Two friends recently attended the Magistrate’s Court in Westminster and arrived back with tales of TWOCing. My initial thought, that this was the latest permutation of a Miley Cyrus dance routine, was of course incorrect. The acronym in fact stands for the crime of ‘Taking Without Consent’, essentially joyriding. It was introduced amid concern at the fact that ‘joyriding’ could not generally be prosecuted as ‘theft’, the ailment in chief being the requirement of demonstrating that the defendant had the intent to permanently deprive the victim of their car. This new crime carries with it a lower charge, but also crucially a lower burden of proof. It is merely necessary to demonstrate that the defendant has knowingly taken a ‘conveyance’ without the owner’s consent.
I bring this up because it is relevant as regards the minute prosecution of tax evaders. Many have asked why so few have been prosecuted in relation to the HSBC revelations. The issue is not unique to tax. Indeed, it has been a consistent criticism of Criminal Law generally and the manner in which it is exercised that it favours prosecution of blue collar over white-collar criminals. Recent history is replete with examples of such a trend.
To this end, Jolyon Maugham has contrasted the rigour with which HMRC pursues ‘benefit fraudsters’ as against the soft approach, such as the Liechtenstein Disclosure Facility, taken to those with offshore bank accounts.
By way of reform then, perhaps we might introduce a strict liability crime or special juries. Both are certainly remedies to the clear problem of failing to bring white-collar criminals to justice. However, their radical departure from the traditional tenets of the criminal law should not be taken lightly.
As for the former, there are merely two parts to a crime-the act and the intention. Strict liability removes the latter requirement and is traditionally reserved for those crimes wherein the very act definitively signals the intent, such as drink driving for instance. However, in an increasingly globalized world, one might be cautious as to whether it is such a case that the mere holding of a bank account offshore evidences the intent to evade tax. I don’t doubt that it might, I am just flagging up how serious an assertion it is and how significant a departure from the usual order of crime it is.
As for the latter, juries are made up of our peers. The orthodox justification for ordinary juries is that in order to be convicted of a crime, the prosecutors must convince a cross-section of society that one is guilty. Where this is done, there is legitimacy in punishing the convicted. On the other hand, if the jury is not satisfied, then society has not been convinced of the guilt of the crime. Imposing special juries departs from this broad normative justification. It introduces a standard whereby, to be convicted of a crime, it is necessary merely for a group of similarly thinking people to be convinced of the party’s guilt.
Both suggested reforms are of merit. What I believe however is that they are quite radical as initial steps to be taken. Perhaps a middle ground solution ought first to be considered before jumping to such reforms. The case of TWOCing may be of interest in this regard. A new crime could be introduced, with a lower standard of proof required but with a corresponding reduction in penalty, for instance such as ‘Negligently failing to disclose an offshore bank account’. Although this solution would not ensure that white-collar criminals feel the full force of the law, as we might certainly think as ought to occur, it would at least be a solution which would bring at least some justice to bear. If such an innovation however proves itself to be inefficient, at that point it would be more appropriate to introduce more radical reforms. This idea of a pragmatic middle ground compromise has been utilized elsewhere (as in Competition Law with Leniency for cartelists).
The TWOCing suggestion should not be dismissed too lightly, for a case study on the issue is quite revealing. TWOCing is traditionally a crime committed by blue-collar criminals. To this end, perhaps the reason that blue-collar criminals are more routinely prosecuted than white-collar criminals is due to the fact that blue collar Criminal Law has adapted to the exigencies of the time, whilst white-collar Criminal Law has been historically unsophisticated. To this end, a first port of call should be to innovate in the law, rather than depart from its traditional, fundamental tenets.