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Criminal Justice and Licensing (Scotland) Act 2010 (26/07/2016) (R013120)

Thank you for your request dated 16 May 2016 under the Freedom of Information (Scotland) Act 2002 (FOISA) for the undernoted information:

“With relation to Sections 28, 30, 31 of the Criminal Justice and Licensing (Scotland) Act 2010, which created three offences of involvement in, directing and failure to report serious organised crime.  Can you please answer the following questions?

Since these provisions of the 2010 Act came into force, how many offences have been reported to COPFS under i) Section 28, ii) Section 30 and iii) Section 31 of the Criminal Justice and Licensing (Scotland) Act respectively?

Of reports received during this period, how many decisions have been taken to prosecute, in respect of each of the offences created by the sections listed above (ie 28, 30, 31)?

Of cases which have proceeded in court under each of these sections during this period, how many cases have proceeded in i) the High Court ii) solemn Sheriff, iii) summary Sheriff and, if applicable, iv) Justice of the Peace Courts respectively.

Please also provide the number of prosecutions under each of the offences created by the sections of the legislation listed above (ie 28, 30, 31) which have resulted in a guilty verdict or an acquittal in each of these courts.”

In a separate document I attach three tables containing the information you have requested. Table A contains the number of offences reported to COPFS under each of the Sections requested; Table B contains details of the offences where proceedings have been raised and which Court they have been raised in; table C contains the information on convictions of those charges in Table B.  Please be aware that court proceedings in relation to some of the charges will still be ongoing.

It might be helpful if I provide some information as to the aim of the legislative provisions relating to serious and organised crime offences.

The provisions under sections 28 to 31 of the Criminal Justice and Licensing (Scotland) Act 2010 put in place new offences to criminalise those people who direct or are involved in the commission of serious organised crime. They also criminalise certain classes of individual who fail to report serious organised criminal activity. The creation of these offences opened up the possibility of any material benefit an offender derives from such criminal activity being seized or confiscated under the Proceeds of Crime Act 2002 where appropriate. The Procurator Fiscal wishes to pursue those who work together for the purposes of committing and conspiring to commit serious crimes which are intended to generate material benefit, whether directly or indirectly.

Indeed, serious organised crime is often carried out by groups of individuals working together to maximise the benefits they derive from their criminal activity. By doing so it allows individuals to obtain a greater benefit from their offending than they might do if working alone and outside an established criminal network. It can also provide protection from those at the very top of such networks who can instruct or direct others to carry out activity on behalf of their network but who do not carry out criminal acts and therefore prove difficult to prosecute. COPFS therefore wish to capture all levels of serious organised crime from those at the very top who instruct or direct others to undertake such activity, to the drug dealer on the street corner who is supporting serious organised crime in our communities.

However, it should be noted that not all charges and/or cases should or would be suitable for these provisions, and it is important that they are targeted at the right level. For example, it may be more appropriate to libel offences under the Misuse of Drugs Act or money laundering offences, rather than serious and organised crime specific offences. A number of factors are taken into account by the Procurator Fiscal when determining the most appropriate charge to use following receipt of a report by the police. This includes the nature and gravity of the alleged conduct; sentencing options available upon conviction; and a number of evidential considerations. Indeed, offences under these provisions are all predicated on the ability to evidence that there are in effect 2 people acting together to commit an indictable offence for a benefit, however that might manifest itself. There are lots of reasons why there might be insufficient evidence to prove a connection to serous organised criminal activity given that each of those criteria are required. Accordingly, whilst the police may submit reports utilising these provisions, it is ultimately a matter for the Procurator Fiscal what charges to libel. It therefore may be more appropriate to prosecute accused person(s) for other offences after consideration of the full facts and circumstances.

The Procurator Fiscal continues to work in consultation with the police to ensure a consistency of approach in such cases and to minimise the reporting of matters with a serious and organised crime element, when an alternative approach is more appropriate. This is an area that is continually trying to be improved upon in order to prevent the overuse of the provisions for minor offences, and to minimise the reporting of such cases by the police where there is an insufficiency of evidence to demonstrate the link to serious and organised criminal activity.