Better than cure

The Serious Crime Act 2007 introduced the concept of the Serious Crime Prevention Order (SCPO) to the statute book. Some have likened it to the Anti-Social Behaviour Order (ASBO), but there are differences and it is its application to offences, traditionally regarded as white collar offences, that has excited interest in its potential (and actual) deployment by the Serious Fraud Office and the Financial Services Authority.

The SFO was recently successful in obtaining an SCPO against an individual, convicted before Luton Crown Court with another, who had a previous conviction in a wine investments 'boiler room' fraud.

The SFO believes that the use of the SCPO, in circumstances such as this, allows it to take pre-emptive action against unlawful activity, once it is uncovered. In publishing the Serious Crime Bill, in early 2007, the then-Home Secretary, John Reid, said: 'We are bringing in reforms to get the 'Mr Bigs' of the organised crime world.'

Few members of the public would necessarily take issue with this sentiment. However the use of the SCPO, to pre-empt and forestall criminality in circumstances where there exists no evidence of actual guilt, has led to deep reservations among civil libertarians and practitioners.

When an SCPO can be used

An SCPO can be made in one of two ways: first, by the Crown Court, following a conviction as part of the sentence, either for those convicted before the Crown Court or for those committed for sentence by the magistrates' court; and, secondly, by the High Court, against an individual or a corporate entity where there is mere suspicion that criminal activity may take place.

The Crown Court SCPO is, perhaps, a desirable weapon to attack the recidivism of the serial offender. It is the High Court SCPO that gives rise to concern that traditional judicial protection will be circumvented.

An SCPO can be made on application by the Director of Public Prosecutions, the Director of the Revenue and Customs Prosecutions Office, and the Director of the Serious Fraud Office (and the Director of Public Prosecutions for Northern Ireland), to the High Court, or by application to a Crown Court before which a person appears having been convicted of a serious offence.

Where an order is sought, in the High Court, consultation with the Attorney General is required.

A 'Justice' briefing, written in June 2007 in anticipation of the second reading of the Serious Crime Bill, stated that the SCPO should not be used, as a substitute for criminal prosecutions, because civil SCPO orders cannot provide sufficient protection for the public in very serious cases; a civil SCPO can be imposed in too wide a range of circumstances, and, potentially, in respect of persons who have unwittingly facilitated crime; and the conditions attaching to an SCPO are so draconian as to amount to a criminal penalty, without the protection inherent in the Crown Court.

An SCPO can cover an individual's property, communications, and movements (see table below).

Breach of an SCPO, imposed in either court, is a criminal offence, carrying a maximum sentence of five years' imprisonment. An SCPO can be made for a maximum term of five years, albeit applications to vary or discharge can be entertained in the respective court that imposed it.

In the case of a company in breach of an SCPO, the High Court can proceed to wind up the company '“ if it is in the public interest.

Guilt by association

The government would, in all probability, argue that the pre-emptive SCPO is necessary to deal with the nefarious activities of some, in the modern world, where it is not possible to bring a criminal prosecution. The concern of many, however, is, in common with the use of the ASBO, that the High Court SCPO presents an easier alternative to mounting a costly criminal prosecution, to the criminal standard of proof, before the Crown Court. It is not open to the court to consider whether the target of an SCPO acted reasonably, yet the Act requires the target to prove his actions were 'reasonable in the circumstances', while discharging the evidential burden in seeking to resist the imposition of the SCPO.

Guilt by association, or suspicion of association, is sufficient to attract the unwanted attentions and prescription of the pre-emptive SCPO to even the most unwitting facilitator of another's putatively criminal behaviour.