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COPFS

Criminal Justice and Licensing (Scotland) Act 2010 (26/07/2016) (R013281)

Thank you for your request dated 30 May 2016 under the Freedom of Information (Scotland) Act 2002 (FOISA) for the undernoted information:

“I am writing to a make a request for two sets of data under the freedom of information legislation.  Ideally can you reply in an electronic format e.g. word or excel.

If possible, I’d like you to provide me with information on those convicted of offences under s28-31 of Criminal Justice & Licensing (Scotland) Act 2010.

I note COPFS managed to provide a table of data on each section AND s30 (which was not requested, but I’d like) the matter in a reply to a FoI request 11 July 2013 part 4 of which asked:

“Please also provide the number of prosecutions under each of the offences created by i) Section 28, ii) Section 29 and iii) Section 31 of the 2010 Act which have resulted in a guilty verdict or an acquittal in each of these courts”.

For the answer see http://www.crownoffice.gov.uk/foi/responses-we-have-made-to-foi-requests/41-responses2013/477-s28-29-and-31-criminal-justice-licensing-scotland-act-2010


1) If possible I’d like you to provide me with similar data albeit for 2013-14 2014-15 2015-16 (I realise the latter may not be available yet)

s28

s29

s30

s31



2) My second request is for detail of the sentences given to those convicted of s28, s29  s30,  s31 for the latest year you hold such data e.g. it 2015-16 or 2014-15.

I am happy to have data even if it is recorded for those where these offences are the primary/most serious offence the individual is charged with.  Should you be able to provide more detail about those convicted e.g. name, age, sex, offence types (e.g. drugs) that would be even better.

s28

s29

s30

s31”



In respect of part 1 of your request, I attach a table which provides information on the number of prosecutions under each of the offences where the charge was convicted or not convicted in relation to Sections 28, 30 and 31 of the Criminal Justice and Licensing (Scotland) Act 2010 for the time period requested.  Please note that as indicated in the previous published response to which you refer, there is no separate offence under Section 29 of the Act.  Please be aware that one or more charges may relate to the same accused.  Please also be aware that a number of prosecutions, in particular for financial year 2015/16, will still be ongoing.


In respect of part 2 of your request, I consider the details of individual sentences to be personal information of another and exempt from release under Section 38(1)(b) of FOISA.  This is because this information would be personal data of a third party and disclosing it would contravene the data protection principles in Schedule 1 of the Data Protection Act 1998.  This is an absolute exemption and I am not required to apply the public interest test. 


Statistical information about prosecutions can be extracted more easily from the Scottish Government Justice Department's Court Proceedings Database which is designed to provide statistical information.  It contains information about cases prosecuted in all Courts and can provide information either at the level of the specific offence or by certain broader groupings of offences (eg crimes of violence, crimes of dishonesty, offences involving drugs etc).  You can contact the Scottish Government Justice Department at This email address is being protected from spambots. You need JavaScript enabled to view it.This email address is being protected from spambots. You need JavaScript enabled to view it. or on 0131 244 2228.


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.