Serious Crime Bill (HC Bill 116)

absconder, the prosecutor applies to the Crown Court
to proceed under this section, and

(d) the court believes it is appropriate for it to do so.”;

(d) the modifications set out in subsection (5)(a) to (d) of this section
5do not apply to proceedings that take place by virtue of section
169, 170 or 171 (as applied by this subsection).”

(3) In section 178 of that Act (absconding defendant neither convicted nor
acquitted), in subsection (2)(c), for “two years” substitute “three months”.

(4) For subsection (6) of that section substitute—

“(6) 10Once the defendant has ceased to be an absconder—

(a) section 171 has effect as if subsection (1) read—

“(1) This section applies if—

(a) a court has made a confiscation order,

(b) the prosecutor believes that if the court were to find
15the amount of the defendant’s benefit in pursuance of
this section it would exceed the relevant amount,

(c) before the end of the period of six years starting with
the day when the defendant ceased to be an
absconder, the prosecutor applies to the Crown Court
20to proceed under this section, and

(d) the court believes it is appropriate for it to do so.”;

(b) the modifications set out in subsection (5)(a) to (d) of this section
do not apply to proceedings that take place by virtue of section
171 (as applied by this subsection).”

32 25Default sentences

(1) In section 185 of the Proceeds of Crime Act 2002 (enforcement as fines), after
subsection (2) insert—

“(2A) Where a court is fixing a term of imprisonment or detention under
section 35(1)(c) of that Act (as applied by subsection (2) above) in
30respect of an amount ordered to be paid under a confiscation order, the
maximum terms are those specified in the second column of the Table
for amounts described in the corresponding entry in the first column.

(2B) The Department of Justice in Northern Ireland may by order —

(a) amend subsection (2A) so as to provide for minimum terms of
imprisonment or detention under section 35(1)(c) of that Act (as
applied by subsection (2) above) in respect of amounts ordered
to be paid under a confiscation order;

(b) 5amend the Table in subsection (2A) so as to remove, alter or
replace any entry (including an entry inserted by virtue of the
power in paragraph (a) of this subsection) or to add any entry.”

(2) In section 459(7B) of that Act (orders subject to affirmative resolution
procedure), after “section” insert “185(2B),”.

33 10Conditions for exercise of restraint order powers

(1) In section 189 of the Proceeds of Crime Act 2002 (conditions for exercise of
powers), in subsection (2)(b), for “is reasonable cause to believe” substitute “are
reasonable grounds to suspect”.

(2) In section 190 of that Act (restraint orders), after subsection (7) insert—

“(7A) 15Subsections (7B) and (7C) apply where the High Court makes a
restraint order (by virtue of the first condition in section 189) as a result
of a criminal investigation having been started in Northern Ireland
with regard to an offence.

(7B) The court—

(a) 20must include in the order a requirement for the applicant for the
order to report to the court on the progress of the investigation
at such times and in such manner as the order may specify (a
“reporting requirement”), and

(b) must discharge the order if proceedings for the offence are not
25started within a reasonable time (and this duty applies whether
or not an application to discharge the order is made under
section 191(3)).

(7C) The duty under subsection (7B)(a) does not apply if the court decides
that, in the circumstances of the case, a reporting requirement should
30not be imposed, but the court—

(a) must give reasons for its decision, and

(b) may at any time vary the order so as to include a reporting
requirement (and this power applies whether or not an
application to vary the order is made under section 191(3)).”

34 35Continuation of restraint order after quashed conviction

In section 191 of the Proceeds of Crime Act 2002 (application, discharge and
variation of restraint orders), after subsection (6) insert—

“(6A) The duty in subsection (6) to discharge a restraint order on the
conclusion of proceedings does not apply where—

(a) 40the proceedings are concluded by reason of a defendant’s
conviction for an offence being quashed,

(b) the order is in force at the time when the conviction is quashed,
and

(c) the Court of Appeal has ordered the defendant to be retried for
the offence or the prosecutor has applied for such an order to be
made.

(6B) But the court must discharge the restraint order—

(a) 5if the Court of Appeal declines to make an order for the
defendant to be retried,

(b) if the Court of Appeal orders the defendant to be retried but
proceedings for the retrial are not started within a reasonable
time, or

(c) 10otherwise, on the conclusion of proceedings for the retrial of the
defendant.”

35 Conditions for exercise of search and seizure powers

(1) In section 195B of the Proceeds of Crime Act 2002 (conditions for exercise of
powers), in subsection (2)(d), for “is reasonable cause to believe” substitute
15“are reasonable grounds to suspect”.

(2) In section 195G of that Act (“appropriate approval”), before paragraph (b) of
subsection (3) insert—

“(ab) in relation to the exercise of a power by a National Crime
Agency officer, the Director General of the National Crime
20Agency or any other National Crime Agency officer authorised
by the Director General (whether generally or specifically) for
this purpose,”.

36 Seized money etc

(1) In section 215 of the Proceeds of Crime Act 2002 (seized money), for
25subsections (4) and (5) substitute—

“(5) If—

(a) a confiscation order is made against a person holding money to
which this section applies, and

(b) a receiver has not been appointed under section 198 in relation
30to the money,

a magistrates’ court may order the bank or building society to pay the
money to the appropriate chief clerk on account of the amount payable
under the confiscation order.”

(2) After subsection (5) of that section insert—

“(5A) 35A person applying for an order under subsection (5) must give notice
of the application to the bank or building society with which the
account in held.

(5B) In the case of money held in an account not maintained by the person
against whom the confiscation order is made, a magistrates’ court—

(a) 40may make an order under subsection (5) only if the extent of the
person’s interest in the money has been determined under
section 160A, and

(b) must have regard to that determination in deciding what is the
appropriate order to make.”

(3) After subsection (7) of that section insert—

“(7A) The Department of Justice in Northern Ireland may by order amend
this section so that it applies not only to money held in an account
maintained with a bank or building society but also to—

(a) 5money held in an account maintained with a financial
institution of a specified kind, or

(b) money that is represented by, or may be obtained from, a
financial instrument or product of a specified kind.

(7B) An order under subsection (7A) may amend this section so that it
10makes provision about realising an instrument or product within
subsection (7A)(b) or otherwise obtaining money from it.”

(4) In section 215A of that Act (seized personal property), for subsections (2) and
(3) substitute—

“(3) If—

(a) 15a confiscation order is made against the person by whom the
property is held, and

(b) a receiver has not been appointed under section 198 in relation
to the property,

a magistrates’ court may by order authorise an appropriate officer to
20realise the property.”

(5) In section 459(7B) of that Act (orders subject to affirmative resolution
procedure), before “223(7) or (8)” insert “215(7A),”.

CHAPTER 4 Investigations and co-operation etc

37 Confiscation investigations

(1) 25In section 341 of the Proceeds of Crime Act 2002, at the end of subsection (1)
insert “, or

(c) the extent or whereabouts of realisable property available for
satisfying a confiscation order made in respect of him.”

(2) In section 353 of that Act (requirements where production order not available),
30in subsection (6)(a), after “of his benefit from his criminal conduct” insert “or of
realisable property available for satisfying a confiscation order made in respect
of him”.

(3) In section 388 of that Act (requirements where production order not available),
in subsection (6)(a), after “of his benefit from his criminal conduct” insert “or of
35realisable property available for satisfying a confiscation order made in respect
of him”.

38 External orders and investigations: meaning of “obtaining property”

In section 447 of the Proceeds of Crime Act 2002 (interpretation of Part 11 (co-
operation)), after subsection (6) insert—

“(6A) 40A person who obtains a pecuniary advantage as a result of or in
connection with conduct is to be taken to obtain, as a result of or in

connection with the conduct, a sum of money equal to the value of the
pecuniary advantage.

(6B) References to property or a pecuniary advantage obtained in
connection with conduct include references to property or a pecuniary
5advantage obtained both in that connection and some other.”

39 Confiscation orders by magistrates’ courts

(1) The Serious Organised Crime and Police Act 2005 is amended as follows.

(2) In section 97 (confiscation orders by magistrates’ courts), after subsection (1)
insert—

“(1ZA) 10But an order under subsection (1) may not enable such a confiscation
order to be made by any magistrates’ court in respect of an amount
exceeding £10,000.

(1ZB) The Secretary of State may by order amend subsection (1ZA) so as to
substitute a different amount.”

(3) 15In subsection (2) of that section omit “(1) or”.

(4) After that subsection insert—

“(2A) The Department of Justice may by order amend subsection (2) so as to
substitute a different amount.”

(5) In section 172 (orders etc)—

(a) 20in subsection (5) (orders made by Secretary of State that are subject to
affirmative resolution procedure), in paragraph (i), after “section 97(1)”
insert “or (1ZB)”;

(b) in subsection (13) (orders made by Department of Justice in Northern
Ireland that are subject to affirmative resolution procedure), in
25paragraph (d), after “section 97(1A)” insert “or (2A)”.

Part 2 Computer misuse

40 Unauthorised acts causing, or creating risk of, serious damage

(1) The Computer Misuse Act 1990 is amended as follows.

(2) 30After section 3 insert—

“3ZA Unauthorised acts causing, or creating risk of, serious damage

(1) A person is guilty of an offence if—

(a) the person does any unauthorised act in relation to a computer;

(b) at the time of doing the act the person knows that it is
35unauthorised;

(c) the act causes, or creates a significant risk of, serious damage of
a material kind; and

(d) the person intends by doing the act to cause serious damage of
a material kind or is reckless as to whether such damage is
40caused.

(2) Damage is of a “material kind” for the purposes of this section if it is—

(a) damage to human welfare in any place;

(b) damage to the environment of any place;

(c) damage to the economy of any country; or

(d) 5damage to the national security of any country.

(3) For the purposes of subsection (2)(a) an act causes damage to human
welfare only if it causes—

(a) loss to human life;

(b) human illness or injury;

(c) 10disruption of a supply of money, food, water, energy or fuel;

(d) disruption of a system of communication;

(e) disruption of facilities for transport; or

(f) disruption of services relating to health.

(4) It is immaterial for the purposes of subsection (2) whether or not an act
15causing damage—

(a) does so directly;

(b) is the only or main cause of the damage.

(5) In this section—

(a) a reference to doing an act includes a reference to causing an act
20to be done;

(b) “act” includes a series of acts;

(c) a reference to a country includes a reference to a territory, and
to any place in, or part or region of, a country or territory.

(6) A person guilty of an offence under this section is (unless subsection (7)
25applies) liable, on conviction on indictment, to imprisonment for a term
not exceeding 14 years, or to a fine, or to both.

(7) Where an offence under this section is committed as a result of an act
causing or creating a significant risk of—

(a) serious damage to human welfare of the kind mentioned in
30subsection (3)(a) or (3)(b), or

(b) serious damage to national security,

a person guilty of the offence is liable, on conviction on indictment, to
imprisonment for life, or to a fine, or to both.”

(3) In section 3A (making, supplying or obtaining articles for use in offences under
35section 1 or 3), in subsections (1), (2) and (3), for “section 1 or 3” substitute
“section 1, 3 or 3ZA”.

41 Obtaining articles for purposes relating to computer misuse

In section 3A of the Computer Misuse Act 1990 (making, supplying or
obtaining articles for use in offence under section 1 or 3), in subsection (3), for
40“article with a view to” substitute “article—

(a) intending to use it to commit, or to assist in the commission of,
an offence under section 1, 3 or 3ZA, or

(b) with a view to”.

42 Territorial scope of computer misuse offence

(1) The Computer Misuse Act 1990 is amended as follows.

(2) In section 4 (territorial scope of offences), in subsection (1), for “section 1 or 3”
substitute “section 1, 3 or 3ZA”.

(3) 5After subsection (4) of that section insert—

“(4A) It is immaterial for the purposes of an offence under section 3A whether
the accused was in the home country concerned at the time of any act
or other event proof of which is required for conviction of the offence if
there is a significant link with domestic jurisdiction in relation to the
10offence.”

(4) In section 5 (significant links with domestic jurisdiction), after subsection (1)
insert—

“(1A) In relation to an offence under section 1, 3, 3ZA or 3A, where the
accused was in a country outside the United Kingdom at the time of the
15act constituting the offence there is a significant link with domestic
jurisdiction if—

(a) the accused was a United Kingdom national at that time; and

(b) the act constituted an offence under the law of the country in
which it occurred.

(1B) 20In subsection (1A)—

• “country” includes territory;

• “United Kingdom national” means an individual who is—

  (a)

  a British citizen, a British overseas territories citizen, a
  British National (Overseas) or a British Overseas citizen;

  (b)

  25a person who under the British Nationality Act 1981 is a
  British subject; or

  (c)

  a British protected person within the meaning of that
  Act.”

(5) After subsection (3) of that section insert—

“(3A) 30In relation to an offence under section 3ZA, any of the following is also
a significant link with domestic jurisdiction—

(a) that the accused was in the home country concerned at the time
when he did the unauthorised act (or caused it to be done);

(b) that the unauthorised act was done in relation to a computer in
35the home country concerned;

(c) that the unauthorised act caused, or created a significant risk of,
serious damage of a material kind (within the meaning of that
section) in the home country concerned.”

(6) In section 13 (proceedings in Scotland), after subsection (2) insert—

“(2A) 40A sheriff shall have jurisdiction in respect of an offence under section
3ZA above if—

(a) the accused was in the sheriffdom at the time when he did the
unauthorised act (or caused it to be done), or

(b) the computer in relation to which the unauthorised act was
45done was in the sheriffdom at that time.

(2B) A sheriff shall have jurisdiction in respect of an offence under section
3A above if—

(a) the accused was in the sheriffdom at the time when—

(i) he made, adapted, supplied or offered to supply the
5article intending it to be used as mentioned in
subsection (1) of that section,

(ii) he supplied or offered to supply the article believing
that it would be used as mentioned in subsection (2) of
that section, or

(iii) 10he obtained the article intending to use it, or with a view
to its being supplied for use, as mentioned in subsection
(3) of that section; or

(b) the offence related to the commission of an offence under
section 1, 3 or 3ZA above (in the way described in subsections
15(1) to (3) of section 3A above) and any computer as mentioned
in subsection (1)(b), (2)(b) or (2A)(b) of this section was in the
sheriffdom at the time the accused carried out the act
constituting the offence under section 3A above.”

(7) After subsection (10) of that section insert—

“(10A) 20Where an offence under section 1, 3, 3ZA or 3A above is committed
outside Scotland, the person committing the offence may be
prosecuted, tried and punished for the offence—

(a) in any sheriff court district in Scotland in which the person is
apprehended or is in custody, or

(b) 25in such sheriff court district as the Lord Advocate may direct,

as if the offence had been committed in that district; and the offence is,
for all purposes incidental to or consequential on the trial or
punishment, deemed to have been committed in that district.”

43 Savings

(1) 30The Computer Misuse Act 1990 is amended as follows.

(2) In section 10 (saving for certain law enforcement powers)—

(a) for “Section 1(1) above has” substitute “Sections 1 to 3A have”;

(b) in paragraph (a), after “seizure” insert “or of any other enactment by
virtue of which the conduct in question is authorised or required”;

(c) 35in paragraph (b), after “seizure” insert “or of any other enactment or
rule of law by virtue of which the conduct in question is authorised or
required”;

(d) for “the said section 1(1)” substitute “any of those sections”;

(e) for “In this section “enforcement officer” means” substitute—

40“In this section—

• “enactment” means any enactment, whenever passed or
  made, contained in—

  (a)

  an Act of Parliament;

  (b)

  an Act of the Scottish Parliament;

  (c)

  45a Measure or Act of the National Assembly for
  Wales;

  Serious Crime BillPage 38

  (d)

  an instrument made under any such Act or
  Measure;

  (e)

  any other subordinate legislation (within the
  meaning of the Interpretation Act 1978);

• 5“enforcement officer” means”.

(3) In section 16 (application to Northern Ireland), after subsection (9) insert—

“(9A) In section 10 the definition of “enactment” shall be read as including a
reference to an enactment, whenever passed or made, contained in
Northern Ireland legislation or in an instrument made under such
10legislation.”

Part 3 Organised, serious and gang-related crime

Organised crime groups

44 Offence of participating in activities of organised crime group

(1) 15A person who participates in the criminal activities of an organised crime
group commits an offence.

(2) For this purpose, a person participates in the criminal activities of an organised
crime group if the person takes part in any activities that the person knows or
reasonably suspects—

(a) 20are criminal activities of an organised crime group, or

(b) will help an organised crime group to carry on criminal activities.

(3) “Criminal activities” are activities within subsection (4) or (5) that are carried
on with a view to obtaining (directly or indirectly) any gain or benefit.

(4) Activities are within this subsection if—

(a) 25they are carried on in England or Wales, and

(b) they constitute an offence in England and Wales punishable on
conviction on indictment with imprisonment for a term of 7 years or
more.

(5) Activities are within this subsection if—

(a) 30they are carried on outside England and Wales,

(b) they constitute an offence under the law in force of the country where
they are carried on, and

(c) they would constitute an offence in England and Wales of the kind
mentioned in subsection (4)(b) if the activities were carried on in
35England and Wales.

(6) “Organised crime group” means a group that—

(a) has as its purpose, or as one of its purposes, the carrying on of criminal
activities, and

(b) consists of three or more persons who act, or agree to act, together to
40further that purpose.

(7) For a person to be guilty of an offence under this section it is not necessary—

(a) for the person to know any of the persons who are members of the
organised crime group,

(b) for all of the acts or omissions comprising participation in the group’s
criminal activities to take place in England and Wales (so long as at
5least one of them does), or

(c) for the gain or benefit referred to in subsection (3) to be financial in
nature.

(8) It is a defence for a person charged with an offence under this section to prove
that the person’s participation was necessary for a purpose related to the
10prevention or detection of crime.

(9) A person guilty of an offence under this section is liable on conviction on
indictment to imprisonment for a term not exceeding 5 years.

Serious crime prevention orders

45 Extension of Part 1 of Serious Crime Act 2007 to Scotland

15Schedule 1 (amendments of Serious Crime Act 2007: Scotland) has effect.

46 Serious crime prevention orders: meaning of “serious offence”

(1) Part 1 of Schedule 1 to the Serious Crime Act 2007 (serious offences in England
and Wales) is amended as set out in subsections (2) to (4).

(2) In paragraph 1 (drug trafficking), after paragraph (b) of sub-paragraph (1)
20insert—

“(ba) section 6 (restriction of cultivation of cannabis plant);”.

(3) For paragraph 3 substitute—

“Firearms offences

3 (1) An offence under any of the following provisions of the Firearms Act
251968—

(a) section 1(1) (possession etc of firearms or ammunition
without certificate);

(b) section 2(1) (possession etc of shot gun without certificate);

(c) section 3(1) (dealing etc in firearms or ammunition by way of
30trade or business without being registered);

(d) section 5(1), (1A) or (2A) (possession, manufacture etc of
prohibited weapons).

(2) An offence under either of the following provisions of the Customs
and Excise Management Act 1979 if it is committed in connection
35with a firearm or ammunition—

(a) section 68(2) (exportation of prohibited or restricted goods);

(b) section 170 (fraudulent evasion of duty etc).

(3) In sub-paragraph (2) “firearm” and “ammunition” have the same
meanings as in section 57 of the Firearms Act 1968.”