Supplementing the criminal law with civil legislation

We’ve written about UK cyber crime legislation several times already.

Now the UK government has released a green paper (i.e. a consultation document on proposed legislation) called New Powers Against Organised and Financial Crime. This paper examines legislation that would fill ‘a gap in the criminal law for catching those involved at the edges of organised crime’.

Among other things, the paper states that: ‘Currently law enforcement authorities essentially have a choice between prosecution or no action when dealing with organised crime. That can be a stark and unproductive choice and we see a place for something in between – organised crime prevention orders – which could be imposed on individuals or organisation in such a way as to prevent organized criminality continuing.’

These Organised Crime Prevention Orders would enable the courts to take action against people suspected, on the ‘balance of probability’, of being involved in organized crime (including cyber crime), even where there is insufficient evidence for a criminal prosecution. Such measures, which might include ‘imposing restrictions on travel or limiting the use of communications to phone numbers which had been notified in advance’, are designed not to be punitive, but preventative, i.e. to ‘deter continuing criminal activity’. Failure to comply with such an order would constitute a criminal offence.

All this could be seen in a positive light, as providing useful weapons in the fight against serious crime, including cyber crime. However, the initiative does throw up some questions. Perhaps the most obvious one is this: if there are ‘gaps’ in the criminal law, why fill them with civil legislation?

The reason, it seems, is that the burden of proof required by civil courts is lower than that needed to successfully bring a criminal prosecution. And this point leads on to concerns about civil liberties. Will the ends really justify the means? Preventing serious and organized crime is a laudable aim – but if the means erode existing civil liberties, it might be a high price to pay.