Where was the Opposition in Parliament to the Serious Crime Act 2007, which has now been passed into law with the Royal Assent, and is awaiting commencement Orders ?
See the text of the Serious Crime Act 2007(.pdf version)
, the HTML one is not yet online)
[UPDATE: the more user friendly HTML version of the Serious Crime Act 2007 now online]
Essentially all our initial fears which struck us back in January when the Bill was first published, seem to have been passed into law, and the Opposition (Conservatives, Liberal Democrats etc.) have been utterly useless in rejecting these disproportionate attacks on our freedom.
We are especially worried about the effect of the inchoate offences on potential Government whistleblowers, and on bloggers and journalists, because of the listing of the Official Secrets Act and the Terrorism Act 2006 as relevant Acts under the Serious Crime Act 2007.
The supposed defence of "reasonableness", means that, yet again, the burden of proof is reversed i.e. you as a defendant have to prove that your actions were somehow reasonable, rather than the prosecution having to prove the opposite, which runs counter to the normal way in which English justice works.
The dilemma which law abiding people who publish "dual use" technical information now face is similar to the issues about the amended Computer Misuse Act and dual hacking / security audit tools .
If you publish some information on a website, such as our Hints and tips for whistleblowers guide, which lists some legal technical tactics and techniques for preserving your or your sources anonymity, can you honestly say that they might not, at some time, some where, be abused by someone with criminal intent ?
Are such publishers then at risk of being arrested (and given the severity of the possible penalties, that means the whole panoply of legal harassment through DNA sampling, fingerprinting, photography, retention of data until your 100th birthday, seizure of computer equipment, communications traffic data and interception etc.) for "encouraging or assisting" ?
If you welcome information from Government whistleblowers, does that put you at risk of arrest for "encouraging or assiting" a possible offence under the Official Secrets Act ?
This could have a chilling effect on free speech and on political debate in the UK.
Somehow the Government and the Opposition have also colluded to get this Act to amend the Serious Organised Crime and Police Act 2005 to extend the criminal penalty of up to 51 weeks in prison, not just for "organiser" of demonstrations within the wretched Designated Area in the vicinity of Parliament, but to anyone who does anything to "encourage or assist".
Presumably this is intended to catch websites and internet campaigners and supporters ?
What exactly was wrong with the Common Law offence of "incitement" which this Act abolishes ?
We are too thick to understand whether or not such things breathing or thought crimes are included in the horrendously complicated wording of the definitions of inchoate
offences which replace "incitement" in Part 2 Encouraging or Assisting Crime
Sections 44 to 67
It looks as if you can be arrested for "encouraging or assisting" the commission of a crime, which never actually takes place, by doing something or by an act of omission (i.e. not doing something) depending on whether the authorities believe you believe that your actions might "encourage or assist" someone to commit a crime somehow at some indeterminate time, somewhere.
The whole concept of Serious Crime Prevention Orders is wrong. These can be imposed on people who have not been accused,let alone convicted of Serious Crimes, under the lower civil standard of proof, but they come with a criminal penalty of up to 5 years in prison, if the terms are breached.
This approach has not worked for ASBOs aimed mostly at youngsters, and eccentric neighbours, and there is no reson to believe that it will be of any use against serious organised criminals.
At the last moment, a week before the Act reached its final stages, the Government introduced extra complexity, without the chance for detailed debate, regarding the appointment of unaccountable "monitoring agents" who are meant to, presumably monitor the compliance of companies or partnerships etc. which have had a Serious Crime Prevention Order slapped on them.
If such companies are really involved in serious organised crime, these people are going to either be put in physical danger, or they are not going to discover anything at all, as they have no real powers to compel information to be handed over to them e.g. there are lots of exemptions for banking or legally privileged information or even patent information,.
As with ASBOs, nobody seems to have bothered to ask about whether or not having an ASBO or a SCPO served on you (which you might never breach) when you have not been convicted of a crime, remains on the Police intelligence files and can be disclosed in the future via a Criminal records Bureau Enhanced Check.
It would not surprise us if these Orders,since they are neither cautions nor criminal convictions, are not actually disclosed to employers in the future.
As we feared,the Data Protection Act has been amended in the direction of more snooping rather than more privacy, for the dubious benefit of credit reference agencies etc.
A huge section of the Act is concerned with the transfer of the powers and functions of the disastrous Asset Recovery Agency (whose running costs exceeded the amount of criminallott which was frozen,let alone confiscated), to the Serious Organised Crime Agency.
As we moaned about before, the amalgamation of the Inland Revenue with HM Customs and Excise is now complete, and references to the intrusive snooping powers of Customs Officers, under the the Police ACt 1997 and the Regulation of investigatory Powers ACt 2000, have now been modified to refer to all employees of the combined HM Revenue and Customs.
This means that through function creep, these powerful snooping powers (which now also threaten the seizure of private Decryption Keys) have been further extended to tens of thousands of Inland Revenue employees, even though the serious cases of tax evasion or money laundering should be handled by the Serious Organised Crime Agency.
Either SOCA is not doing its job properly, or the bureaucrats at HM Revenue and Customs are expanding their empire to try to duplicate the work of SOCA.
Strangely, the still as yet not commenced Criminal Justice Act 2006 amendments to the Computer Misuse Act have been amended by the Serious Crime Act 2007, for no compelling reason.
There should be a separate, dedicated new Computer Misuse Act, with proper consultation and detailed scrutiny to tackle the complexities of the modern online world, and not obscure amendments to other amendments, as an afterthought in other hugely complicated legislation like this Serious Crime Act