Fighting a problem with the problematic: Section 98A and its use against organised crime in New Zealand

Abstract

Since its conception in 1998, an average of just 21% of offenders charged under s 98A have been convicted. This is much lower than the average for all criminal charges (78%). This paper firstly focuses on the difficulties of defining ‘organised crime’ before examining the context in which s 98A was created in 1998 and later amended. This examination highlights that s 98A has mixed conceptual origins.

The paper then identifies two factors which may be contributing to s 98A’s low conviction rate. 1) the burden on the prosecution to establish the criminal group’s common prohibited objective is difficult to satisfy, and often requires the prosecution to establish another substantive offence; and 2) s 98A is regarded as a subsidiary offence which is often withdrawn. A number of factors which increase the likelihood of the charges being withdrawn are submitted. The paper concludes that any benefits stemming from s 98A in an evidence gathering and efficiency enhancing capacity do not quell the perception that s 98A is a problematic provision.