Prosecuting an organised crime group (‘OCG')
Malcolm Simmons is a Solicitor and former international judge.
This guidance sets out how to consider prosecuting participation in the criminal activities of an organised crime group (‘OCG’) under section 45 of the Serious Crime Act 2015 (‘SCA’).
This offence is triable on indictment only and subject to a maximum penalty of 5 years imprisonment, a fine, or both (section 45(9)).
The offence did not replace inchoate offences under Part 2 of the Serious Crime Act 2007 of 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. See the legal guidance on Inchoate Offences.
A prosecution under section 45 may be particularly appropriate where it is possible to demonstrate that an individual has assisted the criminal activities of an OCG, but the specific nature of the underlying criminality cannot be, or is particularly challenging, to demonstrate. However, a substantive offence should be charged where the evidence supports this.
Organised Crime Group
An OCG is defined (section 45(6)) as a group which:
· has at its purpose, or one of its purposes, the carrying on of criminal activities, and
· consists of three or more people who agree to act together to further that purpose.
It is not necessary for the individual participating in the OCGs criminal activities to know any of the group members (section 45(7)).
This is defined (section 45(4)) activities carried out in England and Wales which would constitute an offence punishable on conviction on indictment with imprisonment of a term of seven years or more. It is also defined (section 45(5)) as activities carried out outside England and Wales, and the activities are both an offence in the jurisdiction in which they are carried out, and an offence in England and Wales punishable on conviction on indictment with imprisonment for a term of seven years or more.
These activities must be carried out with a view to obtaining, directly or indirectly, a gain or benefit (section 45(3)). This is not limited to financial benefit (section 45(7)) and would include, for example, sexual gratification.
Elements of the Offence
Under section 45(2) a person participates in the criminal activities of an OCG if they take part in any activities that they know or reasonably suspect:
· Are criminal activities of an OCG, or
· Will help an OCG to carry on criminal activities.
This includes a deliberate omission which helps an OCG, for example, a security guard intentionally not carrying out particular checks when criminal activity was taking place. Note also that it is not necessary for all the acts or omissions comprising participation to takes place in England and Wales, but at least one of them must (section 45(7)).
The offence requires that the individual takes part in activities that they know or reasonably suspect are criminal activities, or will help an OCG to carry on criminal activities. Reasonably suspects comprises both a subjective and objective element:
· The person must suspect that they are helping an OCG at the time they take part in the relevant activities - the offence does not capture the unwitting participant who does not hold such a suspicion; and
· There must be reasonable grounds to hold such a suspicion; the offence does not capture the cautious participant who suspects they may be helping an OCG, but has no reasonable basis for such a suspicion.
Under section 45(8) it is a defence where a person's participation in the activities of an OCG was necessary for the purposes of the prevention or detection of crime. Such a defence would, in particular, be relevant to a law enforcement officer engaging in activities as part of an investigation into an OCG.
Offences Under Proceeds Of Crime Act 2002
There may be overlap between the participation offence and money laundering offences under Part 7 of the Proceeds of Crime Act 2002. It is likely that in Money Laundering cases, it will be more appropriate to look to the substantive Money Laundering offences in the first instance. Prosecutors should refer to the Money Laundering Offences Legal Guidance for advice on these offences.