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The Serious Crime Act 2007

Posted by James Hammerton @ 9:53 pm on 5 November, 2007.
Categories political liberties, democracy and the rule of law, British politics.
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Last week, the Serious Crime Bill gained Royal Assent to become the Serious Crime Act 2007.

Spy blog comments on this development:

We are especially worried about the effect of the inchoate offences on potential Government whistleblowers, and on bloggers and journalists, because of the listing of the Official Secrets Act and the Terrorism Act 2006 as relevant Acts under the Serious Crime Act 2007.

The supposed defence of “reasonableness”, means that, yet again, the burden of proof is reversed i.e. you as a defendant have to prove that your actions were somehow reasonable, rather than the prosecution having to prove the opposite, which runs counter to the normal way in which English justice works.

The dilemma which law abiding people who publish “dual use” technical information now face is similar to the issues about the amended Computer Misuse Act and dual hacking / security audit tools .

If you publish some information on a website, such as our Hints and tips for whistleblowers guide, which lists some legal technical tactics and techniques for preserving your or your sources anonymity, can you honestly say that they might not, at some time, some where, be abused by someone with criminal intent ?

Are such publishers then at risk of being arrested (and given the severity of the possible penalties, that means the whole panoply of legal harassment through DNA sampling, fingerprinting, photography, retention of data until your 100th birthday, seizure of computer equipment, communications traffic data and interception etc.) for “encouraging or assisting” ?

If you welcome information from Government whistleblowers, does that put you at risk of arrest for “encouraging or assiting” a possible offence under the Official Secrets Act ?

This could have a chilling effect on free speech and on political debate in the UK.

See also, Spy blog’s original comments on the bill made back in January 2007.

I intend to examine this legislation in more detail over a series of posts, as I build up a new briefing document on it.

4 Comments

  1. Part 2 of the Serious Crime Act 2007 implements the recommendations of Law Commission Report 300 (See also LawCom 305) with minor changes. It, more or less, codifies the existing common law on inciting, aiding and abetting. The big change is in the doctrine of secondary liability. Once the act is commenced, it will no longer be necessary for a primary (anticipated) offence to be committed for the encourager/assister to be criminally liable. This is in line with the law on conspiracy (S1, CLA 1977) and incitement (common law - abolished by the Act)but different to the common law on aiding and abetting. This certainly does have an effect on freedom of speech. For example, I was driving my car at the speed limit when my friend asked, “Why are you driving so slowly”? I replied that I was obeying the speed limit. My friend advised, “Laws are for the obedience of fools and the guidance of wise men.” This Act makes that advice illegal. Priovously, it would only be illegal if I accepted it.

    I do not believe there has been a reversal in the burden of proof. For any offence, it has always been for the prosecution to prove both the offence and mens rea, which may include negligence. We have a duty not to encourage or assist crime which we must not neglect. The defence of reasonableness allows you to show that you were not negligent. S65 provides some specific examples, but be careful about s65(3); it is still an offence not to respond to a constable’s request for assistance.

    A further significant change to the original bill is the removal of the defence of acting to prevent crime or to minimise harm (clause 45 in the original bill), and the extension of the defence of “reasonableness” to all offences under Part 2, by the House of Lords on 25th April. The full text of the debate can be seen in Hansard (column 742 onwards). However, the extension of the defence of reasonableness to what is now S44 was specifically intended to provide the defence to, for example, whistleblowers who intentionally encourage journalists to publish confidential information. Consequently, if you publish information for the purpose of encouraging whistle blowing (in the public interest), you can use the same defence.

    The defence of acting to prevent crime or minimise harm was dropped because it was qualified by the requirement of reasonableness. It was argued, furthermore, that these purposes are reasonable. Therefore, the person who publishes “dual use” information for the reasonable purpose of crime prevention or minimising harm (by improving security, for example) has a defence.

    Comment by Les — 10 November, 2007 @ 12:46 pm | Edit This


  2. Les writes:

    I do not believe there has been a reversal in the burden of proof. For any offence, it has always been for the prosecution to prove both the offence and mens rea, which may include negligence. We have a duty not to encourage or assist crime which we must not neglect. The defence of reasonableness allows you to show that you were not negligent. S65 provides some specific examples, but be careful about s65(3); it is still an offence not to respond to a constable’s request for assistance.

    I’m not sure I agree that there is no reversal of the burden of proof.

    Suppose it was an offence to commit an act capable of encouraging or assisting an offence whilst being negligent of (or reckless as to) whether it will encourage or assist the commission of the offence. The prosecution would have to prove the negligence (or recklessness) on your part.

    But as it stands if it is proved that you commited an act capable of encouraging or assisting the commission of an offence, that you believed the anticipated offence would occur and that you believed your act would encourage or assist the commission of the anticipated offence, then the onus is then on you to prove that you acted reasonably.

    It may be that this is how you demonstrate you weren’t negligent or reckless under the SCA, but it means the prosecution need not show that you were negligent or reckless. Once they’ve shown that you knew that a consequence of your act was to encourage or assist the commission of the anticipated offence (and you believed that offence would occur at some point) the onus switches to you to prove you acted reasonably.

    Comment by James Hammerton — 11 November, 2007 @ 3:41 am | Edit This


  3. Under S45, the prosecution has to show that you BELIEVED that the anticipated offenced WOULD occur and that you BELIEVED that your act WOULD assist or encourage its commission, thus establidhing Mens Rea.

    Without S47, the judge could direct the jury to return a guilty verdict. With S47, if you demonstrate that your act was reasonable, the judge should direct the jury to return a not guilty verdict.

    Comment by Les — 2 December, 2007 @ 11:31 pm | Edit This


  4. I’ve responded to your latest comment here. Apologies for the delay.

    Comment by James Hammerton — 19 January, 2008 @ 6:54 pm | Edit This


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