Agenda item 3 is our final evidence session on the legislative consent memorandum on the Serious Crime Bill. I welcome to the meeting the late Paul Wheelhouse—it is not your fault that you are late, minister—who is the Minister for Community Safety and Legal Affairs and, from the Scottish Government, Dr Lucy Smith, head of organised crime strategy, and Lesley Musa, human rights and third sector division. Having insulted Mr Wheelhouse, I congratulate him on his appointment.
The minister will make a brief opening statement.
Thank you very much, convener. Good morning, committee.
I thank the committee for giving me the opportunity to discuss the provisions of the Serious Crime Bill for which we are seeking consent. As you will be aware, the Serious Crime Bill was introduced in the House of Lords the day after the Queen’s speech, in early June. It has now progressed through the House of Lords to the House of Commons, where it had its first reading on 6 November. A number of provisions in the bill are reserved to the United Kingdom Parliament. I want to discuss those provisions that fall within the devolved competence of the Scottish Parliament and, in particular, the legislative consent motion that requires to be agreed to allow the UK Parliament to legislate on those matters.
The principal objective of the bill as a whole is to ensure that law enforcement agencies have effective legal powers to deal with the threat from serious organised crime. Much of that will be achieved by updating existing legislation. The LCM seeks approval for the UK Parliament to apply to Scotland provisions in four main areas of the bill: amendments to the Proceeds of Crime Act 2002; amendments to the Computer Misuse Act 1990; amendments to the Serious Crime Act 2007; and an amendment to the Prohibition of Female Genital Mutilation (Scotland) Act 2005. I will briefly outline each of those areas.
The Scottish Government has undertaken to strengthen the proceeds of crime legislation—which is also referred to as POCA—in the current session of Parliament. Committee members will be aware that, although criminal and civil law are generally devolved, POCA provides for the confiscation and civil recovery of the proceeds of reserved crime, such as drug trafficking and money laundering, as well as the proceeds of devolved crime. Because the majority of cases that come to court involve drug-related offences, the legislation is reserved.
Two of the clauses in the bill—clauses 19 and 23—provide for measures that relate to Scotland that will close the gap with the rest of the UK for default sentences and the civil recovery of assets. The bill includes provisions proposed by the UK Government that the Scottish Government agrees will strengthen the operation of the asset recovery process. The relevant provisions are contained in clauses 15, 16, 17, 18, 20, 21, 22, 37 and 38. The practical impact of the amendments in the bill is to reinforce the powers that are available to prosecutors and the civil recovery unit at the Crown Office by strengthening the existing legislation.
The criminal law relating to computer crime that is found in the Computer Misuse Act 1990 is generally a devolved matter, but clause 40 introduces a new offence concerning
“unauthorised acts causing, or creating risk of, serious damage”.
It relates to reserved matters, such as national security, and devolved matters. Provisions in the bill also implement the European Union directive on attacks against information systems and reduce the threat and impact of cybercrime by ensuring that the legislation is robust and consistent with that in other parts of the UK.
Back in 2006, the Parliament agreed a legislative consent motion on changes to the Computer Misuse Act 1990 for the reasons that I have given. We consider that it is again appropriate for certain changes to be made in that way, and that the Serious Crime Bill presents the most efficient and effective way of transposing the directive’s requirements in or as regards Scotland.
The bill amends part 1 of the Serious Crime Act 2007 to extend serious crime prevention orders—SCPOs—to Scotland. These are civil orders that will be used to protect the public by preventing, restricting or disrupting involvement in organised crime in Scotland. The practical impact of SCPOs is that law enforcement agencies will have an additional tool for tackling serious organised crime in Scotland. Amending the 2007 act to extend SCPOs to Scotland will ensure that the civil orders will be able to cover areas in which the Scottish Parliament does not currently have the appropriate legislative competence, which include areas such as drug trafficking, money laundering the proceeds of drug trafficking, counterfeiting and arms trafficking.
As there are significant overlaps between SCPOs and the financial reporting orders—FROs—that were introduced by the Serious Organised Crime and Police Act 2005, the bill seeks to repeal the provisions on FROs in that act to provide for such orders to be imposed through serious crime prevention orders.
The bill seeks to extend the extraterritorial reach of the offences in the Prohibition of Female Genital Mutilation (Scotland) Act 2005 so that they apply to habitual as well as permanent UK residents. The practical impact of that amendment is the closure of an existing legal loophole. The provision has been included in the bill only for the purposes of speed. We want the identified loophole to be closed as quickly as possible, instead of having to wait to make the amendment through a specific piece of Scottish primary legislation. I hope that the committee agrees with that approach.
Although the Scottish Parliament can legislate on devolved matters, the legislation that is amended by the Serious Crime Bill covers a mixture of reserved and devolved issues. I believe that it is sensible for the provisions in the bill that amend POCA, the Computer Misuse Act 1990 and the Serious Crime Act 2007, and the provision that amends Scottish legislation to close a loophole on female genital mutilation, should be dealt with by the UK Parliament on this occasion.
I therefore ask the committee to support the draft legislative consent motion and will be happy to answer any questions.
Good afternoon, minister, and congratulations on your new appointment.
I would like to ask about the Proceeds of Crime Act 2002. I note that the practical effect of the proposed amendments in the bill will be to reinforce the powers that are available to prosecutors, the civil recovery unit and other law enforcement agencies. Is that likely to increase the workload of the Crown Office and Procurator Fiscal Service?
We will be happy to come back to the committee in writing on the issue of workload. To date, we do not have any evidence to suggest that there will be an increase in the number of restraint orders or moves in that area. We are not aware of any particular issues that might arise in the future, but we will check with COPFS to find out whether there is any reason to believe that the justice authorities will face an increased workload as a result of what is proposed. I assure the committee that, at the moment, we do not have any evidence to that effect. We will write to the committee with a more definitive answer on that point.
Is there any empirical evidence for lowering the test for the granting of a restraint order at the pre-arrest stage?
I am not aware of any evidence, but with your permission, convener, I will ask Dr Lucy Smith to deal with that.
Of course—it is an evidence session.
Your question was about restraint orders specifically.
Yes—it was about the lowering of the test from “reasonable cause to believe” to “reasonable grounds to suspect” at the pre-arrest stage.
12:15
My understanding is that this will not make a significant difference to the restraints that may be made. However, as Mr Wheelhouse has already alluded to, it would be helpful if I could check with my colleagues in the Crown Office and send a written response to the committee.
Are the Crown Office supportive of these moves and/or POCA?
I believe so. Certainly, since 2010, there has been a desire to find a legislative vehicle for introducing these measures. Unfortunately, when we raised the matter with authorities down south, they said that it was not possible to use the Crime and Courts Act 2013 as the vehicle as it would not be appropriate. We have taken advantage of the first legislative vehicle that was deemed appropriate. I know that Dr Smith and colleagues in the Crown Office and Procurator Fiscal Service are keen to have these powers.
I just realised that I said, “Are the Crown Office” when I should have said, “Is the Crown Office”. I am just being picky about grammar, but I had better correct that on the record.
Good afternoon, minister, and congratulations.
Has the effectiveness of serious crime prevention orders elsewhere in the UK been measured by the Scottish Government?
In answering that point, it might be useful to cite the evidence of Keith Bristow, the director general of the National Crime Agency. He said:
“We’ve made very effective use of prevention orders—they will be increasingly important to the way in which we tackle organised criminals. It is certainly something that we have benefitted from in England and Wales. It has seen real benefits for us—it has enhanced our ability to disrupt criminals.”
I am aware that, at a rest-of-UK level, in the past eight years, there have been 330 cases in which the orders have been used, and that many have been used for up to five years. Anecdotal evidence suggests that, if the orders are used, and the individuals are forced to stay above the radar, others in the criminal fraternity find working with them a less attractive option and will shun them, because they realise that, if they associate with individuals who are being kept under close supervision, they might be caught themselves.
There have been a number of appeals, most of which have been successfully dealt with by the authorities, but some of which have gone the other way. However, even when an appeal has been lost, that has helped to tighten up the language of the SCPOs so that they are more defensible in future. We do not have any concerns that SCPOs will be damaging to the interests of pursuing serious crime; in fact, we believe the reverse. They are an important measure that will give the justice authorities in Scotland an additional tool to enable them to tackle serious organised crime in Scotland.
It is worth stating that only the Lord Advocate can apply for an SCPO and that the court must be convinced of the case for using an SCPO. Those safeguards will ensure that the orders are applied only in appropriate circumstances and are not used in a frivolous way.
The fact that only the Lord Advocate can apply for an order is an acknowledgment of their significance, and I note that application can be made to vary some of the terms of the orders.
Everyone would want to take the strongest possible action against organised crime, and these measures are draconian. Given that a lot of the respondents to the consultation were, quite understandably, concerned about the direct or indirect impact on third parties, what assurance can you give us that that will be monitored?
It is important that we monitor the measure’s impact. As we have uncovered in Keith Bristow’s comments, a view has obviously been taken of the effectiveness of the measures in England, and it is beholden on the Government and the Crown Office and Procurator Fiscal Service to monitor the impact of such measures and to note any unintended impacts on or consequences for third parties.
I am happy to come back to the committee on how we might take that work forward, but the principle is that the measure can be used to deter people from getting involved in serious crime in the first place. Indeed, if they are already involved in such crime and are successfully prosecuted, we have a means of making it more difficult for them to commit similar offences in future. That is very important, but I take the member’s point that we need to be mindful of the perhaps unintended impact on third parties who have not carried out any criminal activity or who have no criminal intent, and we will take that forward.
I do not know whether Dr Smith has anything to add about deliberations on the measure and how the Crown Office proposes to monitor the impact in due course.
As the minister has suggested, we will need to keep an eye on this matter in any case. The information that we have received from south of the border is that when SCPOs that have been imposed have come to appeal, close note has been taken of any impacts on third parties. We have learned from what has gone on down south that the SCPOs need to be very specific about restrictions, which must not be disproportionate. This is intended to be a civil order; it is a preventive, not a punitive measure that seeks to prevent someone from getting involved in crime or criminality or to disrupt any impact that they would have. A court must consider the risk of harm, which will be the overriding principle in whether it agrees to impose an SCPO. The point that you raise about third parties is a key part of that.
On the mechanics of the process, will the individual who is the subject of the order be aware of it all in advance and have the opportunity to make representations? I can see how that could be a double-edged sword if you were trying to disrupt criminal behaviour or, indeed, perceived criminal behaviour.
Yes.
So they will be aware of it in advance.
The majority of SCPOs will be imposed post-conviction. In other words, a case will be going through the court, as part of which the prosecutor will make an application for an SCPO for the court’s consideration. That information will clearly be shared with the defence, who will be aware of what is being requested and what the restrictions will be, and it will then be for the court to decide whether to impose the order.
Going back to the point that Dr Smith made and to which I alluded earlier about hopefully refining the wording over time, I point out that the Crown Office and others will be able to refine the wording such that it is, as Dr Smith has said, quite specific. That will minimise the potential impact on third parties and, through the clear link between the SCPO and previous criminality, the potential success of any appeal.
Many thanks.
Good morning, minister, and I congratulate you on your appointment.
It is afternoon now.
Well, it would have been morning. [Laughter.]
On the prohibition of female genital mutilation and the change that is being made to ensure that the test applies to individuals who are habitually as well as ordinarily resident in the UK, is this a belt-and-braces exercise or a response to evidence of an actual problem?
In truth, Mr Campbell has hit on a point. At the moment, there is a weakness in that there is a lack of robust evidence about the prevalence or likelihood of female genital mutilation in Scotland. Indeed, that is probably a UK-wide issue, because relatively few cases have been taken forward. This is all about trying to minimise the risk of such activities being undertaken. Justifiably or unjustifiably, there has been a perception in the past that Scotland might be seen as a soft touch if our approach was not standardised with the UK’s. We want to avoid any perception that Scotland is, in any way, a soft touch on female genital mutilation, and this measure addresses that perception.
We also want to improve our data quality. I believe that the Scottish Refugee Council is due to report on 17 December on a Scottish model of intervention to tackle female genital mutilation—the draft report is currently being prepared. It will hopefully set out how we can go about improving the data provision on the prevalence of female genital mutilation in Scotland, so that we have better data in future and are better able to monitor what is happening. There is not an enormous amount of evidence of it occurring in Scotland, which is reassuring, but we must be mindful of the fact that it might be hidden from view. Improving the data is therefore an important step to take.
Thank you.
I never thought that I would be asking Paul Wheelhouse, minister, about computing. I know as much about computing as I do about what happens under the bonnet of my car. However, it is interesting to see an extension of the law in an area in which so much crime is committed. I will not rehearse how the bill seeks to amend the Computer Misuse Act 1990, but one of the interesting things is the extraterritorial jurisdiction of offences—the fact that offences that are committed way beyond the UK or, indeed, Scotland can be prosecuted here. That could be resource intensive for policing, detection and enforcement. What resources will be required? If the legislative consent motion is to be worth the paper it is printed on—or the computer it is typed on—it should be shared between Scotland and the rest of the UK when a case is interjurisdictional. How will that be done?
Clearly this is an important measure in its own right, but it should be seen in the wider context of the cyber strategy for Scotland that Mr Swinney, the Deputy First Minister and Cabinet Secretary for Finance, Constitution and Economy, will be taking forward on behalf of the Scottish Government. I am sure that Mr Swinney will look very closely at any resource implications for Scotland but we can come back to the committee in due course with an assessment of the financial resource impacts of policing these things beyond our borders and on how we work with our colleagues in the UK and across Europe. There is a clearly established international infrastructure for tackling international crime and we can come back to the committee to talk about how the legislation will work in the Scottish context.
The police and law enforcement agencies in Scotland collaborate on a number of cross-border issues. This is a reserved matter but there is a clear synergy in working together to address challenges that face Scottish companies and companies that operate across Scotland, England, Wales, Northern Ireland, Europe and the world and protect them from the threat of cyber crime. The provisions covered by the LCM will enable us to tackle those who intend to commit such a crime but who are beyond our reach.
The bill does more than align Scotland with the serious crime prevention orders in the rest of the UK. It represents a fairly robust amendment to the Computer Misuse Act 1990. There is a bit in the LCM that mentions creating
“a new indictable offence of committing an unauthorised act in relation to a computer that results either directly or indirectly, in serious damage to the economy”.
That is quite a difficult test. What would the defence be? Somebody might be completely unaware that they have put something into a computer that results in a significant risk to, for example, human welfare. Will the defence be subject to the beyond reasonable doubt test in criminal law? The rest of the amendments are easy but the use of the word “indirectly” means that someone might do something and not know what impact it has had. There is a law of unintended consequences.
By the way, I am not thinking about something I might do; I am not looking for a defence. How would the provision work?
I understand the concern and the need to be clear about what can happen. If someone deliberately created a computer virus but did not intend for it to be used to take down the air traffic control system, but it did take down the air traffic control system and caused fatalities or massive economic damage, that would have to be taken very seriously.
I will ask Dr Smith whether she is aware of any specific examples that were considered when the legislation was being framed. The legislation will allow us to tackle activities that are designed to damage information technology systems but not to damage a particular economic interest, sector or user of technology, although it could have that impact and serious damage could result from it.
12:30
Unfortunately I am unaware of any specific examples. The situation is as Mr Wheelhouse has explained, but I can come back with specific examples if that would be helpful to the committee.
Yes, it would be. There must be thinking behind that provision. What is the defence for a 10-year-old child, for instance, who manages to bring down air traffic control? There will be a grey area and perhaps someone quite innocent will find themselves falling foul of the law, although I do not want to defend people who are up to mischief.
I also picked up on the bit about
“obtaining a tool for use in committing a CMA offence regardless of an intention to supply that tool”
and I know that that is a requirement of the European Union directive anyway. Somebody could, for example, write a piece of software that is benign in its initial use but is thereafter used by somebody else in a more malign way. What sort of protection will be available to the person who wrote a piece of software without any ill intention whatsoever?
Are you talking about badly designed software perhaps?
Or a piece of software that is incorporated into something that has a more malign purpose.
I take the point. From the number of comments that have been made, it is clear that the committee would welcome some clarification and we will seek some from UK ministers and the Crown Office and Procurator Fiscal Service. We will ask whether they are aware of any cases in which this legislation might have applied, or any cases that they have not been able to prosecute in the past but which they could prosecute under the amended legislation.
Many of the provisions deal with those who are illegally accessing or interfering with a computer system by hacking in or doing something of that nature rather than doing something completely accidental and designing something on their home computer that escapes and ends up in the wider system. I accept that, at the extreme end of the spectrum, someone could do something legitimately or accidentally, but the measures are designed to deal with situations in which there is at least some intent to cause harm and victims of that harm.
I think that I am looking for a defence now, just in case.
Duly noted.
Seriously, it would be helpful to have the thinking behind an indirect result or what will happen when it is not obvious that the action was purposely damaging and criminal.
That is a reasonable point, convener, and I am happy to come back to the committee on that.
Thank you. That concludes this evidence session and I thank the minister for his attendance.
The committee’s next meeting is on 8 December when we will consider draft reports on the bill—we will need a little bit of information prior to that—and on the draft budget 2015-16. We will also consider our work programme.
I remind members that the human rights debate will take place this Thursday afternoon. The motion has been lodged with the chamber desk and committee members are invited to support the motion before the debate. I will lead for the committee and John Finnie will sum up.
Meeting closed at 12:34.Previous
Subordinate Legislation