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Participating in Activities of an Organised Crime Group

Introduction

Part 3 section 45 of the Serious Crime Act 2015 sets out an offence of participating in the criminal activities of an organised crime group. The offence is intended to provide a new means to tackle serious organised crime and to target:

  • Those who head criminal organisations and plan, coordinate and manage criminal activities, but do not always directly participate in the commission of the final criminal acts; and
  • Members of the group and associates who participate in activities such as the provision of materials, services, infrastructure and information that contributes to the criminality and capability of the organised crime group.

The offence is triable on indictment only and subject to a maximum penalty of five years imprisonment, a fine, or both.

The participation offence does not replace offences under Part 2 of the Serious Crime Act 2007, of intentionally encouraging or assisting an offence, encouraging or assisting an offence believing it will be committed, and encouraging or assisting offences believing one or more will be committed. Prosecutors should refer to the legal guidance on Inchoate Offences to determine the most appropriate charges in each case.

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Elements of the Offence

Actus Reus

A person participates in the criminal activities of an organised crime group if they take part in any activities that they know or reasonably suspect:

  1. Are criminal activities of an organised crime group, or
  2. Will help an organised crime group to carry on criminal activities.

This includes a deliberate omission which helps an organised crime group, for example, a security guard intentionally not carrying out particular checks when criminal activity was taking place.

Criminal activities are defined in subsections (3)-(5) as offences in England and Wales punishable on conviction on indictment with imprisonment of a term of seven years or more. These criminal activities must be carried out with a view to obtaining, directly or indirectly, a gain or benefit. This is not limited to financial benefit and would include, for example, sexual gratification.

The offence may be committed by taking part in criminal activities outside England and Wales, provided that one of the acts or omissions comprising participation takes places in England and Wales, and the activities are both an offence in the jurisdiction in which they are carried out, and an offence in England and Wales punishable on conviction on indictment with imprisonment for a term of seven years or more.

Mens Rea

The offence requires that the individual takes part in activities that they know or reasonably suspect are criminal activities, or will help an organised crime group to carry on criminal activities.

"Reasonably suspects" comprises both a subjective and objective element:

  • The person must suspect that they are helping an organised crime group at the time they take part in the relevant activities - the offence does not capture the unwitting participant who does not hold such a suspicion; and
  • There must be reasonable grounds to hold such a suspicion - the offence does not capture the cautious participant who suspects they may be helping an organised crime group, but has no reasonable basis for such a suspicion.

Organised Crime Group

An organised crime group is defined as a group which has at its purpose, or one of its purposes, the carrying on of criminal activities and consists of three or more people who agree to act together to further that purpose.

It is not necessary for the individual participating in the group's criminal activities to know any of the group members.

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Statutory Defence

Subsection 8 provides for a defence where a person's participation in the activities of an organised crime group was necessary for the purposes of the prevention or detection of crime. Such a defence would, in particular, be relevant to a police or National Crime Agency (NCA) officer engaging in activities as part of an investigation into an organised crime group.

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Proceeds of Crime Act 2002

There may be some overlap between the participation offence and anti-money laundering offences under the Proceeds of Crime Act (POCA) 2002. Prosecutors should refer to the Proceeds of Crime - Money Laundering Legal Guidance.

Money laundering offences are invariably serious. Evidential and public interest considerations are set out in full in the Money Laundering legal guidance. The following public interest factors in favour of prosecution should be carefully considered:

  • The importance of making it more difficult for criminal to legitimise their ill-gotten gains;
  • The importance of deterring professional launderers;
  • The importance of protecting the integrity of financial institutions domestically and internationally.

Where an individual reports suspicious activity to a nominated officer/the National Crime Agency (NCA) and receives consent to proceed with a transaction, the individual does not commit a money laundering offence.

When considering the participation offence in such circumstances, prosecutors should consider carefully whether the individual has the required mens rea following receipt of consent to proceed, and whether a prosecution is in the public interest. Prosecutors' attention is drawn to paragraph 4.12b of the Code, dealing with the level of culpability of the suspect.

Where there is evidence that indicates deliberate manipulation of the Suspicious Activity Reporting (SARs) regime, a prosecution for participation may be appropriate.

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Serious Crime Prevention Orders

The Serious Crime Act 2015 amends schedule 1 of the Serious Crime Act 2007 to include the participation offence as a serious offence for which a Serious Crime Prevention Order may be imposed. Prosecutors should refer to the Serious Crime Prevention Order Legal Guidance.

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