India to corroborate the statement of an accomplice in material particulars115. An Accomplice can have every reason to lie and escape prosecution, which is why uncorroborated statements of accomplices are very harmful to be considered in a trial plus a criminal who deserved to be prosecuted and punished

107 See Sec 71 & 72, SOCPA 2005.

108 See Sec 73 & 74 Ibid; Sec 91 & 92, Police, Public Order and Criminal Justice (Scotland) Act 2006. 109 Trott, Stephen S. “Words of Warning for Prosecutors Using Criminals as Witnesses.” The Hastings Law Journal, vol. 47, no. 5-6, 1996, p. 1381–. 110 See Sec 32, Criminal Justice and Public Order Act 1994; Art 45, Criminal Justice (Northern Ireland) Order 1996; Docherty v HM Advocate 1987 JC 81 (Scotland).

111 See Sec 9(3) MCOCA 1999 read with Sec 307 Criminal Procedure Code 1973.

112 Lt. Commander Pascal Fernandes v. State of Maharashtra 1968 SCR (1) 695.

113 See Sec 133, Indian Evidence Act 1872 (Now Sec 138, Bharatiya Sakshya Adhiniyam 2023).

114 Morton v HM advocate 1938 JC 50.

115 Ram Narain v. State of Rajasthan (1973) 3 SCC 805.

is getting away with it. These are the two main reasons prosecution should only employ accomplice evidence in exceptional cases. 4.4. Surveillance evidence Surveillance as a part of investigation could be of more than one type and has been a part of the practice of intelligence and enforcement agencies. It only turns complicated when states try to do more with the material gathered and present it as evidence in a trial against that very person who was intercepted. It raises big privacy concerns, especially in jurisdictions where the Right to privacy is a recognized right like India116 and the UK117. Communication surveillance is a useful technique to intercept private conversations or messages made via different mediums. It not only helps in preventing the commission of a suspected crime but also helps in effective investigation and fact-finding. In the UK, intercept evidence is inadmissible in court.118 However, it was held that if the evidence presented was captured while being transmitted then it is inadmissible but if it was captured while it was stored then it shall be admissible in the court,119 which directs that any stored communication data gathered by the investigation agencies could be used as evidence. However, many jurisdictions have allowed the use of intercept evidence in trials including India120 and any reforms allowing admissibility of such material as evidence in trials could be beneficial for prosecutions to secure a conviction against serious organised crime groups. The UK, through its new legislation, has introduced two types of intercept warrants, targeted and bulk, where each one has three types under the law. A warrant of interception could only be authorized by the secretary of state121 and certain ministers in Scotland122. Bulk warrants are not available for the use of police. As an extra safeguard, any decision of the secretary of state authorizing any such interceptions should be ratified by a judicial commissioner.123 It places a safeguard against any unnecessary actions by the police which undermine the privacy of the public. The ‘bulk’ warrant was unsuccessfully challenged over privacy concerns but the 116 Right to Privacy was recognized by the Supreme Court in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1.

117 Art. 8, ECHR.

118 See Sec 56, Investigatory Powers Act 2016.

119 R v A [2021] EWCA Crim 128.

120 See Sec 14(13), MCOCA 1999 and corresponding sections in other state legislations.

121 See Sec 19, Investigatory Powers Act 2016.

122 See Sec 21, Investigatory Powers Act 2016.

123 See Sec 23-25, Ibid.

court observed that having an additional judicial ratification test ensures maximum due diligence on the part of the State.124 Although Indian organised crime laws don’t have provisions like bulk warrants, it does have a review policy where any approval of interception by the competent authority has to be submitted to the review committee, constituted under the act, for ratification.125 Both, the granting and reviewing, authorities are executive unlike the judicial commissioner in the UK, it still was considered enough diligence by the state when it was contested as unconstitutional.126 Use of techniques that might have the potential to harm someone’s privacy should be allowed sparingly in serious cases with proper review protocols to check for any misuse or over-use; any information obtained by legal sanctions should be used as evidence in the trial to secure the ends of that interception effectively. However, any unauthorized interception must be prohibited in the interest of justice, which is done by both the comparator jurisdictions.127 4.5. Witness protection Witness protection is yet another important dimension of prosecuting organised crime as the violence-prone nature of these criminal groups often intimidates the witnesses against giving any testimonies in the trial. Generally observed, witness protection has four dimensions, Special measures adopted to secure the evidence, admissibility and relevancy of previous inconsistent evidence, witness protection programs and anonymous witness testimonies. In this research due to limited scope, witness protection programs and anonymity orders will be discussed as they aim to conceal and protect the identity and personal of the witness or accomplices which prevents witnesses from turning hostile at the time of trial. These measures are opted for by both the comparator jurisdictions. Witness protection programs (WPPs) in the UK128 have a wide ambit, not only restricted to the witnesses, any person involved in the investigation and prosecution of the crime could be identified as a person at risk, not only witnesses, and avail security.129 Whereas in the Indian 124 R (on application of national council for civil liberties) v Secretary of State for home department [2019] EWHC

2057 (admin).

125 See Sec 15, MCOCA 1999 and corresponding sections in other state legislations.

126 State of Maharashtra v Bharat Shanti Lal Shah (2008) 13 SCC 5.

127 See Sec 16, MCOCA 1999 and corresponding sections in other state legislations; Sec 3, Investigatory Powers Act 2016.

128 See Part 2 Chapter 4, SOCPA 2005.

129 See Sch. 5, SOCPA 2005.

context, only witnesses, potential witnesses and their family members could be considered under the Witness Protection Scheme 2018, a much-needed act giving guidance with enough flexibility to the local police130. Threats to other persons like judges and police officers could also be extended while dealing with dangerous and large-scale established criminal groups and should be considered in the WPPs. The success of these programs depends on the flexibility granted to the local police authorities to access and adopt appropriate measures. While the UK WPPs put their faith in the investigatory officers, the Indian WPP went with judicial insights. It mandates the decision by a local committee comprised of a local sessions judge, police head, and prosecution head to access and decide the appropriate measures. While either of the approaches is adequate, a judicial and prosecutorial mind would be helpful in a more careful evaluation of the situation. Measures adopted and budget also become two ancillaries to the evaluations of the threat level involved. Arrangements range from security escorts to relocation and granting new identities to the persons at risk in both jurisdictions. Concealing the identity of the witness may help in reducing exposure to unwanted persons working in association with organised crime groups. While ‘in camera’ trials or private criminal trials131 is one way to avoid any unwanted attention in the courtroom, the judiciary in the UK directs it only to be used in rare cases after careful consideration as it is contrary to the principle of natural justice132. On the other hand, in India, ‘in camera’ proceedings at any point in the trial could be held at the discretion of the judge.133 The decision here rests with the judge rather than the police or the prosecution as in the cases of WPP. Anonymous witness evidence is the most used and encouraged method used in India coupled with the ‘in camera’ trials to protect the identity of vulnerable witnesses in cases of organised crime.134 A similar approach is also adopted in sexual offence cases and special cases of national security. UK courts have similar provisions where the name and other personal details are hidden from the court records when the evidence is being conducted,135 but less encouraged by the courts.136 In both jurisdictions, judges have the power to decide the need for these measures after carefully accessing there’s no prejudice against the defendant, this becomes more complicated in the UK where the trials

130 Mahender Chawla v. Union of India,2018 SCC OnLine SC 2679, decided on 05-12-2018.

131 See Part 6, Criminal Procedure Rules 2020.

132 Re Times Newspapers Ltd [2009] 1 WLR 1015; Reigate Justices, ex parte Argus Newspapers (1983) 5 Cr App R (S) 181.

133 See Sec 19(1), MCOCA 1999 and corresponding sections in other state legislations.

134 See Sec 19, MCOCA 1999 and corresponding sections in other state legislations.

135 See Sec 86, Coroners and Justice Act 2009.

136 R v Donovan and Kafunda [2012] EWCA Crim 2749.

are conducted before a jury, and revealing the witness becomes pertinent up to some extent. It could be one of the reasons the legislation have not emphasized on a certain approach, unlike India, to be taken on cases of organised crime and left matters open to the discretion of judge and prosecution. Chapter 5 - Conclusion Organised crime as a term could have wide imports, that’s why it is still defined differently in different jurisdictions and by different scholars. On a basic understanding of the concept, it is a group of criminals committing crimes on a continuing basis and the structure of their relationship is organised. Violence and corruption are two important characteristics of organised crime that make investigating and prosecuting these crimes even more difficult,137 and hence, this paper evaluates the provisions present to equip courts and investigative agencies in comparator jurisdictions. Comparative analysis of laws between the two comparator jurisdictions in this study could be opposed on the ground that to draw a comparison there should be some common ground between the two and it could be argued that both the jurisdictions have no match in terms of population, area of land and percentage of the population living under the poverty line. All these factors affect the rate of crime in a society. Still, it would be wrong to forget the foundation of the Indian legal system as it stands today was laid down by the British using principles of common law which are to this day traceable in the constitution as well as the criminal justice system. India, a young democracy compared to other developed nations, has come a long way but still has a long way to go in terms of their criminal justice system. It is essential to look at the trajectory of the evolution of laws in common law nations, especially the UK, which has spent years evolving its laws founded on the same values as India. In the UK, the special procedural provisions laid down have an overall applicability even though they were introduced to counter a specific problem whereas in India, special legislations contain all the procedures required and don’t have a universally applicable nature. This only results in the repetition of provisions in multiple acts and restricts them to be used in traditional criminal offences and trials. 137 Salerno, Ralph, and John S. Tompkins. The crime confederation: Cosa Nostra and allied operations in organized crime. New York: Doubleday, 1969.

It is no secret that both jurisdictions adopted the approach to treating organised crime differently a little late, and as a result, the existing evolution of laws to counter organised crime in both jurisdictions represents a series of ad hoc measures adopted by the crisis-driven force exerted by the politics and media. New measures introduced may prove effective for investigation and evidence collection and result in better conviction rates but it also allows the potential enervation of the rights ensured by the law of land. Further encouragement of these provisions may lead to the evolution of harder measures leaving no traces of the principle of presumption of innocence, attacks on the right to personal liberty without a fair trial, and further deviation from the traditional laws. In the bid to criminalize, states have ended up over-criminalizing these organisations with strict measures that grant less flexibility. No laws or guidance have been introduced to side with the foot soldiers who got caught and face harsh punishments when they are also the victims of harassment and mind-washing by the leaders of these organisations who manage to escape undetected. Another face of organised crime is when then the unlawful act adopted by the members is not that serious for example a gang of pickpockets or thieves (not robbers), perhaps it would not be fair to punish them in the same light as a drug cartel. The availability of laws and their practical applicability is yet another important feature when testing the quality of any legislation. The UK has a jury system to judge the guilt of the defendant in trials, although provisions are present in England, Wales and Northern Ireland to hold juryless trials but still in practice are rarely used.138 Jury and witness intimidation is a real threat while dealing with cases of organised crime; where the UK has, comparatively, good and wide covering witness protection laws in place the judiciary still holds a blind eye towards the threat of jury tampering and the repercussions it may have on the trial. Overall, even though the present regime of laws is working, it can’t be said with certainty that it helps in preventing organised crime. Both jurisdictions should focus on committing more resources to research organised crime and the efficiency of laws tackling it. Especially India, which is still dragging its criminal justice system on age-old wheels and should endeavor to abandon its crisis-driven last-minute formulation of laws which acts as a patchwork to cover 138 Campbell, Liz. “The Prosecution of Organised Crime: Removing the Jury.” The International Journal of Evidence & Proof, vol. 18, no. 2, 2014, pp. 83–100, https://doi.org/10.1350/ijep.2014.18.2.445.

loopholes because these laws may prove helpful in the short run but won’t be enough to stand the test of time.

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8) R v. Quinn [1990] Crim. L.R. 581.

9) Re Times Newspapers Ltd [2009] 1 WLR 1015.

10) Reigate Justices, ex parte Argus Newspapers (1983) 5 Cr App R (S) 181.

Articles, Books and other sources

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of Economic Studies, vol. 86, no. (307), 2019, pp. 457–99, https://doi.org/10.1093/restud/rdy036.

3) Barret, Christophe. “The confession, queen of evidence? The confession in criminal

proceedings.” Annales médico psychologiques, vol. 171, no. 7, 2013, pp. 464–67, https://doi.org/10.1016/j.amp.2013.05.011.

4) Broadhurst, Roderic, and Nicholas Farrelly. “Organized Crime ‘Control’ in Asia:

Experiences from India, China, and the Golden Triangle.” The Oxford Handbook of Organized Crime, Oxford University Press, 2014, https://doi.org/10.1093/oxfordhb/9780199730445.013.016.

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Act 2010.” The Edinburgh Law Review, vol. 18, no. 2, 2014, pp. 225–44, https://doi.org/10.3366/elr.2014.0205.

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Problem.” Organised Crime and the Law, Bloomsbury Publishing (UK), 2013, pp. 12– 40, https://doi.org/10.5040/9781472561282.ch-002.

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New Criminal Law Review, vol. 17, no. 2, 2014, pp. 220–51, https://doi.org/10.1525/nclr.2014.17.2.220.

8) Campbell, Liz. “The Prosecution of Organised Crime: Removing the Jury.” The

International Journal of Evidence & Proof, vol. 18, no. 2, 2014, pp. 83–100, https://doi.org/10.1350/ijep.2014.18.2.445

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