Scottish High Court of Justiciary Decisons

NOTICE UNDER SCHEDULE 6 OF THE SCOTLAND ACT 1988 IN HER MAJESTY'S ADVOCATE v. ROBERT McINTOSH [2000] ScotHC 24 (25th February, 2000)

In this case the accused has been convicted of "drug trafficking" within the meaning of Section 49(2) of the Proceeds of Crime (Scotland) Act 1995 and the Crown now seek a confiscation order under Section 1 of that Act. The answers lodged by the accused to the Prosecutor's Statement under Section 9 of the Act were thought to raise a "devolution issue" within the meaning of Schedule 6 to the Scotland Act 1998 and a Minute seeking the assignation of a diet to resolve that issue was lodged on behalf of the accused on 9 February 2000. In circumstances not entirely clear to me, by interlocutor dated 17 February 2000, the Court ordered that a "Preliminary Diet" be fixed for that purpose for 23 February 2000 and I understand that that diet was then continued until 24 February when I became the judge assigned to deal with matters. As it happens, 24 February was also the date fixed for a proof in the proceedings but parties were agreed that proof could not take place and, of consent, the proof diet was continued until 23 March next. In the event I heard a debate in the course of which Mr Shead, for the accused, invited me to pronounce a Declarator that in the circumstances of the present case, "the Crown has no power to invite the Court to make the assumptions set out in Section 3(2) of the Proceeds of Crime (Scotland) Act 1995." These assumptions are, indeed, implicit in the Statement lodged by the Crown under Section 9 of the Act and I understood it to be conceded on behalf of the Crown that, if Mr Shead was otherwise well founded in his submissions, the "invitation" in question would constitute an "act" for the purposes of Section 57(2) of the Scotland Act 1998 and that such a Declarator could properly be pronounced. I would, however, in passing, wish to reserve my opinion as to the correctness of that concession, at least in its entirety.

Turning, then, to the substance of the argument advanced, I must first record that I did not find it at all easy to follow the thread of Mr Shead's submissions. He repeatedly asserted that Article 6 of the Human Rights Convention "applied" to the confiscation proceedings but, even two hours into the argument and after an adjournment for lunch, I noted him as saying that he was unable to formulated reasons for his claim that that Article had in some way been breached without first looking further at the case law. This I did find surprising since in any legal argument, particularly one involving the new Human Rights jurisprudence, it seems to me desirable that propositions be advanced with some degree of precision and analysis. All that said, my understanding of the argument as it eventually developed was as follows:

(1) That the serving of the Prosecutor's Statement under Section 9 of the 1995 Act constituted a "charge" of what was in substance a new "offence", namely that the accused had derived the figure set out in the statement as the proceeds of drug trafficking over the previous six years;

(2) That any confiscation order subsequently pronounced constituted a separate "sentence" in respect of that new "offence"; and

(3) That, although presumptions, as such, were not inimical to Article 6, that Article did require States to "confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence." - Salabiaku v France 1988 13 E.H.R.R. 379 at para.28. Here the presumptions were not reasonable and, on the contrary, they amounted to what was virtually a complete negation of the presumption of innocence referred to in Article 6(2).

In the course of the argument, as above summarised, Mr Shead referred to Engel and others v The Netherlands (No.1) 1976, 1 EHRR 647, Welch v United Kingdom 1995 20 EHRR 247 and Donnelly v HMA 1999 S.C.C.R. 508. However, I do not consider that, in the end, Mr Shead was able to derive much support from any of these authorities.

In reply to Mr Shead's argument the Advocate Depute submitted, first, that Article 6 simply did not apply to the confiscation proceedings - at least not in the manner contended for by Mr Shead - and, second, that, even if he was wrong about that, the assumptions set out in Section 3(2) of the 1995 Act were reasonable in the circumstances.

As to the application of Article 6, the Advocate Depute submitted that there was no "offence" of "deriving the figure set out in the Prosecutor's Statement as the proceeds of drug trafficking." On the contrary, both in form and in substance the confiscation proceedings simply constituted a mechanism for imposing a penalty in relation to the earlier conviction. They were so regarded in Welch v UK cit. sup., and in para.36 of the report the Court had gone out of its way to say that the decision did not call into question in any respect the powers of confiscation conferred on the Courts as a "weapon in the fight against the scourge of drug trafficking".

In relation to what the Advocate Depute referred to as his "fall-back" argument the Advocate Depute relied on a number of factors in support of his contention that the assumptions in question were in any event reasonable. I list these as follows:-

(1) The accused had already been convicted as a trafficker in drugs and in assessing the amount of any confiscation order it was not unreasonable to place on him the onus of explaining, as facts within his knowledge, his financial receipts and expenditure within the previous six years;

(2) The exercise in question was concerned with the assessment of an appropriate confiscation order rather than with any substantive proof of drugs trafficking during the period in question;

(3) Section 1(5)(b) of the Act provided that no confiscation order could exceed the amount of the accused's present resources;

(4) The onus on the accused to establish that the assumptions should not be made could be discharged on a simple balance of probabilities; - Donnelly v HMA cit. sup.;

(5) Even following an assessment in terms of Section 3(2) of the 1995 Act, there remained in the Court, under Section 1 of the Act, an overriding discretion as to what, if any, confiscation order should be made; and

(6) What was "at stake" in all this was the "scourge of drug trafficking" as recognised in Welch v United Kingdom cit. sup..

Having weighed up the competing submissions of counsel as best I can I have reached the view that those advanced on behalf of the Crown should prevail. I do not seek to elaborate them beyond what is said above. In this area of the law it seems to me that it is very easy to canvas what is essentially the same point in various guises and in the end to reach circularity. Suffice to say that, both on analysis and as matter of overall impression, I consider that the Crown's response to Mr Shead's argument was sound in each of its two branches. In the result, therefore, I decline to pronounce the Declarator sought by Mr Shead with the result that the case can now proceed to proof on 23 March next.