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HIGH COURT
OF JUSTICIARY
[2007] HCJ 05
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OPINION OF LORD MACFADYEN
in the petition of
HER MAJESTY'S ADVOCATE
Petitioner;
against
JOSEPH WRIGHT
Respondent;
for
the making of a Confiscation Order
in terms of sections 92 and 104 of the
Proceeds of Crime Act 2002.
__________
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Petitioner: Comiskey A.D.; Crown Agent.
Respondent: Moir; Liam O'Donnell & Co.
29
May 2007
Introduction
[1] On 26 July 2004 at the High Court at Glasgow the respondent pled guilty
to a charge of contravening section 4(3)(b) of the Misuse of Drugs Act
1971. He was sentenced to 21 years
imprisonment. On appeal, the sentence
was reduced to 13 years imprisonment.
[2] At the time
of the respondent's conviction, the prosecutor did not ask the court to act
under section 92 of the Proceeds of Crime Act 2002 ("the 2002 Act"). The court accordingly did not do so, and no
confiscation order was made against the respondent.
[3] In this
petition the petitioner invokes section 104 of the 2002 Act, with a view to the
court's now acting under section 92 and making a confiscation order. A preliminary issue has arisen as to whether
one of the conditions for the application of section 104, namely that the
prosecutor has evidence which was not available to him at the date of
conviction, is satisfied. A hearing,
confined to that preliminary issue, has now taken place.
The legislation
[4] The primary
provisions regulating the making of a confiscation order are contained in
section 92 of the 2002 Act. That section
provides inter alia as follows:
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"(1)
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The court must act under this section where the following
three conditions are satisfied.
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(2)
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The first condition is that an accused falls within either
of the following paragraphs -
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(a)
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he is convicted of an offence or offences, whether in
solemn or summary proceedings, or
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(b)
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...
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(3)
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The second condition is that the prosecutor asks the court
to act under this section.
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(4)
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The third condition is that the court decides to order some
disposal in respect of the accused; and an absolute discharge is a disposal
for the purpose of this subsection."
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Subsection (5) then requires the court, if it acts under the
section, to decide whether the accused has a criminal lifestyle; if so, to
decide whether he has benefited from his general criminal conduct; and if not,
to decide whether he has benefited from his particular criminal conduct. Subsection (6) requires the court, if it
decides that the accused has benefited in either of the ways contemplated in
subsection 5(b) or (c), to decide the recoverable amount, and make a
confiscation order requiring him to pay that amount.
[5] Section 104
provides for reconsideration of the question of the making of a confiscation
order at a later stage. The section
provides inter alia as follows:
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"(1)
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This section applies if -
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(a)
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the first condition in section 92 is satisfied, but no
court has proceeded under that section,
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(b)
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the prosecutor has evidence which was not available to him
on the relevant date,
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(c)
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before the end of the period of six years starting with the
date of conviction the prosecutor applies to the court to consider the
evidence, and
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(d)
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after considering the evidence the court thinks it
appropriate for it to proceed under section 92.
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(2)
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The court must proceed under section 92, and when it does
so subsections (3) to (8) below apply.
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...
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(9)
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The relevant date is -
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(a)
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if the court made a decision not to proceed under section
92, the date of the decision;
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(b)
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if the court did not make such a decision, the date of the
conviction."
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The issue
[6] For section
104 to apply, four requirements require to be satisfied. There is no dispute between the parties that
the requirement of subsection (1)(a) is satisfied, in respect that the
respondent was convicted of an offence in solemn proceedings, and the first
condition in section 92 is thus satisfied, but no court has proceeded under
that section. There is no dispute that
the requirement of subsection (1)(c) is satisfied, in that this application has
been made before the end of the period of six years starting with the date of
conviction. It was agreed between the
parties that subsection (1)(d) confers on the court a discretion as to whether
it is appropriate, if the other requirements of the subsection are satisfied,
to proceed under section 92. Mr Moir for
the respondent accepted, however, that he could point to no circumstances that
might in that event justify me in exercising my discretion to the effect of
deciding not to proceed under section 92.
The matter thus comes to turn on whether the requirement of subsection
(1)(b) - that the prosecutor has evidence which was not available to him on the
relevant date, which in this case is the date of conviction, 26 July 2004 - is
satisfied.
[7] The
petitioner, in statement 3 of the petition, makes the following averments:
"That on 26 July 2004 no realisable assets had been
identified as being held in the name of Joseph Wright. That subsequently, the Petitioner received
information that the said Joseph Wright is the current owner of the property at
65 Queens
Drive, Walton, Liverpool held in the name of Joseph Wright and Mary Wright. That the Petitioner obtained a Restraint
Order on 7 October 2004 which has been served on said Joseph
Wright and Mary Wright."
[8] The respondent
in answer 1 of his Answers to the Statement of Information by the Prosecutor,
avers that:
"at the time of [the respondent's] conviction
the prosecutor was aware, [or] should have been aware, that the accused had
ownership of a half share in the property at 65 Queens Drive, Walton,
Liverpool. In particular, Officers of
Strathclyde Police were advised by the accused at interview on 13th
February that this was his home address.
That Officers of Strathclyde Police were advised that he owned the said
property. The said property was his
address for bail purposes. That the
property was searched by the police.
There were numerous documents within the house including title deeds to
the said property in the name of the accused and his wife, Mary Patricia
Wright. Further the title to the
property was recorded in 1984 in the Birkenhead (Old Market) District Land Registry, Old Market
House, Hamilton Street, Birkenhead, Merseyside, CH41 5FL."
The evidence
[10] Production 1 relates to title no. MS222800, and shows the
entries subsisting in the Register on 7 October
2003. In paragraph A1, it bears to relate to a
piece of freehold land shown edged in red on the title plan, comprising a
number of properties in Queens Drive, including No. 65. In paragraph B1 the proprietors are
identified as Jonathan Howard Roberts and Janet Ann Thain. In paragraph C1 and the Schedule annexed
thereto various properties within the description in paragraph A1 (but not No.
65) are said to be subject to 999 year leases created between 1906 and 1908.
From the fact that the respondent was not disclosed as a proprietor of No. 65
and the fact that there appeared to be no long lease of No. 65, DS Deans
inferred that No. 65 was probably local authority property. He based that inference in part on his
experience of the fact that local authority houses did not appear when the
Scottish land register database available to him was similarly
interrogated. Combining the apparent
absence of reference to the respondent in the Land Register with his lack of
income other than benefits and the fact that he did not have a mortgage, DS
Deans concluded that the respondent did not own No. 65.
[11] DS Deans accepted that he had at the time of his inquiry little
experience of searching the English Land Registry electronically. With the experience he now has, he would have
realised that production 1 did not tell the whole story, and would have made
further inquiries of the Land Registry by telephone. In the event, however, having formed the view
he did, he made no report to Crown Office.
Such a report is made when the inquiries reveal assets in respect of
which a confiscation order may be sought, but not when no such assets are
uncovered.
[12] The operation of the English Land Registry was explained by
Patrick John Brough, who is a qualified lawyer and Land Registrar at the Birkenhead (Old Market) District Land
Registry. In dealing with production 1,
he drew attention to paragraph A4, which contains the following statement:
"The
land edged and numbered in green on the filed plan has been removed from this
title and registered under the title number or numbers shown in green on the
plan."
He also drew attention to
the heading of the document, which contained the warning:
"The
current edition of the title plan cannot be viewed in Land Registry Direct".
It followed that, without
sight of the plan, it was impossible to tell from production 1 whether No. 65
still formed part of title MS222800. Mr
Brough identified production 2 as an official copy of title MS222800, including
the title plan, as it stood on 19 October 2004. Reference to the plan showed that No. 65 was
edged in green, and had thus been removed from title MS222800, and bore the new
title number MS462012. Production 3
showed that the respondent and Mrs Wright obtained leasehold title to No. 65 in
July 1984 for £10,000, originally under title No. MS 207886. Production 9 is an historical copy of the
Register as it stood on 7 October 2003 (the date of DS Deans'
inquiry). It showed, now under title No.
MS306354, the leasehold title to No. 65 acquired by the respondent and his wife
in 1984 and, under title No. MS462012, the freehold title to No.65 which they
acquired in 2002. Mr Brough explained
that the leasehold title number changed from MS207886 to MS306354 because of
the replacement of a lost title certificate.
The freehold and leasehold titles both appeared on the register, because
the two interests had not been consolidated.
[13] Mr Brough said that he would have expected a search of Land
Registry Direct against 65 Queens Drive, Liverpool, L4 6SF on 7 October 2003 to have yielded the then current leasehold and
freehold titles, MS306354 and MS462012 respectively, and not to have yielded
MS222800, which no longer at that date related to No. 65. He was unable to explain how it had come
about that DS Deans' inquiry had yielded production 1. He was, at the same time, unable to challenge
the accuracy of DS Deans' evidence that he had indeed interrogated Land
Registry Direct by reference to the address and postcode of No. 65, and that
that inquiry had yielded production 1.
He said that there were many changes in the system being implemented at
that time, as well as changes in the relevant legislation, although he was not
able to say that these changes had resulted in the form in which DS Deans'
inquiry was answered. Under cross
examination, Mr Brough said that, if a telephone inquiry had been made on 7 October 2003, the inquirer would have been told that the
respondent and his wife owned No. 65.
[14] To complete the Land Registry chapter of evidence, Stuart
Sangster, a retired officer of the SCDEA, explained how it came about that it
was realised by the police that the respondent had a proprietary interest in
No. 65. The North West Asset Recovery
Team in Liverpool were involved in a separate inquiry in relation to the
respondent. They were aware that he and
his wife owned No. 65, and wished to find out whether any confiscation order
affecting that property had been made in the Scottish proceedings. They therefore contacted the SCDEA's
predecessor, the SDEA, and on or about 23 August
2004
spoke to Mr Sangster. They faxed him a
copy of the title MS306354 (production 8).
He consulted the SDEA records and found that they had not previously
been aware of the respondent's proprietary interest in No. 65. He therefore made a report to Crown
Office. He confirmed DS Deans' evidence
that such a report would be made when investigation revealed the existence of
assets, but that no report would be made when the investigation failed to
reveal the existence of assets. He
further stated that when the electronic means of interrogating the English Land
Registry became available, it was a management decision that it was to be used
exclusively, because it was cheaper than other forms of inquiry. The electronic facility was available in
2003.
[15] The other chapter of the evidence related to the events of 13 February 2004, when No. 65 was searched, and the respondent was
conveyed to Scotland and subsequently
interviewed. Two officers of the SDEA
who were present when the search was carried out gave evidence, namely
Detective Inspector Thomas Lochhead and Detective Constable Craig Waugh. Although they were present when the search
was carried out, it was carried out not by them but by English police officers. They were unable to say what was found,
except by reference to the record which was kept. They had no recollection of the question of
who owned the house being asked or answered in the course of the search. DI Lochhead and DC Waugh conveyed the
respondent from Liverpool to Scotland after the search was
completed. Each of them maintained that
he had sat in the back of the car with the respondent and that the other had
been the driver. DI Lochhead denied
under cross examination that during the journey the respondent had expressed
concern as to whether he might lose his house.
DC Waugh said that he had no recollection of hearing anything of that
sort. DI Lochhead and DC Waugh conducted
the interview of the respondent which took place on their return to Scotland, and of which production 5
is a transcript. In that interview, No.
65 was stated to be the respondent's address, but nothing was said or asked
about who owned it.
[16] Detective Constable Michael Cain of Merseyside Police was the
officer responsible for maintaining the record of the search (productions 6 and
7). His experience was that in such a
search title deeds of the house would not be specifically sought. The question
of ownership of real property would be followed up by means of a Land Register
inquiry at a later date. He was not
aware of any discussion of ownership of No. 65 in the course of the search.
There was no mention of title deeds in productions 6 or 7. In the course of his evidence a video record
of the search was shown. His attention
was drawn to a cabinet in the living room shown in the video, but he did not
recall its being searched.
[17] The respondent also gave evidence. He confirmed that he and his wife were at the
time of his arrest the joint owners of No, 65.
They had bought it in 1984 for £10,000.
There was no mortgage. The title
deeds were kept in a red folder in a drawer in the cabinet in the living room. The respondent's evidence was that in the
course of the search the contents of the cabinet were removed, but then put
back. He did not see anyone open the red
folder.
[18] The respondent confirmed that he was conveyed from Liverpool to Scotland by DI Lochhead and DC
Waugh. His recollection was that DC
Waugh accompanied him in the back of the car and that DI Lochhead drove. He said that, in the car, DI Lochhead said:
"That's a nice house you've got". He was
concerned about the house, and asked DI Lochhead: "Is there a chance
they'll take the house off me?" DI
Lochhead replied: "If you tell us where Campbell's [a co-accused's] money
is, we're not interested in you". Under
cross examination, the respondent accepted that he knew that in such cases his
house could be confiscated. When asked
why, if he was concerned about losing the house, he drew attention to his
ownership of it by asking the question he claimed to have done of Lochhead, the
respondent offered no convincing explanation.
The facts established by the evidence
[19] It is clear that at all material times the respondent and his
wife were joint owners of No. 65. The
titles confirm that they acquired the leasehold interest in 1984 and the
freehold in 2002.
[20] The Scottish police were aware in October 2003 that the
respondent lived at No.65. DS Deans made
inquiries on 7 October 2003 with a view to ascertaining
whether the respondent owned or had a proprietary interest in No. 65. The inquiry took the form of accessing the
electronic database, Land Registry Direct.
That facility had been relatively recently introduced, but the Scottish
police had decided at management level to use it in preference to other more
expensive forms of inquiry. There was no
evidence that that was an unreasonable decision. The database was accessed by DS Deans in the
appropriate way, by entering the address and postcode of the property in
question. The response to the inquiry
took the form of production 1. That
response was inaccurate, because the title sheet produced in production 1
(MS222800) no longer applied to No. 65.
The inquiry should have yielded copies of MS306354 and MS 462012,
respectively the leasehold and freehold titles to No. 65, but did not do so. The reason for that failure was not explained
in evidence. The terms of production 1
(in particular paragraph A4) would have revealed to a person experienced in
searching the English Land Register that, contrary to the indication given in
paragraph A1, MS222800 might not apply to No. 65. Even an experienced person would have
required to go beyond production 1 to complete the inquiry, because the title
plan was not available on Land Registry Direct, and it was only by reference to
the green annotations on that plan that it would have been discoverable that
No. 65 had been removed from MS222800 and now appeared on different title
sheets. If an inquiry had been made of
the Land Registry by telephone, the correct information, that the respondent
and his wife owned No. 65, would have been provided. DS Deans in good faith did not fully
understand production 1, and mistakenly thought that it indicated that No. 65
was probably a local authority house.
The practice was that the police reported to Crown Office the discovery
of assets which might be the subject of confiscation proceedings, when such
assets were discovered, but made no report when no such assets were
discovered. In accordance with that
practice, DS Deans, having concluded that the respondent had no income other
than benefits, and no assets, made no report of Crown Office.
[21] The title deeds of No. 65, examination of which would have
disclosed that the respondent and his wife owned No. 65, were present in No. 65
at the time of the search on 13 February 2004. They were contained in a red folder kept in
the cabinet in the living room. That red
folder was removed from the cabinet in the course of the search, then returned
to the cabinet. I base these findings on
the evidence of the respondent. I have
no reason to reject that aspect of his evidence. The red folder and its contents were not
seized. There is no evidence that any
officer involved in the search realised that the red folder contained title
deeds, or that the respondent and his wife owned No. 65. There was no discussion in the course of the
search about who owned No. 65.
[22] The respondent was transported from Liverpool to Scotland by DI Lochhead and DC
Waugh. DI Lochhead drove the car. As to the identity of the driver, I prefer
the circumstantially relatively detailed evidence of DC Waugh, supported by the
respondent, to the evidence of DI Lochhead.
I regard DI Lochhead as mistaken on this point, but do not find in that
mistake any reason for doubting the credibility or reliability of his evidence
generally. I reject the evidence of the
respondent that he voiced to the police officers concern that he might lose the
house (and thus implicitly disclosed to them his ownership of it). He accepted that he knew that he might lose
the house, and I do not find it credible that in that situation he would say
anything to the police to draw their attention to his ownership. In addition, both police officers gave
evidence, which I accept, that there was no discussion which referred to the
ownership of the house.
[23] When the respondent was interviewed on 13 February 2004, it was recorded that he lived at No. 65, but there
was no discussion of who owned it.
[24] The fact that the respondent and his wife were joint owners of
No. 65 came to the knowledge of the SDEA on or about 23
August 2004. The North West Asset
Recovery Team in Liverpool contacted the SDEA in connection with a separate
inquiry of their own, in order to discover whether No. 65 had been affected by
confiscation proceedings in Scotland. A copy of the correct titles was faxed to Mr
Sangster. When he realised that these
titles showed that the respondent was an owner of No. 65, he reported that fact
to Crown Office.
Crown submissions
[25] Having, as the first chapter of her submissions, reviewed the
evidence, the Advocate depute turned, in the second chapter, to the
construction of section 104(1)(b).
First, she emphasised that the question related to the evidence
available to "the prosecutor" at the relevant date, the date of the conviction. The prosecutor, she submitted, was the Lord
Advocate, and included those acting on his behalf and under his direction in
the Crown Office and Procurator Fiscal Service.
The police were not encompassed within the expression "the prosecutor". The issue was therefore what information was
available at the date of the conviction to the Crown Office, not what
information was then available to the police.
Since by the date of conviction no report had been made by the police to
the Crown Office that the respondent was joint owner of No. 65, the evidence of
his ownership subsequently uncovered and reported to Crown Office by Mr
Sangster in August 2004 was evidence which was not available to the prosecutor
at the date of conviction.
[26] The second point made by the Advocate depute in relation to the
construction of section 104(1)(b) related to the phrase "was not available to
him". Availability was a matter of
fact. Evidence either was or was not
available to the prosecutor at the date of the conviction. The language of the paragraph left no room
for consideration of whether evidence which was not in fact available to the
prosecutor might have been made available by the exercise of greater diligence
or by inquiries which were not in fact carried out, or whether there was a good
excuse for its not having been available.
Section 104(1)(b) did not pose the sort of test adopted in relation
to appeals based on fresh evidence under section 106(3)(a) of the Criminal
Procedure (Scotland) Act 1995 ("the 1995 Act"), where in terms of section
106(3A) there had to be a reasonable explanation of why the evidence tendered
in support of the appeal was not heard at the original proceedings. Section 104(1)(b) was to be contrasted also
with section 268(2) of the 1995 Act which empowers a judge to permit additional
evidence to be led where inter alia he
accepts that at the commencement of the trial the additional evidence "was not
available and could not reasonably have been made available". The latter provision illustrates the language
which Parliament can use if it wishes to make the test not merely actual
availability, but potential availability if reasonable inquiries were
made. It was thus irrelevant to the test
set by section 104(1)(b) to examine whether the evidence of the respondent's
part ownership of No. 65 might have been made available by the date of the
conviction if different inquiries had been carried out, or whether there was a
lack of care or diligence in the fact that those different inquiries were not
carried out.
[27] The Advocate depute in the third chapter of her submissions
sought to derive assistance from Regina v Soneji [2006] 1 AC 340. That case was concerned with the
consequence of failure to adhere to a statutory timetable in confiscation
proceedings in England under the Criminal Justice
Act 1988 as amended. The Advocate depute
referred to the speech of Lord Steyn at paragraph 15, where his Lordship quoted
at length from the speech of Lord Hailsham of St Marylebone LC in London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 at 189-190 (1980 SC (HL) 1 at 30-31), and endorsed Lord Hailsham's
departure from the old test of whether a statutory requirement was mandatory or
directory, and his adoption of "a more flexible approach of focusing intensely
on the consequences of non-compliance, and posing the question, taking into
account those consequences, whether Parliament intended the outcome to be total invalidity". I understood the Advocate depute to contend
that an analogy could be drawn between failure to adhere to a statutory
timetable and the issue arising in the present case under section
104(1)(b). The Advocate depute also drew
attention to several passages in the speeches in Soneji in which Parliament's policy in enacting the legislation
regulating the confiscation of the proceeds of crime was identified. She referred to the speech of Lord Steyn at
paragraph 1, where his Lordship said:
"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."
At paragraph 24, his
Lordship made reference to "the ... public interest in not allowing a convicted
offender to escape confiscation for what were no more than bona fide errors in
the judicial process" (see also per Lord Cullen of Whitekirk at paragraph 45
and Lord Brown of Eaton-under-Heywood at paragraph 77).
[28] The Advocate depute's submission therefore was that, since the
Crown Office did not have at the time of the conviction the evidence that the
respondent and his wife were joint owners of No. 65, the requirement of section
104(1)(b) had been satisfied. The
Advocate depute therefore sought a finding that section 104 applied, and the
continuance of the petition to a notional diet, for consideration of further
procedure.
The respondent's submissions
[29] The submission advanced by Mr Moir on the respondent's behalf
was simple and straightforward. Once it was
known to the prosecutor, as it was in the present case, that an accused person
was resident at a particular property, he had the power to investigate the
ownership of that property. It was for
the prosecutor to decide how to ingather evidence on that matter. If he chose to delegate the investigation to
the police, that did not affect the question of the availability of evidence to
him. The evidence of the respondent's
ownership of No. 65 was contained in a public register, the English Land
Registry. Access to the content of the
register was available to the public.
That evidence could have been obtained by the prosecutor from the Land
Registry by a simple inquiry by letter or telephone (as confirmed by Mr Brough
in evidence). In that context, what
happened to the inquiry made by DS Deans by accessing Land Registry Direct was
beside the point. The evidence that the
respondent and his wife were the owners of No. 65 was at all material times
available to the prosecutor. The
petitioner had therefore failed to satisfy the requirement of section
104(1)(b). The petition should therefore
be refused.
Discussion
[30] In order to determine whether, in the circumstances of the
case, the petitioner has satisfied the requirement of section 104(1)(b) that
"the prosecutor has evidence that was not available to him on the relevant
date" it is necessary to construe the words "prosecutor" and "available". Each of these words is capable of more than
one meaning. "Prosecutor" might mean the
Law Officer, Advocate depute or member of the Procurator Fiscal Service who
conducted the proceedings on the date of any decision not to proceed under
section 92 (section 104(9)(a)) or on the date of conviction (section
104(9)(b)). Alternatively, it might mean
the Lord Advocate as head of the system of public prosecution, or it might
extend to include the whole Crown Office and Procurator Fiscal Service. In that
situation, it seems to me to be legitimate to construe "prosecutor" in the
light of the system of public prosecution which prevails in Scotland. "Available" can bear various shades of
meaning. A dictionary definition is
"capable of being used; at one's disposal; within one's reach" (OED). That being so, it is in my view legitimate to
have regard to the policy and public interest underlying the legislation of
which section 104 forms part. It is
therefore legitimate in construing what is meant by "available" to bear in mind
that Parliament has given a high priority to the confiscation of the proceeds
of crime (Soneji, per Lord Steyn at
paragraph 1) and that there is a public interest in not allowing convicted
criminals to avoid confiscation as a result of bona fide mistakes in procedure
(Soneji, per Lord Steyn at paragraph
24). These considerations would tend to
point away from a construction of available that would enable the accused
person too readily to escape confiscation proceedings.
[31] I turn therefore to the construction of "prosecutor". In view of the fact that serious crime is
prosecuted in Scotland by a public prosecutor, the Lord Advocate, who heads and
directs a public prosecution service, the Crown Office and Procurator Fiscal
Service, I do not consider that it would be realistic to construe the word
"prosecutor" in section 104(1)(b) as referring to the individual prosecutor who
conducted the proceedings on the relevant date.
I consider that the word should be given a broader, institutional
meaning, encompassing the whole prosecution service. It is in general for the Lord Advocate, and
those acting under his or her direction, to secure that, within the service,
evidence which is available to the service finds its way to the individual
member of the service who requires it. I
do not exclude the possibility that circumstances might arise in which evidence
which was available to one Procurator Fiscal might be held not to be available
to another Procurator Fiscal in another part of the country. Prima
facie, however, I consider that the question of non-availability to the
prosecutor raised by section 104(1)(b) should be regarded as a question of
non-availability to the prosecution service as an institution. There remains, however, the question of the
role of the police, and whether the police should be regarded as falling within
the scope of "the prosecutor". In my
opinion they should not. Although the
police (at least, the Scottish police) are subject to direction by the Lord
Advocate, they are, in my opinion distinct from the prosecution service, and it
would be giving too broad a meaning to the word "prosecutor" to regard it as encompassing
the police. That does not, however, in
my view exclude the possibility that there may be circumstances in which the
availability of evidence to the police may have a bearing on whether that
evidence is to be regarded as available to the prosecutor; but that is an
aspect of the meaning of "available" rather than an aspect of the meaning of
"prosecutor".
[32] I turn now to the question of availability. There is an attractive simplicity about the
submission made on the respondent's behalf that, once it was known to the
prosecutor, as it was long before the relevant date, that No. 65 was the
respondent's place of residence, the evidence that he had a proprietary
interest in that house which was available in a publicly accessible register,
the Land Registry, was "available" to the prosecutor. It could have been obtained by a simple
inquiry. It was, to adopt one of the
dictionary definitions, within the prosecutor's reach. It seems to me that in some circumstances
that approach might prevail. If the
situation as at the relevant date had been (a) that the prosecutor knew that
the respondent lived at No. 65, (b) that the Land Registry showed that the
respondent had a proprietary interest in that house, but (c) that the
prosecutor had taken no steps to make any form of inquiry as to what the Land
Register showed as to the ownership of No. 65, I am inclined to think that it
would be difficult for the prosecutor subsequently to satisfy the requirement
of section 104(1)(b). In my opinion,
however, the circumstances of the present case are much more complex than that.
[33] It is in my view necessary, in considering the question of
availability, to take into account the whole actual circumstances. The prosecutor by the relevant date was well
aware that the respondent ordinarily lived at No. 65. It is clear that the Land Registry contained
unequivocal evidence of his proprietary interest. But as at the relevant date the prosecutor
did not know that. That was because (a)
although an inquiry was made of the Land Registry, the police officer concerned
in good faith and with some (although not complete) justification misunderstood
the response to his inquiry, and (b) because of that misunderstanding, but in
accordance with normal practice when evidence of ownership of assets is not
uncovered, no report was made to Crown Office.
In my opinion, the evidence shows that the form of inquiry undertaken by
DS Deans, by accessing Land Registry Direct, was one of the ways of obtaining
information from the register made available by the Land Registry. I do not consider that DS Deans can be
criticised for accessing Land Registry Direct rather than making an inquiry of
the Land Registry by letter or telephone.
That is particularly so in the light of the evidence that it was a
decision made at management level within the police that that form of inquiry
should be adopted. Nor do I think that
DS Deans should be criticised for not understanding that paragraph A4 of
production 1 potentially overruled the statement in paragraph A1 that MS222800
applied to No. 65. Although a person
with more experience of the Land Registry might have understood the
significance of paragraph A4, and the need to follow it up by ascertaining what
the title plan showed, the fact remains that production 1 was erroneous. MS222800 ought not to have been provided as a
response to an inquiry about No. 65. The
circumstances therefore are that, through an unexplained failure on the part of
Land Registry Direct to give a correct answer to DS Deans' inquiry, he was
misled into thinking that the respondent did not own No. 65. As a result, no report was made to Crown
Office. In that situation, leaving aside
for the present the matter of the title deeds in the cabinet in No. 65, I am of
opinion that the petitioner has established that the requirement of section
104(1)(b) is satisfied. The evidence which
ought to have been obtainable from the Land Registry was not available, in any
practical sense, to the prosecutor as at the relevant date.
[34] Turning now to the evidence that the title deeds to No. 65 were
in a cabinet in the house at the time of the search, I am of opinion that there
is insufficient evidence to justify a conclusion that that constituted evidence
which was at the relevant date available to the prosecutor. Although I have accepted the respondent's
evidence that the title deeds were in a red folder in the cabinet and that the
red folder was removed from and returned to the cabinet in the course of the search,
there was no evidence that any officer involved in the search saw the title
deeds, still less understood their significance for confiscation
proceedings. Had the red folder or its
contents been seized, that would probably have been different, because it
would, I think, be difficult for the petitioner to argue that material seized
by the police in the course of the search was not available to the
prosecutor. In the event, however, the
evidence did not go that far.
[35] I have already explained that I reject the respondent's
evidence that he implicitly told DI Lochhead in the car that he owned No.
65. No question therefore arises as to
whether any such statement would have been evidence available to the
prosecutor.
[36] My conclusion that the evidence of the respondent's ownership
of No. 65 was not available to the prosecutor at the relevant date has been
reached on an examination of the circumstances of the case as disclosed in the
evidence which I heard. I have found it
unnecessary to express a concluded view on whether the petitioner could have
succeeded on the simple basis that as at the relevant date the Crown Office had
received no report identifying the respondent as having a proprietary interest
in No. 65. I have also found it
unnecessary to reach a concluded view on whether evidence not in fact known to
the prosecutor might be said to be available to him, if it could have been
obtained if further or different inquiries had been made. The contrast between section 104(1)(a) of the
2002 Act and section 268(2) of the 1995 Act suggests that the question whether
evidence which has not been discovered but might have been discovered by
reasonable inquiries is "available" may require to be decided in another
case. In the present case, I prefer to
reserve my opinion on those issues. My
decision is one which turns on a detailed examination of the rather unusual
circumstances of the particular case.
Result
[37] I therefore find that section 104 has been shown to apply in
the present case. I shall appoint the
case to a notional diet at which further procedure can be determined.
