Scottish Court of Session Decisions

Beyond that there is no attempt by the petitioners to aver for which of the various decisions and acts, which they seek to attack, the respective ministers are responsible. The matter came before me for a first hearing in advance of which answers had been lodged on behalf of both of the ministers. There is no point taken in those answers about the failure of the petitioners to distinguish, as between the respondents, the acts and decisions for which the petitioners claim they are respectively responsible. At the hearing before me each minister was represented by counsel and no point was taken regarding any failure by the petitioners in this respect. Both respondents have, however, taken pleas to the competency of the petitions. Because of the lack of time available (the first hearing having been initially set down for one day only) it was agreed that the discussion at the first hearing should be restricted initially to the respondents' pleas as to competency.

The interlocutors then provide for the intimation to these petitioners of the application that had been made to the Sheriff and the order itself.

"Recoverable property" is defined in Section 304(1) in the following way "property obtained through unlawful conduct is recoverable property". "Unlawful conduct" is defined by Section 241 of the Act as follows "conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part". "The minimum amount" is defined in Section 303 of the Act as follows:

I was informed that, at present "the minimum amount" is fixed at £10,000 Sterling.

Section 289(4) of the Act provides as follows:

Section 289(5) is in the following terms

"Cash" is defined by Section 289(6) as follows:

The powers of search conferred in section 289 of the Act are circumscribed in various ways. In the first place Section 290 provides as follows:

Section 292 provides for a code of practice to be made by the Secretary of State in connection with the exercise by customs officers of the powers conferred on them by virtue of Section 289 on the same lines as the code of practice to made under Section 293 and with the same effect. The provisions of Sections 290, 292 and 293 in my opinion, clearly demonstrate that the legislature appreciated that the nature and extent of the powers conferred by Section 289 were such as required to be exercised subject to significant safeguards against their potential for abuse. It is, perhaps, significant to note that Section 292(7) and 293(7) envisaged that the codes of practice might be looked at in court proceedings which are not confined in Scotland to the particular types of proceedings provided for in the Act, far less to proceedings in the Sheriff court.

I would refer back to the definitions of "recoverable property", "unlawful conduct" and "minimum amount" to which I have referred above.

Notwithstanding the statement on the receipts, which I have highlighted, to the effect that the petitioners might attend the hearing before the Sheriff on the application to continue detention of the cash for up to three months, senior counsel for the first named respondent, whose submissions counsel for the second named respondent adopted, had submitted that none of the petitioners was entitled to be notified of the time or place of the hearing before the Sheriff, far less be heard or be represented at any such hearing. All that the petitioners were entitled to, it was submitted, was notification of any order made by the Sheriff in terms of Section 295(8). After discussion between senior counsel for the petitioners and the court about the possible significance of the terms of the receipts given to the petitioners, in relation to the submission that had been made on behalf of the respondents, senior counsel for the petitioners intimated that he intended to seek leave to amend the petitions to add a new ground for attacking the Sheriffs interlocutors, arising from these matters. An amendment was not produced until the resumed first hearing on the matter. On that occasion senior counsel for the petitioner sought leave to lodge a minute of amendment in each of the petitions. Senior counsel for the first named respondent did not appear on that occasion, but junior counsel for the first named respondent and junior counsel for the second named respondent did not oppose the petitioners being allowed to amend the petitions in terms of the minutes of amendment. Furthermore, they did not seek to have the first hearing discharged to allow them to consider the minutes of amendment and to answer them, but they did indicate that they may wish to answer the content of the minutes of amendment in due course. They did not, however, consider that the content of the minutes of amendment materially altered their position with regard to competency.

Senior counsel for the first named respondent had to recognise that, in the light of that provision, since applications for forfeiture had now been made, the petitioners were no longer able to bring an application under Section 297, but he submitted that they had had that opportunity and had not taken it before the applications for forfeiture were made. Senior counsel also reminded me of the provisions of Section 302 regarding compensation and interest but had to acknowledge that these, however, are remedies which are not available to the petitioners at this point in time.

Senior counsel, as I understood him, sought to rely upon that dictum in support of his general proposition in the present case. It may, however, be of some significance to note that Mance LJ went on to say "However, there may possibly be claims for damages under Community Law of the Convention, for which this framework does not cater ". The court then apparently went on to accept that such matters might remain to be determined in judicial review and outwith the statutory framework. Senior counsel, however, maintained that what he described as the "tagging on" of damages claims, in the present petitions, ought not to turn otherwise inappropriate applications for judicial review into appropriate ones.

The grounds mentioned in subsection (2) of Section 42 of the 1994 Act are that there are reasonable grounds for respecting that the cash directly or indirectly represents any person's proceeds of drug trafficking, or is intended by any person for use in drug trafficking and that continued detention of the cash is justified while its origin or derivation is further investigated or consideration is given to the institution (whether in the United Kingdom or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.

Section 297(2) and  (3) of the 2002 Act, it will be recalled, provide as follows:

It will be noted that the condition in Section 297 is not that the conditions under Section 295 are not met but only that they are no longer met. That contrasts with the wording which I have emphasised in the equivalent provision in the 1994 Act. Senior counsel for the first named respondent recognised that, at first sight, the contrast between the wording in Section 297 of the 2002 Act and the wording of Section 42 of the 1994 Act might argue for the Sheriff being concerned under Section 297 only with a change of circumstances which may have arisen since the original order was made under Section 295, but he argued that the omission of the words "the conditions are not met" did not prevent the Sheriff, in a Section 297 application, from considering whether the Section 295 conditions had ever been met, as well as whether they continued to be met.

Section 295(2) provides not only that the Sheriff can grant an extension of time during which the seized cash may be detained up to a maximum of three months, it also provides that subsequent orders may be made for further extensions of time up to a maximum of three months, though by section 295(2)(b) it is provided that, any further order shall not go beyond the end of the period of two years, beginning with the date of the first order. In that connection the provisions of para.3.19.2(2) and (3) of the Act of Sederunt are noteworthy. They are in the following terms:

The order, accordingly, makes express provision for the application for "a further order" to be served, and notification of any date upon which it is to determined is to be given to persons whom the Sheriff considers may be "affected".

At a later stage, in his opinion, the Lord Ordinary, having reviewed a number of authorities said this, at page 180I-J:

Senior counsel for the petitioners relied on those passages in support of his submission that even if the petitioners might have raised some, at least, of their present complaints in the section 297 proceedings, their attack was based on the procedure as a whole as being fundamentally invalid and they were not precluded now from raising that complaint by way of judicial review. Senior counsel referred me also to the case of MacKinnon v Argyll & Bute Council 2002 S.L.T. 1275. In that case a petition for judicial review of a decision of a local authority to adopt a private road as a public road was attacked as being incompetent because of a provision in the relevant roads legislation that disputes about such matters should be determined by arbitration. In the petition for judicial review the petitioner sought reduction of the decision of the local authority, in question, as involving an abuse of statutory powers. The Lord Ordinary having considered the terms of the relevant legislation said this, at page 1291B-C:

His Lordship, thereafter, held the petition to be competent. Senior counsel for the petitioners relying on that case, contended that the section 297 procedure could not provide the petitioners with an adequate remedy for the complaints they now brought.