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The Serious Crime Act 2007

James Hammerton



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Index

Introduction
Serious Crime Prevention Orders
Inchoate Offences
What is wrong with inchoate offences?
Further Reading

Introduction

The Serious Crime Act 2007 is a major piece of “criminal justice” legislation pushed through Parliament by the Labour government under both Tony Blair’s and, from June 2007 onwards, Gordon Brown’s premierships. It contains a number of assaults on civil liberties, such as Serious Crime Prevention Orders and Inchoate Offences, which could easily result in innocent people being punished, even where no crime has actually been committed. Note that the Act applies to England, Wales and Northern Ireland. In Scotland, criminal justice is mostly a devolved matter and thus proposals would have to go through the Scottish Parliament to enact a similar law north of the border.

This document summarises the legislation and explains how this Act’s measures threaten individual liberty.

Serious Crime Prevention Orders (SCPOs)

Part 1 of the Act provides powers for the courts to impose “Serious Crime Prevention Orders” on an individual. An order may be imposed on a person if the court is satisfied that the person concerned has been “involved in” serious crime, and if they have reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime (see Section 1)

Under Sections 2 and 3 of the Act, being “involved in” serious crime means that the person has either:

  • committed a serious offence (the court can only find that this is the case if the person was convicted of the offence - see Section 4),
  • facilitated the commission of a serious offence by another person,
  • or conducted himself in a way that was likely to facilitate the commission of a serious offence by himself or another person whether or not such an offence was committed.

SCPOs can last for upto 5 years (section 15, but this does not prevent a new SCPO being imposed when the old one runs out) and breaching them is an offence punishable by upto 5 years in prison (section 25).

A serious offence is defined as any offence specified in Schedule 1, or any offence that the court regards as being sufficiently serious to be regarded as being so specified (sections 2(2) and 3(2)). Part 1 of Schedule 1 specifies serious offences in England Wales, with Part 2 specifying serious offences in Northern Ireland.

SCPOs can impose prohibitions on, restrictions relating to and requirements relating to (Section 5):

  • an individual’s financial, property, or business dealings and holdings,
  • an individual’s working arrangements,
  • an individuals means of communication/association with others and/or the other persons with whom the individual can communicate or associate with,
  • the premisses an individual has access to,
  • the use of any premisses or item by an individual,
  • and individual’s travel

Under section 5, SCPOs may also place restrictions on corporate bodies, unincorporated associations and partnerships, such as prohibitions or restrictions on, or requirements in relation to:

  • financial, property or business dealings or holdings of such persons,
  • the types of agreements to which such persons may be a party,
  • the provision of goods or services by such persons,
  • the premises to which such persons have access,
  • the use of any premises or item by such persons,
  • the employment of staff by such persons.

Section 5 also allows SCPOs to include requirements that individuals must answer questions, or provide information or documents to law enforcement officers.

As can be seen these SCPOs are far reaching but there are some limitations:

  • They can only be placed on persons over the age of 18 (Section 6).
  • The Secretary of State can exempt people (Section 7) via an order in Parliament.
  • Only the Director of Public Prosecutions, the Director of Revenues and Customs Prosecutions and the Director of the Serious Fraud Office, and in the case of Northern Ireland, the Director of Public Prosecutions for Northern Ireland can apply to have an order place on someone (Section 8).
  • Third parties who would be seriously affected by the orders have a right to make representations to the court(Section 9).
  • A person is only bound by an SCPO (or any variations made to it) if he is represented in court at the time the order or variation is made or if he is notified in advance (at his last known address) that the order or variation is going to be made(Section 10).
  • SCPOs may not require people to provide information or answer questions orally (Section 11).
  • Section 12 prevents SCPOs from requiring the disclosure of legally privileged information.
  • Section 13 prevents SCPOs from requiring the disclosure of “excluded material” and restricts the circumstance under which banking information can be divulged.
  • Section 14 prevents SCPOs from requiring the disclosure of information where such disclosure is prohibited by other laws.

Nevertheless, these orders can be placed on people who have not been accused or charge with any crime, whose behaviour is judged likely to have facilitated a serious offence, even if no such serious offence actually took place!

I.e. there need be no evidence you committed any crime or even that a crime actually took place for you to be subjected to a SCPO. The judge (not a jury) merely needs to be satisfied that your conduct was “likely to facilitate” serious crime. Your conduct need not even have been illegal!

Inchoate Offences

Part 2 of the Act deals with “Inchoate Offences”, that is offences of “encouraging or assisting” crime.

Sections 44 to 46 of the Act define these inchoate offences:

  • Under section 44, a person commits an offence if he does an act capable of encouraging or assisting the commission of an offence, and he intends to encourage or assist the commission of that offence.

    Clause (c) also states that he is not to be taken as having intended to encourage or assist the commission of the offence, merely because such encouragement or assistance was a foreseeable consequence of his act.

    As it stands this seems reasonable to me - it merely criminalises the deliberate encouragement or assistance of a criminal offence. My main query is to whether this wasn’t already covered by existing offences such as being an accessory to an offence.

  • Under section 45, a person commits an offence if he commits an act capable of encouraging or assisting the commission of an offence and he believes such an offence will be committed and he believes that his act will encourage or assist the commission of the offence.

    Note that there is no reference to whether the person intended to encourage or assist the offence.

    Indeed once you demonstrated that the person committed an act capable of encouraging or assisting an offence, section 47(3) makes it clear that it is sufficient to demonstrate that the person believed that an act would be done that would amount to the commission of the offence and that he believed that his act would encourage or assist the doing of that act.

    Once these things are demonstrated, the only defence is for the person to prove his actions were “reasonable” (under section 50). The burden of proof has been reversed.

  • Under section 46, a person commits an offence if he does an act that is capable of encouraging or assisting one or more offences and he believes that one or more of those offences will occur and that his act will encourage or assist oe or more of them. It is immaterial whether the person has a belief as to which of the offences will occur.

    Essentially this offence is a generalisation of the offence under section 45. If your action encourages or assists a range of offences and you believe both that any of those offences will occur and that your action will encourage or assist them, then you’re guilty of this offence, unless you can prove that your action was “reasonable”.

    An example here of the reasoning required is to consider the sale of knives. They can be used to commit a range of offences from criminal damage (of someone’s property) through assault to murder. Selling knives to the general public will assist any members of the public who would commit some of these offences. If you sell in high enough volumes to strangers it’s a near certainty that someone will use your knives for on or more of the offences concerned. Therefore by selling knives to the general public, you are assisting the commission of those offences! Hopefully section 50 will come to your rescue - it’s hopefully “reasonable” to sell cooking implements to adults.

Note that those found guilty of encouraging or assisting an offence will generally face the same maximum sentence as someone guilty of the offence itself (section 58).

Sections 47 and 49 add two stipulations which complicate things further:

  • Section 47(8) states that references to the “doing of an act” include the failure to act! In other words, taking section 45 for example, if your failure to act is capable of encouraging or assisting an offence, and you believe that failure will encourage or assist the offence and you believe the offence will occur, then you’re guilty of encouraging or assisting the offence.
  • Section 49(1) states “A person may commit an offence under this Part whether or not any offence capable of being encouraged or assisted by his act is committed”.

Putting all this together, people may be deemed to be committing an offence if their failure to act was capable of encouraging or assisting the commission of offences that didn’t in fact occur!

Finally, note that under section 65, an act is capable of encouraging or assisting an offence if it involves taking steps to reduce the possibility of criminal proceedings being taken with respect to the offence.

What is wrong with inchoate offences?

To summarise, you commit an offence under section 45 (or 46) if:

  • You commit an act (or your failure to act is) capable of encouraging or assisting the commission of an offence, or the commission of one or more offences. (We’ll call the encouraged/assisted offence(s) the anticipated offence(s).)
  • You believe that the anticipated offence (or any of the anticipated offence(s) will occur.
  • You believe that your act will encourage or assist the commission of the anticipated offence(s).

However, it is a defence to prove it was reasonable for you to act as you did. So what is wrong with this law? I argue that:

I expand on these points below.

  • It has a serious impact on feedom of speech. Consider that anyone who praises or campaigns for the breaking of a particular law is arguably committing an offence since it encourages the breaking of that law. Remember that people would commit the offence of encouragement here even if the anticipated offences do not occur.

    For example, if it were an offence to refuse to register for a national identity card and you were urging people to refuse to register (in order to stop the scheme from going ahead), you’d be committing the offence of encouraging people to refuse to register! Thus organising and publicising a pledge like this one would be illegal. For the time being, there is no power to compel registration, so anti ID card campaigners need not worry about this unless the government decides to make refusal to register a criminal offence. In fact the government’s plan is to make refusal to register carry a civil penalty rather than a criminal offence so it may not be an issue at all. But it illustrates how the existence of the SCA makes it easy for the government to make campaigns urging civil disobedience illegal.

    Now consider that it is an offence to take part in or organise a demonstration within 1km of Parliament without getting prior permission from the Metropolitan Police. Take someone who, on their blog, publicises a planned unauthorised demonstration organised in defiance of this law. By publicising the fact this is taking place, they are arguably assisting in the organisation of the demonstration, especially if they provide the date and time of the planned demo and where to meet up and/or who to contact if you want to go along.

    Note that, as if to avoid all doubt, Part 2 of Schedule 6 (see clause 64 of this schedule) of the Act amends the Serious Organised Crime and Police Act 2005 explicitly to make it an offence to encourage or assist in the taking part in or organising of an unauthorised demonstration. The punishment is upto 51 weeks in jail.

    But could the blogger not defend himself on the grounds his action was reasonable, e.g. that any Met police officers who were informed of the planned demonstration could act to stop it? The problem here is that this would also apply to simply telling the Met police directly. By blogging about it, you’re publicising it to anyone, and therefore to people who might wish to take part (and thereby commit the anticipated offence), when to simply alert the police you could just tell the police. To invoke the defence of reasonableness you would somehow have to demonstrate that informing the general public was “reasonable”.

    There is one tactic that might work, namely arguing that you are simply reporting the news and that it is not reasonable to proscribe such reporting. A newspaper could argue for example that they should be able to report that a group is planning to hold a demonstration in defiance of a controversial law and that it is unreasonable (because it is undemocratic?) for this reporting to be proscribed. Arguably they’d be bound to reporting the bare minimum details to inform the public what is going on (e.g. the date, place and perhaps the time of the protest along with who is organising it) without providing any further information that might aid someone in taking part in the protest in order to get away with this defence though. Would the courts agree with this defence? Would they agree if, instead of it being a newspaper, it was a blogger who was making this argument? Only time will tell.

    But suppose the newspaper, or a blogger, decided to publish an editorial/article, in advance of the demonstration, arguing that the protestors concerned are right to demonstrate in defiance of the law in order to stand up for free speech? Surely this would be “encouraging” the commission of the offence?

    Even if it were published after the offence, would it not “encourage” further such offences? Or would preventing people from expressing their views in this manner be regarded by the courts as “unreasonable”?

    Thing is, even if a case doesn’t get to court, this law will allow arrests to be made where someone is under suspicion of encouraging or committing an offence, and thus there’s a prima facie case for anyone who plays a part (wittingly or otherwise) in the demonstration or its organisation to be arrested. E.g. the drivers and/or owners of any buses put on specifically to take people to the demonstration, bloggers who publicised it, columnists who expressed support for the demonstration, and anyone who was in a position to stop any of the demonstrators from turning up who failed to either stop them or let the police know so they could stop them.

    Indeed, suppose a bus company is approached by the organisers of the demonstration who ask to hire a bus on the date concerned. If the bus company are aware of who the organisers are and what they’re planning, wouldn’t they be committing an offence if the let the hire go through?

    And finally, are any bystanders watching or walking past the demonstration also guilty of assisting the demonstration by failing to stop the demonstrators?

  • It effectively criminalises bystanders. TO BE WRITTEN.

Further Reading

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magnacartaplus.org 2006, 9 December

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