Scottish Court of Session Decisions

For the Petitioners: Crawford QC; J N M MacGregor: Solicitor to the Scottish Government

For the Second Respondent: No appearance

18 May 2010

[1] This is a reclaiming motion by the second respondent in a petition by the Scottish Ministers for a recovery order under the Proceeds of Crime Act 2002 (the Act). The interlocutor reclaimed against was pronounced by Lord Bracadale on 28 January 2010. It gave effect to the decision set out in his Opinion dated 11 December 2009.

[2] On 19 November 2004 an interim administrator was appointed in terms of section 256 of the Act. The petition was raised in July 2006. The first respondent was Lee Smith. The second respondent was his wife. In August 2006 Lee Smith died. The second respondent opposes the petition as a party litigant in her own right. The petitioners sought recovery of four properties in Glasgow, including the former matrimonial home; the sums at credit in three bank accounts held by the interim administrator; and an insurance policy.

[3] The petition was based on averments that from at least 1997 onwards the late Lee Smith was engaged in organised crime involving the supply of controlled drugs nationally and internationally; that from at least 2004 onwards he ran a security business to launder the proceeds of his crimes; that between 1997 and 2004 he and the second respondent received income and acquired assets with funds for which there was no legitimate source; that they had insufficient legitimate income to support their lifestyle; that they had assets that they had no legal means of obtaining, and that the assets sought to be recovered were obtained by Lee Smith's involvement in the supply of drugs. They also averred that the mortgage obtained to buy the matrimonial home was obtained by fraud.

[4] The Lord Ordinary heard extensive evidence. He held that the material averments in the petition were proved. By the interlocutor reclaimed against he made a recovery order in respect of each of the assets that I have mentioned. He appointed a trustee for civil recovery of these assets and granted decree of removal of the second respondent's family and dependants, if any, from the former matrimonial home.

[5] When the hearing in the reclaiming motion was called today, the second respondent failed to appear. A medical certificate relating to her was shown to us. It was left, without a covering letter, with the security staff of the court this morning. The certificate is in the name of Dr A McCartney of the Kenmure Medical Practice, Bishopbriggs, Glasgow. It is dated 13 May 2010 and is in the following terms:

"TO WHOM IT MAY CONCERN

Re: Mrs Claire Smith, [address]

This 36 year old lady attended the surgery today for assessment of a health condition. In my professional opinion I consider her medically unfit to attend Court on Tuesday the 18^th May and I would be grateful if you could take this into consideration."

[6] The certificate is not given on soul and conscience. Although certification on soul and conscience is no longer an indispensable requirement (cf Practice Note, 6 June 1968), the absence of it is a factor that we are entitled to take into account. More importantly, Dr McCartney fails to specify the health condition for which he assessed the second respondent. He fails to specify for how long she has suffered from this health condition, whatever it may be, or for how long he expects it to continue. He also fails to specify why, in his opinion, the second respondent's health condition makes her unfit to attend court today.

[7] A medical certificate to the effect that a person is unfit to attend court is not conclusive evidence of that fact. In every case it is for the court to decide, from the certificate and any other relevant circumstances, whether it is persuaded that the person concerned is unfit to attend and, if so, what the consequences of that should be.

[8] In this case we have to assess the cogency of the medical certificate in the light of other material facts. These are that on 13 May, the date on which the second respondent was seen by Dr McCartney, she appeared at a By Order hearing in this case and moved the court to discharge today's diet for two reasons, neither of which related to her alleged state of health; namely, that she wished to carry out further investigations in relation to one of the productions in the case and that she wished to pursue the possibility of obtaining legal representation and legal aid. The court was informed that after the Lord Ordinary issued the interlocutor reclaimed against, the second respondent sought and was refused legal aid. The court refused the second respondent's motion.

[9] It now appears that after that hearing, the second respondent returned to Glasgow and was seen by Dr McCartney. Whether or not he knew that she had been fit to attend the court earlier that day does not emerge from the certificate.

[10] A further material factor, in our opinion, is that prima facie the second respondent's grounds of appeal are irrelevant. In the first, she challenges, for reasons that are difficult to follow, certain of the Lord Ordinary's critical findings of fact that seem to have been entirely justified by the evidence. In the second, she asserts, contrary to authority, that a criminal charge and conviction are a prerequisite to any civil confiscation of property and assets.

[11] For these reasons we have concluded that the second respondent's failure to attend today cannot be excused and that the appropriate disposal is that we should refuse the appeal for want of insistence.

[12] Counsel for the petitioners moved us to award the expenses of today's hearing against the second respondent. We have refused that motion. The more appropriate course of action is that a motion for expenses should be intimated to the second respondent and that expenses should thereafter be moved for in the normal way.