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.

David

Comments

Emigrating

Mallock | | Permalink

I'd never really considered emigrating to England but maybe I should now. It's hard to think of any tax enquiry cases which couldn't be caught in some way by this legislation and rather worringly, if wife doesn't shop husband she goes down as well!

With VAT at 20% and an ever increasing number of tradesmen offering "discount" for cash jobs there could be carnage.

davidwinch's picture

Giving evidence against a spouse

davidwinch | | Permalink

The legal position with regard to giving evidence against one's spouse is rather different North and South of the Border.

In Scotland s86 Criminal Justice and Licensing (Scotland) Act 2010 applies.  This provides that "The spouse or civil partner of an accused is a competent and compellable witness for the prosecution, the accused or any co-accused in the proceedings against the accused".  But that does not extend as far as requiring the spouse to give evidence which would inciminate himself / herself.

In England & Wales s80 Police and Criminal Evidence Act 1984 applies.  In effect no spouse or civil partner can be compelled to give evidence for the prosecution against their spouse / civil partner (not to incriminate himself / herself).

But don't forget "serious organised crime" has to be crime by at least two persons working together to commit the crime.  There will be a lot of tax evasion by individuals operating alone (which therefore is not 'organised').

David

billgilcom's picture

Blooming Heck

billgilcom | | Permalink

I thought that we had escaped the idiocy that existed south of the border with recovery of assets based on turnover as opposed to profits but now it seems that somebody somewhere has gone even more draconian. Presumably this will have been the "South of the Border" home secretary "not" telling the administrators "North of the Border" what to do.........

Bring back the rack at least you could show the bruises and mental torture inflicted on you before you broke and told on your nearest and dearest.

Interestingly however it says that there is an offence if you fail to tell a police constable when questioned. So my reasonable excuse will have to be that I couldn't find one to tell him/her . To ensure that there are no misunderstandings that was intended to be a joke

billgilcom's picture

David

billgilcom | | Permalink

It raises an interesting point as to whether any adviser is actually involved in SOC where they know what is going on and accept fees from the accused/conspirator. 

davidwinch's picture

Thinking aloud

davidwinch | | Permalink

Suppose you (in Scotland) are approached by clients who want to setup a company (for example).  They don't want to be directors of the company nor have it operate from an address of theirs.  The company name is to be Cannotfail Investments Ltd.  You help them set up the company.

In fact the clients use the company to perpetrate a fraud on persons who invest with them.

Have you committed an offence under s28 on the basis that you "knew or suspected, or ought reasonably to have known or suspected, that the doing of that thing would enable or further the commission of serious organised crime"?

Nasty!

David

cymraeg_draig's picture

If I have a client based in Scotland, but, the alleged offence o

cymraeg_draig | | Permalink

I would certainly fight extradition to Scotland on the basis that making me eat haggis and listen to Scottish accents and risk being subjected to hearing bagpipes would constitute "cruel & unusual" punishment and would also breach the HRA Act as torture is forbidden.

 

 

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