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Crime proofing of regulation

Crime proofing of regulation. Tom Vander Beken EACLE Annual Conference Transatlantic Perspectives on the future of regulation Erasmus University Rotterdam 28 May 2010. 1. Law making and crime. “The more laws the more offenders .” T homas Fuller, Gnomologia , 1732.

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Crime proofing of regulation

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  1. Crime proofing of regulation Tom Vander Beken EACLE Annual Conference Transatlantic Perspectives on the future of regulation Erasmus University Rotterdam 28 May 2010

  2. 1. Law making and crime “The more laws the more offenders.” Thomas Fuller, Gnomologia, 1732

  3. 2. Crime generating rules as EU priority • EU legislation/regulation in manyfields of law • Is all thisnecessary? Effective? • What is the impact of these rules? • Whatwillitchange (to the worse)? • Preventiveactionregardingregulation as a crime generator?

  4. 3. Crime prevention by the EU (1998) • Crime prevention in the Treaty of Amsterdam (1998): The objective of achieving a high level of safety within an area of freedom, security and justice shall be achieved “by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud.”

  5. 4. Crime prevention when preparing legislation (1998) This preventive approach was further developed by the Tampere European Council of 15-16 October 1999 (recommendation 41 of the Council Conclusions): “The European Council calls for the integration of crime prevention aspects into actions against crime as well as for the further development of national crime prevention programmes. Common priorities should be developed and identified in crime prevention in the external and internal policy of the Union and be taken into account when preparing new legislation.”

  6. 5. The crime proofing hype (2000-2001) • The Commission’s Communication on the prevention of crime in the European Union of 29 November 2000 (Com(2000)786): “The Commission will be at pains to evaluate the possible impact of its legislative proposals in terms of opportunities for crime, particularly in sensitive areas. (…) A serious examination should involve specialists and experts, in particular those of the police and judicial authorities” • The Joint Report from the Commission and Europol of March 2001, SEC(2001) 433 : “The scanning of loopholes and crime facilitating opportunities has a particular virtue when applied to the legislation making process … risk assessments and diagnosis should be further developed within it.” • Justice and Home Affairs Council of 20 September 2001: “The Commission, Council and European Parliament, in drawing up all EU legislation, should ensure that the potential impact on the fight against crime and terrorism is fully considered. The Council calls on the Commission to review EU legislation to ensure that it contributes to law enforcement efforts.”

  7. 6. The crime proofing hype (2000-2001) … continues • Set up on 28 May 2001 with an aim to identify and disseminate good practice in crime prevention through a range of activities and approaches. • First programme of EUCPN (Setting priorities and objectives for the period July 2001 – December 2002): crime proofing as top priority

  8. 7. Academics at work (1999-2002) - H.-J. Albrecht, M. Kilchling and E. Braun (2002) (eds.), Criminal Preventive Risk Assessment in the Law-Making Procedure, Freiburg imBreisgau, Max-Planck-Institute for Foreign and International Criminal Law (Falcone project 1999/140) • Analyse whether and to what extent risk assessment in the law-making procedure has been the subject of political and scholarly debate in the member states and overview of existing initiatives in this field • Results: crime risk assessment as an ex-post strategy; someinterestingexamples of best practices(Scandinaviancountries, Belgium,…), butnoreal (organised crime) risk assessmentsorspecific methodological tools.

  9. 8a. A EU Crime Proofing Steering Group (2003-2004) • DG JLS sets up a crime proofing steering group to advise on the development of a crime risk assessment process to be used at the EU level consisting of a two-stage process for crime risk assessment: 1) short preliminary assessment of proposed actions (by DG JLS) 2) in-depth analysis of the legislation (by the proposing DG with help from DG JLS)

  10. 8b. A EU Crime Proofing Steering Group (2003-2004) • Within the framework of the steering group, risk indicators have been identified through a literature review (Jill Dando Institute of Crime Science) to be used in the first stage of the risk assessment process • The seven identified risk indicators are: 1) Introduces product disposal requirements or any other new or more burdensome fee or obligation 2) Introduces a concession on a tax, or a concession on any other fee or obligation 3) Introduces a grant, subsidy or compensation scheme

  11. 8c. A EU Crime Proofing Steering Group (2003-2004) 4) Introduces or increases the tax on legal goods, or in any other way increases the costs of legal goods 5) Prohibits or restricts a demanded product or service or in any other way decreases the availability of demanded goods and services 6) Introduces or removes a law enforcement capacity, increases or decreases funding for enforcement activity or in any other way impacts the intensity of law enforcement activity and 7) Provides officials with regulatory power

  12. 9. The EU Sixth Framework research programme 1 May 2004 – 31 July 2006: MARC project (co-ordinated by Transcrime): Developing a Mechanism for Assessing the Risk of Crime due to Legislation and products in order to proof them against crime at EU-level - Develop crime risk assessment methodology to proof EU legislation against economic, financial, organised crime at a European Union level in order to reduce the probability that such crime occurs due to opportunities arising from legislation, and to provide a detailed plan of action to put it in place at an EU level Results: Mainly based on literature reviews to find indicators useful for the crime proofing exercise – new insights or applicable tools? Is this possible at all? Disappointment…

  13. 10. No real belief any more: the way down • Third programme European Union Crime Prevention network (September 2005): crime proofing is still a priority, but no new initiatives: “Taking account of activity which is being undertaken in this area by the Commission, the EUCPN has no plans to carry out any activity for the foreseeable future, and will monitor the outputs from the existing work.” - Latest work programme of EUPCN of march 2009: still mentions crime proofing of legislation among the eight key theme areas but announces no projects being undertaken under this theme

  14. 11. The last words: the Hague Programme (2004-2005) • Successor to the Tampere Programme (November 2004). Action plan to the programme (10 May 2005): “The strategic concept on tackling organised crime includes measures designed for strengthening prevention, namely developing a model for crime proofing legislation” • Report on Implementation of the Hague Programme for 2007, COM(2008) 373 final: • Prevention of and the fight against organised Crime: “Progress in this field has been largely unsatisfactory. The main reason behind this lack of progress is that after examination by the Commission, several actions, such as the development of recommendations for a standard methodology for vulnerability in crime-proofing, were deemed to be no longer feasible, or as measures to be better developed at Member State level.”

  15. 12. The funeral: the Evaluation of the Hague (2009) • Justice, freedom and security in Europe since 2005: An evaluation of the Hague programme and action plan,10/06/2009, COM(2009) 263 final: • Developing a model for crime proofing: not relevant anymore: “Following examination of the matter, the Commission considered that it is not feasible to identify standards in this area applicable across all sectors. On the basis of the results of a study conducted in 2006, the Commission concluded that this action was not worth being pursued.”

  16. 12. Fraud-proofing? OLAF was entrusted with a consultation function in a system of fraud-proofing of legislation (Commission Communication of 7 November 2001 concerning the fraud-proofing of legislation and contract management, SEC(2001) 2029 final) • The objectives of the fraud proofing procedure have been reached. The mostsensitive pieces of legislation have been subject to the procedure. The fraud-proofing process has contributed to improving the prevention of fraud, corruption, irregularities and other illegal activities in legislation. (report on the achievements of the fraud-proofing procedure, COM(2007) 806 final) • The current upstream consultation process on draft legislation set out in the 2001 communication (and on any specific risks or concerns identified by the department responsible for the proposal) will remain available to Commission departments upon request. (Communication from the commission to the council, the European parliament and the European court of auditors, Prevention of fraud by building on operational results: a dynamic approach to fraud-proofing, 17/12/2007, COM(2007) 806 final)

  17. 13. Conclusion – mission impossible? • Ex ante evaluation of new legislation is a valuable tool for improving quality of legislation. • Assessing the crime risk (impact) of legislations seems, however, very hazardous. • Crime proofing might be too specific and too general – prevent all crimes? • More focused assessments (like fraud proofing) and integrated in other studies/approaches (e.g. studies about the vulnerability of economic sectors to crime)? • Or, just an example of human hubris?

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