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The Serious Crime Bill
Finance Director Europe
30 May 2007
A draconian restriction on our civil rights or an important tool in tackling organised crime? Neill Blundell, Partner at Russell Jones & Walker discusses the bill and serious crime prevention orders (SCPOs).
The Government published the Serious Crime Bill (SCB) in early 2007 to a very mixed reception.
On the one hand the government argues that the provisions contained within it are necessary to protect the public from the menace that serious crime brings to society. Announcing the SCB, Home Secretary John Reid said, "We are bringing in reforms to get the 'Mr Bigs' of the organised crime world."
"The most contentious SCB proposal is the introduction of serious crime prevention orders."
On the other hand, the human rights group Liberty has attacked the proposed legislation, seeing it as a direct attack on the civil liberties of individuals and as 'part of a dangerous government trend toward punishing individuals despite a lack of evidence of their guilt'.
If enacted, will it be used to target the Mr Bigs of the criminal world as proposed by John Reid, or will the powers be more widely used such as in cases where there is not enough evidence to charge an individual but where there is a suspicion of involvement in crime?
The proposals contained within the SCB are as follows:
• The introduction of serious crime prevention orders, nicknamed 'super-ASBOs' by the national media
• The creation of new offences of encouraging or assisting someone to commit an offence
• The improvement of data sharing both within the public sector and private sector
• The strengthening of the recovery of criminal assets by giving more powers to financial investigators to look into and seize goods – the Asset Recovery Agency would be abolished and have its responsibilities passed to the Serious Organised Crime Agency
The most contentious proposal is the introduction of serious crime prevention orders.
SCPO – THE SUPER-ASBO
A serious crime prevention order (SCPO) can be imposed in two different ways:
• By way of a civil action that is enacted by the High Court to any person over the age of 18 years or to a company prior to any criminal proceedings actually taking place
• It can also be imposed by the Crown Court following a conviction as part of a sentence, this would apply to all cases sentenced in the crown court including those committed for sentence by the Magistrates Court
Any breach of an SCPO, whether imposed by the High Court or the Crown Court, is a criminal offence which would warrant a maximum sentence in the Crown Court of five years imprisonment.
An SCPO can only be made on application by one of the following:
• The director of public prosecutions
• The director of revenue and customs prosecutions
• The director of the serious fraud office
An SCPO can only be made by the High Court where they are satisfied that a person or company has been involved in a serious crime, which can be anywhere in the world, and that the court has reasonable grounds to believe that the order is necessary to protect the public.
"The new serious crime prevention orders have been dubbed 'super-ASBOs' by the national media."
Involvement in serious crime would include helping others commit a crime or acting in a way likely to help others commit a crime.
PUBLIC PROTECTION
The SCPO protects the public by the prevention, restriction or disruption of criminal activity by an individual or company based in England or Wales.
The order itself may comprise of such prohibitions, restrictions or requirements that the court deems appropriate to protect the public and could include restrictions on associating with other named individuals, access to premises, business dealings, travel, curfews, freezing of bank accounts and far more.
An SCPO does not give an absolute power to force the supply of information. Such an order, for example, cannot require a person to answer questions or provide information orally. Additionally, legal professional privilege kicks in and excludes all information bound by the privilege other than the supply of a client's name or address.
A law enforcement officer can take and retain copies of any document produced to him in pursuance of an SCPO for as long as he/she considers it necessary for the purposes he/she detained it. Where a law enforcement officer takes a document it may be detained for the purpose of proceedings, in which case the document may be held until the conclusion of those proceedings.
The High Court will consider the imposition of an SCPO on the civil standard of proof (the balance of probabilities) rather than the criminal standard of proof (beyond reasonable doubt).
When an SCPO has been made by the court it can be made for any duration up to a maximum of five years.
An SCPO can be varied and discharged by either the High Court or Crown Court. This would be by application by the relevant authority (CPS, SFO or revenue and customs), by the company or individual who is the subject of the SCPO or by a third party who is affected by the SCPO.
The High Court can also, where a company breaches its SCPO, wind it up where it would be in the public interest to do so.
CORPORATE SCPO
The High Court can also make SCPOs against corporate bodies including limited liability partnerships, and other partnerships. An order can be made against a particular partner, but where it is against the partnership it must be made out in the name of the partnership and not the partners themselves.
"We are bringing in reforms to get the 'Mr Bigs' of the organised crime world."
Any fine, which is imposed, should be paid through the partnership's assets. Where the order is made against an unincorporated association, it should be made in the association's name rather than the members of it.
The powers of the SCPO are wide ranging. If they are used to target the Mr Bigs of the criminal world, as proposed by John Reid, then the powers would enable the courts to prevent crime, frustrate the criminals, and disrupt their criminal activity; a positive step in anyone's view.
However, if they are used where little evidence exists against a company or an individual, then it is a draconian step that will most certainly hinder our civil liberties and create a wholly unfair system based upon suspicion and/or association.
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