The Serious Crime Act 2015 brought into effect a number of provisions on 3 May and 1 June.
3 May 2015
Section 3ZA is introduced into the Computer Misuse Act 1980, so 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 unauthorised;
c. The act causes, or creates a significant risk of, serious damage of a material kind;
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 caused.
The phrase ‘material kind’ is defined to include damage to human welfare, the environment, economy or national security. The offence is triable only on indictment, with a maximum penalty of either 14 years or life, depending on the allegation specifically made. The offence of making, supplying or obtaining articles for use in connection with offences under the Computer Misuse Act is extended to these provisions.
Section 45 introduces the offence of participating in the criminal activities of an organised crime group. This offence is triable only on indictment carrying a maximum penalty of five years’ imprisonment. A person participates in the criminal activities of an organised crime group if he takes part in any activities that the person knows, or reasonably suspects are, criminal activities of an organised crime group, or will help an organised crime group to carry on criminal activities.
Such activities must be carried on with a view to obtaining directly or indirectly any gain or benefit – but this need not be financial in nature. The offences contemplated by the group must be punishable on indictment with imprisonment for a term of seven years or more. An organised crime group must consist of three or more persons who act or agree to act together to further the criminal purpose. This provision is deliberately much wider than the offence of conspiracy and requires no detailed knowledge of the particular offence that is being carried out.
Amendments are also made to the law that protects children. Section 1 of the Children and Young Persons Act 1933 is amended, so that ill treatment within its terms includes both physical and psychological damage.
The deeming of neglect set out in section 1(2) of that act, in relation to a child under three years of age who has been suffocated, is also extended, so that the reference to the suspect being under the influence of drink is extended to include prohibited drugs, and ‘bed’ is extended to any kind of furniture or surface being used by the adult for the purpose of sleeping.
Child prostitution and pornography under the Sexual Offences Act 2003 are relabelled as child exploitation offences; and those under 18 can no longer be convicted of soliciting for prostitution.
A new offence is introduced by section 69 of the Serious Crime Act 2015 to be in possession of a paedophile manual – that is, any item which contains advice or guidance about abusing children sexually. Defences are necessarily introduced to protect those who have a legitimate reason for being in possession of such a manual, or who did not know that they were to receive a copy. The offence is either way and carries three years on indictment.
1 June 2015
On 1 June 2015, significant amendments were made to the law of confiscation under the Proceeds of Crime Act 2002 (POCA). New sections (10A and 18A) are introduced into the statute to allow the criminal court to determine the extent of a defendant’s interest in property where a third party also claims an interest.
Proceedings will no longer have to be adjourned for a determination in a civil or family court, although it may be that applications to vary follow on a civil judgment. While a third party cannot be forced to provide relevant information the court is given power to draw an inference if no such information is forthcoming. No information given by a person under this section is admissible in evidence in proceedings against that person for an offence.
A new section 11 of POCA 2002 is substituted in relation to the time limits for making payment of confiscation orders. Essentially, the times available, if payment is not immediately made, have been halved, so that in normal circumstances the payment must be made within three months – and if an application is made within that period this may be extended by up to a total of six months in all.
Section 13 of POCA 2002 is amended, so that ‘priority orders’ can be made at the time of initial sentencing before the confiscation order is confirmed. These priority orders include compensation, victim surcharge, and unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013.
Under section 7 of POCA 2002, the court is given power to make compliance orders to secure payment of a confiscation order. This includes a power to restrict or prohibit the defendant’s travel outside the UK.
Section 25A is introduced to allow the courts greater flexibility in discharging orders following the death of a defendant, in appropriate circumstances.
Section 27 of POCA 2002 applies whether the defendant absconds before or after he is convicted. The powers of the court are extended for six years after the absconder is rearrested and the powers under section 28 of the act, where there is neither an acquittal nor a conviction, will now arise after the three months instead of two years.
The table of default sentences is amended. It should be noted in particular that, where more than £10m is due, the 14-year default sentence is not reduced to one half in the normal way.
As a result of these amendments, it will be easier for the Crown to obtain a restraint order under section 40 of POCA, as only a reasonable cause to suspect will be required instead of the previous reasonable cause to believe.
However, because the powers are widened, the court is given greater control over the conduct of the investigation, and the court must include a requirement for the applicant to report to the court on the progress of the investigation at such times and in such manner as may be ordered. The court must discharge the restraint order if proceedings are not started within a reasonable time. The duty to discharge a restraint order is withheld, pending an application by the Crown for a retrial.
On 1 June, the Youth Court acquired under the Crime and Courts Act 2013 the responsibility for dealing with gangs injunctions affecting those under 18. By section 51 of this statute, injunctions are available not only for gang-related violence but also for drug-dealing activity.
On 1 June a new offence was introduced as section 40CA of the Prison Act 1952. This makes it an offence, without authorisation, to be in possession of an offensive weapon, or any article that has a blade or is sharply pointed.
It is a defence for the accused to show that he reasonably believed that he had authorisation to be in possession of the article in question, or that in all the circumstances there was an overriding public interest which justified his possession. The offence is an either-way offence carrying four years’ imprisonment on indictment.
Anthony Edwards, TV Edwards