Serious Crime Bill (HC Bill 160)

Serious Crime BillPage 30

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.

TABLE
Amount Maximum term
£10,000 or less 356 months
More than £10,000 but
no more than £500,000
5 years
More than £500,000 but
no more than £1 million
7 years
More than £1 million 4014 years

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

Serious Crime BillPage 31

(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

Serious Crime BillPage 32

(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.

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(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 Disclosures, investigations, co-operation and enforcement

37 Exemption from civil liability for money-laundering disclosures

25In section 338 of the Proceeds of Crime Act 2002 (money laundering:
authorised disclosures), after subsection (4) insert—

(4A) Where an authorised disclosure is made in good faith, no civil liability
arises in respect of the disclosure on the part of the person by or on
whose behalf it is made.

38 30Confiscation investigations

(1) In 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) 35In section 353 of that Act (requirements where production order not available),
in 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),
40in subsection (6)(a), after “of his benefit from his criminal conduct” insert “or of

Serious Crime BillPage 34

realisable property available for satisfying a confiscation order made in respect
of him”.

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

In section 447 of the Proceeds of Crime Act 2002 (interpretation of Part 11 (co-
5operation)), after subsection (6) insert—

(6A) A 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) 10References to property or a pecuniary advantage obtained in
connection with conduct include references to property or a pecuniary
advantage obtained both in that connection and some other.

40 Confiscation orders by magistrates’ courts

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

(2) 15In section 97 (confiscation orders by magistrates’ courts), after subsection (1)
insert—

(1ZA) But 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) 20The Secretary of State may by order amend subsection (1ZA) so as to
substitute a different amount.

(3) In 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
25substitute a different amount.

(5) In section 172 (orders etc)—

(a) in 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) 30in subsection (13) (orders made by Department of Justice in Northern
Ireland that are subject to affirmative resolution procedure), in
paragraph (d), after “section 97(1A)” insert “or (2A)”.

Part 2 Computer misuse

41 35Unauthorised acts causing, or creating risk of, serious damage

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

Serious Crime BillPage 35

(2) After 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) 5at the time of doing the act the person knows that it is
unauthorised;

(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
10a material kind or is reckless as to whether such damage is
caused.

(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) 15damage to the economy of any country; or

(d) damage 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) 20human illness or injury;

(c) disruption 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) 25It is immaterial for the purposes of subsection (2) whether or not an act
causing damage—

(a) does so directly;

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

(5) In this section—

(a) 30a reference to doing an act includes a reference to causing an act
to 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) 35A person guilty of an offence under this section is (unless subsection (7)
applies) 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) 40serious damage to human welfare of the kind mentioned in
subsection (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.

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

42 Obtaining articles for purposes relating to computer misuse

5In 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
“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) 10with a view to.

43 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) 15After 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
20offence.

(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
25act 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) 30In 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)

    35a 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) 40In 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);

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(b) that the unauthorised act was done in relation to a computer in
the 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
5section) in the home country concerned.

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

(2A) A 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
10unauthorised act (or caused it to be done), or

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

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

(a) 15the accused was in the sheriffdom at the time when—

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

(ii) he supplied or offered to supply the article believing
20that it would be used as mentioned in subsection (2) of
that section, or

(iii) he 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) 25the offence related to the commission of an offence under
section 1, 3 or 3ZA above (in the way described in subsections
(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
30constituting the offence under section 3A above.

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

(10A) Where 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) 35in any sheriff court district in Scotland in which the person is
apprehended or is in custody, or

(b) in 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
40punishment, deemed to have been committed in that district.

44 Savings

(1) The 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) 45in paragraph (a), after “seizure” insert “or of any other enactment by
virtue of which the conduct in question is authorised or required”;

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(c) in 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) 5for “In this section “enforcement officer” means” substitute—

In this section—

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

    (a)

    an Act of Parliament;

    (b)

    10an Act of the Scottish Parliament;

    (c)

    a Measure or Act of the National Assembly for
    Wales;

    (d)

    an instrument made under any such Act or
    Measure;

    (e)

    15any other subordinate legislation (within the
    meaning of the Interpretation Act 1978);

  • “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
20reference to an enactment, whenever passed or made, contained in
Northern Ireland legislation or in an instrument made under such
legislation.

Part 3 Organised, serious and gang-related crime

25Organised crime groups

45 Offence of participating in activities of organised crime group

(1) A 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
30crime group if the person takes part in any activities that the person knows or
reasonably suspects—

(a) are 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
35on with a view to obtaining (directly or indirectly) any gain or benefit.

(4) Activities are within this subsection if—

(a) they 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
40more.

(5) Activities are within this subsection if—

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

Serious Crime BillPage 39

(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
5England 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
10further 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
15criminal activities to take place in England and Wales (so long as at
least 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
20that the person’s participation was necessary for a purpose related to the
prevention 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

46 25Extension of Part 1 of Serious Crime Act 2007 to Scotland

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

47 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) 30In paragraph 1 (drug trafficking), after paragraph (b) of sub-paragraph (1)
insert—

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

(3) For paragraph 3 substitute—

Firearms offences

3 (1) 35An offence under any of the following provisions of the Firearms Act
1968—

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

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

(c) 40section 3(1) (dealing etc in firearms or ammunition by way of
trade or business without being registered);