Recommendation 5

HM Government Rejected

Introducing a requirement for financial or material gain would severely undermine the purpose of the new offences. These clauses are specifically drafted to enable early disruption of criminal enterprises, often before any financial benefit can be traced or substantiated. Requiring proof of gain would allow sophisticated criminal networks to operate with impunity during preparatory stages, which would undermine the fundamental objective of the new offences: to intervene earlier in organised immigration crime. In addition, many smuggling operations are loosely organised and compartmentalised, with financial transactions deliberately obscured. Requiring evidence of gain would create loopholes, allowing actors involved in coordination, logistics, or recruitment to escape liability merely because financial benefit has not yet materialised or is difficult to prove. The current drafting of the provision is therefore essential to ensure operational effectiveness while remaining proportionate to the serious criminality it is intended to disrupt. The recommendation in paragraph 53(b) seeks to replace clause 16(2) with a requirement that the person intended the information to be useful in organising or preparing for a relevant journey, or was reckless as to whether the information would be useful to a person organising or preparing for a relevant journey. Clause 16(2) specifies the circumstances when a person commits the collecting information offence (as set out in clause 16). There must be evidence of reasonable suspicion that a record or document or any information contained in it, will be used by the individual in organising or preparing for a relevant journey. There must be something about the circumstances in preparing or organising that journey which cause a reasonable suspicion to arise to result in the offence of collecting information for use in immigration crime. This is analogous to police officers who stop and investigate individuals because they have specific reasons to suspect that a crime may be occurring. We anticipate that these circumstances may, for example, be involvement in the activity of criminal gangs. As with the offences in clause 13 and 14, narrowing the scope of this offence to prove intent or recklessness would unduly constrain the ability of law enforcement agencies’ ability to disrupt criminal activity at an early stage. We note that “reasonable suspicion” is the mens rea for the offence under section 57 of the Terrorism Act 2000. There is therefore precedent for its use.