Serious Crime Prevention Orders
- Application
- Terms of orders
- Bodies against whom orders can be made
- Court proceedings
- Variation
- Discharge
- Appeals
- Breach of an order
- Monitoring and compliance
- CPS delegation
- Mandatory reporting of SCPOs
- Other Prosecuting Authorities
- Annexes
Application
A Serious Crime Prevention Order (SCPO) can be made on application by the Director of Public Prosecutions, the Director of the Serious Fraud Office, the Director of Public Prosecutions for Northern Ireland and the Lord Advocate in Scotland. Applications are made to the Crown Court, if a person has been convicted of a serious offence, or the High Court on standalone application, if the person has been involved in serious crime.
Crown Court - Serious Offence
In the Crown Court, the person must have been convicted of a serious offence by the Crown Court or committed to the Crown Court following conviction of a serious offence by a Magistrates' Court.
A SCPO can still be made on a defendant given an absolute or conditional discharge following conviction as sections 12 and 14 of the Powers of Criminal Courts (Sentencing) Act 2000 [discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made] are effectively disapplied by section 36(5)).
Serious offence is defined in section 2(2) as an offence specified or falling within the description specified in Part 1 of Schedule 1, or an offence which "in the particular circumstances ... the court considers to be sufficiently serious to be treated (as a serious offence) for the purposes of the application".
Schedule 1, as amended by Section 47 of the SCA 2015 and Schedule 5, of the Modern Slavery Act 2015 (Section 7) sets out an extensive list of offences under 15 headings.
- Drug trafficking
- Slavery
- People trafficking; (Amended by the Protection of Freedoms Act 2010, Schedule 9, paragraph 142)
- Firearms offences
- Prostitution and child sex
- Armed robbery etc.
- Money laundering
- Fraud
- Offences in relation to public revenue (amended by Taxation (International and Other Provisions) Act 2010, Schedule 7, paragraph 101(2))
- Bribery (Amended by the Bribery Act 2010, Schedule 1, paragraph 14)
- Counterfeiting
- Blackmail;
- Computer misuse
The definition is also extended to include the corresponding inchoate offences, the offence under Part 2 of the Act (in force as from 1 October 2008) of encouraging and assisting, and offences which fall within the descriptions but were offences under preceding legislation at the time of the conduct concerned. (Schedule 1 paragraphs 14 and 15).
These orders have the potential to be available in a very wide range of circumstances and the court has the power to treat an offence as serious if it considers it so.
R v Batchelor [2010] EWCA Crim 1025 found it was appropriate to make a SCPO against a single offender who had committed fraud offences over a number of years and the provisions were not restricted to violent or sexual crimes, nor was there anything to suggest the restrictions could not apply to a single offender.
High Court - Involvement in serious crime
In the case of the High Court, the judge must be satisfied that the person has been involved in serious crime (whether in England and Wales or elsewhere).
Section 2, in addition to providing what constitutes a serious offence, also sets out definitions of, "has been involved in serious crime", both "in England and Wales" and "elsewhere than in England and Wales", and "involvement in serious crime in England and Wales".
The High Court may be satisfied that a person has been involved in serious crime in England and Wales if:
- they have committed a serious offence in England and Wales;
- they have facilitated the commission by another of a serious offence in England and Wales, or
- their conduct was likely to facilitate the commission by himself/herself or another of a serious offence in England and Wales, whether or not such an offence was committed.
Section 2(4) sets out identical provisions in respect of involvement in serious offences outside England and Wales. Section 2(5), together with 2(7), goes on to state that a serious offence in a country outside England and Wales means an offence under the law of the other country, which would have been an offence if committed in England and Wales, and would have fallen within Part I of Schedule 1, or was conduct which the court considered sufficiently serious to be treated as such.
When the court is considering whether the person has facilitated the commission of a serious offence by another, or their conduct was likely to facilitate an offence by themselves or another, the court must ignore any act which the person can show was reasonable in the circumstances and, subject to that, also ignore their intentions or any other aspect of their mental state at the time (Section 4(2) and (3)).
This means the person may successfully argue they should not be made the subject of an order if they can show the conduct relied upon by the prosecutor to show they were involved in serious crime was reasonable to take in the circumstances. This must be based upon objective facts. It will not help the person to say that although they may have acted unreasonably, they never intended to facilitate an offence, or did not realise that their actions were likely to facilitate serious crime In other words, if they subjectively and honestly believed that what they did was innocent and done with innocent intent, that will not prevent the court from finding them to have been involved in serious crime if those actions, without intent and unknown to the individual, did facilitate or were likely to facilitate serious crime and were not reasonable.
Whether or not it will be appropriate for the court to make an order against an individual in those circumstances is a different matter. Such a person may not present a risk of further involvement in serious crime requiring the imposition of an order.
There is an important distinction to be drawn between Section 1(a), which is concerned with involvement in serious crime in England and Wales or elsewhere, and Section 1(1)(b) which is concerned with future involvement in serious crime in England and Wales only (See paragraph 16, Section 2 of the Explanatory notes which supports this contention).
Determining whether a SCPO is appropriate
When granting an application for a SCPO, the court must have reasonable grounds to believe that an order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales. Implicit in this second test is a requirement that there are reasonable grounds to believe that there is a real risk that the person will be involved in further conduct falling within the Act from which the public require protection. (Sections 1(1)(b) and 19(2)).
In the course of the passage of the Serious Crime Bill in both Houses of Parliament the government stated that SCPOs were not intended, and would not be used as "a soft alternative to prosecution ... there has been much mistaken comment about these orders being a way for law enforcement agencies to get round troublesome prosecutions ... that is not the intention" (Baroness Scotland 7 February 2007 Hansard HL col. 728).
In the circumstances, an application for a SCPO should generally only be made either following a conviction for a serious offence or following a decision that, applying the Code for Crown Prosecutors, the evidence available does not provide a realistic prospect of a conviction or a prosecution would not be in the public interest, for reasons other than the availability of a SCPO. It will usually be in the public interest to prosecute a defendant for a serious crime listed in the schedule to the Act.
Prosecutors and investigators should keep under review the possibility of bringing a prosecution. If a decision is made not to prosecute, care must be taken not to mislead the defendant into thinking that the evidence will not be used to support an application for a SCPO against him/her.
The application for an order must be seen as a serious step that can involve the imposition of significant conditions affecting the rights of the individual or organisation. In R v Barnes and Orford [2012] EWCA Crim 2549 the court made clear the terms of any order must be proportionate and enforceable.
While "serious offence" is defined in the Act by reference to the list in schedule 1, it is not exclusive. It is intended to provide strong guidance as to the level of offending the orders are intended to prevent. It is anticipated that a court, when considering whether an offence not on the schedule should be treated as a serious offence under section 2(2)(b), will bear in mind the type and seriousness of the offences in the schedule. Prosecutors considering applying for a SCPO in respect of a non- scheduled offence should similarly have regard to the schedule.
There is clearly a significant difference between seeking an order in the Crown Court against a defendant who has just been convicted of a serious offence and an application to the High Court against a person or organisation where there has been no such conviction but it is to be proved that they have been involved in serious crime as defined in section 2 of the Act. When considering whether an order should be sought in such circumstances it will be necessary to be satisfied that to do so would be just and proportionate in terms of the Human Rights Act.
In a case where an order is being considered in respect of a defendant following conviction the prosecutor should first consider what other ancillary orders may be available which would achieve the desired aims, for example deportation or a travel restriction. A SCPO should then be considered separately in respect of the individual concerned. A SCPO should not be seen as a means of adding to the defendant's sentence. The following questions should be considered:
- In the circumstances of this defendant, are there reasonable grounds to believe there is a real risk that this defendant will be involved in further conduct falling within the Act from which the public requires protection?
- What is the need for and what will a SCPO add to the sentencing powers that the court already has?
- Is there a real risk of further serious offending upon release from what may well be a long prison sentence or, perhaps even more rarely, a risk of further serious offending while serving such a sentence?
- The imposition of an order should not be a normal part of the sentencing process but rather an exceptional course in particular circumstances.
Activity in Northern Ireland or Scotland is properly the subject of a SCPO issued by the Northern Ireland or Scottish Courts respectively. Accordingly, where the relevant conduct is undertaken in Northern Ireland or Scotland, in addition to activity in England and Wales, then the safest approach is to obtain two separate orders, one from the Courts in England and Wales and one from the Northern Irish or Scottish Courts. This will require early liaison with the Public Prosecution Service for Northern Ireland (PPSNI) or Crown Office and Procurator Fiscal Service to determine whether to make an application to the courts there.
Terms of orders
Sections 19(5) and 1(3) empower the Crown Court and High Court respectively to impose conditions considered appropriate for the stated purpose of protecting the public from serious crime. This is supplemented by the examples of the types of prohibitions, restrictions or requirements provided in section 5 of the SCA 2007:
- financial, property or business dealings;
- working arrangements;
- with whom a person associates or communicates and the means used to do so;
- the premises they are allowed to use and for what purpose;
- the use of any item and
- travel both within UK and abroad
An order can also require a person to answer questions or provide information or documents specified in the order. The order can specify how, when and where the question must be answered or the information or documents provided to a law enforcement officer (Section 5(5)).
It is clear this gives a very wide discretion to the judge, limited only by the requirement that the conditions or requirements must be directed and appropriate to the statutory purpose. In addition, in order for them to be ECHR compliant, they must be reasonable and proportionate.
Careful consideration must therefore be given to the conditions sought to ensure they can be fully justified as appropriate for the purpose of protecting the public by preventing or disrupting future involvement of the person in serious crime. Each condition must be individually justified and there must be a provable link between any condition and the serious criminality which would be prevented or disrupted.
R v Seale [2014] EWCA Crim 650 found the terms of the order must be necessary and proportionate and must also relate to the specific facts of the case.
The SCPO precedent library, available at Annex 3, provides examples of clauses that may assist in drafting an order.
In the course of the Bill's passage through parliament the government indicated that the use of tagging as a condition of a SCPO was not envisaged and an order could not include a requirement for house arrest.
In addition, prosecutors should bear in mind the policy of the law that "once a man has served the imprisonment which is passed upon him as a punishment he should be given every help and consideration in re-establishing himself in an honest life and particularly in earning a living. Conditions should not therefore seriously inhibit the offender from rehabilitating himself in society, having served his sentence of imprisonment, by returning to his previous type of employment unless doing so is seen as the only way of preventing further involvement in serious crime." (R v Desmond Carl Wright (1979) 1 Cr. App. R. (S.) 82 and R v Surbjeet Singh Davegun (1985) 7 Cr. App. R. (S.) 110.)
It is essential that any conditions are enforceable in the sense that they are clear and readily identify what conduct is prohibited or required so that any breach can similarly be readily identified and capable of being proved.
Prohibitions are not limited to England and Wales and can extend outside the jurisdiction (section (5.2)) but must be aimed at preventing, restricting or disrupting involvement in serious crime in England and Wales (section 1(3)).
Restrictions
A SCPO cannot require a person:
- to provide oral answers to questions or requirements to provide information. (Section 11)
- to answer questions, or provide information or documents which are covered by legal professional privilege. (Section 12)
- to produce excluded material as defined by section 11 PACE. (Section 13(1)(a))
- to disclose any information or produce any document held by him in confidence as part of a banking business unless
- there is consent from the person to whom confidence is owed, or
- the order specifically required disclosure of information or documents of this kind, or it required disclosure of specified information or documents of this kind. (Section 13(2)-(4))
- to provide information or documents or answer questions if it would involve a disclosure prohibited by another enactment (Section 14).
A SCPO cannot explicitly prohibit a person from conducting activity already prohibited by law.
A statement made by a person in compliance with a SCPO cannot be used in evidence against him/her unless:
- the person is being prosecuted for breach of the SCPO under section 25, or
- the prosecution is for another offence, the person gives evidence and makes a statement which contradicts an answer or information previously given in response to the order and the previous statement is itself adduced by or on behalf of the person (Section 15).
Duration
A SCPO can be for a maximum period of five years and must state when it starts and ends. It is common practice for the court to delay the commencement of the order, e.g. to commence upon release from prison. The court can set different dates for the start and end of different provisions in the order, e.g. prohibitions regarding with whom the person can associate and communicate could commence while in prison, and those with regard to his working arrangements, could commence following release. However, this approach is not advised unless necessary and appropriate monitoring arrangements at each stage are put in place.
If the court exercises the power to delay the implementation of any provision then the period of five years is calculated from the commencement of the first provision to come into force.
The five-year limit does not prevent the making of a subsequent order, or provision, in the same or different terms, provided the requirements of section 1 are still met. The fresh order can be made in anticipation of the original one ending in order to ensure continuity.
Section 48 of the SCA 2015 amended SCA 2007 to extend the power to impose a new order, following conviction for a breach offence, to the Crown Court.
The SCA 2015 (Section 49) also amended Section 22 of the SCA 2007 to permit a relevant authority to make an application to the Crown Court to extend an existing SCPO if a person is charged with an offence and the order would otherwise cease to have effect. Such an application to extend can be made if a person subject to a SCPO is charged with a serious offence or an offence under section 25 of failing to comply with any of the terms of the serious crime prevention order.
The court may then vary the SCPO so that it continues in effect until the new proceedings are finalised, provided it has reasonable grounds for believing the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime.
Commencement
Under paragraph 2, schedule 13 of the SCA 2007 states that SCPOs in the Crown Court may only be ordered against persons convicted of a serious offence after 6 April 2008. In relation to applications to the High Court, paragraph 1 states that "in deciding for the purposes of paragraph (a) of section 1(1) or (2) whether a person
has been involved in serious crime, the court may take account of conduct before the coming into force of that provision as well as conduct after the coming into force of that provision."
In the High Court, therefore, the provisions can have a retroactive effect. The order is essentially a preventative measure rather than punitive, and can only be made if it will protect the public by preventing, restricting or disrupting future offending by an individual. The aspects pointing towards an order being a penalty (trigger conviction, liability to penalty for breach) do not outweigh its preventative nature.
Having regard to the public interest in preventing serious crime and the safeguard that an order may only be made if the court has reasonable grounds to believe the order will protect the public from future offending and the fact that the Act specifically states that these are civil proceedings, it is considered that a SCPO is not a penalty - it is not a punishment.
As such, it does not breach Article 7 of the European Convention on Human Rights (ECHR) which forbids retroactive penalties (see Ibbotson v UK [1999] Crim. L.R. 153. Also R v Field and R v Young (2003) 3 All ER 769 which show that other preventive orders can be based upon things done before the relevant legislation was passed. See also R v Terrance Adams [2007] EWCA Crim 914, which addresses the same issue in the context of Financial Reporting Orders - now repealed - under Serious Organised Crime and Police Act 2005.)
A template notice of Intention to apply for a Crown Court SCPO if the defendant is convicted of a Serious Offence and proposed application can be found at Annex 2.
Bodies against whom orders can be made
An application for a SCPO can be made against a body corporate, a partnership or an unincorporated association. Sections 30 - 32 set out how notice of a SCPO is to be served on these bodies and how liability of these bodies and their officers is determined.
Bodies Corporate
Section 10 requires that the subject of a SCPO is only bound by it if notice of the SCPO has been served. A body corporate can be served if a notice setting out the terms of the order is delivered to an officer of the body in person, and is also sent by recorded delivery to the body at its last known address. It can be deemed to have been sent if it is sent by recorded delivery to a named officer of the body at either the registered office or its principle office in the UK. The power under section 10(3) to use reasonable force to enter premises to search for a person in order to effect personal service applies to the search for an officer of the body corporate. (Section 30(1)(b)). For the purposes of this section, body corporate includes a limited liability partnership (section 30(4)).
The fact that an order is being, or has been made against a body corporate does not prevent an order also being made against one of its officers or employees or any other person associated with it, provided the court is satisfied that they personally qualify under section1 or 19. Care will be needed to ensure that the appropriate company is named in the application and order. Prosecutors must be aware of the difficulties caused by confusing a holding company with a subsidiary or associated company which is actually responsible for the acts which it is sought to prohibit, restrict or disrupt.
Partnerships
(Excluding limited liability partnerships which are dealt with as bodies corporate above)
An order can be obtained against a partnership and must be made in the name of the partnership rather than any individual partner. However, this does not prevent orders also being obtained against individual partners, senior officers, employees or other persons associated with the partnership. Proof of involvement of a partnership in serious crime in England and Wales or elsewhere is satisfied by showing that the partnership or any of the partners is involved. However, where reliance is placed upon the actions of a single partner the acts or conduct relied upon must be related to the partnership business (Section 31(1), (3) and (10)).
If an order is obtained against a partnership, changes in the identity of the partners will not affect the order, so long as at least one of the remaining partners was in the partnership at the time the order was made (Section 31(2)).
To comply with the service requirements of section 10, the notice setting out the terms of the order or any variation may be served by both delivery to one of the partners or a senior officer of the partnership in person, and is deemed to have been sent by recorded delivery. It can be deemed to have been sent by recorded delivery at its last known address if it is sent to any of the partners or a senior officer of the partnership at the principal office of the partnership in the UK. The power under section 10(3), to use reasonable force to enter premises to search for a person in order to effect personal service, applies to the search for a partner or senior officer of the partnership. (Section 31(4) (b)).
A senior officer of a partnership means anyone who has the control or management of the business carried on by the partnership at the principle place where it is carried on (Section 31(11).
Unincorporated Associations
Section 32 makes almost identical provisions with regard to obtaining a SCPO against an unincorporated association. Any order obtained must be in the name of the association not any of its members, and will continue to be effective for so long as at least one person remains a member from the time the order was made. Service can be on an officer of the association, who is defined as any officer of the association or any member of its governing body.
Court proceedings
Proceedings in the Crown Court for a SCPO following conviction are civil proceedings (section 36(1)). The Crown Court can therefore consider evidence not admissible in the criminal proceedings and can adjourn the SCPO proceedings even after the person concerned has been sentenced. The Crown Court is still, however, a criminal court for the purposes of procedure rules and practice directions.
Proceedings in the Crown Court will still be governed by the procedure rules and practice directions of the Criminal Procedure Rules.
Proceedings for a SCPO in the High Court are also civil proceedings (section 35(1)) and will also be governed by the Civil Procedure Rules. Part 77 of the Civil Procedure Rules makes provision for SCPO applications to the High Court.
Standard of proof
Although the standard of proof is to be the civil standard, in the context of anti-social behaviour orders and civil proceedings, the House of Lords held in R v Manchester Crown Court ex parte McCann [2002] UKHL 39, that the standard of proof to be applied in deciding whether anti-social behaviour had taken place was equivalent to the criminal standard of beyond reasonable doubt. The court stated, "the standard of proof to be applied to a defendant's conduct was the criminal standard. There were good reasons, in the interests of fairness, for applying that higher standard where allegations were made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they were made."
It must be anticipated that the same standard will apply in proceedings for a SCPO, where the consequences may be even more restrictive and severe.
If satisfied that the person has been involved in serious crime, the court, before making a SCPO, must "have reasonable grounds to believe that an order would protect the public by preventing (etc.) the involvement by the person in serious crime". Any conditions in the order must be "appropriate" for that purpose (Section 1(a) and (b)).
When considering the test the courts should apply in deciding whether to make an order and what conditions to include, reference needs to be made to the Human Rights Act. When considering the prohibitions and restrictions an order will contain, as exemplified in section 5, all are likely to engage various articles of the ECHR and in particular, Article 5 (liberty and security), Article 8 (private life), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association). While clearly the Act satisfies the requirement for any interference with these rights to be lawful, any interference must also be necessary and proportionate to the desired aim.
When considering whether there are reasonable grounds to believe an order would protect the public from further serious crime, the court is making a judgment which is not susceptible to proof beyond reasonable doubt. As these are civil proceedings, the level of proof is likely to be on a sliding scale depending upon the severity of the conditions it is sought to impose by means of the order.
R v Hancox and Duffy [2010] EWCA Crim 102 said that when considering whether to make an SPCO, the court is concerned with future risk, and there must be a real or significant risk, not just a possibility, that the defendant will commit further serious offences. It is not enough that the order may prevent, restrict or disrupt the defendant's involvement in serious crime.
Where less restrictive conditions are being sought, the test should be that the risk should be real and not fanciful, but not as high as "substantial grounds to believe" or a risk that it is more likely than not that the defendant will continue to be involved in serious crime. A higher level of risk will be applicable for conditions which will substantially restrict a person's activities.
The nature of the offending before the court, i.e. serious crime, probably featuring conduct consistent with a professional organised criminal, and the defendant's previous record of offending, could both be used to support the contention that re- offending or continued involvement is a real risk because it can be suggested for example, that the defendant lives by crime.
R v Lang and Others [2005] EWCA Crim 2864 also offers guidance on the matters the sentence should take into account:
"the nature and circumstances of the current offence, the offender's history of offending including not just the kind of offence but its circumstances and the sentence passed, details of which the prosecution must have available, and, whether the offending demonstrates any pattern; social and economic factors in relation to the offender including accommodation, employability, education, associates, relationships and drug or alcohol abuse; and the offender's thinking, attitude towards offending and supervision and emotional state".
Safeguards
Only the relevant prosecuting authorities can apply for orders and the person against whom the order is sought must be over 18 (sections 6 and 8).
A SCPO (or a variation) does not bind the person named in it unless they are represented at the proceedings (either in person or otherwise) or a notice setting out the terms of the order has been formally served upon the person. The requirements of service are set out in the Act. This includes a power for a constable, or a person authorised by the relevant applicant authority, to enter premises where it is believed the person to be served is, using force if necessary, in order to search the premises for the person (Section 10).
Anyone who is likely to be adversely affected to a significant degree has a right to be heard and make representations before the relevant court considering making, varying or discharging a SCPO. An undertaking was given to parliament during the debates on the Bill that the application will contain details of the potential impact of the proposed order upon third parties (Section 9).
Variation
Crown Court
In addition to the power under section 49 of the 2015 SCA outlined above, the Crown Court can vary an order in the following circumstances:
- when dealing with a person convicted by it of a serious offence or committed by a convicting magistrates' court and who is already the subject of a SCPO, whether made by the High Court or a Crown Court (Section 20 and 22)
- when dealing with the person following conviction of an offence under section25 (failing to comply with a SCPO) (Section 21).
An order can only be varied on the application of the relevant applicant authority and cannot be varied in substitution for a sentence; it must be in addition to a sentence or conditional discharge imposed for the offence.
Variation can include an extension of an order, or one of its provisions, within the overall maximum of five years.
High Court
The applicant authority can apply to vary an order and the court can grant variation if it has reasonable grounds to believe that the order as varied will protect the public by preventing etc. the person's involvement in serious crime. Variation can include an extension of an order, or one of its provisions, within the overall maximum of five years (Section 17).
The person subject to the order can apply for a variation but only if they can satisfy the court that there has been a change of circumstances affecting the order.
A third party can also apply for a variation subject to satisfying the court that:
- they are significantly adversely affected by the order;
- the variation applied for is not for the purpose of making the order more onerous;
- they were given the opportunity to make representations when the order was made or has made another application in respect of the order and there has been a change of circumstances, or
- they have not previously made any application and it was reasonable for him/her not to have done so.
The High Court can vary a SCPO made by the Crown Court and can hear an application for a SCPO where the Crown Court has refused to make an order under section 19 or vary an order under section 21 or 22.
In the event that a SCPO is not applied for in the Court in error, it is not appropriate to correct this by way of an application to the High Court for a SCPO.
Discharge
The High Court in England and Wales may discharge a SCPO made by either the High Court or Crown Court in England and Wales (s.18 (1)). Application for discharge may be made either by:
- the relevant applicant authority, or
- the person who is the subject of the order, or
- any other person (Section 18(2).)
However, where the discharge application is made by the subject of the order or any other person, there are significant restrictions on the High Court's power to hear the application.
Where the discharge application is made by the subject of the SCPO, the High Court may only 'entertain' the application if it considers that there has been a change of circumstances (s.18(3)).
Where the discharge application is made by any other person, the High Court may only 'entertain' the application if:
- the person making the application is significantly adversely affected by the SCPO (s.18 (4)(a)), and either
- the person has, in earlier proceedings relating to the order, been given an opportunity to make representations and there has since been a change of circumstances affecting the order (s. 18(4) and (5)), or
- the person has not made any earlier application to the High/Crown Court and it was reasonable in all the circumstances for him/her not to have done so (s.18(4) and (6)).
Appeals
From the Crown Court
An appeal may be made to the Court of Appeal (Criminal Division) against a decision of the Crown Court in relation to a SCPO by:
- the person subject to the order or
- the relevant applicant authority (Section 24(1)).
An appeal may also be made to the Court of Appeal in relation to a Crown Court decision to:
- make a SCPO or
- vary/not to vary a SCPO by any person given an opportunity to make representations in the SCPO proceedings (Section 24(2)).
Both above types of appeal require either:
- leave of the Court of Appeal (Section 24(3)) or
- a certificate from the Judge whose decision is appealed, certifying that the decision is fit for appeal (Section 24(4)).
From the High Court
Appeal lies to the Court of Appeal (Civil Division) in relation to a High Court decision to:
- make a SCPO;
- vary/not to vary a SCPO;
- discharge/not to discharge a SCPO. (Section 23(1)) Such an appeal may be brought by
- any person who was given the opportunity to make representations in the SCPO proceedings;
- any other person entitled to make an appeal by virtue of the Senior Courts Act 1981 (section 16) (Section 23(1) and (2)).
From the Court of Appeal
Appeal lies from any appeal decision of the Court of Appeal (Criminal Division) to the Supreme Court at the instance of any person who was a party to the proceedings before the Court of Appeal (Section 24(6)).
Such an appeal can only be made with the leave either of the Court of Appeal or the Supreme Court.
Leave can only be granted if:
- the Court of Appeal certifies that the decision involves a point of law of general public importance; and
- the Court of Appeal/Supreme Court considers that the Supreme Court ought to consider it. (Section 24(8))
No express provision is required for appeals to the Supreme Court from the Court of Appeal (Civil Division).
Breach of an order
Where a breach of an order is alleged, it will usually be in the public interest to prosecute provided there is sufficient evidence to satisfy the evidential test under the Code for Crown Prosecutions. Prosecutors should also consider prosecution for any offence revealed in addition to the offence of breach under section 25 of the Act.
Offence
Breach of a SCPO without reasonable excuse constitutes an offence punishable:
- on summary conviction by up to 12 months' imprisonment, a fine not exceeding the statutory maximum or both
- on conviction on indictment by up to 5 years' imprisonment or a fine, or both Section 25(1) and (2).
In R v Koli [2012] the court found the factors for consideration at sentencing were:
- The lapse of time between order and breach
- Any history of non-compliance in the face of warnings or requests for information
- Whether the breach had been inadvertent or deliberate
- Whether it related to the commission of further serious offences and
- Whether any harm had been caused by it.
The court found that where an offender is simultaneously in breach of an order and conditions of his parole license there was no merit in the argument that recall to prison was sufficient punishment. Additional punishment was warranted.
In R v Oki [06 July 2016, unreported] the Court of Appeal endorsed the approach of passing consecutive sentences for further offences arising from the breach of the SCPO. In relation to a new SCPO imposed, the court also held that special justification was required for any interference with what was considered to be an essential item in the home. However, where the nature of the offences was to use computers to inflict harm (in this case fraud), the judge had been entitled to conclude that the balance between Oki's interests and the wider interests of society should be decided in favour of a prohibition on the possession or use of computers in the home.
Forfeiture
If a person is convicted of breaching a SCPO under section 25 the court may, having given the person or any other interested party an opportunity to make representations, order forfeiture of anything in the person's possession at the time of the offence and which it considers to have been involved in the offence (section 26(1)).
Such an order can only come into force once there is no possibility of it being varied or set aside on appeal (section 25(3). The court may order other provisions it considers necessary to give effect to the order, including provision in relation to handling, destruction or other disposal of the item forfeited (section 26(4) and (5)).
Winding-Up
Where a company, partnership or relevant body is convicted of an offence under section 25, the Director of Public Prosecutions or Director of the Serious Fraud Office may present a petition to the court for the company, partnership or relevant body to be wound up, if they consider it would be in the public interest for such an order to be made (section 27(1)).
The court may only make an order to wind up a company if:
- The company has been convicted of an offence under section 25; and
- The court considers it is just and equitable for the company to be wound up (Section 27(4)).
Section 27(5) and (6) enable the extension of provisions regarding insolvent partnerships and other relevant bodies to partnerships and other relevant bodies under this section. If this happens the court may make an order winding up the partnership or relevant body but only if:
- the partnership has been convicted of an offence under section 25; and
- the court considers it would be just and equitable for the partnership or relevant body to be wound up (Section 27(7)).
No petition for or a winding up order under section 27 may be presented/made unless:
- any appeal against conviction has been finally determined; or
- the period for making such an appeal has expired (Section 27(9)).
Monitoring and compliance
Monitoring of compliance with SCPOs is the responsibility of law enforcement and the monitoring of individuals' compliance with the terms of their order will vary in accordance with the different restrictions imposed.
Where an order is made against a body corporate, partnership or unincorporated association, the terms of that order may include provision to permit a law enforcement agency to enter into an arrangement with a specified person to perform monitoring services.
The monitoring services must be performed by a specified person or a person of a specified description (section 39 (1)). 'Monitoring services' are defined in section 39 (10).
An order may provide for a person to answer questions, provide information or produce documents to an authorised monitor. The law enforcement agency must inform the subject of the order of the name and address of any authorised monitor (section 39 (3) and (8)).
The order may also require the body corporate, partnership or unincorporated association to pay some or all of the costs incurred by the law enforcement agency under the arrangements made with the authorised monitor. If such payment is required, the period or periods within which it is to be made must be specified and the order may require payment on account (section 39 (4) and (5)).
The requirement throughout Part 1 that the court must have 'reasonable grounds to believe that the order would protect the public' etc. before it can make or vary an order is disapplied for the purposes of terms relating to payment of the costs of authorised monitors (section 39 (6)). The court is nevertheless required to be satisfied that it is appropriate in all the circumstances to include such terms in an order. The circumstances to be taken into account include the means of the subject of the order, the anticipated costs and the likely effect of the terms on the ability of the subject to carry on its business.
The Secretary of State may, by order, provide for the practice and procedure for determining the amount of any costs and interest payable by virtue of sections 39(4) and (5). There is a duty on law enforcement agencies to take reasonable steps to recover outstanding costs and interest. 'Reasonable steps' are to be defined by order and once such steps have been taken, the amounts due become recoverable as if due by virtue of a civil order or judgment (section 40).
Section 41 provides for law enforcement officers to take and retain copies of documents produced pursuant to a serious crime prevention order. The documents themselves may be retained for as long as the law enforcement officer considers it necessary to do so. In particular, a document may be retained until the conclusion of 'any legal proceedings' if there are reasonable grounds to believe that it may need to be produced for the purposes of the proceedings and that it may be unavailable for that purpose unless retained.
CPS delegation
Section 8 limits the authorities entitled to make application for a SCPO in either court to the Director of Public Prosecutions and the Director of the Serious Fraud Office, the Lord Advocate in Scotland, and the Director of Public Prosecutions in Northern Ireland.
In addition schedule 2 paragraphs 1-21 allows the Directors, to such extent as they may decide, to delegate the exercise of their powers under the Act to a Crown Prosecutor or prosecutor in their respective departments.
The following have delegated authority to apply for an SCPO following the conviction of a serious offence:
- Applications in the High Court: the Directors of Legal Services and Heads of Central Casework Divisions;
- Applications in the Crown Court: the Directors of Legal Services, Chief Crown Prosecutors, Deputy Chief Crown Prosecutors, Heads of Central Casework Divisions and Deputy Heads of Central Casework Divisions
The Attorney General must be consulted before any application is made to the High Court.
Mandatory reporting of SCPOs
Where a breach of an order is alleged, it will usually be in the public interest to prosecute provided there is sufficient evidence to satisfy the evidential test under the Code for Crown Prosecutions. Prosecutors should also consider prosecution for any offence revealed in addition to the offence of breach under section 25 of the Act.
Breach of a SCPO without reasonable excuse constitutes an offence punishable:
- on summary conviction by up to 12 months' imprisonment, a fine not exceeding the statutory maximum or both
- on conviction on indictment by up to 5 years' imprisonment or a fine, or both Section 25(1) and (2).
Prosecutors are required to complete a form on CMS in the event of a breach of an SCPO. The form should be completed, once a breach case has been finalised.
The relevant templates are available on CMS within the monitoring pack, under 'Special Cases'.
Other Prosecuting Authorities
Section 50 of the SCA 2015 repealed Financial Reporting Orders (FRO), consolidating these within SCPOs in order to 'simplify the landscape of civil orders and improve the impact on serious and organised crime'. Financial reporting requirements can be imposed through the terms of a SCPO and from 3 May 2015, when the SCA 2015 came into force, it was agreed the CPS would oversee and apply for SCPOs on behalf of other prosecution authorities.
Section 86(7) of the SCA 2015 provides that existing FROs will remain active until they expire and the existing offence of breaching an FRO will remain available.
The CPS has signed a Memorandum of Understanding (MoU) with a number of other prosecuting authorities, to establish the operational process between the agencies to enable the CPS to apply for SCPOs on behalf of other prosecuting authorities. The MoU is available at Annex 4.
The process of applying for a SCPO through the CPS is mapped out at Annex 1.
Prosecuting authorities should use the form attached at Annex 5, paying attention to CPS guidance at Annex 6.
Annexes
Annex 1: SCPO external Other Government Departments application process map
Annex 3: Serious Crime Prevention Order precedent library
Annex 4: Memorandum of Understanding between CPS and Other Prosecuting Agencies
Annex 5: Request for an application for a Crown Court Serious Crime Prevention Order (SCPO)