Hansard

Amendments 344, 346, 347, 349 to 351 and 358 will introduce changes to the detail of the provisions on serious organised crime in part 2 of the bill. Although we understand the reason behind amendments 345 and 348, we do not think that they are appropriate or necessary. Amendment 344 sets out in more detail the circumstances in which somebody agrees to be involved in serious organised crime. The amendment is needed to help to target those who facilitate or enable serious organised crime groups, without themselves committing indictable offences. The amendment therefore makes it clear that a person agrees to become involved in serious organised crime when he agrees to do anything—criminal or otherwise—while knowing or suspecting that doing that thing will enable or further the commission of serious organised crime.The offence, therefore, will remain broadly drawn but will, through amendment 344, be more clearly defined. That approach is necessary because we need to capture all forms of serious organised crime in order to get at its heart, and to do so requires flexibility. The activity around serious organised crime is wide ranging and we need a wide-ranging offence to tackle those who are involved in serious organised crime. That includes both those who commit the criminal act and those who supply and support the criminals. For example, someone may allow the use of their property while knowing or suspecting that the accommodation is being used to house people who are being trafficked for sexual exploitation, or they may allow their vehicle to be used for the transportation of drugs. Those activities may not, in themselves, be criminal acts, but the main purpose of the activity is to further the criminal purpose of a serious offence as defined in section 25, and thereby to support serious organised crime. We realise that the offence is already widely drawn; however, it needs to be if we are to tackle the scourge of organised crime. The amendment is required if we are to capture all forms of activity that enable or further serious organised crime.Robert Brown’s amendment 345 suggests additional criteria that will need to be satisfied to establish that crime amounts to serious organised crime. In particular, the amendment would provide that serious organised crime means crime involving two or more people committing or conspiring to commit serious offences“that would reasonably be regarded as being both serious and organised”.However, it is not entirely clear what that is intended to achieve. We already have a definition of “serious offence” in the bill: it is an indictable offence that is“committed with the intention of securing a material benefit”,or an indictable threat or act of violence that is intended to obtain“such a benefit in the future”.I presume that Robert Brown intends that only serious offences within that technical meaning, which are also objectively serious and sufficiently organised, should constitute serious organised crime. Nevertheless, there is obviously a question as to what a court would make of such broad terminology. What do “serious” and “organised” mean in that context?The more compelling argument against amendment 345 is that it would stifle the practical benefits of the provision. We know that serious organised crime is flexible and that it covers all levels of criminality and activity. Activities that are apparently minor or trivial in themselves often form part of a more insidious picture. The amendment would potentially miss significant elements of activity that contribute to the business interests of a serious crime network. If, for example, a group of people undertook shoplifting excursions with the purpose of generating profits to fund drug deals, would their shoplifting“reasonably be regarded as being both serious and organised”?It may perhaps satisfy the latter test, but it is doubtful that it would be considered to be “serious”, particularly without further legislative guidance.Although they will make the definition broad, the Government’s amendments make it sufficiently clear to capture the range of activity that constitutes involvement in serious organised crime. We accept that there is a valid concern that the provisions should not be used to punish offending that is genuinely minor and which is not, relatively speaking, organised. However, the best way in which to deal with that concern while retaining the flexibility that is required to tackle the diversity and innovation that are inherent in serious organised crime is to rely on the discretion of the police and the prosecution authorities to report and prosecute such offending appropriately.Amendments 346, 350 and 358 are simple technical amendments that have the sole purpose of making the terminology in relation to obtaining “a material benefit” more consistent throughout the provisions on serious organised crime.Amendments 347 and 349 will change the definition of “serious offence”, which forms an integral part of the definition of serious organised crime. Threats and violence are part of the armoury that is used by serious organised crime groups to protect their interests. They believe that they are in total control and thrive on the fact that people may not report their actions because of fear of retribution. Clearly, that is unacceptable. In recognition of that aspect of serious organised criminal activity, amendment 347 will modify the definition of serious offence to include indictable offences that are constituted by any act of violence, when the intention behind the commission of the act is to obtain a material benefit either directly or at some point in the future. That removes the prior qualification that only a “serious” act of violence could be a “serious offence” for these purposes.We agree with the principle behind amendment 348. The technical definition of a “serious offence” that is committed to secure a future benefit should not be restricted to “serious” violence. The Scottish Government’s amendment 347 already seeks to cover that point, and the use of the term “threat” will cover instances of intimidation, which are themselves indictable offences. We think that the use of the term “threat” rather than the term “intimidation”, which is drawn from the common-law crime of threats, will be more easily understood by the courts.Amendment 349 is also an adjustment of the definition of serious offence. It is required to ensure that a threat may be sufficient to establish the commission of serious organised crime when it is carried out by two or more people with the intention of securing a material benefit. It is important to note that, in that context, a threat will be a “serious offence” only if the threat is itself an indictable offence and the underlying intention is to secure a material benefit. We consider that it is necessary to deal specifically with threats because a threat of violence might, for example, engender fear that would prevent people from reporting a serious organised criminal or might prevent witnesses from giving evidence at a trial. Equally, threats and intimidation are commonly used by serious organised criminals to secure territorial advantages or to enhance their ability to conduct their criminal business.Amendment 351 provides a definition of the term “material benefit” where it appears in sections 25 to 28. We are aware that the committee has a concern that the definition of “material benefit” as set out in the introduction could be extended to capture trivial forms of benefit. The amendment that we have made is designed to ensure that only an intended benefit in the form of heritable or moveable property will allow a court or jury to find that a person has agreed to become involved in serious organised crime or has directed somebody else to commit a serious offence.Similarly, only a benefit in the form of property received in consequence of the commission of serious organised crime will suffice to trigger the duty to report serious organised crime in the context of close personal relationships. Although that definition is still technically wide enough to cover many forms of small-scale proprietary benefit, it makes it clear to courts and juries that we are not targeting those who seek or obtain intangible benefits other than in the form of incorporeal property. We would expect the Crown to exercise its discretion appropriately in deciding how to charge those who are accused of working together to achieve minor or trivial benefits.I move amendment 344.