Serious Crime Prevention
Orders in Scotland – Summary
of Consultation Responses
April 2014
CONSULTATION ON SERIOUS CRIME PREVENTION ORDERS (SCPOs)
Contents
Page
Background
3
Summary of Responses
3
General Summary of Responses
3
Overall findings
Question 1
Question 2
Question 3
4
5
5
Conclusion
6
2
Background
1. The Scottish Government issued a consultation on 19 September 2013 seeking
views on the proposal to introduce Serious Crime Prevention Orders (SCPOs) in
Scotland.
2. In the consultation, the Scottish Government set out the context for why it
considers the time is right for introducing these orders. We asked three questions,
which focused on the kinds of conditions to be included in an SCPO, the situations
in which they could be used, and the rights of third parties throughout the process
and lifetime of an SCPO.
Summary of Responses
3. We received a total of nine responses to the consultation (the majority of which
were in favour of the proposal of introducing SCPOs to Scotland). Of the nine
responses, three asked for their details and responses not to be made public.
4. The six organisations who responded and who are content to have their
responses made public are:
Dr Liz Campbell, University of Edinburgh School of Law
Faculty of Advocates
HM Inspectorate of Constabulary for Scotland
Law Society of Scotland
Scottish Environment Protection Agency (SEPA),
Scottish Families Affected by Alcohol and Drugs
Link to responses –
http://www.scotland.gov.uk/Publications/2014/02/5824/downloads
General Summary of Responses
5. Generally, the respondents were in favour of the proposal, however, a common
theme was that they must be proportionate and necessary for the prevention of
crime if we did go ahead with this proposal. One respondent suggested that
SCPOs should only be used where a person has been convicted of or deemed to
be involved in serious organised crime, when the latter has been established
beyond reasonable doubt.
3
Overall Response
Q1. What kinds of conditions might be attached to a serious crime prevention
order?
6. For a civil order not to be considered criminal, and thus attract additional
protections of article 6 of the European Convention on Human Rights (ECHR),
the conditions attached must be designed to prevent harm, and must not be
punitive.
7. All 9 respondents answered this question with the majority of respondents
agreeing that any proposed condition should consider the potential disruptive
effect on the individual to continue to undertake criminal activities linked to
serious organised crime thus preventing further harm to the public. There
were examples cited by respondents of situations where orders could make
an impact such as travel restrictions by confiscating their passport or
restricting visits certain locations, communication restrictions such as limiting
use of internet or limiting number of mobile phones allowed, financial
restrictions - such as limiting number of bank accounts, limiting amount of
money they can have on their possession and prohibit possession of preloaded credit cards, employment restrictions - preventing them from working
in certain professions - i.e if they have been convicted of printing counterfeit
money you may want to restrict their access to employment where there is
print machinery, entering business partnerships or holding directorships in
companies where there has been a history of illegal activity by the subject in
similar previous business activity.
8. Examples of responses received to question 1 include:
“Such a condition may include any restriction or requirement to do or
not to do anything with the outcome to divert and disrupt that person’s
involvement in serious organised crime preventing further harm to
communities across Scotland.”
“They should be compatible with the Human Rights Act 1998.”
“The reasons for the use of SCPOs should be explained to the
individual or group the order is being imposed upon and making them
fully aware of the obligations the order imposes upon them.”
“Generally, the conditions would need to be based on provisions set
out in law and be proportionate and necessary for the prevention of
crime. It is essential that any order gives definition in precise terms as
to the conduct to be restrained.”
“…are of the opinion that what is as important is for the conditions to be
measureable without becoming too onerous a task to monitor. If the
conditions are unwieldy, the likelihood is that limited monitoring of them
will be undertaken due to time and resource constraints and the SCPO
itself will become less effective”
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9. There was a common theme that Orders should only be made where a clear
cause is shown as to why an Order ought to be made, and that it should be
proportionate and necessary for the prevention of crime.
Q2. In which situations would a serious crime prevention order prove useful
and proportionate in preventing organised criminality?
10. All respondents answered this question, and provided a wide variety of
situations where use of SCPOs would be appropriate, with financial dealings
being evident in the majority of responses. Respondents also highlighted
need for Orders to be proportionate and not unduly oppressive, that the court
should apply strict criteria before granting an order, and there must be
grounds to believe that the granting of an order will protect the public against
organised crime. One respondent suggested that there should be an
obligation on the subject to willingly provide information to the authorities
rather than the authorities having to request it.
11. Examples of responses received to question 2 include:
“I suggest that a serious organised crime prevention order is
proportionate in preventing organised crime only where the person has
been convicted of, or is deemed to be involved in organised crime,
when the latter has been established beyond reasonable doubt.”
“Serious organised crime prevention orders interfere considerably with
various human rights, such as are protected by Articles 6, 8, and Article
1 of Protocol 1 to the European Convention on Human Rights. The
limitations placed on the freedom of the individual or entity must be
proportionate to the benefit to the public that would result from the
order.”
“Serious crime prevention orders should form part of a suite of tactical
options for active consideration by both Police Scotland and the Crown
Office and Procurator Fiscal Service.”
Q.3 Should the prosecution be required (whether by legislation or Court rule)
specifically to draw the Court’s attention to relevant facts about the impact of
potential orders upon the interests of third parties?
12. All respondents answered this question with the majority of respondents
agreeing that the prosecution should be required to notify the court as to any
potential impact of the orders on third parties. This would include both
adverse impact and any possible positive impact. It would be the
responsibility of the Prosecution to make the court aware of any significance
an SCPO would have on a third party. An example could be someone
receiving an SCPO which restricted travel and prevented them from travelling
abroad. This could possibly impact on other members of the family restricting
where they could go if they wanted to travel together as a family. An
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adherence to the principles of the European Convention on Human Rights
was also a common theme in the responses.
13. One respondent suggested that an advantage of the prosecution notifying the
court on the impact of potential orders on third parties would be to limit a
subject’s ability to object to an order on the grounds of breach of convention
rights. Any matter would already have been disclosed to and considered by
the court pre-order.
14. The majority of the respondents considered notification to the court of impact
to third parties to be part of the regime imposed by the Human Rights Act
1998. Only one respondent considered that to impose a duty on the courts to
take into account the rights of third parties before imposing any order should
be done through primary legislation so the majority would be content that this
would be done through other means such as guidance.
15. Examples of responses to Question 3 include:
“In terms of adhering to the principles of the European Convention on
Human Rights the test must be that the individual concerned has been
involved in serious organised crime and that the order would have a
dual effect in terms of protection of the public and disrupting the
offender from further engagement in serious criminal activity.”
“….the courts must be made aware of the possible interests of third
parties, who may be completely innocent of any wrongdoing.”
“…..there should be an onus on the prosecution to consider and
provide information to the court about any potential impact that an
order would have on the third party.”
Conclusion
16. The overall consensus amongst responders was that the introduction of
SCPOs in Scotland would be welcomed as long as they were proportionate
and adhered to the principles of ECHR. Some of the respondents raised
some very relevant key issues, including a requirement for more information
on how SCPOs have been used and have worked in the rest of the UK since
their introduction in 2008, and we will reflect on these issues and all
responses as we develop proposals to take this forward.
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The Scottish Government
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Produced for the Scottish Government by APS Group Scotland
DPPAS27358 (04/14)
Published by the Scottish Government, April 2014
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