HIGH COURT OF JUSTICIARY [2007] HCJ09 |
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OPINION OF LADY SMITH in Minute by SCOTT McLARTY Presently a prisoner in HM Prison Barlinnie ________________ |
Shead;
Advocate for the Minuter
Divers;
Advocate-Depute for the Crown
31 August 2007
Introduction
[2] In the usual way, an agreed narrative of facts was put before the court and it recorded that, at police interview, the accused had said that his role was that he allowed his home to be used for the mixing of cocaine with other agents for a period of six weeks, once or twice a week, in return for payment of £500 on each occasion. He had also said that he was present when the drug "manufacturing" had thus taken place. Contrary to what seems to be suggested in this Minute, it was not agreed that the accused had only profited to the extent of approximately £4,000. The agreement was that was what he had told the police.
[3] On
The Prosecutor's Statement
[4] The
prosecutor's statement includes a statement of belief that the Minuter has a
criminal lifestyle on the basis that he has been convicted of an offence defined
as criminal lifestyle under s.142 of the 2002 Act. It then sets out a calculation of the extent
to which he has benefited from that lifestyle under reference to his financial
circumstances dating back for a period of six years.
The Minute and Answers to the Prosecutor's Statement
[5] The Minuter lodged Answers which include the following averments:
"The period specified in the charge ... was restricted to a few weeks. The period specified in the Statement is six years. The accused's position in mitigation was that his role was limited. He made a profit of approximately £4,000. The plea having been tendered and accepted on that basis it is oppressive and contrary to his right to a fair hearing to seek a confiscation order.
Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") provides, inter alia, that everyone is entitled to a fair hearing. That right is absolute and open to anyone against whom a confiscation order is sought.
In terms of section 57(2) of the Scotland Act 1998, the Lord Advocate has no power to act in a way which is incompatible with any Convention right.
By inviting the court to make a confiscation order in the present case the Lord Advocate is seeking to act in a way which is incompatible with the accused's Convention rights and in particular his right under Article 6. Accordingly his act is ultra vires and therefore incompetent.
Separatim. The act of the Lord Advocate is unlawful having regard to the provisions of s.6(1) of the Human Rights Act 1998.
Separatim. To invite the court to make an order would be oppressive and as a consequence the court should make no order."
[6] The Minute confirms that the Minuter seeks to raise these issues as a devolution issue.
Relevant Law
[7] Formerly,
confiscation orders were provided for in the Proceeds of Crime (
"(2) The first condition is that an accused falls within either of the following paragraphs -
(a) he is convicted of an offence ... in solemn proceedings, ...
(3) The second condition is that the prosecutor asks the court to act under this section.
(4) The third condition is that the court decides to order some disposal in respect of the accused; ...
(5) If the court acts under this section it must proceed as follows -
(a) it must decide whether the accused has a criminal lifestyle;
(b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;
(c) if it decides that he does not have a criminal lifestyle, it must decide whether he has benefited from his particular criminal conduct.
(6) If the court decides under subsection 5(b) or (c) that the accused has benefited from the conduct referred to -
(a) it must decide the recoverable amount; and
(b) it must make an order (a confiscation order) requiring him to pay that amount ..."
[8] An accused falls to be regarded as having a criminal lifestyle if he has been convicted of an offence under s.4(3)(b) of the Misuse of Drugs Act 1971 (see: s.142 and Sch 4 of the 2002 Act).
[9] Section 96 provides for assumptions that are to be made. Again insofar as is relevant for the present case, it provides:
"(1) Where the court decides under section 92 that the accused has a criminal lifestyle it must make the following four assumptions for the purpose of -
(a) deciding whether he has benefited from his general criminal conduct, and
(b) deciding his benefit from the conduct."
[10] The details of the four assumptions, which relate to any property transferred to the accused after the relevant day, property held by the accused at any time after the date of his conviction, the accused's expenditure after the relevant day and to valuation of any property obtained or assumed to have been obtained by the accused, follow. Subsection (6) then provides:
"(6) But the court must not make any of those assumptions in relation to particular property or expenditure if -
(a) the assumption is shown to be incorrect, or
(b) there would be a serious risk of injustice if the assumption were made.
...
(8) The relevant day is the first day of the period of six years ending with ...."
[11] There then follow provisions which indicate how the date of the
relevant day is to be identified according to certain different sets of
circumstances. In the present case, the
relevant day in the present case was calculated by reference to the day that
proceedings were first instituted against the accused,
[12] Section 101 contains provisions relating to the prosecutor's statement including:
"(1) When the court is proceeding under section 92 the prosecutor must ... give the court a statement of information."
and provisions follow which specify what the prosecutor must set out where he "believes the accused has a criminal lifestyle" (subsections (2) and (3)) and where he does not entertain such a belief (subsection (4)).
[13] It can thus be seen that Parliament has expressly recognised the possibility that a person convicted of any one of certain offences, which include contraventions of s.143(b) of the Misuse of Drugs Act 1971, will have been living a general criminal lifestyle extending beyond the offence that brings him before the court and, furthermore, that he will have been benefiting financially from that lifestyle. Plainly, it has done so drawing on its knowledge, understanding and experience of current society. It has, further, decided that it is right, proper and in the public interest that where someone has so benefited, any such part of the benefit as is recoverable is confiscated. It has not restricted its thinking to the possibility of financial benefit having accrued to the accused from the particular offence of which he has been convicted. There is provision for confiscation that will be limited to such benefit (see: s.92(5)(c) and (6) ). That, however, will only arise and occur if the court has first addressed the question of whether or not the accused has a criminal lifestyle and answered it in the negative. What Parliament has quite specifically not done is to proceed on the basis of a general principle that all confiscations should be restricted in that way.
[14] The issue in any confiscation proceedings such as those in the present case is, therefore, that of whether the accused has benefited financially from a criminal lifestyle, if so, whether any of that financial benefit is recoverable and if so, how much of it. If that question is answered in the negative then the court must decide whether the accused has benefited from the particular criminal conduct that is relevant on that occasion. It is for the Crown to establish the extent of the financial benefit and recoverable amount. It does so by setting out in the prosecutor's statement details of property held by the accused and his expenditure over a period of up to six years, as allowed for in terms of s.96(8) of the 2002 Act. In practice, that statement invariably details such of the accused's assets, liabilities and sources of income as are known to the prosecutor and shows how there is an apparent discrepancy between the accused's total known expenditure and total known income over that period. Parliament has provided that the court must then make the assumptions set out in s.96 unless the provisions of s.96(6) apply. It is plain that it has considered it appropriate to do so on the basis that the accused himself must know the source of his assets and what he has been living on and it is thought not to be unreasonable or oppressive to expect him to be able to account for the discrepancy brought out in the statement.
[15] The predecessor to the 2002 Act, the 1995 Act, which
consolidated part of the provisions of Part I of the Criminal Justice (
"Parliament has
firmly adopted the policy that in the fight against serious crime, apart from
ordinary sentences, a high priority must be given by the courts to the making
of confiscation orders against defendants convicted of serious offences. The purpose of confiscation proceedings is to
recover the financial benefit that the offender obtained from his criminal
conduct."
[16] Again, the view is reinforced that Parliament clearly intended
that the commission of a relevant offence should open the gateway to an
examination of an accused person's whole financial dealings over the statutory
period so as to determine whether he has been benefiting from criminal conduct
beyond that offence.
The Devolution Issue
The Minuter's Argument
[17] The argument advanced was essentially the same argument as that put forward, without success, in the cases of Urquhart v HMA 2002 SCCR 300 and HMA v Bowie 2004 SCCR 105.
[18] It was encapsulated by Mr Shead as being: Article 6 of the European Convention on Human Rights extends to confiscation proceedings (HMA v McIntosh 2001 SCCR 191). Breaches of Article 6 were not confined to matters of procedure. They could occur in respect of substantive matters as well (Teixeira de Castro v Portugal 1998 EHRR 101; Brown v HMA 2002 SCCR 684). The Lord Advocate was master of the instance and was in a position in which he enjoyed far greater power than comparable prosecutors in comparable systems. An aspect of the Lord Advocate's powers was that she could accept pleas in such terms and on such a basis as she considered appropriate. Having accepted the plea in this case in the terms and on the basis on which it was accepted, it would be unfair under Article 6 of the Convention to pursue the making of a confiscation order which extended its scope beyond the basis of the plea. Were the application to proceed in its present form it would be contrary to the Minuter's convention rights and, accordingly, ultra vires the Lord Advocate: s.57(2) of the Scotland Act 1998.
[19] By way of elaboration, Mr Shead made specific reference to passages in the case of Teixeira. He accepted that the context was rather different but he submitted that it showed that Article 6 was not only concerned with procedure. He also referred to a passage in the judgment of Lord Clarke in Brown in which he discussed the need to protect the integrity of the judicial system against abuses of process (p.695-696).
[20] Although he had commented at the start of his submissions that the relevant provisions of the 2002 Act were indistinguishable, for the purposes of his argument from those of the 1995 Act, it seemed that he did seek to make something of the fact that the discretion conferred on the court under the 1995 Act had been removed. He referred to the new mandatory provisions of sections 92 and 96 of the 2002 Act. Whilst recognising that the court still had a discretion under s.96(6), he submitted that the 1995 Act discretion had been more broad and flexible but it had been taken away under the new statutory scheme . That was something to which the Lord Advocate required to have regard when reaching a decision on whether to seek a confiscation order. If the prosecutor's statement had reflected the Minuter's plea of guilty, the point taken would not, he said, have arisen.
[21] As regards the cases of Urquhart
and Bowie, he submitted that the
conclusions reached were wrong as a matter of law and they should not be
followed.
The Prosecutor's Argument
[22] The Advocate-Depute submitted that there was no breach of the
accused's convention rights. He relied
on HMA v
Discussion and Decision
[23] The submission for the accused was, in effect , that the Lord Advocate was barred from asking the court to act under s.92 in respect of any application for confiscation that extended to any criminal benefit going beyond that relating directly to the matter in respect of which she had accepted a plea of guilty. That was because there was something substantively unfair about doing so and that, in turn meant that he could not receive a fair trial.
[24] As Lord Carloway said in
"What Article 6 does do ... is guarantee fairness in achieving the result dictated by Parliament in the legislation. The route to the confiscation order must be fair. That does involve a need for procedural fairness ..."
[25] The court and, ultimately, the Board of the Privy Council, were, accordingly, concerned in the case of McIntosh to satisfy themselves that the procedure of utilising a series of statutory presumptions was fair.
[26] In the case of the 2002 Act, procedural protections remain in place in that, for instance, the prosecutor must give specification and the court is to refrain from making the assumptions in s.96 if they are shown to be incorrect and it has a discretion not to make the assumptions if there would be a serious risk of injustice. Indeed, apart from the suggestion that the change in the nature of the court's discretion not to make the assumptions meant that the onus on the Lord Advocate when deciding whether or not to proceed was greater, it was not seriously suggested on behalf of the Minuter that the procedure set out in the 2002 Act was not convention compliant.
[27] Rather, at the heart of the Minuter's case is the assertion that to confiscate assets beyond those gained directly from the relevant offence, is not fair. It is not a matter of the way in which it is done. It is the fact that it can be done at all that he challenges as unfair. That being so, in his submission, the Lord Advocate must be breaching article 6 if she asks the court to act in any such case. I do not agree that that conclusion follows.
[28] Firstly, if it is a matter of considering article 6, what the Lord Advocate has to think about is the accused's right to a fair hearing of the issue that has arisen, namely whether the accused has benefited financially from a criminal lifestyle. That is not a matter of asking whether it is fair that that issue be addressed at all. The issue arises as a matter of substantive law emanating from a democratically elected Parliament and article 6 is relevant only in the context of the way in which the issue is addressed and resolved.
[29] Otherwise, whilst there are circumstances in which the Lord
Advocate ought to refrain from asking the court to act, that will be a matter
of conforming to the fundamental principles of the law of Scotland that require
her to refrain from proceeding if to do so would be an abuse of process. Abuse of process was discussed in the case of
Brown v HM Advocate, a case which involved an argument that there had been
incitement of the accused by police officers. Mr Shead relied on the opinion of
Lord Clarke in that case in support of his submission that article 6
was not only concerned with procedural unfairness but extended to what he
referred to as "substantive unfairness".
It seems, however, that what Lord Clarke was careful to identify
was that our law, importantly, recognises the principle that there should be no
abuse of process and that that is a principle which is separate and independent
from the article 6 need to ensure a fair trial. Hence his reliance on and quotation from the
words of Lord Steyn in the case of R v Latif [1996] 1 WLR 104:
"Weighing
countervailing considerations of policy and justice, it is for the judge in the
exercise of his discretion to decide whether there has been an abuse of process
which amounts to an affront to the public conscience and requires the criminal
proceedings to be stayed ... The speeches
in R V Horseferry Road,, ex parte Bennet [1994]1 AC
42 conclusively establish that
proceedings may be stayed ... not only where a fair trial is impossible but also
where it would be contrary to the public interest in the integrity of the
criminal justice system that a trial should take place ..."
and on what was said in similar
vein by Auld LJ in R v Chalkley [1998] QB 84 8 at p.872, namely,
that determining whether or not there has been an abuse of process:
"may require
considerations, not just of the potential fairness of a trial, but also of a
balance of the possibly countervailing interests of prosecuting a criminal to
conviction and discouraging abuse of power.
However laudable the end, it may not justify any means to achieve it."
[31] Turning to the other authority relied on by Mr Shead as indicating, in his submission, that article 6 protection extended beyond procedural matters to substantive ones, it was the case of Teixera, an entrapment case where police officers had instigated the commission of an offence which would otherwise not have been committed. article 6 was found to have been violated because of the "use" at trial of the objectionable police evidence. The context was quite different from the present case. Whilst the decision may be supportive of the view that there can be occasions when it is appropriate to regard a trial as incapable of being fair on the basis that it involves relying on evidence that has been unfairly obtained i.e. taking account of something that has occurred prior to trial, that seems to be no different from acknowledging that Article 6 is concerned to protect fair procedure at trial. But reliance on improperly obtained evidence is quite different and distinct from reliance on the substantive law of the state, the Lord Advocate's intention to do the latter being, apparently, of the essence of the Minuter's complaint.
[32] In all the circumstances, I am not satisfied that there would be any contravention of article 6 of the convention if these confiscation proceedings were to proceed and I will, accordingly, refuse the Minute.