Changes in Scottish criminal law re serious crime and confiscation
Members of this group may be interested in some changes to Scottish law recently.
With effect from 13 December 2010 sections 28 to 31 Criminal Justice and Licensing (Scotland) Act 2010, an Act of the Scottish Parliament, came into force. These sections deal with "serious organised crime" in Scotland.
Briefly "serious organised crime" means crime involving two or more persons acting together for the principal purpose of committing or conspiring to commit an indictable offence committed with the intention of obtaining a material benefit for any person. A "material benefit" means in effect obtaining an asset of some description. (The word "material" is not here being used in the sense in which accountants use it - i.e. significant - it is used more in the sense of 'something which exists'. There is no de minimis limit on the value or amount of the benefit.)
So it seems to me that two people engaged together on burgling a house or stealing a car or picking the pockets of passers-by would be examples of "serious organised crime".
Section 31 creates the offence of "failure to report serious organised crime". This lays an obligation on "a person who knows or suspects that another person" has (in effect) committed a serious organised crime to report it to the police.
This obligation to report (unlike the obligation under s330 PoCA 2002 / MLR 2007) is not restricted to persons in the 'regulated sector'. Instead it applies in two circumstances.
The first is that the information on which the knowledge or suspicion is based came to the person "in the course of the person's trade, profession, business or employment". (There is an exception in relation to professional legal advisers and legal professional privilege - but there is no exception for other professionals, such as accountants.)
The second circumstance relates to the situation in which the knowledge or suspicion is based on information which came to the person "as a result of a close personal relationship between the person and the other person". So here we are dealing with reporting by, say, a spouse / domestic partner or family member of the suspected offender. However in this case the new law only obliges a report where the informer "has obtained a material benefit as a result of the commission of serious organised crime by the other person".
The failure to report offence carries a maximum punishment of 5 years imprisonment.
One can envisage spouses / domestic partners being 'reminded' of the risk of them going to prison in the course of police interviews centred on suspected offences by their 'other half'. That could lead to some interesting cases in future!
As far as I am aware there is no comparable legislation in England & Wales.
A change to confiscation law is due to come into effect in the near future in Scotland in relation to confiscation and 'criminal lifestyle'. This is an attempt to toughen the confiscation regime in Scotland by widening the scope of the 'criminal lifestyle' provisions.
The plan is to reduce from £5,000 to £1,000 the monetary limit which applies in certain circumstances under s142(3) PoCA 2002. This means that where it is necessary to show that the proceeds of specific crimes have exceeded (currently) a £5,000 threshold before a convicted offender is deemed to have a 'criminal lifestyle' that threshold will be reduced (in Scotland) to £1,000.
There will also be further offences added to the list of offences for which any conviction will automatically result in the finding that the convicted defendant has a 'criminal lifestyle'. These will include the new 'serious organised crime' offences (but not the related 'failure to report' offence), as well as 'loan sharking' (money lending without a Consumer Credit Act licence) and certain offences relating to the sale or supply of pornography.
Again, as far as I am aware there are no proposals to make similar changes to the law in England and Wales.