TNRC Practice Note Monitoring wildlife crime cases: a possible approach to reduce corruption in the justice system?

Corruption in the criminal justice system undermines the basic principle of equality before the law and denies individuals of their right to a fair trial. Money and power can decide which cases are prioritized or dismissed, which criminals remain unpunished, and which victims are deprived of justice (Transparency International 2020a). Corruption can create an atmosphere of legal uncertainty that deters business and investment, undermines the legitimacy of public institutions, and erodes public trust in law and order (UNODC 2020).

Approximately one third of people globally perceive judges, magistrates, and the police to be corrupt (Transparency International 2016). A global survey of legal professionals found that nearly half of all respondents believed corruption was a problem within their jurisdiction’s legal profession, with around a third responding that they knew a legal professional involved in international corruption offenses (IBA et al. 2010).

Corruption can include a variety of forms of improper influence impacting the impartiality of justice and can involve any actor within the system, including judges, police, prosecutors, lawyers, and administrative and support staff (Gloppen 2014) (see Box 1).

The focus of this practice note is on Africa, Asia, and Latin America, where many wildlife crime cases occur and where organizations have monitoring programs in place. However, corruption can be found in justice systems globally – it is not solely an issue in middle- and low-income countries. In the United States, 20 percent of those surveyed believed that most or all police were corrupt, and 16 percent that most or all judges/magistrates were corrupt. This rose to 31 percent and 28 percent, respectively, when the respondents were Black or African Americans (Transparency International 2017). Therefore, the findings of this practice note are likely to be relevant to anyone conducting case monitoring.

Monitors may observe a trial itself or also pre-trial and post-trial stages such as arrests, case dismissals and hearings, or appeals. They may do so in an ad hoc way, focus on categories of cases in certain themes, or pursue systematic monitoring as a broader examination of the justice system as a whole. Monitoring can be passive, whereby monitors simply observe and report on the proceedings with no intervention. Alternatively, some monitors may provide technical and logistical assistance where needed. This might include facilitating pre-trial conferences, transporting interpreters, organizing evidence, and writing submissions. Examples of monitoring by conservation NGOs can be found in Box 3.

While reducing corruption through the act of monitoring is not always one of the aims of examining wildlife crime cases, the “Crime Triangle” theory indicates that monitoring may disincentivize corrupt acts. Monitoring with the specific intention of reducing the likelihood of corruption has been used within the sphere of human rights cases (Box 4) and has proven a useful tool for cases involving organized crime (OSCE 2018).

Monitoring can improve the effectiveness and fair administration of justice, and reduce the likelihood of corruption undermining a case, in two ways:

• Impact on individual cases: People involved in a specific case may not take part in corrupt acts if they are aware they are being observed and potentially reported.
• Impact on systems: Reviews of a collection of cases can highlight systematic failings due to corruption. The results can then be used to apply pressure to amend systems or practices.

Monitoring cases helps identify and highlight weaknesses in the justice system. Based on their experience of monitoring cases, interviewees made the following observations regarding corruption vulnerabilities of specific actors and the system in general:

Actors in the justice system

• First responders like police or rangers may be more easily bribed before an arrest Is made, when very few people know the crime had occurred. Once an investigation starts and a case arrives in court, there is a larger paper trail and more public awareness of the crime, making it more likely corrupt acts would be noticed.
• Investigators may take bribes to corrupt any stage of the investigation, in their role of processing the crime scene, interviewing witnesses, and gathering evidence to guide the investigation (including engaging with forensic technicians). Investigators can also leak information about the case.
• Prosecutors hold the power to terminate proceedings by discontinuing or withdrawing a case, offering no evidence, or “losing” files or evidence. This puts prosecutors in a position to demand bribes or to be targeted by other actors seeking to influence a case’s progress or outcome.
• Judges may corruptly wield their adjudication powers, such as by taking bribes to give favorable rulings including lenient penalties or sentences. In certain courts, judges are elected to their position or are political appointees, and this selection process can be manipulated, including through influence peddling.
• Defense lawyers can be directly involved in corrupt actions, such as sharing information with criminals regarding investigations (including giving tip offs), witness or suspect intimidation or bribery, or purposefully mishandling cases. They can also act as an intermediary between their client and others in the justice system when orchestrating corrupt acts (Middleton and Levi 2015, Transparency International 2014). One respondent noted that some defense lawyers may even be specifically hired due to their known proficiency in this behavior.
• Court registrars and clerks conduct a range of activities that can influence the flow, timeline, and outcome of court proceedings. Strategies include “losing” or incorrectly filing documents, levying unauthorized court fees, allowing unauthorized access to files, or preventing or delaying legitimate access (Begovic et al. 2004, Transparency International 2014). Several interviewees noted the responsibility that registrars have when selecting which court will hear a case, handing cases over from lower courts to higher courts, and providing dockets to the prison if a defendant is convicted.
• Notaries prepare, attest, and authenticate legal documents. Notaries can develop close relationships with organized criminal groups, and abuse their position to shield criminal activities, particularly those related to establishment of legal entities and real estate or tax fraud (Gounev 2012). Notary stamps (real or fake) can be used to give the impression that counterfeit documents are genuine.
• Prison staff can allow a prisoner to continue orchestrating crimes even when incarcerated. Corruption does not end at conviction; Prisoners can develop relationships with prison staff who will then allow them to escape, bring in contraband for them, or ensure they are treated better than a normal prisoner in return for money or sexual favors (Center for the Advancement of Public Integrity 2016).

Cross-cutting corruption risks in the justice system

• Pay: One interviewee suggested that judges and other members of the judiciary may be less vulnerable to bribery as they were significantly better paid than rangers or police officers. However, this view was not shared by all, and interviews provided numerous examples of relatively well-paid individuals in the justice system who were involved in corrupt acts. There is limited evidence that good pay alone is effective in curbing corruption (Johnsøn et al. 2012). Rather, corruption can be reduced if increased pay is embedded in a wider package aimed at reforming employees’ behavioral norms, incentives, and oversight structures (DfID 2015).
• Biases in justice: Corruption can influence who gets arrested in the first place. Socio-cultural factors can lead to police arresting certain groups disproportionately (Transparency International 2012)). Several respondents suggested that wealthy and well-connected individuals had far more power and resources to corrupt the system than poor individuals accused of low-level offences like subsistence hunting. They perceived that this imbalance led to individuals involved in high-value illegal trade being able to avoid arrest or sway courts into leniency through corrupt means, while poor individuals were prosecuted with the full weight of the law. This may be caused or exacerbated by investigators, prosecutors, and other actors being under pressure from their managers to achieve “quick wins” and focus on cases that will be easier to conclude (Prinsloo et al. 2022). However, some interviewees felt that police may target those that they believe had the money to pay bribes, including non-nationals.
• Lack of leadership from the top: Corruption by high-ranking actors can have the effect of normalizing corruption throughout the system (Jackson and Köbis 2018). The behavior of these individuals, including ensuring they are held accountable for any unacceptable behavior, can be critical in setting the tone for how lower ranking individuals believe they can behave (Sandgren 2005). Various guidance, standards, and measures have been suggested to promote integrity by judges and other senior actors (see Transparency International 2014, UNODC 2018, UNODC 2021).

Figure 2 illustrates the typical progression of a case from the point of arrest and through the court system, with some examples of corrupt acts that can occur at each stage.

Corruption is difficult to identify and measure due to its often-clandestine nature (DfID 2015). Interviewees agreed that a monitor is not going to witness something as blatant as a bribe being paid, although one did note the importance of arriving early to court to watch for unusually frequent meetings between actors, such as court clerks and defense lawyers, which could indicate deals are being struck.

Rather than direct observations, interviewees generally believed the more practical way to detect corruption would be through red flags that indicate corrupt acts may have taken place (Box 6). Looking at one case alone may not yield much, but patterns can be identified by looking at multiple cases.

Several interviewees spoke of instances when situations or outcomes were not logical, and they had a “gut feeling” that corruption had taken place but were unable to prove it. These cases included knowing that a judge or police officer had previously undergone training (e.g., on handling evidence) but then went on to behave as if they had not, making mistakes that weakened the case.

However, interviewees were keen to stress these red flags are also symptoms of low capacity. A justice system may be understaffed, or staffed by individuals who do not have a clear understanding of relevant legislation or who deem wildlife crime to be of low priority. Sympathetic judges may pass light sentences to defendants who admit their wrongdoing or who are living in poverty (Sharma 2018). One interviewee pointed out that some of those working in the justice system may not have been educated further than a high school level. Therefore, errors such as mistakes in paperwork may indicate a need for further training and support rather than corrupt acts taking place.

These red flags could be explained by a number of confounding factors, challenging efforts to measure the impact case monitoring may have. Nevertheless, most respondents did believe monitoring reduced corruption, based on the assumption that people act differently when they are being watched. Anecdotally, one interviewee reported hearing prosecutors that monitors’ presence made a difference to the outcome of a case. Another mentioned an ivory case where the judge was aware of monitors and reportedly believed he would be criticized if he did not give a tough sentence.

Below, this note recommends a number of good practices, based on the interviewees’ and authors’ experiences. However, these practices must always be tailored to specific context. There is significant variation globally in legal systems, including the role and freedoms of civil society, levels of grand corruption, and the involvement of organized criminal groups. Those factors, and others, need to be carefully considered before pursuing case monitoring or specific tactics.

These good practices fall into four categories: safety, project design, relationships, and characteristics of monitors.

Safety

Case monitoring can pose significant risks to the monitors and the organizations they represent. For example, monitors may be tracking cases involving dangerous criminals backed by serious criminal organizations or senior officials. Monitors may be based in the same court for some time and become well known by those involved in cases, which has many benefits for building relationships but can also be a risk. As a result, absolute care must be taken when planning and undertaking monitoring. Measures to maintain physical safety, cyber security, and reputational risk should be put in place.[2]

The security situation will vary geographically, and threats of violence towards judicial staff may be especially frequent in areas where organized criminal networks are active and where wildlife crime converges with other violence-prone criminal activity. Monitoring cases involving individuals without criminal or political connections, and/or involving low values and volumes of wildlife, are less likely to pose a security threat to monitors, but it is not always possible to identify these cases at the start of a monitoring program. Further, while it may be lower risk to focus on small-scale crimes, this may have less overall impact on improving the justice system (and conservation).

Supporting locally based monitors with staff outside of the country can be helpful; outsiders can publicize results of monitoring and push for reform with less risk to their personal safety. However, it is equally important to make sure those external allies have strong “do no harm” principles and understand the risks in the local context.

Risks can be considerably higher if it becomes known that a monitor is specifically looking at corruption in cases. Several respondents were adamant that monitors should not let their corruption focus be known, as it could put them in danger and would also damage relations with people working with the justice system. Interviewees therefore emphasized that the possible beneficial impacts of monitoring for reducing corruption need to be carefully weighed against the risks, and that regardless of focus, monitors need to be supported by sufficient resourcing and experienced supervision. In certain places, it may be safer to monitor how “effective” the justice system is as a proxy for the influence of corruption on the system, rather than trying to monitor corruption itself.

All of these risks should be carefully assessed, and any risk assessments should involve people with local expertise.

Project design

Several design elements will boost the probable impact of monitoring projects, including basic elements like sufficient project length and funding. For efficiency, project designers could target monitoring at the part of the system where the most impact is likely to be gained. This could be based on the part of the justice system where the most corruption is suspected, or where monitoring is most likely to make a difference. For example, impact may be limited if monitoring takes place only in the court room in a system where corruption largely takes place during investigation. In that scenario, an examination of dockets would be more useful.

An effective, appropriate communication strategy should accompany monitoring. This could mean keeping the public, government, or international bodies continually informed of a case to ensure it progresses. Drawing links among cases can highlight wider problems in the system. The media may form part of such a communication strategy, if appropriate. (See Box 7).

Where organizations undertake monitoring as part of a wider suite of capacity building within the justice system, they may come across corrupt individuals when providing training or support. Mitigation measures for such an occurrence need to be built in from the project design phase and include as a last resort the option of discontinuing training if a corrupt individual has been reported but remains in post.

The method used by monitors and the access they are granted will be affected by context. For example, an interviewee shared that in one country in Asia, monitors were not permitted to take notes inside the court room. Another shared that in a Latin American country the fact that civil society can file lawsuits has led to the active involvement of civil society throughout the justice system.

Relationships

Monitoring often forms part of a wider package of support offered to the justice system, including attending pre-trial conferences, providing legal resources and technical support, sensitization on the illegal wildlife trade, and even logistical support such as helping witnesses get to the court room. Those efforts can sometimes rely on tenuous or fragile relationships, so monitors and their organizations must tread delicately. For example, some of the organizations interviewed chose not to make the results of their monitoring public, preferring to use the results to work directly with the government to bring about change in the justice system. Calling out corrupt individuals in the justice system publicly, or acting too much like “an activist,” can close doors and reduce opportunities to bring about change, so the strategy must be carefully weighed against the likelihood that internally driven accountability measures will emerge and succeed. One interviewee believed that publicizing corruption can risk undermining the public’s confidence in the justice system and may give the impression that corruption is worse than it is.

Building good relationships is therefore a key component of a successful monitoring program. In particular, a trusting relationship with the prosecutor can give organizations valuable access, letting organizations point out missing dockets, highlight if the accused has been involved in other wildlife crime cases, and obtain information on the case including upcoming dates of hearings. If a monitor suspects corruption is taking place in a case, having a contact within the justice system that they can confidentially make aware can prove invaluable.

Other good relationships with administrative staff, such as court clerks, can be crucial for accessing documents and finding out about upcoming hearings. While hearings should be open to the public (other than in exceptional circumstances), several interviewees noted how difficult it was to get information on dates and locations of upcoming hearings.[3]

Similarly, in most cases court records should be open to the public, and accessing government data is becoming the norm for civil society. But several interviewees shared instances where clerks had been unwilling to grant permission. One clerk had explicitly been told not to allow access to journalists. As courts are increasingly falling behind in their disclosure obligations, they should consider proactively releasing data related to case status and outcomes, as well as operational information related to the workload of judicial officials (OGP 2020).

NGOs can also learn from each other. Many of those interviewed had over five years of experience in working to improve justice systems in their focal countries and have much to share. Local NGOs conducting monitoring can work in partnership with international organizations to help amplify the impact of the research, and to help keep local monitors safe.

Finally, taking the time to publicly acknowledge and celebrate cases where investigators, prosecutors, judges, and other actors behave with professional integrity can be a good way to build relationships, and help remove suspicion that NGOs are only there to criticize. Shining a light on things that are going well in the justice system can also help these actors see the benefit of court monitoring and the benefit of acting with integrity when doing so may not always be easy.

Characteristics of monitors

The choice of person to undertake the monitoring will ultimately impact the results of the program. Choosing monitors with experience in a specific justice system and with administering justice can increase the chances of identifying unusual occurrences potentially caused by corruption. Monitors with a law degree may be able to better understand the legislation and legal jargon, and ideally, they would also have an understanding of environmental and wildlife crime, either through experience or education. Local monitors are more likely to understand the dynamics and nuances of corruption, and of the system in general, than those from outside.

Monitors also need to be experienced or trained on assessing and mitigating risk. This may include practical personal safety training and cyber security. Publicly reporting on corruption can undermine open cases if done incorrectly (Transparency International 2014), so monitors and their organizations must be sensitive to the risks of reporting. It is essential that monitors understand the risk they are taking, especially if they are seeking to detect possible instances of corruption.

The job title given to the monitor will affect how they are perceived by those working in the justice system, including how much to trust and respect them. A title such as “legal officer” or “legal assistant” can communicate that the monitor is there to provide a range of support, not only to monitor a case.

Case monitoring can be a useful measure to change incentives or opportunities for corruption related to wildlife crime cases, shining a light and pressuring those involved to behave appropriately. But projects must be designed with appropriate scope and resources, as impact takes time and is difficult to measure. Monitoring is likely most effective when monitors use multiple cases to identify patterns of red flags that indicate systematic failures. However, organizations and monitors need to be aware of the risks and mitigate accordingly.

Where possible and safe to do so, monitors should seek to make data openly available to allow greater visibility on case outcomes. TRAFFIC’s Wildlife Trade Portal is one such database that invites NGOs to submit their data so that registered users can explore whether people were charged and convicted and the sentence/penalty they received. Reports and other outputs from case monitoring should be shared, when and as appropriate, with relevant individual actors in the justice system (prosecutors, judges) as well as national, regional (e.g., East African Association of Prosecutors), and international bodies, agencies, and donors (e.g., UNODC, the World Bank).

Contextual variation must be taken into account. The justice system responsible for wildlife crime is (usually) the same one that deals with other types of crime, like drugs, firearms, and human trafficking and exploitation. Any corrupting influences on the system caused by these crimes will ultimately influence how wildlife crime cases are handled, and impact efforts to bring about positive change.

While wildlife crimes have not stopped, the recent COVID-19 pandemic is also making the work of monitors more difficult. They may not be able to attend hearings or trials, or access information in the normal way. A backlog of cases puts further pressure on often-underfunded justice systems, although acceleration of digital working (such as digital transfer of evidence and utilization of video platforms by court users) in some locations may ultimately be beneficial (CJJI 2021).

Perhaps of more concern is the rise of political parties in many parts of the world who wish to reduce access to information and press freedoms. Without access to police and court documents, and the ability to report on findings, the work of a case monitor is severely hampered. In such situations, partnerships between local and international organizations who can speak out may be even more crucial.

[1] A companion piece (Prinsloo et al. 2022) reviews how corrupt practices can facilitate the wildlife crime itself.

[2] See ICJJ (2009), OHCHR (2011), and OSCE (2012) for suggestions of safety measures, and Internews (2014) for cyber-security measures.

[3] Although such a lack of transparency might be due to corruption, no interviewee stated when asked that they believed corruption to be the cause in the instances they were referencing.