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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 37
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P2047/04
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OPINION OF LORD MACPHAIL
in the Petition of
HER MAJESTY'S
ADVOCATE
Petitioner;
against
H
Respondent:
for
A restraint order
in terms of section 120 of the Proceeds of Crime Act 2002
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Petitioner: Comiskey, A.-D.; Crown Agent
Respondent: Jones, Solicitor Advocate;
Brechin Tindall Oatts
16 February 2007
[1] This
is a petition by the Lord Advocate for a restraint order in terms of section
120 of the Proceeds of Crime Act 2002 ("the Act"). On 22 December 2004 the Lord Ordinary granted
a restraint order interdicting the respondent from dealing with any realisable
property. It is common ground that a criminal investigation was instituted on 26 November 2004, and that no
proceedings have yet been instituted.
The respondent lodged a Note (no 7 of process) seeking the recall of the
restraint order in terms of section 121(9) of the Act. The Lord Advocate lodged
answers to the note (no 10 of process). A hearing on the note and the answers
to the note was appointed for 28 April
2006 but was discharged on joint motion. On 25 July 2006 the Lord
Ordinary pronounced an interlocutor in which he allowed answers by the
respondent to the petition to be received and marked no 11 of process, allowed
a hearing on the petition and the answers to the petition and appointed the
hearing to proceed on 26 and 27 October 2006 along with the hearing already
assigned in relation to the note and the answers to the note, and granted
diligence for citing witnesses and havers. It appears from the latter part of
the interlocutor that the Lord Ordinary envisaged that evidence might be
led at the hearing.
[2] On
26 October 2006 the case
was called before Lord Carloway. The interlocutor bears that the parties
advised his Lordship that the issue raised in the note and answers nos 7 and 10
of process could not be resolved without proof and that neither of them was in
a position to adduce such proof at that diet. On the parties' joint motion his
Lordship allowed the noter's answers to the petition (no 11 of process) to be
withdrawn, leaving as the only live matter before the Court the note and
answers nos 7 and 10 of process. His Lordship allowed a minute of amendment of
the note in response to the Lord Advocate's answers to the note to be received
and marked no 13 of process, and allowed the noter to lodge answers to that
minute of amendment. His Lordship also discharged the hearings set down for 26
and 27 October 2006; of new allowed to the parties a hearing on the note
and answers nos 7 and 10 of process as adjusted; and granted diligence for
citing witnesses and havers. It is clear from the minute of proceedings that
the parties were of the view that it would be necessary for evidence to be led,
and that eight days would be required.
[3] On
11 December 2006 the noter
enrolled a motion to ordain the Lord Advocate to lead at the hearing on
the note and answers. The motion called before me on 13 December 2006. The pleadings in both the
note and the answers were fairly elaborate and it appeared that issues of great
delicacy and complexity might arise if certain evidence were sought to be
elicited at the hearing. Having heard parties, I continued consideration of the
motion until 1 February 2007
and appointed parties to lodge notes of argument. Thereafter the parties
decided to make substantial alterations to their pleadings. At the continued
hearing of the motion on 1 February
2007 I allowed the pleadings to be amended, and allowed the noter's
solicitor advocate to amend the note further at the Bar.
[4] The
issue to be determined at the hearing on the note and answers arises in this
way. Section 119 of the Act provides that the Court may exercise the powers
conferred by section 120 (which include the power to make a restraint order) if
any of certain specified conditions is satisfied. The first condition is that a
criminal investigation (defined in section 154) has been instituted in Scotland
with regard to an offence and there is reasonable cause to believe that the
alleged offender has benefited from his criminal conduct. It is common ground that such a criminal
investigation was instituted on 26
November 2004. Section 121(9) provides, so far as material:
"(9) In the case of a restraint order, if the
condition in section 119 which was satisfied was that an investigation was
instituted [ . . . ], the court must recall the order if within a reasonable
time proceedings for the offence are not instituted [ . . . ]"
The noter points out that the
restraint order was made on 22
December 2004, and avers:
"No proceedings
having been instituted [ . . . ] within a reasonable period, the Court must
recall the interlocutor pronounced on 22
December 2004."
[5] The
Lord Advocate admits that investigations have been going on since that time and
that proceedings have not been instituted. She avers:
"Explained and
averred that the time taken to investigate matters in relation to the Noter
does not represent an excessive delay in terms of Section 121(9) of the said
Act. The enquiry into the Noter and the individuals, companies and funds
connected with the Noter has required numerous investigations abroad. The
procedure for following enquiries in foreign countries to obtain material from
foreign jurisdictions that can be properly used in a criminal investigation by
the relevant Scottish authorities and which may be used for Court purposes
necessarily involves significant periods of time to properly complete."
The Lord Advocate goes on to make
detailed averments about the procedural steps which are necessary, including
the use of International Letters of Request ("ILORS"). She continues:
"The period of
time necessarily involved in pursuing enquiries in each foreign country to
obtain material from foreign jurisdictions that can be properly used in a
criminal investigation by the relevant Scottish authorities can take between
about 18 months and 28 months or more."
In relation to the present case she
avers:
"In the
investigations into the Noter and the individuals, companies and funds
connected with the Noter, ILORS have been sent to about 19 countries abroad,
both within and outwith the EU, and the police have required to await replies
from said judicial authorities abroad to enable them to progress and complete
their enquiries."
[6] The
Lord Advocate has also lodged a bulky volume which contains copies of the
pleadings, a chronology of events, and copies of many documentary productions.
She has lodged in addition two further chronologies relating to the
investigations: a chronology by date running to 32 pages, and a chronology by
country running to 27 pages.
[7] The
question to be resolved at the hearing will be whether proceedings for the offence
have not been instituted within a reasonable time. If that proves to be the
case, the Court will be obliged to recall the order. The hearing before me,
which had begun as a hearing of the noter's motion that the Lord Advocate
should lead, resolved itself into a discussion of the procedure to be followed
at the hearing. The parties were agreed that in view of the very substantial
changes in the pleadings since the date of Lord Carloway's interlocutor of 26
October 2006 it was open to me to discharge the hearing then appointed and to
consider of new the question of further procedure (Bendex v James Donaldson
& Sons Ltd 1990 SC 259). Reference was made to rules 14.8,
15.2(3) and 28.1 of the Rules of the
Court of Session. The noter's solicitor advocate did not press his motion that
the Lord Advocate should lead, and I refused that motion in hoc statu.
[8] The
solicitor advocate for the noter stated that it might be possible to resolve
the question of "within a reasonable time" without hearing evidence, in
accordance with the usual course of disposing of a petition in the light of
whatever documentary evidential material might be placed before the Court (Court of Session Practice, ed Lord
Macfadyen, paragraph H [23], [24]). The noter, however, could not take the
chronologies at face value and could not know if everything stated in them was
correct. It might be necessary to hear evidence if questions raised by an
examination of the chronologies could not otherwise be resolved.
[9] Counsel
for the Lord Advocate was opposed to the leading of evidence from witnesses in
a civil court in relation to matters relative to an alleged criminal offence
which was under investigation for consideration of the issuing of criminal
proceedings. She proposed that the chronologies and the parties' submissions
should enable the court to decide the question whether proceedings had not been
instituted within a reasonable time.
[10] In my opinion the appropriate course is to discharge the
hearing appointed by Lord Carloway and to appoint a hearing on dates to be
afterwards fixed. The parties were agreed that two days would be required. I
shall not grant diligence for citing witnesses and havers. I would ask parties
to try to agree as many of the material facts as possible. The hearing before
me was conducted on both sides with conspicuous good sense, and I have no doubt
that the Crown will make all reasonable attempts to resolve before the hearing
any questions of substance which the noter's legal advisers draw to their
attention upon a consideration of the chronologies. Depending on the nature of
any remaining differences between the parties there may be a question whether
the chronologies should be supplemented by appropriate affidavits. At the
hearing the Court will attempt to resolve the "reasonable time" question upon a
consideration of the documentary productions and the parties' submissions. Only
in the event of failure in that attempt should there be any contemplation of
the prospect of the hearing of evidence.
[11] At the hearing before me there was some discussion of Dyer v Watson 2002 SC (PC) 89. It is inappropriate to consider such
authorities at this stage. Reference was also made to the admissibility of
hearsay evidence, under reference to section 2 of the Civil Evidence (Scotland)
Act 1988. Since, however, the hearing will not be a proof, questions as to the
admissibility of hearsay in the documentary productions will not arise. It was
agreed that a clean print of the note and answers, as amended, would be lodged.
