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Serious Crime Prevention Orders
Serious Crime Act 2007 - Sections 1 - 41 and Schedules 1 and 2

Introduction

1. Power to Make Orders

1.1. A Serious Crime Prevention Order (SCPO) can be made on application by the Director of Public Prosecutions, the Director of the Serious Fraud Office and the Director of Public Prosecutions for Northern Ireland, to the High Court, or by application to a Crown Court before whom a person appears having been convicted of a serious offence. These are civil proceedings with the civil burden of proof. (See courtt proceedings and burden of standard of proof below)

(Sections 1 and 19).

2. Test

2.1. In the case of the High Court, the judge must be satisfied that the person has been involved in serious crime (whether in England and Wales or elsewhere) (see paragraph 10.1-10.7 below).

2.2. In the case of the Crown Court, the person must have been convicted of a serious offence by the Crown Court or committed to the Crown Court following conviction of a serious offence by a Magistrates Court. Serious offence is defined in Schedule 1 (see paragraphs 9.1-9.5 below). An SCPO can still be made on a defendant given an absolute or conditional discharge following conviction as sections 12 and 14 of the Powers of Criminal Courts (Sentencing) Act 2000 [discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made] are effectively disapplied by section 36(5)). (Sections 1(1)(a) and 19(1)(a))

2.3. In addition, in both cases the court must have reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales. Implicit within this second test is a requirement that there are also reasonable grounds to believe that there is a real risk that the person will be involved in further conduct falling within the Act from which the public require protection.

(Sections 1(1)(b) and 19(2)).

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3. Terms of Orders

3.1. An order may contain:

  • such prohibitions, restrictions or requirements; and
  • such other terms;

as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person concerned in serious crime in England and Wales. Although the Act is not altogether clear in this regard, it is submitted activity in Northern Ireland is properly the subject of an SCPO issued by the Northern Ireland Courts. Accordingly, where the targeted conduct comprises activity in Northern Ireland in addition to activity on the mainland, then the safest approach is to obtain 2 separate orders, one from the Courts in England and Wales and one from the Northern Irish Courts. This will require early liaison with the Public Prosecution Service for Northern Ireland PPSNI), which will determine whether to make an application to the courts there.

(Sections 1(3) and 19(5)).

3.2. Section 5 sets out examples of the types of prohibition, restriction or requirement that an order might contain. It is explicit in stating that these are only examples and the types of provision that the court can consider is entirely open within the requirement that they must be appropriate for the overriding purpose set out in paragraph 2.2 above. Prohibitions etc. are not limited to England and Wales and can extend outside the jurisdiction but must be aimed at preventing, restricting or disrupting involvement in serious crime in England and Wales. (See section 2(3) at paragraph 10.7 below.)

(Section 5(2))

3.3. The examples given of the provisions that could be contained in an order against an individual are very broad and include prohibitions or restrictions on, or requirements in relation to:
financial, property or business dealings;

  • working arrangements;
  • with whom a person associates or communicates and the means used to do so;
  • the premises he/she is allowed to use and for what purpose;
  • the use of any item and
  • travel both within UK and abroad.

(Section 5(3))

While the possible terms of an order could restrict the persons life in almost any respect, and to a very significant degree, including his/her home and where he/she lives, any term will still have to be objectively justified as appropriate for the purpose of protecting the public by preventing involvement in serious crime.

3.4. An order can also require a person to answer questions or provide information or documents specified in the order. The order can specify how, when and where the question must be answered or the information or documents provided to a law enforcement officer.
(Section 5(5))

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4. Safeguards: General

4.1. Applicant: Only the relevant prosecuting authorities can apply for orders and the person against whom the order is sought must be over 18.

(Sections 6 and 8)

4.2. Notice: An SCPO (or a variation) does not have the effect of binding the person named in it unless either he/she is represented at the proceedings (either in person or otherwise) or a notice setting out the terms of the order has been formally served upon the person. The requirements of service are set out in the act. Included is a power for a constable, or a person authorised by the relevant applicant authority, to enter premises where it is believed the person to be served is, using force if necessary, in order to search the premises for the person.

(Section 10)

4.3. Third Party Interests: Anyone who is likely to be adversely affected to a significant degree has a right to be heard and make representations before the relevant court considering making, varying or discharging an SCPO. An undertaking was given to parliament during the debates on the Bill that the application will contain details of the potential impact of the proposed order upon third parties.

(Section 9)

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5. Restrictions

5.1. An SCPO cannot require a person:

  • to provide oral answers to questions or requirements to provide information. (Section 11)
  • to answer questions, or provide information or documents which are covered by legal professional privilege. (Section 12)
  • to produce excluded material as defined by section 11 PACE. (Section 13(1)(a))
  • to disclose any information or produce any document held by him in confidence as part of a banking business unless:
  • there is consent from the person to whom confidence is owed, or
  • the order specifically required disclosure of information or documents of this kind, or it required disclosure of specified information or documents of this kind. (Section 13 (2)-(4))

to provide information or documents or answer questions if it would involve a disclosure prohibited by another enactment.

(Section 14)

5.2. A statement made by a person in compliance with an SCPO cannot be used in evidence against him/her unless

  • the person is being prosecuted for breach of the SCPO under section 25, or
  • the prosecution is for another offence, the person gives evidence and makes a statement which contradicts an answer or information previously given in response to the order and the previous statement is itself adduced by or on behalf of the person.

(Section 15)

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6. Duration

6.1. An SCPO can be for a maximum period of 5 years and must state when it starts and ends. However, the court can delay the commencement of the order, e.g. to commence upon release from prison. It can also set different dates for the start and end of different provisions in the order, e.g. prohibitions regarding with whom the person can associate and communicate could commence while in prison, and those with regard to his working arrangements, where he/she is to live and premises to which he/she is allowed access could commence following release.

6.2. If the court exercises the power to delay the implementation of any provision then the period of 5 years is calculated from the commencement of the first provision to come into force.

6.3. The 5-year limit does not prevent the making of a subsequent order, or provision, in the same or different terms, provided the requirements of section 1 are still met. The fresh order can be made in anticipation of the original one ending in order to ensure continuity. Despite the apparently wide terms of section 16, the power to make a fresh order is limited to the High Court. The reason for this interpretation is a combination of section 19, which is the source of the Crown Court power to make an order and is limited to when the court is dealing with a person in relation to the (serious) offence of which he or she has been convicted by that court, the very much more limited powers of the Crown Court to vary orders under sections 20 & 21 (see paragraphs 7.5 & 7.6 below) and the fact that the Crown Court has no power to discharge an order under section 18 (see paragraph 8 below). These provisions indicate the intention to restrict the jurisdiction of the Crown Court in relation to these orders.

(Section 16)

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7. Variation

High Court:

7.1. The applicant authority can apply to vary an order and the court can grant variation if it has reasonable grounds to believe that the order as varied will protect the public by preventing etc. the persons involvement in serious crime. Variation can include an extension of an order, or one of its provisions, within the overall maximum of 5 years.

(Section 17)

7.2. The person subject to the order can apply for a variation but only if he can satisfy the court that there has been a change of circumstances affecting the order.

7.3. A third party can also apply for a variation subject to satisfying the court that:

  • He/she is significantly adversely affected by the order;
  • The variation applied for is not for the purpose of making the order more onerous;
  • He/she was given the opportunity to make representations when the order was made or has made another application in respect of the order and there has been a change of circumstances, or
  • He/she has not previously made any application and it was reasonable for him/her not to have done so.

7.4. The High Court can vary an SCPO made by the Crown Court and can hear an application for an SCPO or variation where the Crown Court has refused to make an order under section 19 or vary an order under section 21 or 22.

(Section 22)

Crown Court:

7.5. The powers of the Crown Court to vary an order are more limited. The Crown Court can only vary an order in two circumstances:

  • When it is dealing with a person who has been convicted by it of a serious offence or committed by a convicting magistrates court and who is already the subject of an SCPO, whether made by the High Court or a Crown Court.(Section 20 and 22)
  • When dealing with the person following conviction of an offence under section 25 (failing to comply with an SCPO). (Section 21)

7.6. The variation can only be made on the application of the relevant applicant authority and cannot be made in substitution for a sentence; it must be in addition to a sentence or conditional discharge imposed for the offence. Variation can include an extension of an order, or one of its provisions, within the overall maximum of 5 years.

8. Discharge

8.1. The High Court in England and Wales may discharge an SCPO made by either the High Court or Crown Court in England and Wales (s. 18(1)).

8.2. Application for discharge may be made either by:

  • The relevant applicant authority, or
  • The person who is the subject of the order, or
  • Any other person.
    (Section 18(2))

8.3. However, where the discharge application is made by the subject of the order or any other person, there are significant restrictions on the High Courts power to hear the application.

8.4. Where the discharge application is made by the subject of the SCPO, the High Court may only entertain the application if it considers that there has been a change of circumstances (s. 18(3)).

8.5. Where the discharge application is made by any other person, the High Court may only entertain the application if:

  • The person making the application is significantly adversely affected by the SCPO (s. 18(4)(a)), and either
  • The person has, in earlier proceedings relating to the order, been given an opportunity to make representations and there has since been a change of circumstances affecting the order (s. 18(4),(5)); or
  • The person has not made any earlier application to the High/Crown Court and it was reasonable in all the circumstances for him/her not to have done so (s.18(4)(6)).

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9. Serious Offence

9.1. The power to make an SCPO is dependent upon:

  • In the High Court involvement in serious crime;
  • In the Crown Court conviction of a serious offence.

9.2. Serious offence is defined in section 2(2) as an offence specified or falling within the description specified in Part 1 of Schedule 1, or an offence which in the particular circumstances the court considers to be sufficiently serious to be treated (as a serious offence) for the purposes of the application.

9.3. The schedule sets out an extensive list of offences under 13 headings:

  • Drug trafficking;
  • People trafficking;
  • Arms trafficking;
  • Prostitution and Child sex;
  • Armed robbery etc.;
  • Money laundering;
  • Fraud;
  • Offences in relation to public revenue;
  • Corruption and bribery;
  • Counterfeiting;
  • Blackmail;
  • Intellectual property;
  • Environment

9.4. The definition is also extended to include the corresponding inchoate offences, the new offence under Part 2 of the Act (in force as from 1 October 2008) of encouraging and assisting, and offences which fall within the descriptions but were offences under preceding legislation at the time of the conduct concerned. (Schedule 2 paragraphs 14 and 15).

9.5. When the list, which includes everything from the usual offences also appearing in the Serious and Organised Crime and Police Act, to fishing for salmon with the wrong tackle and the unauthorised disposal of controlled waste, is taken together with the courts power to treat an offence as serious if it considers it so, it is clear that these orders will potentially be available in a very wide range of circumstances.

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10. Involvement in Serious Crime

10.1. Section 2, in addition to providing what constitutes a serious offence (paragraphs 9.2 - 9.5 above), also sets out definitions of, "has been involved in serious crime", both "in England and Wales" and "elsewhere than in England and Wales", and "involvement in serious crime in England and Wales".

10.2. "Has been involved in serious crime (whether in England and Wales or elsewhere)" is the precondition for the exercise by the High Court of its power to make an order. The High Court may be satisfied that a person has been so involved in England and Wales if:

  • He/she has committed a serious offence in England and Wales;
  • He/she has facilitated the commission by another of a serious offence in England and Wales, or
  • His/her conduct was likely to facilitate the commission by himself/herself or another of a serious offence in England and Wales, whether or not such an offence was committed.

10.3 Section 2(4) sets out identical provisions in respect of involvement in serious offences outside England and Wales. Section 2(5), together with 2(7), goes on to state that a serious offence in a country outside England and Wales means an offence under the law of the other country, however described, which would have been an offence if committed in or as regards England and Wales and would have fallen within Part I of Schedule 1, or was conduct which, in the circumstances of the case, the court considered sufficiently serious to be treated as such.

10.4. The court cannot make a finding that the person has committed a serious offence unless he/she has been convicted of it. If he/she has been convicted then the court must make such a finding. This will apply to both domestic and foreign convictions (Section 4(1)).

10.5. When the court is considering whether the person has facilitated the commission by another of a serious offence or his/her conduct has been such as was likely to facilitate an offence by himself/herself or another, the court must ignore any act which the person can show was reasonable in the circumstances and, subject to that, also ignore his/her intentions or any other aspect of his/her mental state at the time (Section 4(2) and (3)).

10.6. This means that the person may be able to escape being made the subject of an order if he/she can show that the conduct or any act relied upon by the prosecutor to show that he was involved in serious crime was action that was reasonable for him/her to take in the circumstances. This must be based upon objective facts because it will not help the person to say that although he/she may have acted unreasonably, either he/she never intended to facilitate an offence, or did not realise that his/her actions were likely to facilitate serious crime by himself/herself or another. In other words, if he/she subjectively and honestly believed that what he/she did was innocent and was done with innocent intent, that will not prevent the court from finding him/her to have been involved in serious crime if it turns out that in fact those actions, without intent and unknown to him/her, did facilitate or were likely to facilitate serious crime and were not reasonable. Whether or not, if he/she is believed, it will be appropriate for the court to make an order against him/her in those circumstance is a different matter. Such a person may not present a risk of further involvement in serious crime requiring the imposition of an order.

10.7. The order must be for the purpose of protecting the public by preventing, restricting or disrupting the persons involvement in serious crime in England and Wales. This is defined in section 2(3) as:

  • the commission of a serious offence in England and Wales,
  • conduct which facilitates the commission by another of a serious crime in England and Wales, or
  • conduct likely to facilitate the commission of such an offence by the person or another, whether or not such an offence is committed.

10.8. There is an important distinction to be drawn. Section 1(a) is concerned with involvement in serious crime in England & Wales or elsewhere whereas the future protection to be afforded by the order is as to involvement in the commission or facilitation of the commission, by him/herself or another, of a serious crime in England & Wales only (See paragraph 16 of the Explanatory notes which supports this contention).

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11. Bodies Against Whom Orders can be Made

11.1. Apart from individuals an application for a serious crime prevention order can be made against a body corporate, a partnership or an unincorporated association. Sections 30 - 32 set out provisions which describe how service is to be effected on these bodies and how liability of these bodies and their officers is determined.

Bodies Corporate:

11.2. In order to comply with the service requirements of section 10 a body corporate, which includes a limited liability partnership (section 30(4)), can be served in person by the service of a notice setting out the terms of the order being delivered to an officer of the body in person, and is deemed to have been sent by recorded delivery to the body at its last known address if it is sent by recorded delivery to a named officer of the body at either the registered office or its principle office in the UK. The power under section 10(3) to use reasonable force to enter premises to search for a person in order to effect personal service applies to the search for an officer of the body corporate. (Section 30(1)(b))

11.3. The fact that an order is being, or has been made against a body corporate does not prevent an order also being made against one of its officers or employees or any other person associated with it provided of course that the court is satisfied that they personally qualify under section 1 or 19. Care will be needed to ensure that the appropriate company is named in the application and order. Prosecutors must be aware of the difficulties caused by confusing a holding company with a subsidiary or associated company which is actually responsible for the acts which it is sought to prohibit, restrict or disrupt.

Partnerships: (Excluding limited liability partnerships which are dealt with as bodies corporate above)

11.4. An order can be obtained against a partnership and, if made, must be made in the name of the partnership rather than any individual partner. However, this does not prevent orders also being obtained against individual partners, senior officers, employees or other persons associated with the partnership. Proof of involvement of a partnership in serious crime in England and Wales or elsewhere is satisfied by showing that the partnership or any of the partners is so involved, though where reliance is placed upon the actions of a single partner the acts or conduct relied upon must be related to the partnership business. (Section 31(1), (3) and (10)).

11.5. If an order is obtained against a partnership, changes in the identity of the partners will not affect the order, so long as at least one of the remaining partners was in the partnership at the time the order was made. (Section 31(2)).

11.6. To comply with the service requirements of section 10, the notice setting out the terms of the order or any variation may be served by delivery to the partnership in person by delivery to one of the partners or a senior officer of the partnership in person, and is deemed to have been sent by recorded delivery to the partnership at its last known address if it is sent by recorded delivery to any of the partners or a senior officer of the partnership at the principal office of the partnership in the UK. The power under section 10(3), to use reasonable force to enter premises to search for a person in order to effect personal service, applies to the search for a partner or senior officer of the partnership. (Section 31(4)(b)).

11.7. A senior officer of a partnership means anyone who has the control or management of the business carried on by the partnership at the principle place where it is carried on. (Section 31(11)).

Unincorporated Associations:

11.8. Section 32 makes almost identical provisions with regard to obtaining an SCPO against an unincorporated association. Any order obtained must be in the name of the association not any of its members, and will continue to be effective for so long as at least one person remains a member from the time the order was made. Service can be on an officer of the association, who is defined as any officer of the association or any member of its governing body.

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12. Court Proceedings

12.1. Proceedings for an SCPO in the High Court are civil proceedings. As a consequence both the civil standard of proof and civil rules of evidence will apply e.g. regarding hearsay. (Section 35(1)).

12.2. Similarly, proceedings in the Crown Court for an SCPO following conviction are also civil (section 36(1)). The Crown Court can therefore consider evidence not admissible in the criminal proceedings and can adjourn the SCPO proceedings even after the person concerned has been sentenced (section 36(3)).

12.3. While proceedings in the High Court will be governed by the Civil Procedure Rules, those in the Crown Court, while civil, by virtue of section 35(2), will still be governed by the procedure rules and practice directions of the Criminal Procedure Rules under Part 7 of the Courts Act 2003.

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13. Burden and Standard of Proof:

13.1. Although these are to be civil proceedings (Section 35(1)) the burden of proving that the defendant in the High Court has been involved in serious crime will be on the applicant authority. The standard of proof is to be the civil standard (Section 35(b)). However, in the context of anti-social behaviour orders, also civil proceedings, the House of Lords held in R v. Manchester Crown Court ex parte McCann [2002] UKHL 39, that the standard of proof to be applied in deciding whether anti-social behaviour had taken place was equivalent to the criminal standard of beyond reasonable doubt. The court stated:

"the standard of proof to be applied to a defendant's conduct was the criminal standard. There were good reasons, in the interests of fairness, for applying that higher standard where allegations were made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they were made."

It must be anticipated that the same standard will apply in proceedings for an SCPO, where the consequences may be even more restrictive and severe.

13.2. If satisfied that the person has been involved in serious crime, the court, before making an SCPO, must "have reasonable grounds to believe that an order would protect the public by preventing (etc.) the involvement by the person in serious crime". Any conditions in the order must be "appropriate" for that purpose. (Section 1(a) and (b)).

13.3. The use of the words "reasonable grounds to believe" in respect of the effect of the order, and "appropriate" in reference to the inclusion of any prohibition, restriction or requirement, is in contrast to the words used in the context of Sexual Offences Prevention Orders under section 104 of the Sexual Offences Act 2003, Anti-social Behaviour Orders under section 1 of the Crime And Disorder Act 1998 and control orders made under section 1(3) of the Prevention of Terrorism Act 2005. In all these acts it is stated that the making of the relevant order must be "necessary" to protect the public from the proscribed harm and any conditions must also be "necessary" for that purpose.

13.4. When considering whether this difference will have any practical effect on the test that the courts should apply in deciding whether to make an order and what conditions to include, reference needs to be made to the Human Rights Act. When consideration is given to the likely prohibitions and restrictions that it is anticipated that an order will contain, as exemplified in section 5, all are likely to engage various articles of the European Convention on Human Rights and in particular, Article 5 (liberty and security), Article 8 (private life), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association). While clearly the Act satisfies the requirement for any interference with these rights to be lawful, any interference must also be necessary and proportionate to the desired aim.

13.5. When considering whether there are reasonable grounds to believe that an order would protect the public from further serious crime, the court is making a judgement which is not susceptible to proof beyond reasonable doubt. As these are civil proceedings, the level of proof is likely to be on a sliding scale depending upon the severity of the conditions it is sought to impose by means of the order.

13.6. In the context of bail a distinction has been drawn between "substantial grounds" to believe D will commit a further offence justifying refusal of bail and "a real and not a fanciful risk of an offence being committed" justifying conditions being imposed. (R v Mansfield jj ex parte Sharkey (1985) 1 All ER 193 @201).

13.7. Where less restrictive conditions are being sought, the test should be that the risk should be real and not fanciful, but not as high as "substantial grounds to believe" nor a risk that it is more likely than not that the defendant will continue to be involved in serious crime; a higher level of risk will be applicable for conditions which will substantially restrict a persons activities.

13.8. Under sections 225-229 of the Criminal Justice Act 2003 the court has to assess whether there is a "significant risk" that a defendant will commit further specified offences to qualify for a life sentence or a sentence for public protection. The court said, "The risk identified must be significant. This is a higher threshold than mere possibility of occurrence and in our view can be taken to mean (as in the Oxford Dictionary) noteworthy, of considerable amount or importance." (R v. Lang & others [2005] EWCA Crim 2864 & R v. Johnson [2007] 1 WLR 585)

13.9. The nature of the offending before the court, i.e. serious crime, probably featuring conduct consistent with a professional organised criminal, and the defendants previous record of offending, could both be used to support the contention that re-offending or continued involvement is a real risk because it can be suggested for example, that the defendant lives by crime.

13.10. R v. Lang & Ors (above) also offers guidance on the matters the sentencer should take into account:

"the nature and circumstances of the current offence; the offender's history of offending including not just the kind of offence but its circumstances and the sentence passed, details of which the prosecution must have available, and, whether the offending demonstrates any pattern; social and economic factors in relation to the offender including accommodation, employability, education, associates, relationships and drug or alcohol abuse; and the offender's thinking, attitude towards offending and supervision and emotional state".

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14. Appeals and Variation

From the High Court

14.1. Appeal lies to the Court of Appeal (Civil Division) in relation to a High Court decision to:

  • Make an SCPO;
  • Vary/not to vary an SCPO;
  • Discharge/not to discharge an SCPO.

(Section 23(1))

14.2 Such an appeal may be brought by:

  • Any person who was given the opportunity to make representations in the SCPO proceedings;
  • Any other person entitled to make an appeal by virtue of Section 16 Supreme Court Act 1981 (To be renamed the Senior Courts Act when s59(5) Constitutional Reform Act 2005 is commenced).

(Section 23(1) and (2))

From the Crown Court

14.3. An appeal may be made to the Court of Appeal (Criminal Division) against a decision of the Crown Court in relation to an SCPO by:

  • The person subject to the order; or
  • The relevant applicant authority.

(Section 24(1))

14.4. An appeal may also be made to the Court of Appeal in relation to a Crown Court decision to:

  • Make an SCPO; or
  • Vary/not to vary an SCPO

by any person given an opportunity to make representations in the SCPO proceedings.

14.5. Both above types of appeal require either:

  • Leave of the Court of Appeal (Section 24(3)); or
  • A certificate from the Judge whose decision is appealed, certifying that the decision is fit for appeal (Section 24(4)).

From the Court of Appeal

14.6. Appeal lies from any appeal decision of the Court of Appeal (Criminal Division) to the House of Lords [Supreme Court] (To be renamed when s23 Constitutional Reform Act 2005 is commenced) at the instance of any person who was a party to the proceedings before the Court of Appeal (Section 24(6)). (For criminal appeals see the Serious Crime Act 2007 (Appeals under Section 24) Order 2008).

14.7. Such an appeal can only be made with the leave either of the Court of Appeal or House of Lords (section 24(6)).

14.8. Leave can only be granted if:

  • The Court of Appeal certifies that the decision involves a point of law of general public importance; and
  • The Court of Appeal/House of Lords considers that the House of Lords ought to consider it.

(Section 24(8))

No express provision is required for appeals to the House of Lords from the Court of Appeal (Civil Division). The Administration of Justice Act 1960 provides the necessary right of appeal.

Variation

14.9. For the Crown Courts power to vary an SCPO following conviction for breach see above Paragraph 7.

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15. Breach of an Order

Offence

15.1. Breach of an SCPO without reasonable excuse constitutes an offence punishable:

  • on summary conviction by up to 12 months imprisonment, a fine not exceeding the statutory maximum or both;
  • on conviction on indictment by up to 5 years imprisonment or a fine or both.

Section 25(1) and (2).

Forfeiture

15.2. The court before which a person is convicted of an offence under section 25 may, having given the person or any other interested party an opportunity to make representations, order forfeiture of anything in the persons possession at the time of the offence and which it considers to have been involved in the offence (section 26(1)).

15.3. Such an order can only come into force once there is no possibility of the order being varied or set aside on appeal (section 25(3). The court may order such other provision as it considers necessary to give effect to the order, including provision in relation to handling, destruction or other disposal of the item forfeited (section 26(4) and (5)).

Winding-Up

15.4. Where a company, partnership or relevant body is convicted of an offence under section 25, the:

  • Director of Public Prosecutions,
  • Director of the Revenue Customs Prosecutions Office, or
  • Director of the Serious Fraud Office.

may present a petition to the court for the company, partnership or relevant body to be wound up, if he/she considers that it would be in the public interest for such an order to be made (section 27(1)).

15.5. The court may only make an order to wind up a company if:

  • The company has been convicted of an offence under section 25; and
  • The court considers it is just and equitable for the company to be wound up.

(Section 27(4)).

15.6. Section 25(5) and (6) enable the extension of provisions regarding insolvent partnerships and other relevant bodies to partnerships and other relevant bodies under this section. If this happens the court may make an order winding up the partnership or relevant body but only if:

  • The partnership has been convicted of an offence under section 25; and
  • The court considers it would be just and equitable for the partnership or relevant body to be wound up

(Section 27(7)).

15.7. No petition for or a winding up order under section 27 may be presented/made unless:

  • Any appeal against conviction has been finally determined; or
  • The period for making such an appeal has expired.

(Section 27(9))

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16. Monitoring and Compliance

16.1. The terms of an order against a body corporate, partnership or unincorporated association may include provision to permit a law enforcement agency (defined in section 39 (10) as police, National Crime Agency (NCA), HMRC or SFO) to enter into an arrangement with a specified person or a person falling within a specified description to perform monitoring services.

16.2. The monitoring services must be specified or of a specified description (section 39 (1)). Monitoring services are defined in section 39 (10).

16.3. An order may provide for a person to answer questions, provide information or to produce documents to an authorised monitor, to enable the performance of monitoring services. The law enforcement agency must inform the subject of the order of the name and address of any authorised monitor (section 39 (3) and (8)).

16.4. The order may also require the body corporate, partnership or unincorporated association to pay some or all of the costs incurred by the law enforcement agency under the arrangements made with the authorised monitor. If such payment is required, the period or periods within which it is to be made must be specified and the order may require payment on account (section 39 (4) and (5))

16.5. The requirement throughout Part 1 that the court must have 'reasonable grounds to believe that the order would protect the public' etc. before it can make or vary an order is disapplied for the purposes of terms relating to payment of the costs of authorised monitors (section 39 (6)). The court is nevertheless required to be satisfied that it is appropriate in all the circumstances to include such terms in an order. The circumstances to be taken into account include the means of the subject of the order, the anticipated costs and the likely effect of the terms on the ability of the subject to carry on its business.

16.6. The Secretary of State may by order provide for the practice and procedure for determining the amount of any costs and interest payable by virtue of sections 39(4) and (5). There is a duty on law enforcement agencies to take reasonable steps to recover outstanding costs and interest. 'Reasonable steps' are to be defined by order and once such steps have been taken, the amounts due become recoverable as if due by virtue of a civil order or judgment (section 40).

16.7. Section 41 provides for law enforcement officers to take and retain copies of documents produced pursuant to a serious crime prevention order. The documents themselves may be retained for as long as the law enforcement officer considers it necessary to do so. In particular, a document may be retained until the conclusion of 'any legal proceedings' if there are reasonable grounds to believe that it may need to be produced for the purposes of the proceedings and that it may be unavailable for that purpose unless retained.

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17. Commencement:

17.1 The sections relating to the making of Serious Crime Prevention Orders were brought into force on 6 April 2008, Serious Crime Act (Commencement No.2 Transitional and Transitory Provisions and savings) Order 2008 (S.I. 2008 No.755) paragraph 15. Schedule 13 of the Act also contains transitional and transitory provisions.

17.2. Paragraph 1 of schedule 13 states that "in deciding for the purposes of paragraph (a) of section 1(1) or (2) whether a person has been involved in serious crime, the court may take account of conduct before the coming into force of that provision as well as conduct after the coming into force of that provision." Paragraph 2 limits the operation of the provisions in respect to the Crown Court to persons convicted of a serious offence after 6 April 2008.

17.3. The provisions therefore can have a retroactive effect. The order is essentially a preventative measure rather than punitive, and can only be made if it will protect the public by preventing, restricting or disrupting future offending by an individual. The aspects pointing towards an order being a penalty (trigger conviction, liability to penalty for breach) do not outweigh its preventative nature.

17.4. Having regard to the public interest in preventing serious crime and the safeguard that an order may only be made if the court has reasonable grounds to believe the order will protect the public from future offending and the fact that the Act specifically states that these are civil proceedings, it is considered that an SCPO is not a penalty it is not a punishment.

17.5. As such, it does not breach Article 7 of the European Convention which forbids retroactive penalties. (See Archbold paragraph 16-100 and Ibbotson v UK [1999] Crim. L.R. 153. Also R v Field and R v Young (2003) 3 All ER 769 which show that other preventive orders can be based upon things done before the relevant legislation was passed. See also R v. Terrance Adams [2007] EWCA Crim 914, which addresses the same issue in the context of Financial Reporting Orders under Serious Organised Crime and Police Act 2005)

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Policy and Procedure

18 Policy

Prosecution or SCPO

18.1. In the course of the passage of the Serious Crime Bill in both Houses of Parliament, the Government stated that Serious Crime Prevention Orders were not intended, and would not be used as "a soft alternative to prosecution... there has been much mistaken comment about these orders being a way for law enforcement agencies to get round troublesome prosecutions... that is not the intention" (Baroness Scotland 7 February 2007 Hansard HL col. 728). "In this area in particular (human trafficking), these orders should never be seen as a substitute for prosecution. Prosecution has to be explored with vigour" (Hansard HL 7 March 2007 col. 270).

18.2. It was emphasised on a number of occasions that it was the Government's "... belief that the vast majority of cases relating to clause 1(1)(a) would involve people who had been convicted of a criminal offence." (Mr Vernon Coaker, Parliamentary Under-Secretary of State for the Home Department, 26 June 2007).

18.3. In the circumstances, an application for an SCPO should generally only be made either following a conviction for a serious offence or following a decision that, applying the Code for Crown Prosecutors, the evidence available does not provide a realistic prospect of a conviction or a prosecution would not be in the public interest, for reasons other than the availability of an SCPO. It will usually be in the public interest to prosecute a defendant for a serious crime listed in the schedule to the Act.

18.4. Unlike the provisions of the Prevention of Terrorism Act 2005 s. 8, which requires the Secretary of State to consult with police regarding the possibility of a prosecution before imposing a control order and obliges the police to fully investigate the individual's actions and keep the possibility of prosecution under review, the Serious Crime Act 2007 (SCA) makes no such requirements of the prosecutor. However, it is suggested that prosecutors and investigators should keep under review the possibility of bringing a prosecution and where a breach of an order is alleged consider prosecution for any offence revealed in addition to the offence of breach under section 25 of the Act.

18.5. If a decision is made not to prosecute care must be taken not to mislead the defendant into thinking that the evidence will not be used to support an application for an SCPO against him.

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Reasonable and Proportionate.

18.6. The application for an order must be seen as a serious step that can involve the imposition of significant conditions affecting the rights of the individual or organisation subject of the order. During the parliamentary passage of the relevant provisions Baroness Scotland stated that orders would be sought "where appropriate and in a targeted way as a result of specific investigations by law enforcement agencies into serious crime." "These orders will not be lightly sought, because they are likely to be limited in number and directed to those cases where the seriousness of the activity is such that the (prosecuting) authorities believe it necessary to take this action". Baroness Scotland 7 February & 4 March 2007.

18.7. While "serious offence" is defined in the Act by reference to the list in schedule 1, it is not exclusive, but it is intended to provide strong guidance as to the level of offending that the orders are intended to prevent. It is anticipated that a court, when considering whether an offence not on the schedule should, in the circumstances of the particular case, be treated as a serious offence under section 2(2)(b), will bear in mind the type and seriousness of the offences in the schedule. Prosecutors considering applying for an SCPO in respect of a non-scheduled offence should similarly have regard to the schedule.

18.8. There is clearly a significant difference between seeking an order in the Crown Court against a defendant who has just been convicted of a serious offence and an application to the High Court against a person or organisation where there has been no such conviction but it is to be proved that they have been involved in serious crime as defined in section 2 of the Act. When considering whether an order should be sought in such circumstances it will be necessary to be satisfied that to do so would be just and proportionate in terms of the Human Rights Act.

18.9. In a case where an order is being considered in respect of a defendant following conviction the prosecutor should first consider what other ancillary orders may be available which would achieve the desired aims, for example deportation or a travel restriction or financial reporting order. An SCPO should then be considered separately in respect of the individual concerned. An SCPO should not be seen as a means of adding to the defendants sentence. The following questions should be posed. In the circumstances of this defendant, are there reasonable grounds to believe that there is a real risk that this defendant will be involved in further conduct falling within the Act from which the public requires protection? What is the need for and what will an SCPO add to the sentencing powers that the court already has? Is there a real risk of further serious offending upon release from what may well be a long prison sentence or, perhaps even more rarely, a risk of further serious offending while serving such a sentence? The imposition of an order should not be a normal part of the sentencing process but rather an exceptional course in particular circumstances. (In the context of ASBOs courts have held that an order must not be used merely to increase a defendants sentence; where a substantial custodial sentence is imposed and the offender will be subject to licence and liable to recall on release there may be no necessity for an order; orders should be carefully considered in each case individually and should not be done as a standard practice. (R v. Lee Kirby [2005] EWCA 1228); the court when considering the necessity for an order must not ignore the real possibility that the custodial sentence will prove effective. (R v. Shane Tony P [2004] EWCA Crim 287).

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Conditions

18.10. Sections 1(3) and 19(5) empower the High Court and Crown Court respectively to impose such conditions as are considered appropriate for the stated purpose of protecting the public from serious crime. This is supplemented by the examples provided in section 5, which are specifically stated not to limit the type of provision that can be included. It is clear that this gives a very wide discretion to the judge limited only by the requirement that the conditions or requirements must be directed and appropriate to the statutory purpose. In addition, in order for them to be ECHR compliant, they must be reasonable and proportionate.

18.11. Careful consideration must therefore be given to the conditions that are sought to ensure they can be fully justified as being specifically directed towards, and effective in, preventing or disrupting the anticipated future involvement of the person in serious crime. Each condition must be individually justified and there must be a provable link between any condition and the serious criminality which would be prevented or disrupted. Baroness Scotland said that "An order could not include a requirement for house arrest, because such a measure would be incompatible with Article 5 of the European convention on Human Rights. If a proposed obligation engages a persons rights under Articles 8, 10 or 11, the court would have to be satisfied that the interference was necessary and proportionate." (Baroness Scotland 25 April col. 675).

18.12. In the course of the Bills passage through parliament the government indicated that the use of tagging as a condition of an SCPO was not envisaged.

18.13. In addition, prosecutors should bear in mind the policy of the law that "once a man has served the imprisonment which is passed upon him as a punishment he should be given every help and consideration in re-establishing himself in an honest life and particularly in earning a living. Conditions should not therefore seriously inhibit the offender from rehabilitating himself in society, having served his sentence of imprisonment, by returning to his previous type of employment unless doing so is seen as the only way of preventing further involvement in serious crime." (R. v. Desmond Carl Wright (1979) 1 Cr. App. R. (S.) 82 and R. v. Surbjeet Singh Davegun (1985) 7 Cr. App. R. (S.) 110)

18.14. It is essential that any conditions are enforceable in the sense that they are clear and readily identify what conduct is prohibited or required so that any breach can similarly be readily identified and capable of being proved.

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Standard of Proof

18.15. The first stage is to establish whether the person has either been convicted before a court in England and Wales of a serious offence (or an offence considered in the circumstances to be sufficiently serious) or whether there is sufficient evidence to prove that he/she has been involved in serious crime. For the prosecutor to decide the latter, there must be sufficient evidence to make it more likely than not, that a court will be satisfied so that it is sure, that the person has been so involved. This is the same test as appears in the Code in relation to the decision to prosecute. ([The applicant authority] will ensure that it is satisfied that an application is more likely than not to succeed Baroness Scotland 7 March 2007 Hansard col. 285.

"For clarity, let me say that we expect that, with respect to clause 1(1)(a), the standard of proof, as laid out in the McCann judgment, would be virtually identical to the criminal standard of proof. Baroness Scotland has said that in the House of Lords. I have repeated that here. I hope that that gives some reassurance... By saying that the criminal standard of proof is beyond reasonable doubt, through McCann and in the statements that Baroness Scotland has made in the House of Lords and that I have made in this House, that shows that we expect that the standard of proof, with respect to that first limb in clause 1(1)(a), to be virtually identical to the criminal standard." Mr Coaker 26 June 2007.)

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19 Delegation

19.1. Section 8 limits the authorities entitled to make application for an SCPO in either court to the three main prosecuting authorities in England and Wales (The Directors of Public Prosecutions, Revenue and Customs and the Serious Fraud Office), and the Director of Public Prosecutions in Northern Ireland. In addition schedule 2 paragraphs 1-21 allows the Directors, to such extent as they may decide, to delegate the exercise of their powers under the Act to a Crown Prosecutor or prosecutor in their respective departments.

19.2 It was stated in Parliament that it was intended by this section to control the use of these powers tightly by restricting their exercise to those who have been specifically designated by the relevant Director and who have received special training (so avoiding the general exercise by Crown Prosecutors of all of the powers of the Director by virtue of section 1(6) & (7) of the Prosecution of Offences Act 1985). "... Specifically trained members of the applicant authority not all members will be so trained who have the powers delegated to them by the Director of the body. If those specifically trained members... consider it appropriate, they will apply for an order it is because these orders are specialist that we think it appropriate to create this procedure... these orders will be applied (for) by highly trained and highly qualified members of the three organisations... It would be a great disappointment if the skill and attention to make sure these orders go well were not applied The (Directors) functions... must be expressly delegated... This will ensure that only those with suitable training and expertise will deal with (SCPOs). (Baroness Scotland 14 March 2007 Hansard col. 820 and 25 April 2007 Hansard col. 674)

19.3. The Attorney General must be consulted before any application is made to the High Court.

19.4 The individual prosecution authorities will draw up detailed guidance regarding the specific delegation decided upon by the Director concerned.

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Annexes

Annex 1: Delegation - CPS

Annex 2: Notice of Intention to apply for a Serious Crime Prevention Order if the defendant is convicted of a Serious Offence and Proposed Application

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