Commentary on Sections Part 1: Serious Crime Prevention Orders.General Section 2: Involvement in serious crime: England and Wales orders
16.This section defines what constitutes both having been involved in serious crime in England and Wales or elsewhere, and involvement in serious crime in England and Wales, in relation to Part 1 of the Act. A distinction is drawn between these two phrases because the first part of the test, in section 1(1)(a), is concerned with a person who has been involved in serious crime in England and Wales or elsewhere, whereas the second part of the test, in section 1(1)(b), is concerned with future involvement in serious crime in England and Wales only. This distinction is also relevant elsewhere in the Act, in particular in section 19(2) which is concerned with orders to be made by the Crown Court. Subsection (1) sets out that a person has been involved in serious crime, in England and Wales in relation to the first part of the statutory test in section 1(1), if he has committed a serious offence in England and Wales, has facilitated the commission by another person of a serious offence in England and Wales, or has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence in England and Wales (whether or not such an offence was committed). Facilitation here takes its natural meaning of ‘to make easier’.
17.Further to this, subsection (2) sets out that a ‘serious offence in England and Wales’ is one which, at the time the court considers the application for an order or the matter in question, is contained in the list set out in Part 1 of Schedule 1 to the Act, or is an offence which is sufficiently serious that the court considers it should be treated as if it were set out in that list. The list in Part 1 of Schedule 1 is not an exhaustive list and the second part of the test allows the court to treat offences that do not appear in Part 1 of Schedule 1 as being serious offences.
18.Subsection (3) defines ‘involvement in serious crime in England and Wales’ for the purposes of the second part of the statutory test contained in section 1(1)(b). That part of the test sets out the harm from which the public must be protected. The court must have reasonable grounds to believe that the order will prevent, restrict or disrupt the involvement of the respondent in serious crime in England and Wales. Involvement in serious crime in England and Wales means one or more of the following: the commission of a serious offence in England and Wales; conduct which facilitates the commission by another person of a serious offence in England or Wales; conduct which is likely to facilitate the commission, by the person whose conduct it is or another person, of a serious offence in England and Wales (whether or not such an offence is committed).
19.Subsection (4) defines what is meant by the respondent having been involved in serious crime in a place other than England and Wales for the purposes of Part 1 of the Act. This is for the purposes of the first part of the statutory test contained in section 1(1)(a), relating to past action which merits the imposition of an order. Subsection (4) makes identical provision to subsection (1), except insofar as this subsection is concerned with serious offences which have occurred elsewhere in the world than in England and Wales.
20.Subsection (5) defines a ‘serious offence in a country outside England and Wales’. The court has to apply a three stage test. Firstly, the conduct must be an offence in the place outside England and Wales. Secondly, at the time the court considers the application for an order or the matter in question, the conduct must be an offence in England and Wales if it had been committed in or as regards England and Wales. Thirdly, at that time, the offence would fall within the list of offences, or within a description specified, in Part 1 of Schedule 1 to the Act if committed in or as regards England and Wales or it is conduct which the court considers is sufficiently serious so as to be treated as if it did so.
21.Subsection (6) states that the test set out in subsection (4), rather than the test in section 3(1), should be used when an England and Wales court is determining whether a person has been involved in serious crime in Northern Ireland for the purposes of an England and Wales order.
22.Subsection (7) provides that, when considering whether conduct is an offence under the law of a country outside the UK, the test will be met however the conduct is described in that law. This means that even if an act is not described as an offence in the law of the other country it will still be a serious offence under Part 1 of the Act if it meets the test in subsection (5).