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Sections 28 to 31 of the Criminal Justice and Licensing (Scotland) Act 2010 (R009288)

Freedom of Information: Sections 28 to 31 of the Criminal Justice and Licensing (Scotland) Act 2010 (R009288)

Thank you for your e-mail of 16 December 2014 under the Freedom of Information (Scotland) Act 2002 (FOISA) in which you seek the following information:

“Please provide annual breakdowns of serious organised crime offences - and their outcomes - under sections 28 to 31 of the Criminal Justice and Licensing (Scotland) Act 2010.

Please include with the breakdown other offences aggravated by serious and organised crime, as per section 29.”


Following upon my letter of 19 January 2015, I am now in a position to fully respond to your request.

I can confirm that information is held in relation to your request, attached at Annexes A and B. 

As you will note, Annex A contains all charges and outcomes reported for the period 2010 to 2014 under Sections 28 to 31 of the Criminal Justice and Licensing (Scotland) Act 2010. A breakdown of the reasons no action has been taken has also been provided. 

Annex B contains the number of charges and outcomes reported for the period 2010 to 2014 relating to aggravations under Section 29 only. Please note that these figures will also include any charges which have the aggravation in Annex A. Again, a breakdown of the reasons no action has been taken has also been provided. 

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 alterative 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. 

pdfAnnex A - Charges 28-31 CJLSA.pdf22.08 KB

pdfAnnex B - Charges 29.pdf27.57 KB