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NEW LEGISLATION WILL EXTEND CRIMINAL LIABILITY FOR SOLICITORS

White Collar Crime Portal Criminal LiabilityJonathan Fisher QC discusses how clause 44 of the Serious Crime Bill 2014-15, has the potential to significantly expand criminal liability for solicitors and other professionals.

SPEED READ

Clause 44 of the Serious Crime Bill 2014 introduces the offence of participating in an organised crime group into English law. It has the potential to seriously widen the scope of criminal liability for lawyers, and other professionals, working in the non-regulated sector.

COMMENTARY

Solicitors and other professionals are going to be further exposed to criminal liability due to hidden consequences flowing from the Government proposal for a new offence of participation in an organised crime group. The offence will significantly widen exposure for those working in the non-regulated sector, in a manner which may not have been anticipated by the legislators.

Speaking on the 10th June 2014, at the Royal United Services Institute, Home Secretary Theresa May set out the Government’s commitment to tackling organised crime. A key part of its strategy is the Serious Crime Bill 2014-15 which is currently at the consideration of amendments stage. Central to the Bill is the creation of a new offence of participation in an organised crime group. The Government’s position, as set out by Ms. May in her speech, is that “No one should be beyond the reach of the law.” The Bill aims to address a perceived gap in the statute book, which makes it difficult to prosecute and convict those associated with organised criminals.

The offence is set out in clause 44 of the Serious Crime Bill 2014-15 which provides that a person participates in the criminal activities of an organised crime group if, under clause 44(2), “...the person takes part in any activities that the person knows or has reasonable cause to suspect...” are either “...criminal activities of an organised crime group...”, or “...will help an organised crime group to carry on criminal activities.” Criminal activities, under clause 44(4) are defined as activities which “...constitute an offence in England and Wales punishable on conviction on indictment with imprisonment for a term of 7 years of more.” Under clause 44(3), these activities must be carried out “... with a view to obtaining (directly or indirectly) any gain or benefit.”

The Bill sets out, for the first time, the legal definition of organised crime. The fact that English law has not previously defined this term is perhaps surprising, particularly given that the Government has published a “Serious and Organised Crime Strategy (2013)” and that England and Wales are subject to the provisions of the Serious Organised Crime and Police Act 2005.

Under clause 44(6) of the Serious Crime Bill 2014/15, an organised crime group means a group that “...has as its purpose, or as one of its purposes, the carrying on of criminal activities...”, and “...consists of three or more persons who act, or agree to act, together to further that purpose.” This definition borrows heavily from the wording of the United Nations Convention against Transnational Organised Crime, signed in Palermo, Italy on 12-15 December 2000.

In point of fact, where solicitors and other professionals assist members of an organised group in the performance of their criminal activities, there are already three inchoate offences, introduced by sections 44 and 46 of the Serious Crime Act 2007, which cover this area. These are: intentionally encouraging or assisting an offence; encouraging or assisting an offence believing it will be committed; and encouraging or assisting offences believing one or more will be committed. In each case, though, the offender must have taken a decision to encourage or assist.

Where the Serious Crime Bill 2014-15 widens the scope of the law is in providing, under clause 44(2), that a person participates in the activities of an organised crime group where that person has “...reasonable cause to suspect...” that the activities he partakes in are related to an organised criminal group. This imposes criminal liability on the basis of an objective test, that of reasonable cause to suspect. It is true that the application of the test will come with a number of caveats. Clauses 44(7)(a)-(c) provide that, in order to be found guilty of an offence, it is not necessary, “...for the person to know any of the persons who are members of the organised crime group...”; “...for all of the acts or omissions comprising participation in the group’s criminal activities to take place in England and Wales (so long as at least one of them does)...” or “...for the gain and benefit referred to in subsection (3) to be financial in nature.” But this is not substitute for imposing criminal liability on an objective as opposed to a subjective basis.

A particular concern is that it clause 44 will expose to criminal liability those mistakenly involved with a criminal organisation. This is clear from clause 44(7)(a) which provides that it is not necessary for the person accused of the offence to “...know any of the persons who are members of the organised crime group...” Under the current arrangements, a person involved with a serious organised crime group, in the manner contemplated by clause 44 would be charged with conspiracy to commit a substantive offence under s1 of the Criminal Law Act 1977. However, conspiracy is a “thought crime” and proof of deliberate intent to further the purpose of an agreement must always be established by a prosecutor. Clause 44 of the Serious Crime Bill shifts the focus the away from a person’s subjective intention and onto the activity itself. In doing so, this creates a significant potential exposure for professionals who unwittingly become involved in criminal activities.

Clause 44(9) provides that participating in the activities of an organised crime group will be punishable on indictment with up to 5 years imprisonment. The offence therefore carries the same maximum sentence as an offence contrary to section 330 of the Proceeds of Crime Act 2002 where a person working in the regulated sector has failed to disclose reasonable grounds for suspecting that another person is engaged in money laundering.

SILENT FRAUD IN THE BOARDROOM
Jonathan Fisher QC listed in Legal 500 - 2014
The views expressed in this article represent those of the author and not Bright Line Law.

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