Item 4 is the Serious Crime Bill, which is United Kingdom legislation. Members received a written submission from the Association of Chief Police Officers in Scotland, and we have had a late submission from the Law Society of Scotland. We also have a Scottish Parliament information centre briefing paper.
The Serious Crime Bill sets out new measures to provide law enforcement with added powers to help to disrupt organised crime. The majority of the bill contains provisions that are for England and Wales or Northern Ireland, or which will affect Scotland within a reserved area. However, three provisions in the bill apply to Scotland and fall within devolved areas. They are the application to Scotland of the offence of breaching a serious crime prevention order that was issued in England, Wales or Northern Ireland; the extension of the use of production orders and search warrants under the Proceeds of Crime Act 2002 for detained cash investigations; and the permission to use force in executing search warrants in Scotland under the 2002 act.
Thank you, minister. I also welcome your third set of officials for the afternoon. They are George Burgess, Jill Clark, Paul Johnston and Stephen Crilly.
There is generally good communication, particularly at official level. George Burgess might want to outline what contact there has been.
There has been extensive contact over the past six months with the bill team, and especially with the Home Office and HM Revenue and Customs, on the development of the proposals.
Are there areas that caused difficulty or discussion because of the differences between the two legal systems?
No provisions in the bill as it now appears caused particular difficulties. Of course, we have had to consider the differences between the Scottish system and the system in England and Wales. The power of forced entry for which the bill makes provision is Scotland specific and deals with a Scotland-specific issue.
During the second-reading debate on the bill, a number of serious concerns were raised about the introduction of SCPOs. In its report, the House of Lords Constitution Committee concluded:
Today we are saying clearly that, if serious crime prevention orders exist, it is advisable for us to ensure that they cannot be breached in Scotland. At this stage we are not making a judgment on whether we want the orders to operate in Scotland. Some people have strong views on them. Instinctively, I recognise them as another means of dealing with serious crime, provided that sufficient safeguards are in place. Westminster will make a judgment on the issue once it has finished considering the legislation. The Executive has said that it does not want an anomalous situation to arise that might encourage criminality in Scotland, because people could then breach orders without suffering any consequence. It is for the Parliament to consider whether it wishes to legislate in the area for Scotland.
As the convener stated, it appears that an SCPO could impose significant restrictions on a person's activity. Is the Executive sure that that is reasonable and proportionate, and that—as you put it in your previous answer—sufficient safeguards are in place? I refer you to the submission of the criminal law committee of the Law Society of Scotland, which has doubts about whether sufficient safeguards are in place and is
I repeat the point that I made earlier: if the Westminster Government is satisfied that SCPOs are ECHR compliant and that the member's concern has been addressed, and if it creates such orders under the bill, what do we in Scotland do about the fact that they may be breached here? We have taken the view that it would be appropriate for us to deal with those circumstances through the Scottish courts. That is separate from the issue that the member raises. SCPOs have not been interrogated for suitability and appropriateness through the Scottish parliamentary process.
I hear what you say on that question. I will ask about a related issue. It appears that, under the bill, people who live in Scotland could have serious crime prevention orders, which would limit what they were able to do in Scotland, imposed on them by courts in other parts of the United Kingdom, provided that the limitations were aimed at preventing serious crime in those other parts of the UK. Am I correct about that intention? If so, do you find anything about that provision awkward?
If I do not answer the question fully, I will get the officials to respond further. My understanding is that the provision relates to an order imposed on a Scottish person through a court in England. It would have to be imposed through a court, so there are safeguards built into the provision.
Is this intended to close a loophole, as I think you put it, and remove a method of evading an order?
Yes. We do not want to be in a position in which serious crime prevention orders could be breached from across the border. That is the judgment that has been made.
I will approach the matter in two questions. I take the point that we will not have serious crime prevention orders in Scotland but, if they are used elsewhere and somebody who is subject to an order comes to Scotland, the bill affords us a power that allows us to act if the order is breached. However, the corollary jumps out at me: what happens if Westminster decides that the orders breach the ECHR? Will you come back with an order to disapply the provisions here?
The comparison with antisocial behaviour orders is not direct, because the High Court would apply a serious crime prevention order, so it would be a more significant measure. The comparison lies in the fact that, because it is deemed appropriate to apply the order, ignoring it becomes a problem, and the person is aware of that before they commit the breach.
Clearly, given the complex issues that underpin the introduction of serious crime prevention orders, the stance that has been taken on introducing the legislation in Scotland ultimately makes sense. Has the Executive carried out any initial work on whether the Scottish courts should also have the power to impose serious crime prevention orders?
No.
Is such work likely to be undertaken, given the Executive's current commitment and desire to introduce legislation soon? Of course, that will depend on what happens in the future.
From my position, it seems entirely logical that we will need to close any loophole that might exist. It would be entirely reasonable, logical and rational to conclude that if SCPOs are deemed to provide protection for communities in England and Wales, a future Administration will need to consider whether such orders would also be appropriate for the communities that we represent. However, it will be for a future Administration to determine whether the Parliament should have an opportunity to introduce such legislation.
I have a supplementary question on that point. I understand that family court case decisions apply either side of the border by virtue of some arrangement of the two judicial procedures. Is there a route—this question is perhaps directed at the minister's officials—for something similar to happen if SCPOs are not introduced in Scotland?
If you are asking whether a future Administration, when confronted with the fact that the bill has been passed and the loophole has been dealt with, ought to take further action, my response is that if I am part of that Administration, I will want us to consider all the options that are available so that we can interrogate those further.
Thank you. I think that Jackie Baillie has another question.
My next question has been asked and answered already.
We move on to question 7, which will be asked by Maureen Macmillan.
I have a what-if question. What would happen if a future Scottish Parliament wanted Scottish courts to have the power to impose SCPOs containing restrictions that applied in other parts of the UK? In other words, what would happen in the reverse situation? How would we achieve that? Would legislation be required at Westminster to allow us to introduce SCPOs that would apply to people in Scotland even if they decamped to England?
The Scottish Parliament can legislate only on matters of Scots law and in or as regards Scotland. However, the Scotland Act 1998 provides mechanisms—which are in fact frequently used—for supplementary provision to be made through orders at Westminster under section 104 of that act when such provisions are needed to complete the package. For instance, it would be possible to use those powers to make it an offence in England, Wales and Northern Ireland to breach a Scottish SCPO—if there were to be such a thing.
If that could be done, there is no case for leaving all cross-border applications until the Scottish Parliament has decided whether it wants to introduce SCPOs in Scotland.
The Executive's view is that we are satisfied that it would be worth while to introduce these provisions just now. The provisions will not pre-empt any decisions that might be taken about the broader issues around SCPOs in Scotland. The provisions are practical and sensible, given the opportunity that is presented by the bill as it goes through Westminster.
So it will be fairly simple to introduce such orders later.
Is anything that involves lawyers ever simple?
The minister makes a cry from the heart.
Yes, the process would be straightforward.
I move on to the changes that the bill will make to the Proceeds of Crime Act 2002. What is the purpose of a "detained cash investigation"? How will such investigations fit in with the range of other investigations that may be carried out under the terms of the 2002 act?
The Proceeds of Crime Act 2002 already provides powers for people and premises to be searched and for cash to be seized and detained. However, unlike with other provisions of the 2002 act—such as those on confiscation and civil recovery—when cash has been detained in that way, the act does not provide enough investigative powers. It contains a large suite of investigative powers, including the power to make production orders, but experience over the years since the act came into force has shown that there is a gap in its operation. It is possible for the police and revenue officers to seize cash that they suspect is related to criminal activity, but they lack the investigative powers to establish whether that is indeed the case.
I was going to ask about the lack of such powers at present, but my questions were answered by the minister's opening comments.
I think that you are thinking of the bringing into force of the provisions, which will be a separate matter. The bill provides that the bringing into force of the provisions in Scotland will be a matter for the Scottish ministers.
I presume that the matter will be brought back to the Parliament—with details on how the provisions will be brought into force—after the Scottish elections.
The detail is already in the bill. It is simply a question of the Scottish ministers making a commencement order to bring the provisions into force. In common with other commencement orders, no parliamentary procedure will be associated with that. However, the code of practice under the 2002 act is subject to the Parliament's oversight and we think that the code will need to be revised, so there will be some parliamentary involvement before the provisions come into force.
As I understand it, Scottish police forces will be able to apply for orders in relation to Scottish investigations. In the case of a cross-border investigation, would an order be applied for through the main agency in England and Wales—the Serious Organised Crime Agency—even if the investigation concerned detained cash in Scotland, or would that be done through the Scottish Crime and Drug Enforcement Agency or the Scottish police?
The critical thing is where the cash is seized. If it is seized in Scotland, the bill provides that a constable or an officer of revenue and customs may make the seizure, but applications for detention and ultimately for forfeiture of the cash, whoever seized it, will be made by the Scottish ministers through the civil recovery unit or by the procurator fiscal. They will always be involved.
Minister, the third provision that you mentioned in your introduction was the power to use force in executing a search warrant. I listened to what you said, particularly about money laundering and confiscation in relation to drug offences, which are reserved matters. It seems that the power to use reasonable force is already implicit in the provisions that apply south of the border. Why is that not the case in Scotland?
My understanding—again, I will check with officials on the matter—is that, as I said, it is not beyond doubt and we wanted to put it beyond doubt. We wanted to make it clear, rather than leave it implicit, that reasonable force could be used.
What is not beyond doubt?
In relation to applications in Scotland for production orders and search warrants, the 2002 act provides a power of entry but does not make it clear that reasonable force may be used in executing that power. We understand that that problem does not exist south of the border. The issue was identified by practitioners in the police and the Crown Office after the act came into force, so we want to ensure that there is no doubt about the matter.
Will the provision apply specifically to police action in relation to confiscation in money-laundering cases?
No. The provision will apply across the board to all uses of production orders and search warrants, as the minister said. It would be perfectly possible for us to legislate on devolved matters, such as civil recovery or criminal confiscation that is not related to drug offences. However, we would have a problem if we tried to make an across-the-board provision that would apply to money-laundering investigations or criminal confiscation in relation to drug trafficking. That is why we are taking this opportunity to make comprehensive provision through the Westminster bill.
When are serious crime prevention orders likely to be applied for? Will an SCPO be sought when it is thought that a crime is being committed and the order might prevent further criminal activity?
As I understand it, the intention is that the SCPO will be a preventive measure, so orders will be sought earlier rather than later.
SCPOs will mainly be made post conviction, to prevent further activity by a person who has been convicted of an offence. Members might see a parallel in sexual offences prevention orders: if someone has been convicted of a sexual offence, the court can, as well as imposing sentence, make an order to prevent the person from engaging in activities that are likely to lead to further offending.
That is helpful. Are you saying that an SCPO can be made only post conviction?
Under complex provisions in section 1, which relate to the High Court in England and Wales, it is possible for an order to be made in relation to a person who has not been convicted of an offence if there is clear involvement in serious crime. Section 2 defines a person who is "involved in serious crime" as someone who has committed an offence, facilitated the commission of a serious offence, or done other things that are likely to lead to the commission of a serious offence—
But who has not been convicted.
The person would not necessarily have been convicted.
I understand from the Law Society of Scotland's submission that if an individual who had not been convicted of a crime but who was subject to an SCPO breached the order, they could be sentenced
The offence on both sides of the border would be one of breaching an order that the High Court in England and Wales had made—
I understand that. The point I am making is that the order would be taken out on the basis that they were being pursued for a crime of which they had not been convicted.
They would have to fall within the definition of being involved in serious crime: they would have committed a serious offence in England and Wales, they would have facilitated the commission of such an offence by another person, or they would have
Would they have to have been found guilty of that crime?
My reading of the provision and the bill is that, if it says that the court must be satisfied that the person has committed a serious offence, a finding of guilt would be necessary. If a person had been found not guilty, it would be difficult for the court to consider that the person had committed the offence. We have moved one stage on from that. The court in England and Wales has already satisfied itself about that and has decided to make a serious crime prevention order. There is a similar situation at the moment in relation to risk of sexual harm orders. A criminal conviction is not necessarily a prerequisite for the making of one of those orders, yet the breaching of such an order constitutes a criminal offence.
I hope you understand where I am coming from. I am trying to clarify whether, when an order is taken out against someone who has not been convicted of a crime because the case is not pursued or dropped, or because they are found not guilty, that person can end up in prison for breaching an order that was taken out in relation to a crime for which they were never convicted.
In those circumstances, rather than breach the order, the person should go back to court and ask for the order to be set aside. That would be the protection. If somebody knows that there is an order against them and they breach it, there are consequences.
I appreciate that.
If they believe that the order ought not to have been taken out against them, there is another avenue through which they can deal with that.
There are also provisions in the bill for the variation and discharge of orders. The grounds for the discharge of an order include the fact that there has been a change of circumstances affecting the order. In the circumstances that you envisage, in which it is subsequently demonstrated that a person had no involvement whatever in serious crime or in facilitating it, those provisions for the discharge of the order could be brought into play.
That is helpful. Thank you.
Let us be absolutely clear about this. Are you saying that SCPOs are directly comparable to risk of sexual harm orders? My understanding of risk of sexual harm orders is that, although someone has no convictions, they can have a risk of sexual harm order laid against them because of a pattern of worrying behaviour. Are SCPOs directly comparable?
I would not suggest that they are directly comparable; I was drawing an analogy on the basis that a risk of sexual harm order is a civil order with a criminal sanction for breach, of which a conviction is not necessarily the precursor.
Are you saying that SCPOs could be taken out simply because of a worrying pattern of behaviour, or will they apply only to someone who has a conviction against their name?
No, SCPOs will not be restricted to those who have convictions against their names.
So the SCPO is a hybrid order that could be taken out against someone who had a conviction against their name, someone who had exhibited a worrying pattern of behaviour or someone who had associations with those who had convictions of that type. Is that correct?
I do not think that the analogy is quite as close as that. The test in the High Court for the imposition of a serious crime prevention order is that the person
So, known associates could be part of it.
If the person facilitated someone else in doing the crime.
Okay. I think that that is clear, but I am not quite sure that it is.
Unlikely as it may seem, an English court will be asked to make an order against a Scot. I understand that schedule 1 to the UK bill defines the criteria in that regard. Given that the bill allows for representations to be made in the English court, could the person apply for legal aid to defend themselves?
Under the English legal aid provisions, I see no reason why a person who was faced with a significant order such as this being made against them would not be entitled to legal aid.
It would be subject to the test.
Yes.
The Scot would apply for English legal aid?
Yes. We are talking about a case in England and Wales.
But what if the activity was carried out in Scotland? I understand that an order can be made against companies and individuals. Given that one of the serious crimes is fraud and alleged fraud, surely we will see considerable cross-border activities.
The limitation in section 2 is that the criterion for making the order is that the person
I am clear about the first criterion, of someone who is post conviction. I am less clear about your second criterion, of someone who has facilitated a crime. Surely they would have been convicted of aiding and abetting—or whatever the terminology is—someone to commit an offence. I assume therefore that their case would also be clear, given that they, too, are post conviction. I do not want to confuse matters further, but I feel the need to seek further clarification on the point.
Like other areas of legislation, this is complex and difficult. The criterion of whether someone has a conviction or no conviction is not sufficient. The UK Government has indicated that the purpose of these civil orders is to "plug perceived gaps" in relation to persons and organisations who are
From what the minister has just said, I am clear that there is a preventive element to the proposal. In the terminology that Bill Butler used, we are talking about "known associates". The burden of proof for someone who fits into that category would be what?
The civil standard.
I will broaden Bill Butler's line of questioning slightly. I have no wish to put the officials on the spot; if they require to write to us, I am perfectly happy with that. We have antisocial behaviour orders, serious crime prevention orders and risk of sexual harm orders and we seem to have a pattern of introducing civil orders whose breach could lead to a criminal conviction. Will the minister or her staff provide a more comprehensive list of orders that contains more than just the three that we have highlighted? The issuing of all such orders seems to be based on a pattern of behaviour that allows an order to be achieved without a conviction. Are there other such orders that we have not touched on?
I am happy to ensure that you have a comprehensive note of the orders that are available. What I will say will not be couched in legal terminology. Orders such as antisocial behaviour orders or risk of sexual harm orders acknowledged that we needed something more than what the legal system provided before. We needed something to address a pattern of behaviour and perhaps catch somebody before they ended up in the court system or to recognise that some behaviour was difficult to pin down in a straightforward case.
I would be grateful for a note, at least for myself. If the minister wanted to send it to the whole committee, I would not object. We could easily introduce a prevention of violent crime order or any number of orders to prevent behaviour, and such orders could have conditions and sanctions for their breach. I would be grateful if the minister dropped us a legal note with a longer list of orders.
The committee may have a full, or at least partial, list because, in the House of Lords Constitution Committee report to which the convener referred, that committee noted the proliferation of civil orders to prevent or interfere with criminal activity. That brief report contains a short list of examples of which that committee is aware.
The matter is a concern to us. What about new arrangements across international boundaries and among police forces to share not only information, but intelligence reports? I presume that such reports—about a crime in England, for example—fly round the world and are exchanged. That would give the High Court an area of operation to work with. What tests are applied internationally? I do not expect to have a full answer today, but it would help if you provided information about that. Does the bill represent the beginning of an international exercise against crime? Whether it is organised or petty does not matter. According to the Constitution Committee, a sweeping change is being made. If you can go away and consider that, please do.
I would like to reflect on that. I do not want to overstate the situation. We have had an interesting discussion. It is clear that the Parliament would wish to scrutinise matters further before introducing serious crime prevention orders in Scotland. Most people perceive such orders as another useful means of addressing the problems of serious crime, which scars communities and ties up huge amounts of time in the legal system. Such orders deal with the sense that people still cannot grapple with how perpetrators of serious crime can be creative in using all sorts of means to avoid conviction. A balance will always need to be achieved between the rights of the individual on whom an order is imposed and the recognition of how serious crime expresses itself in communities and of how perpetrators evade justice.
I thank the minister and her colleagues for coming to the meeting to help. Do committee members wish to seek further evidence? The clerks intend to produce a draft report for the committee's next meeting, so it would help if the Executive fed whatever information it wishes to provide to the clerks at the earliest time. Do members agree to consider the draft report in private at our next meeting?
Members indicated agreement.
At our next meeting, which will be on 27 February, we will have the final day of stage 2 of the Custodial Sentences and Weapons (Scotland) Bill. I remind members that the deadline for amendments to sections 36 to 42 and 47 to 50 and schedules 2 and 3 is noon on Thursday 22 February. The clerks make their usual appeal for early notification of amendments, which is welcome. I thank members for attending.
Meeting closed at 15:40.