EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kingarth Lord Carloway Sir David Edward Q.C	[2009] CSIH 34 P260/04 OPINION OF THE COURT delivered by LORD KINGARTH in causa THE SCOTTISH MINISTERS Petitioners and Respondents; against LINDA DOIG First Respondent: STEVEN DOIG Second Respondent: and DAVID DODDS CAMERON Third Respondent and Reclaimer: _______

Act: Crawford Q.C., Poole, Solicitor to the Scottish Executive (Petitioners and Respondents)

Alt: Di Rollo Q.C., Haldane, Andersons LLP,(Third Respondent and Reclaimer)

Non participating party: Drummond Miller, WS

1 May 2009

Introduction

[1] The petitioners are the enforcement authority for Scotland for the purposes of the Proceeds of Crime Act 2002 ("the 2002 Act"). In this petition they seek a recovery order against the respondents in terms of Chapter 2 of Part 5 of that Act.

[2] The general scheme of this Chapter of the 2002 Act is that the petitioners, as enforcement authority for Scotland, are entitled to institute proceedings for a recovery order in the Court of Session against any person who is thought to hold recoverable property. As set out more fully below, recoverable property is property obtained through unlawful conduct, and unlawful conduct is defined as including conduct in any part of the United Kingdom which is unlawful under the criminal law of that part. In the present petition the allegation made is that certain property held by the respondents is recoverable property. The third respondent, at whose instance this reclaiming motion is brought, is the husband and father of the first and second respondents respectively.

[3] In article 5 of the petition (as amended by substantial Minute of Amendment allowed, on 1 July 2008, after the present reclaiming motion was marked) the petitioners make detailed and lengthy averments about alleged unlawful conduct by the third respondent from 1996 onwards. In particular, it is averred that he was concerned in the supply of controlled drugs. Detailed averments are made alleging the supply of drugs by him and the use of safe houses and the storage of drugs. It is alleged further that he acted as a middle man. It is averred that between at least 1999 and 2003 he regularly sourced controlled drugs from a named third party (Paul Cox). Detailed averments are made about the third respondent's alleged association with Paul Cox and his associates, in particular as allegedly observed during police surveillance in the months of June, July and August 2002. Further averments are made in relation to alleged conduct ending in July 2006.

[4] Of particular significance for the purposes of the present reclaiming motion, a section of the averments made at article 5 is in the following terms:

"On 16 August 2002, 2 kilograms of amphetamine were found by police in a Land Rover Discovery vehicle (registration number M709 CWK) driven by the third respondent. He was detained in Ambleside Avenue, Dundee. The drugs were contained in two vacuum packed bags inside 4 carrier bags (placed one inside the other), in the front passenger seat footwell. When advised by police that they suspected that the package contained controlled drugs, the third respondent stated 'I've never seen that before, I park my car at the garage all day, anyone could have put it there'. He later said that he often left the vehicle unlocked sitting in a shared industrial unit within the old Keillor factory, Mains Loan, Dundee. Paul Cox and the third respondent used the industrial units at the old Keillor factory as a base for their drug dealing enterprise. It would have been immediately obvious to anyone driving the vehicle that it contained the package. Believed and averred that the third respondent was fully aware of the controlled drugs in the vehicle, that he was in the process of transporting them when stopped by police, and that he lied to police in an effort to avoid prosecution. The estimated street value of the drugs was £20,000. Possession and control of such a quantity of drugs indicates involvement in supply at a significant level. The third respondent was also in possession of a mobile phone and cash totalling £1442. When asked about the source of the cash, the third respondent indicated that it belonged to him and that he had obtained it from dealing in cars, furniture and jewellery over the years. He also stated that he used to 'crack' safes and that he hadn't spent all the money from that activity. He indicated that he was unemployed and that he received £56 per week in income support. The third respondent gave his address as 5 Pitkerro Road, Dundee. The third respondent was charged with offences in terms of sections 4(3)(b) and 5(3) of the 1971 Act in respect of the 2 kilograms of amphetamine found on 16 August 2002. The Crown deserted the proceedings at the High Court of Justiciary in Edinburgh on 22 October 2003. They did so because certain evidence was ruled to be inadmissible in those proceedings."

[5] By way of background it was agreed in the course of the reclaiming motion that the relevant indictment against the third respondent, referred to in the pleadings, contained one charge. It read as follows:

"...on 16 August 2002 at Mains Loan, Ambleside Avenue, both Dundee and elsewhere in Scotland to the prosecutor unknown you were concerned in the supplying of the controlled drug, namely Amphetamine, a class B drug specified in Part II of Schedule 2 to the aftermentioned Act, to another or others, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)."

[6] The trial on that indictment began in the High Court at Edinburgh on 20 October 2003. On that date, in the course of the evidence in chief of a Crown witness, objection was taken to certain evidence being led of a surveillance operation. The objection was on the basis that there was no sufficient evidence before the Court that the surveillance was properly authorised. Following argument, and the hearing of certain evidence in a trial within a trial, the objection was sustained by the trial judge on 22 October 2003. Thereafter the Advocate depute withdrew the libel against the third respondent. The Court then acquitted the third respondent in terms of section 95(1) of the Criminal Procedure (Scotland) Act 1995. It is thus apparent, and was accepted before us, that insofar as the averments in the petition refer to an additional charge under section 5(3) of the 1971 Act, and to the Crown deserting proceedings, they are inaccurate.

[7] In article 7 of the petition the petitioners further aver that the first respondent assisted her husband in concealing the financial proceeds of the unlawful conduct previously referred to. It is averred that the second respondent also assisted the third respondent in concealing those proceeds. Details of certain dealings in property by the respondents are set out. Detailed averments are made about the declared income of the first and third respondents. It is averred that the acquisition of the property which is the subject of the petition could not be attributed to any legitimate income, and that the first and third respondent's lifestyle indicated that they were living well above their legitimate means.

[8] On the basis of inter alia the foregoing averments the petitioners contend that the property specified in Part II of the Schedule to the petition is (i) property obtained through unlawful conduct or (ii) property obtained through unlawful conduct held by persons into whose hands it may be followed or (iii) represents property obtained through unlawful conduct. The primary remedy sought in the prayer is a recovery order in terms of section 266 of the 2002 Act in respect of the property specified. Of the twelve items of property specified in the relevant Schedule, ten of these, including certain heritable subjects, bank and building society accounts, insurance policies and items of moveable property (including two motor vehicles), are said to be held by the first respondent. A sum at credit of a building society account is said to be held by the second respondent. A sum at credit of a specified bank account is said to be held by the third respondent.

The Proceeds of Crime Act 2002

[9] Part 5 is headed "CIVIL RECOVERY OF THE PROCEEDS ETC. OF UNLAWFUL CONDUCT". The general purpose of the Part is stated in section 240, which is (so far as relevant) in the following terms:

"(1) This Part has effect for the purposes of -

(a) enabling the enforcement authority to recover, in civil proceedings before the ... Court of Session, property which is, or represents, property obtained through unlawful conduct,

...

(2) The powers conferred by this Part are exercisable in relation to any property (including cash) whether or not any proceedings have been brought for an offence in connection with the property".

Subsection (1) indicates that the proceedings contemplated by Part 5 are to be civil proceedings, pursued through the civil courts.

[10] Section 241 defines unlawful conduct. So far as conduct within the United Kingdom is concerned, subsection (1) provides that "Conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part." Section 242(1) defines property obtained through unlawful conduct. It provides as follows:

"A person obtains property through unlawful conduct (whether his own conduct or another's) if he obtains property by or in return for the conduct"

[11] Civil recovery in the Court of Session is dealt with in Chapter 2. The main operative section for Scotland in that Chapter is section 244. Section 244(1) provides as follows:

"Proceedings for a recovery order may be taken by the enforcement authority in the Court of Session against any person who the authority thinks holds recoverable property".

Under section 316 of the Act, the petitioners are designated the enforcement authority for Scotland.

[12] Section 244(1) refers to "recoverable property". This is defined in section 304 in the following terms:

"(1) Property obtained through unlawful conduct is recoverable property.

(2) But if property obtained through unlawful conduct has been disposed of (since it was so obtained), it is recoverable property only if it is held by a person into whose hands it may be followed.

(3) Recoverable property obtained through unlawful conduct may be followed into the hands of a person obtaining it on a disposal by -

(a) the person who though the conduct obtained the property, or

(b) a person into whose hands it may (by virtue of this subsection) be followed"

In the following sections provision is made for the tracing of property that represents recoverable property and recoverable property that has been inmixed with other property. All these provisions are subject to section 308, which provides a general exception for any person who obtains property in good faith, for value and without notice that it was recoverable property.

[13] The powers and duties of the court are set out in sections 266-280. Section 266 provides as follows:

"(1) If in proceedings under this Chapter [Chapter 2 of Part 5] the court is satisfied that any property is recoverable, the court must make a recovery order.

(2) The recovery order must vest the recoverable property in the trustee for civil recovery".

Subsection (3), however, places limitations on the making of recovery orders. One of these is that under subsection (3)(b) the court may not make any provision in a recovery order which is incompatible with any of the Convention rights within the meaning of the Human Rights Act 1998.

The Proceedings Before the Lord Ordinary
[14] Both the first and third respondent lodged answers to the petition. Both argued at debate before the Lord Ordinary that for a number of reasons the petition should be dismissed. The Lord Ordinary rejected these submissions, and by interlocutor of 23 November 2006 repelled a number of the first and third respondents' pleas in law. The third respondent has reclaimed against this decision.

[15] As appears from the Opinion of the Lord Ordinary, counsel for the third respondent submitted argument in support of his first three pleas of law, to the effect that the petition should be dismissed on the ground that it was (1) incompetent, (2) ultra vires of the petitioners and (3) irrelevant and lacking in specification. Three broad arguments were advanced. One of these was that there were insufficient averments of unlawful conduct by the third respondent. This argument was rejected by the Lord Ordinary (at paragraphs 40-46 of his Opinion). Since then, as has already been noted, the petitioners have substantially amended their averments in article 5 of the Petition. In the result it is no longer contended on behalf of the third respondent that the averments of alleged unlawful conduct are insufficient. Secondly, counsel submitted before the Lord Ordinary that the petitioners were seeking to impose a penalty in respect of criminal conduct allegedly committed before the coming into force of part 5 of the 2002 Act; a penalty heavier than any penalty which could have been imposed before the Act came into force. This, it was argued, was contrary to article 7(1) of the European Convention on Human Rights ("the Convention"). This contention was rejected by the Lord Ordinary (between paragraphs 35 and 39), and there is no challenge in this reclaiming motion to that part of his Opinion.

[16] The third argument advanced focused on the averments relating to the alleged unlawful conduct of the third respondent on 16 August 2002; averments which at that stage formed the major part of the averments alleging unlawful conduct. In broad outline the contention was that the petitioners were making an allegation of criminal conduct in circumstances which, given the third respondent's acquittal, could be said to amount to a breach of article 6(2) of the Convention. That article, of course, provides "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".

[17] The Lord Ordinary, having considered certain decisions of the European Court of Human Rights (in particular Sekanina v Austria [1994] 17 EHRR 221, and two decisions issued on the same date, 11 May 2003, O v Norway (application number 29327/95 and Y v Norway [2005] 41 EHRR 7)), concluded (at para 20):

"The foregoing cases indicate that, following an acquittal, the state is prohibited by article 6(2) from doing two things. First, it may not raise criminal proceedings against the person acquitted on a basis that is inconsistent with that acquittal; double jeopardy (using that expression in a somewhat loose sense) is prohibited. Secondly, the state may not take action (including the refusal of a remedy that is otherwise available) against the person acquitted by means of proceedings that are so closely linked to the earlier criminal proceedings that they are incompatible with the acquittal".

For a number of detailed reasons (set out between paragraphs 21 and 29) the Lord Ordinary first rejected the contention that the present petition proceedings could be regarded as criminal proceedings against the third respondent. No challenge is now made to that part of his Opinion.

[18] He also rejected the contention that the petitioners could be said to be taking action in proceedings so closely linked to the earlier criminal proceedings (having regard to the parties, the subject matter and the function of the present proceedings) which could be said to be incompatible with the acquittal. His detailed reasoning is to be found at paragraphs 31-34. For present purposes it is enough to record that the opinion of the Lord Ordinary was that, in the first place, the parties to the criminal proceedings and the parties to the petition proceedings were not the same. The petitioners, he noted, were the Scottish Ministers acting as enforcement authority under part 5 of the 2002 Act; as such they had very specific functions under that Act. Criminal prosecutions, by contrast proceed at the instance of the Lord Advocate as the country's chief prosecutor, or at the instance of the local Procurator fiscal acting as a member of the prosecution service. Those functions, although carried out by an arm of the state, are quite distinct from other functions of the state - an important constitutional point which, in the opinion of the Lord Ordinary, ran through the whole administration of Scottish criminal procedure. The Lord Advocate and the prosecution service could not be equiparated with the Scottish Ministers acting in another capacity. Earlier in his opinion (at paragraph 11) the Lord Ordinary recorded that he had been provided with a detailed explanation of how the petitioners exercised their jurisdiction as enforcement authority. Proceedings under part 5 are instituted by the Civil Recovery Unit, which is the agency set up to carry out the functions of the petitioners as enforcement authority. References to the Civil Recovery Unit are made by the Financial Crime Unit, which is an operational unit of Crown Office. The Financial Crime Unit is responsible for making applications for confiscation orders under Part 3 of the Proceeds of Crime Act; a confiscation order, unlike a recovery order, can only be made against a person who is convicted of a criminal offence. Matters could only be referred to the Civil Recovery Unit if either a prosecution does not take place or a prosecution is concluded without a conviction. The Civil Recovery Unit is responsible to the Lord Advocate, but only insofar as she exercises the role and function of one of the Scottish Ministers. The Unit is not answerable to the Lord Advocate as the person responsible for the investigation and prosecution of crimes in Scotland. If the Civil Recovery Unit discovered any matter involving criminality, it was required to refer it to the prosecutor. The Unit played no part in any question of prosecution. Although the Unit was an operational unit of Crown Office, and was responsible initially to the Deputy Crown Agent, the latter had no physical access to the Unit's Offices, and appropriate firewalls were placed in the Crown Office computer systems to prevent the Deputy Crown Agent and those with criminal functions from obtaining access to the Unit's files. The Lord Ordinary explained (in paragraph 24) that he was satisfied that the distinction between the Civil Recovery Unit and the remainder of the Crown Office was real and not contrived. In the second place, the Lord Ordinary was of the opinion that the subject matter of the petition proceedings was not the same as the subject matter of the earlier criminal proceedings. He drew attention to four points which he thought were of critical importance. First the purpose of the present proceedings was to recover property which had been wrongfully obtained; thus the proceedings were essentially proprietary in nature. Secondly, for the present proceedings to succeed it was not necessary for the petitioners to prove that the third respondent had been guilty of any criminal charge; it was sufficient to prove that the property alleged to be recoverable represented the proceeds of criminal activity. Thirdly the proceedings did not seek a conviction or any form of punishment but merely the recovery of property wrongfully obtained by some person at an earlier stage. Fourth, the proceedings were conducted in a civil court using civil forms procedure. In the third place, the Lord Ordinary was of the opinion that the function of the present proceedings was not to call into question the third respondent's earlier acquittal. In particular he noted that in the present proceedings the court was not entitled to make any finding of guilt to the effect that the third respondent committed any particular criminal offence. The function of the proceedings was rather to recover property which had been wrongfully obtained through criminal activity. It was not necessary to show that that activity was of the third respondent. Any averments to that effect were of evidential significance only.

The parties' submissions

[19] On behalf of the third respondent it was submitted that the Lord Ordinary had erred insofar as he stated at paragraph 31 of his Opinion that:

"In my opinion such linkage as exists between the present proceedings and the earlier criminal proceedings is not sufficient to indicate that the third respondent's acquittal in the earlier proceedings is called into question"

On the basis of the authority to which the Lord Ordinary had been referred he had rightly concluded inter alia that the state may not take action (including the refusal of a remedy otherwise available), against a person acquitted, by means of proceedings that are so closely linked to the earlier criminal proceedings that they are incompatible with that acquittal. Reference was made in addition to Rushiti v Austria [2001] 33 EHRR 56 and Geerings v Netherlands [2008] 46 EHRR 49. Where proceedings were sufficiently linked even the voicing of suspicion of guilt could amount to a contravention of article 6(2). In that connection reference was made, in particular, to Sekanina v Austria and Rushiti v Austria. The present petition proceedings were plainly linked to the criminal proceedings. They were raised shortly after the third respondent's acquittal. More significantly it could be said to be the Lord Advocate who is maintaining these proceedings, being the Scottish Minister to whom the Civil Recovery Unit was responsible. She might be wearing a "different hat" but it was still the same person responsible for both the present proceedings and the criminal prosecution. Within the petition averments were made (as set out at para.[4] above) which amounted to an assertion of the guilt of the third respondent of the offence of which he was acquitted. This was incompatible with article 6(2). Although the only averments which the reclaimer sought to challenge were those set out at para [4] above, counsel nevertheless sought dismissal of the whole petition.

[20] Counsel for the petitioners submitted that article 6(2) could not be said to extend to the present proceedings. They were not, as now accepted, criminal proceedings in which the third respondent was charged with a criminal offence. Nor were they civil proceedings which in substance sought to determine his guilt of any particular criminal offence. Any reference to the third respondent's conduct was to "unlawful conduct" as part of the basis for seeking, in civil proceedings, recovery of specific property. Any decision in the present proceedings could not be regarded as a consequence, or to any extent the concomitant, of the acquittal in the criminal proceedings. Reference in particular was made to Sekanina v Austria, Rushiti v Austria, O v Norway and Geerings v Nertherlands. It was not necessary in a petition for recovery to allege the commission of any specific offence. Reference was made to Assets Recovery Agency v Green [2005] EWHC 3168 (Admin). It was plainly incorrect to suggest that the present proceedings were between the same parties as the criminal proceedings. Any reference to criminal conduct in the present proceedings was in relation to its effects for civil purposes only. Reference was made to decisions of the Commission in X v Austria (6 October 1982, application 9295/81) and C v The United Kingdom (7 October 1987, application 11882/85).

Discussion

[21] The reclaimer's only concern is with certain of the averments made in article 5 of the petition. These averments are set out at para [4] above. Notwithstanding that these averments form only a relatively small part of the detailed averments which the petitioners now make in respect of alleged unlawful conduct by the reclaimer from 1996 onwards, the motion made on his behalf is that the whole petition should be dismissed. We can see no reasonable basis for that contention. The arguments advanced on his behalf do, however, give rise to a real question as to whether, nevertheless, probation should be refused in respect of the particular averments which are the subject of his concern. This was accepted by counsel for the petitioners.

[22] The question raised relates to the circumstances in which article 6(2) of the Convention may be said to apply, and be infringed, where a person has been acquitted of a criminal offence, having been charged in criminal proceedings. As a matter of language, it is reasonable to suppose that article 6(2) most obviously, and most directly, applies in circumstances where someone is charged with a criminal offence. It provides that in these circumstances such a person is presumed innocent until proved guilty according to law. It was nevertheless accepted on both sides in this reclaiming motion (and was accepted by the Lord Ordinary) that article 6(2) may also be said to have the closely related effect that, following an acquittal, criminal proceedings against the person acquitted may not be raised on a basis inconsistent with that acquittal. The Lord Ordinary, however, found that the present petition proceedings could not be said to be criminal proceedings raised against the third respondent, and his decision in that respect is not challenged.

[23] That part of the Lord Ordinary's opinion, and the reasoning expressed at paragraphs 21-29, is indeed, in our opinion, beyond challenge. It nevertheless forms an important background to proper consideration of the different argument advanced in this reclaiming motion, and it is for that reason perhaps instructive to underline the main strands of the Lord Ordinary's approach. He recognised that in Convention jurisprudence three criteria are treated as significant in determining whether proceedings are criminal in nature. The first is the classification of the proceedings in domestic law. The Lord Ordinary determined that the present proceedings, so far as domestic law was concerned, were clearly civil in nature. He said inter alia (at para 23)

"They are brought in a civil court, using civil forms of procedure. No indictment or complaint against any of the respondents is involved; no conviction is sought; nor is any sanction resulting from a conviction. The remedy sought in the proceedings is, in essence, the transfer of certain property to the trustee for civil recovery and the realisation of that property by the trustee; that is clearly a civil remedy. Moreover, it can be regarded as a remedy directed against the property rather than the perpetrator of any criminal conduct ... Finally, although in terms of section 240 of the 2002 Act it is necessary to demonstrate that conduct unlawful under the criminal law has occurred, it is not necessary to establish the identity of the perpetrator of that conduct, and it is immaterial whether the person against whom the order is sought has been guilty of such conduct ... Establishing the identity of the perpetrator is an essential element in any criminal prosecution in Scotland, and the absence of such requirement is in my opinion a strong pointer towards the civil nature of the present proceedings".

As regards the second criterion - the objective classification of the proceedings - the Lord Ordinary found that the present petition proceedings must be classified objectively as civil in nature. He found inter alia that the proceedings themselves were plainly civil in nature, being brought in a civil court using civil forms of procedure. They were proceedings brought by the Scottish Ministers as enforcement authority acting through the Civil Recovery Unit, a body kept separate from parts of the Crown Office which exercise the function of prosecuting crime. The remedy sought - to remove property from its existing owner and transfer it to the trustee for Civil Recovery - amounted to a vindication of property; as such it was an essentially proprietary remedy. The primary function of the remedy was not to cause loss to that person so much as to ensure that property was transferred to a person with a better right. The ground on which recovery might be sought was that the property represented proceeds of unlawful conduct, and the primary function of the proceedings was to secure the recovery of property thus wrongfully obtained. The proceedings were of a nature closely analogous to proceedings brought to recover property obtained dishonestly or through a breach of trust or a breach of fiduciary duty. Further, the recovery order could not be said to involve punishment. Detriment suffered by any person against whom such an order is made is not the primary function of the order; it is rather the inevitable consequence of the vindication of property by a person who has a better right. The third criterion is the nature and severity of any punishment that may be inflicted. Having formed the view that no punishment was involved, the Lord Ordinary held that this criterion was not met.

[24] It is perhaps not immediately obvious as a matter of language that article 6(2) could ever be said to apply to proceedings in which a person is not charged with a criminal offence. It is nevertheless clear from decisions of the European Court of Human Rights that article 6(2) may be said to apply, and be said to be infringed, in the course of proceedings which are not criminal in nature but which follow an acquittal in criminal proceedings. In particular a clear strand of authority suggests (a) that article 6(2) would apply if the later proceedings can be said to be sufficiently linked (in particular by law and practice) as to be the consequence, and to some extent a concomitant, of the criminal proceedings in which the person was acquitted, and (b) that the article would be infringed in these later proceedings if it can be said that the court casts doubt on the soundness of the earlier acquittal.

[25] In Sekanina v Austria the applicant was acquitted by a jury of murdering his wife. Following his acquittal he applied for compensation in respect of his remand in custody and the expenses of his defence. The Austrian court refused the application on the basis of a statute which permitted such refusal where there remained suspicion against the accused. It was held that the refusal of compensation contravened article 6(2). The judgment of the Court was divided into two sections. In the first, the Court considered whether article 6(2) could be said to apply at all to the proceedings in which compensation was claimed. Having reached the view that it did, the judges then considered whether article 6(2) had been breached. In the first part the court required to deal with the argument of the Austrian government that article 6(2) did not apply because Mr Sekanina had been acquitted and had no longer the status of a person "charged with a criminal offence" within the meaning of Article 6(2). The Court rejected that contention. In particular it was said (at para 22) "In the Court's opinion, Austrian legislation and practice nevertheless link the two questions - the criminal responsibility of the accused and the right to compensation - to such a degree that the decision on the latter issue can be regarded as a consequence and, to some extent, the concomitant of the decision on the former". The Court also referred to the fact that the criminal court which tried the criminal charge on its merits also had jurisdiction in the question of compensation. In determining that article 6(2) was breached, the Court examined the reasons given by the domestic court for refusing compensation. The domestic court having held that, in the words of the Linz Court of Appeal, "The jury took the view that the suspicion was not sufficient to reach a guilty verdict; there was, however no question of that suspicion being dispelled", the Court said (at para 30)

"Such affirmations - not corroborated by the judgment acquitting the applicant or by the record of the jury's deliberations - left open a doubt both as to the applicant's innocence and as to the correctness of the Assize Court's verdict ... The voicing of suspicions regarding an accused's innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However, it is no longer admissible to rely on such suspicions once an acquittal has become final. Consequently, the reasoning of the Linz Regional Court and the Linz Court of Appeal is incompatible with the presumption of innocence"

[26] A similar approach was taken in the later case of Rushiti v Austria, where an attempt to distinguish Sekanina v Austria was rejected. It was said at paragraph 27

"The Court recalls that the applicant can rely on article 6(2) of the Convention, irrespective of the fact that the contested decision was given after his acquittal had become final, as Austrian legislation and practice link the two questions - the criminal responsibility of the accused and the right to compensation - to such a degree that the decisions on the latter issue can be regarded as a consequence and, to some extent the concomitant of the decision on the former"

[27] In O v Norway the applicant who had been charged with various sexual offences but was acquitted by the High Court. He subsequently requested compensation from the state for pecuniary and non pecuniary damage caused by the criminal proceedings. In the compensation proceedings, the High Court, sitting with the same judges as at the trial, rejected the applicant's claim, repeating certain information derived from the criminal proceedings. Once again the judgment of the Court of Human Rights was divided into two distinct sections - in the first of which the applicability of article 6(2) was considered; in the second, the question of whether it had been complied with. In the first of these sections the Court expressed the view that the compensation proceedings did not give rise to a "criminal charge" against the applicant. It noted, however, (at para.33) that the scope of article 6(2) was not limited to criminal proceedings which were pending and that in certain circumstances the Court had found that the provision was applicable to judicial decisions taken after the discontinuation of such proceedings following an acquittal. These decisions

"...concerned proceedings relating to such matters as an accused's obligation to bear court costs and prosecution expenses, a claim for reimbursement of his (or his heirs') necessary costs, or compensation for detention on remand, matters which were found to constitute a consequence and the concomitant of the criminal proceedings"

In these circumstances they concluded (at para.34) that "The issue is whether the compensation proceedings were nevertheless linked to the criminal trial in such a way as to fall within the scope of article 6(2). It was noted that the compensation proceedings were taken under the terms of article 444 of the relevant Code of Criminal Procedure, under which a person who had been charged could seek compensation in respect of matters which were directly linked to the criminal proceedings against him or her. Any compensation claim had to be lodged, within 3 months from the close of the criminal proceedings, with the same court, and as far as possible, the same bench which had conducted the trial. Moreover the compensation could be sought from the state for damage which the claimant had sustained as a result of the prosecution - in other words damage "engaging the responsibility of the state, not a private party." Further under the relevant provision of article 444 the outcome of the criminal proceedings was a decisive factor, it being a prerequisite that the person charged had been acquitted or that the proceedings had been discontinued. Further it was for the acquitted person to show on the balance of probabilities that it was more than 50% probable that he or she did not carry out the act that formed the basis of the charge. In these circumstances the Court said:

"Leaving aside this difference in evidential standards, the latter issue overlapped to a very large extent with the one decided in the applicant's criminal trial. It was determined on the basis of evidence from that trial by the same court, sitting with the same judges, in accordance with the requirements of article 447 of the Code."

"Thus" the Court continued at para 38

"...the compensation claim not only followed the criminal proceedings in time, but was also tied to those proceedings in legislation and practice, with regard to both jurisdiction and subject matter. Its object was, put simply, to establish whether the State had a financial obligation to compensate the burden it had created for the acquitted person by the proceedings it had instituted against him. Although the applicant was not 'charged with a criminal offence', the Court considers that, in the circumstances, the conditions for obtaining compensation were linked to the issue of criminal responsibility in such a manner as to bring the proceedings within the scope of article 6(2) which accordingly is applicable".

The judges then went on to consider whether article 6(2) had been infringed and found that it had, holding that the High Court's reasoning

"clearly amounted to the voicing of suspicion against the applicant regarding the charges of sexual abuse on which he had been acquitted".

[28] In Geerings v The Netherlands it was held that in the particular circumstances of the case confiscation proceedings following a conviction contained accusations of such a nature and degree as to amount to the bringing of a new criminal charge, and that article 6(2) was infringed. At the outset of the judgment the Court reiterated (at para.41) that the presumption of innocence guaranteed by article 6(2) would be

"violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law". It was noted also that in certain instances the Court had found that the provision was applicable to judicial decisions taken following an acquittal. These judgments, it was noted, "concerned proceedings relating to such matters as an accused's obligation to bear court costs and prosecution expenses, a claim for reimbursement of his necessary costs or compensation for detention on remand and which were found to constitute a consequence and the concomitant of the substantive criminal proceedings"

[29] Applying this line of authority to the present circumstances it could not, in our opinion, be said that the present proceedings are sufficiently linked to the previous criminal proceedings as to make article 6(2) applicable. In this respect, we would endorse the reasoning of the Lord Ordinary summarised at para [18] above. In addition it can be emphasised that proceedings for recovery can be brought regardless of whether there have been any criminal proceedings. In all the circumstances the present proceedings cannot, in our view, be said to be the consequence, or to any extent, the concomitant of the criminal proceedings. We cannot agree with the reclaimer's contention that the Lord Advocate is to be seen in reality as the party prosecuting the criminal proceedings and presenting the present petition. We agree with the Lord Ordinary that the functions of the Lord Advocate, acting as the country's chief prosecutor, are quite distinct from other functions of the Scottish Ministers, including those carried out by herself. The Lord Advocate, and the prosecution service, cannot, in our opinion, be equiparated with the Scottish Ministers acting as enforcement authority under part 5 of the 2002 Act.

[30] That, however, may not be the end of the matter. There are, in particular, apparently clear indications in Y v Norway that, following an acquittal, article 6(2) may be said to be applicable even in proceedings not thus linked by law and practice, and that it is capable of being infringed by the language used in such proceedings (indeed that such language could itself be regarded as providing the necessary link.) In that case the District Court convicted the applicant of charges of assault, sexual assault and homicide, and ordered him to pay compensation to the victim's parents. He appealed to the High Court, which ultimately decided to acquit the applicant of the criminal charges, but upheld the District Court's decision to award compensation to the victim's parents. In doing so the court relied on substantial parts of the evidence against the applicant in the criminal proceedings and said that it was clearly probable that the applicant had committed the offence as charged. The High Court's decision was ultimately upheld by the Supreme Court. The European Court of Human Rights held that article 6(2) had been violated. At para 39 of its decision the Court asked itself whether the compensation proceedings gave rise to a criminal charge against the applicant and whether, in the event that this was not the case, the compensation case nevertheless was linked to the criminal trial in such a way as to fall within the scope of article 6(2). In deciding that the compensation proceedings did not give rise to a criminal charge the court found inter alia that while acquittal from criminal liability ought to be maintained in compensation proceedings, it should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof. The Court nevertheless went on to say

"42. However, if the national decision on compensation contains a statement imputing the criminal liability of the respondent party, this could raise an issue falling within the ambit of article 6(2) of the Convention.

43. The court will therefore examine the question whether the domestic court acted in such a way or used such language in their reasoning as to create a clear link between the criminal case and the ensuing compensation proceedings as to justify extending the scope of the application of article 6(2) to the latter.

44. The court notes that the High Court opened its judgment with the following finding; 'Considering the evidence adduced in the case as a whole, the High Court finds it clearly probable that the applicant has committed the offences against Ms T with which he was charged and that an award of compensation to her parents should be made under article 3-5(2) of the Damages Compensation Act ..."

The Court went on to say (at para.46) that it was "mindful of the fact that the domestic courts took note that the applicant had been acquitted of the criminal charges. However in seeking to protect the legitimate interests of the purported victim, the Court considers the language employed by the High Court, upheld by the Supreme Court, overstepped the bounds of the civil forum, thereby casting doubt on the correctness of that acquittal. Accordingly there was a sufficient link to the earlier criminal proceedings which was incompatible with the presumption of innocence".

[31] Notwithstanding the way the judgment is expressed (and in particular the apparent running together of the questions of whether article 6(2) applied at all, and if so whether it had been breached) it is, we consider, perhaps not unreasonable to suppose that implicit in the decision was an acceptance that the compensation proceedings were indeed sufficiently linked by law and practice as to be regarded as, in effect, a consequence, and concomitant, of the criminal proceedings. The decision on criminal liability and on liability to pay compensation was reached by the same court, at the same time and on the basis of the same evidence. The argument advanced on behalf of the successful applicant invited the Court to assimilate the case to that of Sekanina v Austria,

"in which it attached primary weight to the degree of linkage between the criminal proceedings and the compensation case in its finding that article 6(2) was applicable to the latter. In the applicant's case the criminal charges and compensation claim made against him had been pursued in joint proceedings before the same Court, in accordance with article 3 of the Code of Criminal Procedure. The accused's acquittal and the ruling on compensation was stated in the same court record. The oral pleadings on compensation took place the day after the acquittal, virtually as an extension of the criminal proceedings. Since no new evidence was adduced the compensation issue was determined on the basis of the same evidence as that submitted in the criminal trial ..."

Moreover the decision was made by the same judges as in O v Norway, and on the same day. As in these cases the Court noted at the outset (in para 39) that the scope of article 6(2) was not limited to criminal proceedings that were pending, and that

"In certain circumstances the court has also found the provision applicable to judicial decisions taken after the discontinuation of such proceedings, or following an acquittal. Those judgments concern proceedings relating to such matters as an accused's obligation to bear costs and prosecution expenses, a claim for reimbursement of his (or his heirs') necessary costs or compensation for detention on remand and which were found to constitute a consequence and the concomitant of the criminal proceedings"

It was against that background that the Court posed itself (at para.39) the two questions which it required to answer.

[32] Even if that is not right, and the decision in Y v Norway does require to be read as supporting a wider potential approach to the question of linkage, it is plain that it was the language used by the Norwegian courts in the relevant compensation proceedings, namely that it was "clearly probable that the applicant has committed the offences ... with which he was charged" which was said to infringe article 6(2) (and indeed to create the link). By contrast, in the present case it cannot, in our opinion, be said that the averments complained of (with the possible exception of those to which we refer in paragraph [33] below) necessarily invite any finding of a similar nature, or, as counsel for the reclaimer put it, amount to an assertion of guilt of a particular offence. There are, we think, both specific and more general reasons for this. As to the first, it has been held in Assets Recovery Agency v Green that for the purposes of a petition for recovery under part 5 of the 2002 Act it is not necessary to allege the commission of a specific criminal offence or offences; that "a description of the conduct in relatively general terms should suffice, 'importing and supplying controlled drugs', 'trafficking women for the purposes of prostitution', 'brothel keeping', 'money laundering', are all examples of conduct which if it occurs in the United Kingdom is unlawful under the criminal law." (p.5). The inference which the averments in the present case seek to draw from the events of 16 August 2002 is of "involvement in supply" at a significant level. Although references are earlier made to the third respondent having been concerned in supply, it is not obvious that the language is used in any specific technical sense or as necessarily imputing guilt of the particular offence provided for by section 4(3)(b) of the 1971 Act. More generally, and perhaps more importantly, the averments do not invite a finding of guilt of a particular offence, but rather a finding that conduct was "unlawful". It is true that section 241 provides that unlawful conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part, and it may be a fine distinction, but the effect of the provision may be said to be to provide that certain conduct has both criminal and civil consequences; the latter being that it is "unlawful" for the purposes of civil recovery of property. Just as, as is accepted, a civil court, even after an acquittal in criminal proceedings, may in certain cases make a finding of liability to pay compensation on proof of the same facts as would constitute a criminal offence (e.g. assault or rape) without offending article 6(2), provided, no doubt, it is plain that the finding is of the delict of assault or rape, so too, it appears to us, a finding of "unlawful conduct", albeit on the basis of the same facts as would constitute a criminal offence, could not be said to offend article 6(2). (As to the position, generally, in Scotland of the interrelationship between delict and crime see e.g. Walker on Delict, 2^nd Ed, pp 15, 16 and 498.) In such circumstances, the court could not be said to "overstep the bounds of the civil forum", to adopt the expression used in Y v Norway. This reasoning would, we consider, be consistent with counsel for the reclaimer's position that he did not seek to challenge any of the other averments about alleged unlawful conduct by the third respondent occurring prior to (and indeed after)16 August 2002, notwithstanding that he has not been charged, in criminal proceedings, with specific offences said to have been committed then.

[33] We should say, however, that we do have some concerns as to what the purpose might be said to be for the averments made in the last three sentences of the passage in question. In our opinion these averments are susceptible of being read as saying, or at least implying, that, in the view of Scottish Ministers, the reclaimer's acquittal was due only to a legal technicality. They are, in any event, as already indicated, to a degree inaccurate. We propose therefore to refuse probation to these averments.

[34] Subject to that, the reclaiming motion falls to be refused.