INTRODUCTION The Criminal Law Committee of the Law Society of Scotland ( the. Committee ) welcomes the opportunity to comment upon the Scottish

Transcription

1 RESPONSE FROM LAW SOCIETY OF SCOTLAND INTRODUCTION The Criminal Law Committee of the Law Society of Scotland ( the Committee ) welcomes the opportunity to comment upon the Scottish Government s Consultation entitled Consultation on Strengthening the Proceeds of Crime Act 2002 in Scotland: Extending the List of Criminal Lifestyle Offences and Reducing the Criminal Benefit Amount and should like to respond as follows:- GENERAL COMMENTS The Committee recognises the desire to strengthen the Proceeds of Crime Act 2002 in Scotland by extending the list of criminal lifestyle offences in Schedule 4 to the Proceeds of Crime Act 2002, and also reducing the criminal benefit amount from 4,000 to 1,000 for the other criminal lifestyle tests set out in Section 142 of the 2002 Act. While the Committee recognises the policy intent of criminal lifestyle offences being extended and the benefit amount being reduced before the Court is in a position to make a confiscation order, it believes that there will be significant resource issues as a result of these proposed changes for both the police and prosecutors. The Committee, however, considers it appropriate to offer support to the Schedule 4 extension, particularly as these proposed extensions may been seen as an effective method of discouraging certain types of offending behaviour, such as illegal money lending (Section 39(1) of the Consumer Credit Act 1974), distribution and selling of obscene material (Section 51(2) of the Civil Government (Scotland) Act 1982 and aiding,

2 abetting or compelling prostitution for gain (Section 11(4) of the Criminal Law (Consolidation) (Scotland) Act 1995 as the commission of these offences seeks to exploit the vulnerable. As referred to above, the Committee considers that there will be significant resource implications, in particular for the prosecution in the preparation of financial profiles. The Committee should like to answer the questions contained within the consultation paper as follows:- 1. Do you agree that the offences at Sections 28 and 30 of the Criminal Justice and Licensing (Scotland) Act 2010 should be added to Schedule 4 to POCA? The Committee notes the policy intent, but has concerns with regard to Sections 28 to 30 of the Criminal Justice and Licensing (Scotland) Act The Society highlights the practical difficulties of proving that a person agrees with at least one other person to become involved in serious organised crime (Section 28), proving that an offence has been aggravated by connection with serious organised crime (Section 29) and proving that a person has committed an offence by directing another person to commit a serious offence or to commit an offence aggravated by a connection with serious organised crime under Section 29.

3 2. Do you believe that the statutory aggravation in connection with serious organised crime should be added to Schedule 4 to POCA? The Committee refers to its answer at 1 above. 3. Do you agree that this offence (illegal money lending) (Section 39(1) of the Consumer Credit Act 1974) should be added to Schedule 4 to the Proceeds of Crime Act 2002? The Committee refers to its general comments above. 4. Do you agree that this offence (distribution/selling of obscene material) (Section 51(2) of the Civic Government Scotland Act 1982) should be added to Schedule 4 to the Proceeds of Crime Act 2002? The Committee refers to its general comments above. 5. Do you agree that this offence (supply or intent to supply unclassified video recordings) (Sections 9 and 10 of the Video Recordings Act 1984) should be added to Schedule 4 to the Proceeds of Crime Act 2002?

4 The Committee refers to its general comments above, but questions how many prosecutions have taken place in recent years under these provisions given technological advances. 6. Do you agree that this amendment (adding attempt in addition to conspiracy and incitement), should be added to Schedule 4 to the Proceeds of Crime Act 2002? The Committee recognises that there should be a consistency of approach with regard to the other United Kingdom jurisdictions. The Committee also recognises however that in such cases of inchoate crimes there appears to be an ever increasing situation where confiscation procedure is being considered to be more of a punishment in itself other than as a financial consequence of involvement in crime. 7. Do you agree that this offences (aiding, abetting or compelling prostitution for gain) (Section 11(4) of the Criminal Law (Consolidation) (Scotland) Act 1995) should be added to Schedule 4 to the Proceeds of Crime Act 2002? The Committee refers to its general comments above. 8. Do you agree that this offence (intellectual property offences) (Section 296ZB of the Corporate, Designs and Patents Act

5 1998) should be added to Schedule 4 to the Proceeds of Crime Act 2002? Yes, subject to the Committee s general comments as above. 9. Do you consider that this offence (failing to report serious organised crime) (Section 31(1)(b)(ii) of the Criminal Justice and Licensing (Scotland) Act 2010) should be added to Schedule 4 to the Proceeds of Crime Act 2002? The Committee commented upon the general principles of the Criminal Justice and Licensing (Scotland) Bill during its parliamentary progress. In particular, the Committee stated that Section 28 of the Bill (failure to report serious organised crime) may prove problematic given the terms of Section 31, whereby it is an offence not to disclose to a constable one s knowledge or suspicion that an offence under Sections 28 to 30 has been committed. The Committee is of the view that this behaviour, which is very much at the margins of criminal behaviour, should therefore not be included in Schedule 4. From a practical point of view, the Committee also believes that

6 issues will arise with regard to the definition of close personal relationship at Section 31 (1) (b) (iii) of the Act. 10. Do you consider that this offence (unlicensed security operatives) (Section 5 of the Private Security Act 2001) should be added to Schedule 4 to the Proceeds of Crime Act 2002? Yes. The Committee refers to its general comments above on the basis, prior to inception of the 2001 Act, it is noted that a number of those involved in the private security industry had links to serious organised criminal activity. 11. Do you consider that environmental offences should be added to Schedule 4 to the Proceeds of Crime Act 2002? Yes, the Committee notes paragraph 51 of the consultation paper whereby it is stated that, as environmental legislation is tightened, it is increasingly possible for someone to make a significant sum of money from deliberately breaching such legislation. Such offences should accordingly be included in Schedule Do you have any suggested offences which are indicative of a criminal lifestyle and which are not currently contained in

7 Schedule 4, or included in our proposed list? If so, please let us know why it would be appropriate to include any such offence and also provide any evidence that shows that it would be a suitable addition to Schedule 4. The Committee has no comment to make. 13. Do you agree that the criminal benefit amount for tests with the Schedule 4 test should be reduced from 5,000 to 1,000? The Committee refers to its general comments above in noting the policy intent to low level, but high volume crime. The Committee, however, reiterates its concerns with regard to resource issues for both police and prosecutors which should be taken into account, including the additional work for prosecutors to produce accuseds financial profiles for the confiscation hearing.