Published in April 2018

Regional Perspective: Eastern and Southern Africa - added in April 2020

 
 
  This module is a resource for lecturers  

 

Enabling offence: obstruction of justice

 

Another characteristic of organized crime is its ongoing nature. Organized criminal groups form and continue in order to exploit criminal opportunities on a systematic basis, so there is a need to organize the illicit activity, plan and monitor its execution, and protect the criminal enterprise from discovery by authorities. One way in which criminal enterprises attempt to protect themselves is through obstruction of justice. It is all too common for members of organized criminal groups to eliminate witnesses, use physical force against police investigators and threaten judges and prosecutors. Indeed, many people have lost their lives or faced serious attacks in their quest to bring organized criminal groups and their associates to justice. 

The Organized Crime Convention, in article 23, requires the criminalization of obstruction of justice. Obstruction of justice combines the protection of the life and safety of the person with the protection of the integrity of the criminal justice system, and those participating and working within it. Under the Convention, obstruction of justice includes the use of inducements, force, threats or intimidation to interfere with witnesses and judicial or law enforcement officials whose role is to produce accurate evidence and testimony.

One of the two obstruction of justice offences in the Organized Crime Convention relates to efforts to influence potential witnesses and others in a position to provide the authorities with relevant evidence. The obligation for States parties is to criminalize both the use of corrupt means (such as bribery) and of coercive means (such as threats or violence). This conduct may be employed against any person, private individuals or public officials who participate in proceedings involving a Convention offence.

The other obstruction of justice offence in the Organized Crime Convention relates to conduct intended to pervert the course of justice by use of coercive means, i.e., physical force, threats or intimidation against law enforcement and judicial officials. The conduct is aimed at law enforcement and judicial officials. In addition, the Convention requires the criminalization of corruption.

It is not necessary to succeed in the attempt to obstruct justice, as long as the defendant carries out the required act with the necessary intent. In other words, it suffices to show that the accused person acted with the intention to induce false testimony or to interfere in the giving of testimony or the production of evidence; it is not necessary to prove that, because of his or her conduct, false testimony or evidence was actually induced or provided. It is also not required to show that the exercise of the official's duties was actually interfered with; any intention to do so fulfils the elements of the offence. For example, in one case, the defendant made a conditional threat that if he was forced to meet with the tax authorities, he would bring a gun and "someone might be shot" (U.S. v. Price, 1991). The court in this case held that this threatening act (although never actually carried out) constituted obstruction of justice. The mens rea (guilty mind) requirement involves specific intent to interfere with the administration of justice.  

Article 23 of the Organized Crime Convention requires States parties to prohibit obstruction of justice, involving force, threats or promises to interfere in the investigative and judicial process. These requirements are also included as article 25 in the UN Convention against Corruption (UNODC, 2004):

(a)  The use of physical force, threats or intimidation or the promise, offering or giving of an undue advantage to induce false testimony or to interfere in the giving of testimony or the production of evidence in a proceeding in relation to the commission of offences covered by this Convention;

(b)  The use of physical force, threats or intimidation to interfere with the exercise of official duties by a justice or law enforcement official in relation to the commission of offences covered by this Convention. Nothing in this subparagraph shall prejudice the right of States parties to have legislation that protects other categories of public officials.

The Organized Crime Convention places States parties under an obligation to criminalize conduct that involves obstructing justice in the trial phase, and also in the pre-trial phase, which could include obstructing an investigation.

Variations in obstruction of justice laws

A review of the scope and application of the obstruction of justice offences under domestic laws reveals a significant variation among countries in the types of conduct and the types of persons/victims covered. The tendency among countries has been not to have an overarching offence encompassing all forms of obstruction of justice, but to cover all the forms through a combination of multiple, overlapping provisions (UNODC, 2015).

In some countries, the offences also extend to selected persons outside government systems, for example journalists who may be threatened or harmed in the course of their journalistic investigations and revelations. Similarly, domestic laws may cover persons related, connected or known to the official or to the person participating in the criminal justice process, in addition to direct participants.

The focus of the Organized Crime Convention on obstruction of justice targets the person who incites, induces or causes another person to give false testimony or provide false evidence, not on the person who gives false evidence. In other words, obstruction of justice is closely linked to but does not equal perjury - which involves giving false testimony in court, especially when under oath. Similarly, a distinction is made between "the promise, offering or giving of an undue advantage" as corrupt means in obstruction of justice as well as other general offences relating to corruption and bribery. Obstruction of justice also links to witness protection (UNODC, 2012; UNODC, 2015).

 
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