Serious Crime Prevention Orders
8. Part 1 of the Serious Crime Bill adopts the
model described above, of creating a power to seek a civil injunctive
orderin the form of a Serious Crime Prevention Order (SCPO)disobedience
of which is subject to criminal sanctions. SCPOs may be sought
against individuals, as well as companies and limited liability
partnerships (clause 29), other partnerships (clause 30) and unincorporated
associations (clause 31).
9. The Director of Public Prosecutions, the Director
of Revenue and Customs Prosecutions, the Director of the Serious
Fraud Office and the Director of Public Prosecutions for Northern
Ireland may apply to the High Court or the Crown Court for a SCPO.
The court making a SCPO must be "satisfied that a person
has been involved in a serious crime" and it 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" (clause 1). "Being involved"
in serious crime is given a wide meaning by clause 2as
well as committing a serious offence, involvement may include
situations where a person "has facilitated the commission
by another person of a serious offence in England and Wales"
or "has conducted himself in a way that was likely to facilitate
the commission by himself or another person of a serious offence
in England and Wales (whether or not such an offence was committed)".
We draw to the attention of the House the fact that the far-reaching
restrictions of a SCPO may be placed on a person against whom
no criminal proceedings have been instituted or who has been convicted
of no criminal offence. Moreover, the restrictions which can be
imposed are not limited to conduct forming part of the particular
type of crime which has been proved, by civil standards, against
the defendant. ASBOs and other types of control order that now
exist on the statute book generally deal with small-scale anti-social
behaviour and have little impact on third parties associated with
the subject of those orders. SCPOs will have a much wider reach.
10. The constraints imposed by a SCPO may be
wide and deep and are capable of having a considerable impact
on third parties. In relation to individuals, clause 5 gives the
following as illustrations of the areas of activity that a SCPO
- an individual's financial, property
or business dealings or holdings;
- an individual's working arrangements;
- the means by which an individual communicates
or associates with others, or the persons with whom he communicates
- the premises to which an individual has access;
- the use of any premises or item by an individual;
- an individual's travel (whether within the United
Kingdom, between the United Kingdom and other places or otherwise).
In relation to bodies corporate, partnerships and
unincorporated associations, a SCPO may relate to the following:
- financial, property or business
dealings or holdings of such persons;
- the types of agreements to which such persons
may be a party;
- the provision of goods or services by such persons;
- the premises to which such persons have access;
- the use of any premises or item by such persons;
- the employment of staff by such persons.
11. SCPOs may relate to a "private dwelling
(including, for example, prohibitions or restrictions on, or requirements
in relation to, where an individual may reside)" (clause
5(6)). An SPCO may also impose "requirements to answer questions,
provide information or produce documents to law enforcement officers"
12. Clause 5 does not provide a definition of
the types of restrictions and prohibitions that may be contained
in an order but merely gives "examples" of the types
of prohibitions, restrictions or requirements that may be imposed
by the court. Moreover, clause 5(7) makes it plain that:
"The prohibitions, restrictions or requirements
that may be imposed by serious crime prevention orders include
prohibitions, restrictions or requirements that are not specified
in the orders but are determined in accordance with provision
made by the orders (including provision conferring discretion
on law enforcement officers)."
The House will wish to consider whether clause
5 as currently drafted provides sufficient legal certainty, which
is a key element of the rule of law.
13. Schedule 1 provides a list of "serious
offences". These are offences relating to drugs, people and
arms trafficking, prostitution and child sex, money laundering,
fraud, corruption and bribery, counterfeiting, blackmail, intellectual
property crimes, and environmental crimes (including, perhaps
surprisingly, fishing for salmon, trout and freshwater fish with
prohibited implements contrary to section 1 of the Salmon and
Freshwater Fisheries Act 1975). The court is given a discretion
to treat other offences, not expressly listed in schedule 1, as
constituting a serious offence where the offence "is one
which, in the particular circumstances of the case, the court
considers to be sufficiently serious to be treated for the purposes
of the application or matter as if it were so specified"
(clause 2(2)(b)). It must be open to doubt whether this circular
definition provides a sufficiently firm legal basis for the making
of orders which may place onerous restrictions on a person. The
constitutional principle of the rule of law and legal certainty
requires a greater degree of clarity about the ambit of SCPOs
than is provided for by this clause.
14. The bill does provide a number of procedural
and substantive limits on the use of SCPOs. Nobody under the age
of 18 may be subject to a SCPO (clause 6). Third parties have
rights to make representations before a SCPO is made (clause 9).
Notice must be given of the application to make a SCPO and the
person must be legally represented (clause 10). The right to silence
is protected (clause 11), as is legal professional privilege (clause
12) and there are restrictions on compelling the production of
certain material and banking information (clause 13). A right
of appeal to the Court of Appeal from a High Court or Crown Court
decision relating to a SCPO is created (clauses 23-24). The
House will wish to consider whether these limits and protections
are sufficient, given the potential for SCPOs gravely to curtail
personal libertyincluding that of people who have been
convicted of no criminal offence.
15. In contrast to some of the examples of civil
injunctive orders backed by criminal sanctions surveyed in paragraph
5 above, the bill expressly states that the standard of proof
is "the civil standard of proof" (clauses 33(2) and
34(2)). Given the gravity of the potential restrictions that
may be placed on a person subject to a SCPO, the House may wish
to consider whether the requirement of proof on the balance of
probabilities is a sufficiently high degree of protection.
As we have noted above, the Appellate Committee in the McCann
case held that a higher than normal standard was required
("being satisfied so that they were sure") in relation
16. Breach of a SCPO carries criminal sanction.
Clause 25 provides for punishment in the form of a fine or up
to 5 years imprisonment. Upon conviction, the court may order
the forfeiture of anything in the possession of the subject of
the order at the time of the offence which the court considers
to have been involved in the offence (clause 26). An order may
also be made for the winding up of a company or partnership (clause
17. It is not for our Committee to consider whether
the scope of SCPOs constitute a deprivation of liberty or amount
to a criminal charge for the purposes of Article 5 and 6 of the
European Convention on Human Rights. We simply note that the Appellate
Committee's ruling in the McCann case dealt with ASBOs
and does not necessarily indicate that the courts will take the
same approach to SCPOs. The issue here is whether a SCPO is simply
a prohibition against conduct of the kind already committed by
the defendant or amounts to a penalty depriving him of, or limiting
him in, the exercise of his normal rights. Our concern is with
constitutional principles. A broad question for the House is
whether the use of civil orders in an attempt to prevent serious
criminal activity is a step too far in the development of preventative
orders. Whether or not the trend towards greater use of preventative
civil orders is constitutionally legitimate (a matter on which
we express doubt), we take the view that SCPOs represent an incursion
into the liberty of the subject and constitute a form of punishment
that cannot be justified in the absence of a criminal conviction.