Friday, January 30, 2015
Serious Crime Prevention Orders
The Courts have recently seen a marked increase in prosecution applications for Serious Crime Prevention Orders especially in cases prosecuted by HMRC and the NCA.
It appears that in some case these orders are almost applied for as a matter of course without proper regard being given to the terms in which an order should be made and the criteria for granting such an order.
If properly considered the majority of these applications can be successfully opposed as they are primarily designed to be ordered in the case of the most prolific career criminals.
What is a Serious Crime Prevention Order?
A Serious Crime Prevention Order can be imposed in certain circumstances upon a defendant in order to protect the public by preventing, restricting or disrupting the involvement of that defendant in serious crime in England and Wales: see section 19(2) of the Serous Crime Act 2007.
It may contain such prohibitions, restrictions or requirements and such other terms as the court considers appropriate for the purpose of achieving that same aim: see section 19(5).
A non-exhaustive list of examples of the types of prohibitions, restrictions or requirements which may be included in the terms of the order is restrictions on the ownership and use of telephones, computers, cars, restriction on travel, trade and ownership and operation of businesses.
Such an order may be in force for a maximum of 5 years. However, it need not come into force on the day it is made: see section 16.
The order is made in addition to the sentence imposed for the offence itself: see sections 19(2) and (7). It is a preventative rather than a penal measure.
What is the penalty for breaching a Serious Crime Prevention Order?
It is an offence to fail to comply with a Serious Crime Prevention Order without reasonable excuse. The offence is triable either way and is punishable on indictment with up to 5 years’ imprisonment: see section 25.
What is the procedure for applying for a Serious Crime Prevention Order?
Part 50 of the Criminal Procedure Rules applies to these applications. The power of the Crown Court to make a Serious Crime Prevention Order is contained within Part I of the Serious Crime Act 2007, and in particular within section 19. The High Court has a concurrent jurisdiction.
These are civil proceedings to be determined in accordance with the civil standard of proof: see section 36.
The court is not restricted to considering the evidence that would have been admissible in the criminal proceedings in which the person concerned was convicted: see section 36. The court can thus consider the evidence prepared and placed before it in relation to the confiscation proceedings when determining these applications.
What are the Criteria for imposing a Serious Crime Prevention Order?
The criteria for the imposition of a SCPO are as set out below. It is a three stage process:
(i) The court must be dealing with a defendant who has been convicted by or before the Crown Court of having committed a serious offence in England and Wales: see section 19(1)(b) and section 4(1).
- A serious offence is one which (inter alia) is specified, or falls within a description specified, in Part 1 of Schedule 1 of the Act: see section 2(2)(a).
- A serious offence can also be one which (whilst not in Part 1 of Schedule 1), in the particular circumstances of the case, the court considers to be sufficiently serious for the purposes of the application or matter as if it were so specified: see section 2(2)(b)
(ii) The court must have reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the defendant in serious crime in England and Wales: see sections 19(2).
- Involvement in serious crime means any one or more of :
(a) The commission of a further (but not necessarily the same) serious offence (see definition above): see section 3(a). NB: it must be remembered that the list of offences in Part 1 of Schedule 1 is long and includes, in addition to cheating the revenue and money laundering, offences of conspiracy to defraud, drug trafficking, people trafficking, arms trafficking, corruption and bribery, counterfeiting, blackmail and offences concerning intellectual property.
(b) Conduct which facilitates the commission by another person of a serious offence in England and Wales: see section 3(b).
(c) Conduct which is likely to facilitate the commission by the defendant or another person of a serious offence in England and Wales, whether or not such an offence is in fact committed: see section 3(c).
- The court is thus concerned with whether there is, on the balance of probabilities, a future risk that the defendant will commit further serious offences. The risk must be real or significant, rather than merely a bare possibility: see R. v. Hancox and Duffy  2 Cr.App.R.(S.) 74.
(iii) The order may only contain those prohibitions, restrictions and requirements as are appropriate for the purpose set out in (ii) above: section 19(5). Further, it is reemphasised that the terms of the order are not to be treated as a penalty, rather they must be preventative in nature.
The effect of (iii) is that, when considering the appropriateness of any particular clause proposed by the Crown, the Court should ask itself whether the clause in question will, on a balance of probabilities, make it less likely that the defendant will commit serious offences in the future. At this third stage, it should be noted that the likelihood of the defendant attempting to commit further offences is taken as read. Consideration of section 19(5) presupposes that the hurdle imposed by section 19(2) has already been crossed.
How should a Serious Crime Prevention Order be drafted?
The terms of any clause must be expressed in clear language, be genuinely preventative and not merely punitive, capable of enforcement and of a character that would tend to hinder the types of planning in which the defendant might otherwise engage. Examples include:
(a) A defendant’s financial, property or business dealings or holdings;
(b) His working arrangements;
(c) The means by which he communicates or associates with others, or the persons with whom he does so;
(d) The premises to which he has access;
(e) His use of any premises or item;
(f) His travel arrangements, either within or outside the United Kingdom.
Third parties likely to be adversely effected by an order in the terms proposed have the right to make representations to the court: see section 9(4).
There are various safeguards provided by sections 11 to 15 of the Act for the benefit of the defendant which (inter alia) exclude from a permissible order such terms as require questions to be answered orally, or require the breach of legal professional privilege, or require the disclosure of certain excluded material (as defined in PACE), or require the disclosure of banking or other confidential material save in certain circumstances.
Serious Crime Prevention Orders can be very onerous and can lead to an individual being unable to conduct business affairs, travel or enjoy a stress free life in respect of basic communications over the telephone or the internet. As such they should be properly considered and not just dealt with ’on the nod’.
As can be seen above the criteria an procedure for the making of such order are relatively strict as such orders are easy to oppose if done correctly.
If you have a case involving a SCPO please contact Quentin for expert legal advice.