|
HIGH COURT OF JUSTICIARY
[2007] HCJ09
|
|
|
OPINION OF
LADY SMITH
in Minute
by
SCOTT McLARTY
Presently a
prisoner in HM Prison Barlinnie
ннннннннннннннннн________________
|
Shead;
Advocate for the Minuter
Divers;
Advocate-Depute for the Crown
31 August 2007
Introduction
[1] This
is a Minute at the instance of Scott McLarty, who pled guilty to a
contravention of s.4(3)(b) of the Misuse of Drugs Act 1971, at Glasgow
High Court, on 9 May 2007. The charge to which he pled guilty was on an
indictment under s.76 of the Criminal Procedure (Scotland
) Act 1995 and was to the effect that he had been concerned in the supply
of cocaine between 23 June 2006
and 4 August 2006.
[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 г500
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 г4,000. The
agreement was that was what he had told the police.
[3] On
9 May 2007, the Crown
served a copy of a statement under and in terms of s.101 of the Proceeds
of Crime Act 2002 ("the 2002 Act") on the Minuter and lodged the
principal statement at the bar of the court.
The court required the Minuter to indicate within six weeks to what
extent he accepted the allegations in the statement and to lodge answers, if so
advised, and adjourned the diet.
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 г4,000. 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 (Scotland)
Act 1995 ("the 1995 Act") . It is the 2002 Act which now
provides for the making of confiscation orders and it allows for the making of
such orders in respect of an accused's benefit from "general" or "particular"
criminal conduct. If each and all of
three conditions apply, then the court "must act". Those conditions are set out in s.92
and, insofar as are relevant for the purposes of the present case are:
"(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, 7 August 2006.
[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 (Scotland)
Act 1987 , enshrined the same
approach in principle. The policy
underlying it was commented on by Lord Steyn in R v Soneji [2006]
1AC 340 at para 2 under reference to the relevant English legislation:
"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 Bowie .
Parliament had given a high priority to the confiscation of the proceeds
of crime: HMA v Wright 2007
SCCR 258; R v Soneji. Regarding the change in the statutory
provisions conferring discretion on the court, the Advocate-Depute submitted
that there was no significant difference.
The court still had a discretion.
It was a wide discretion. From
the Lord Advocate's perspective, there had always been a need to consider
whether it was fair to go ahead with the confiscation proceedings and the
change in the court's discretion did not and need not operate so as to increase
that onus. The Lord Advocate has and
recognises that she has a duty to act responsibly and the shift in the court's
discretion under the legislation did not alter or add to that.
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 Bowie, what Article 6
of the convention guarantees is fairness in the procedures that are adopted and
engaged with a view to securing a confiscation order. I agree with and would adopt what he said at
paragraph 27:
"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."
[30] Following that line of reasoning, where the objection is that
the Lord Advocate will be acting irresponsibly in asking the court to act
at all, properly analysed, the issue is not whether article 6 will be
breached but is, rather, whether or not to do so would be an abuse of process. It is not suggested by the Minuter that it
would be an abuse of process for the Lord Advocate to ask the court to act
in this case.
[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.
