«Introduction 1. This memorandum addresses issues arising under the European Convention on Human Rights (“ECHR”) in relation to the Serious Crime ...»
SERIOUS CRIME BILL
EUROPEAN CONVENTION ON HUMAN RIGHTS
MEMORANDUM BY THE HOME OFFICE AND MINISTRY OF JUSTICE
1. This memorandum addresses issues arising under the European Convention on
Human Rights (“ECHR”) in relation to the Serious Crime Bill. The memorandum
has been prepared by the Home Office and the Ministry of Justice. On introduction of the Bill in the House of Lords, the Minister for Criminal Information (Lord Taylor of Holbeach) has made a statement under section 19(1)(a) of the Human Rights Act 1998 that, in his view, the provisions of the Bill are compatible with the Convention rights.
2. The Bill is in six parts:
• Part 1 makes amendments to the Proceeds of Crime Act 2002;
• Part 2 amends the Computer Misuse Act 1990;
• Part 3 provides for a new offence of participating in the activities of an organised crime group and amends the provisions in respect of serious crime prevention orders and gang injunctions;
• Part 4 provides for the seizure and forfeiture of drug-cutting agents;
• Part 5 amends the criminal law in relation to the offences of child cruelty and female genital mutilation and provides for a new offence of possession of paedophile manuals;
• Part 6 amends the Terrorism Act 2006 to provide for or extend extra-territorial jurisdiction in respect of the offences in section 5 (preparation of terrorist acts) and 6 (training for terrorism) of that Act. This Part also confers parliamentary approval for two draft Council Decisions under Article 352 of the Treaty on the Functioning of the European Union in relation to eurocounterfeiting and the repeal of a spent funding programme to support Member States’ efforts to prevent, prepare for, and protect people and critical infrastructure against terrorist attacks. This Part also contains minor and consequential amendments to other enactments and general provisions including commencement.
3. The Government considers that clauses of and Schedules to this Bill which are not mentioned in this memorandum do not engage rights protected under the ECHR.
Part 1: Proceeds of crime Article 6 and Article 1, Protocol 1
4. Part 1 makes provision in relation to the proceeds of crime, and in particular, provisions in the Proceeds of Crime Act 2002 (“POCA”) relating to the confiscation of such proceeds. It is well established that the confiscation order regime in POCA may engage Article 6 and Article 1, Protocol 1 (“A1P1”) of the ECHR.
In Phillips v UK 1, the European Court of Human Rights (“ECtHR”) considered the 5.
ECHR compatibility of the confiscation order regime in the predecessor to POCA (the Drug Trafficking Act 1994), upon which the confiscation order regime in POCA is based. The court held that Article 6(2) was not applicable in confiscation proceedings, and that Article 6(1) did apply, but was not breached in light of the safeguards built in to the statutory regime including the fact that confiscation proceedings are carried out by a court with a judicial procedure including a public hearing, advance disclosure of the prosecution case and the opportunity for the applicant to adduce documentary and oral evidence. The court also held that whilst A1P1 was engaged by the confiscation regime, it was a proportionate means of combating and deterring drug trafficking and accordingly found no breach.
6. The Supreme Court has also considered the compatibility of the confiscation order regime in POCA and its predecessors with A1P1 on a number of occasions, most recently in R v Waya 2. In that case the court reiterated that the regime was a proportionate means of achieving the legitimate aim of ensuring that criminals (and especially professional criminals engaged in serious organised crime) do not profit from their crimes, and sending a strong deterrent message to that effect – provided that it is "given effect" in accordance with section 3(1) of the Human Rights Act 1998 in a manner which is compliant with the ECHR.
7. Part 1 of the Bill makes a number of changes to the confiscation order regime in
• reducing the maximum amount of additional time that a court may allow a defendant to pay amounts owing under a confiscation order;
• changing the test that the court must apply to freeze property that may be subject to a confiscation order from ‘reasonable cause to believe’ to ‘reasonable grounds to suspect’;
• providing for longer default sentences of imprisonment for those defendants who do not pay their confiscation orders; and
• giving the Crown Court the power to determine the extent of a defendant’s interest in property that may be realised to satisfy a confiscation order.
8. The Government does not consider that any of the changes to the confiscation order regime in POCA provided for in Part 1 of the Bill will affect the compatibility (2001) 11 BHRC 280  UKSC 51 of the regime as a whole with Article 6 and A1P1 of the ECHR because the safeguards identified in Phillips and Waya remain - the proposed legislative changes do not fundamentally weaken or undermine those safeguards.
9. Clause 7 provides the court with a new general power to make such order as it considers appropriate to ensure that a confiscation order is effective. New section 13A(4) of POCA, as inserted by clause 7, places an obligation on the court to consider in every case in which it makes a confiscation order, whether an order restricting the defendant’s travel outside the UK would be appropriate to ensure that the confiscation order is effective. Paragraph 20 of Schedule 4 amends section 41 of POCA to place a similar duty on the court when considering whether to make a restraint order.
10. The Government considers that an order that restricts a defendant’s travel would likely interfere with that defendant’s rights under Article 8. As such an order can only be made for the legitimate aim of ensuring that a confiscation order (or restraint order) is effective, and would be made by a court that will be obliged under the Human Rights Act 1998 to exercise their functions compatibly with the ECHR, the Government considers the new power to be compatible with the ECHR.
Part 2: Computer misuse Unauthorised acts causing serious damage
11. Clause 37 inserts a new offence into the Computer Misuse Act 1990 (“the 1990 Act”) of unauthorised acts causing serious damage to human welfare, the environment, the economy or national security. It is an aggravated offence designed to deal with cyber attacks which result in the most serious types of damage, including loss of life. Whilst the concept of ‘human welfare’ is defined, ‘national security’, ‘the economy’ and ‘the environment’ are not. This does raise an issue under Article 7 relating to legal certainty. However, these terms have been used numerous times in legislation without definition, so the Government is satisfied that they are capable of being applied with a sufficient degree of certainty in this context. While the courts have tended to leave the determination of whether something endangers national security largely for the executive to determine (Secretary of State for the Home Department v. Rehman  UKHL
47) it is considered that the term is sufficiently well-understood that a properly instructed jury should be able to grapple with this.
12. The mens rea for this offence is two fold. The accused must do an unauthorised act to a computer, which he or she knows is unauthorised. That act must either create a significant risk of, or cause (whether directly or indirectly) the particular damage described. The accused must by doing the act in question either intend or be reckless as to whether such damage is caused. The penalties for this offence will be split. For damage to national security or injury or loss of life, the penalty will be a maximum of life imprisonment. For damage to the economy, property or the environment, the maximum penalty will be 14 years’ imprisonment. This is to provide consistency with analogous offences and proportionality. The offence will extend to the whole of the United Kingdom. The prosecution will have to prove every element of the offence and thus the Government believes that no issue under Article 6 arises.
Part 3: Organised, serious and gang-related crime Offence of participating in the activities of an organised crime group
13. Clause 41 contains a new participation offence. The purpose of this offence is to plug a gap in the ability of law enforcement agencies to target the wider criminal group and beyond who provide the materials, services, infrastructure and information which enable organised criminal groups to function. The new offence is triable only on indictment and subject to a maximum sentence of five years’ imprisonment. A person is guilty of the offence if he or she participates in the criminal activities of an organised crime group knowing or having reasonable cause to suspect that: (a) the activities are criminal activities of an organised crime group; or (b) their participation will help an organised criminal group carry on their criminal activities.
14. ‘Criminal activities’ are defined as is ‘organised crime group’. The Government believes that the offence is sufficiently clear to meet the requirement of legal certainty in Article 7.
15. It is a defence for a person charged with an offence under this section to prove that the person’s participation was necessary for a purpose related to the prevention or detection of crime. Article 6(2) provides that everybody charged with a criminal offence shall be presumed innocent until proved guilty according to law. However, the Strasbourg Court has recognised that it is not necessarily contrary to Article 6(2) to place a burden on the accused to prove a defence.
Such a burden must be fair in all the circumstances and be within reasonable limits. Factors that may be taken into account include whether the matters that the defence must prove are within the particular knowledge of the accused. The Government believes that the defence meets the requirements of Article 6(2).
Serious Crime Prevention Orders
16. Part 1 of the Serious Crime Act 2007 (“the 2007 Act”) makes provision for Serious Crime Prevention Orders (“SCPOs”). SCPOs are a form of civil order aimed at preventing serious crime. These orders are intended to be used against those involved in serious crime, with the terms attached to an order designed to protect the public by preventing, restricting or disrupting involvement in serious crime.
17. Subsections (1) to (4) of clause 43 add various specified firearms offences, offences under the Computer Misuse Act 1990 and the offence in section 6 of the Misuse of Drugs Act 1971 (cultivation of cannabis plants) to Part 1 of Schedule 1 (which relates to England and Wales) to the 2007. Subsections (5) to (8) add the equivalent offences to Part 2 of Schedule 1 to the 2007 Act (which relates to Northern Ireland).
18. When SCPOs were introduced in the 2007, an extensive ECHR analysis was done and the then Government considered that they met the requirements of
Articles 6, 7, 8, 10, 11 and A1P1. In particular:
• it was the then Government’s view that, applying the principles set out in the case law, orders should be characterised as civil rather than criminal for the purposes of the right to a fair trial under Article 6(1);
• the requirements of Article 7 were met; and
• whilst an order may interfere with a person’s rights under Articles 8, 10, 11 or A1P1, any order would be in pursuit of a legitimate aim, or in the case of A1P1 in the general interest; and necessary in a democratic society, in that the action that interfered with the right would meet a pressing social needs and be proportionate to the legitimate aim relied on.
19. The addition of the offences specified above, or the extension to Scotland of SCPOs by clause 42 and Schedule 1, do not alter that analysis.
20. Subsection (1) of clause 46 provides for the repeal of the Financial Reporting Order regime in Chapter 3 of Part 2 of the Serious Organised Crime and Police Act 2005 (“the 2005 Act”). It is intended that SCPOs be used to require offenders to report on their financial circumstances, instead of having a separate, bespoke financial reporting regime.
21. To that end, subsection (2) of clause 46 makes equivalent provision to section 81 of the 2005 Act and so enables financial information reported by the offender in accordance with an SCPO to be disclosed by law enforcement officers for the purpose of verifying the information, discovering the true position, or for preventing, detecting, investigating or prosecuting crime.
22. Disclosing financial information reported by the offender potentially engages Article 8. As such disclosure would be for a legitimate aim, and would be done by law enforcement officers obliged to exercise the power compatibly with the ECHR, it is the Government’s view that these amendments are compatible with Article 8. The analysis pertaining to section 81 of the 2005 Act undertaken by the then Government is directly applicable to the regime that will apply under clause 46.
23. Clause 47 substitutes a new section 34 in the Policing and Crime Act 2009 (“the 2009 Act”). The effect is, firstly, to expand the range of activity in relation to which a gang injunction under Part 4 of that Act can be obtained. Currently, the activity in relation to which an injunction can be obtained is “gang-related violence”.
Clause 47 expands this to include “gang-related drug-dealing activity”. Secondly, the term “gang-related” is given a broader meaning.