Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 6

HCA/2016/000616/XC

Lord Justice Clerk

Lord Turnbull

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in

APPEAL AGAINST SENTENCE

by

RYAN McNAIR

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  Moore; V Good & Co

Respondent:  M McFarlane, AD; Crown Agent

24 January 2017

[1]        The appellant pled guilty by section 76 procedure to a charge of being concerned in the supply of ecstasy on a single day.  At about 10 pm on the day in question, a Ford Focus belonging to the appellant was seen by police officers to pull into the car park of a rugby club which was known to be closed.  The police followed and saw an individual described for convenience as a co-accused standing by the car.  A search of the area found a quantity of diamorphine under a nearby tree, along with cash of £7,465.  The co-accused admitted responsibility for the heroin.  He was heard to shout “Ryan, you don’t have a warrant anymore”.  It was subsequently accepted that the appellant had been in the car.  A search of the car led to the discovery of 108 tablets of ecstasy.  When the appellant was arrested at the home of the co-accused he admitted responsibility for the tablets, and subsequently submitted a section 76 plea.  The co-accused pled guilty to a separate section 76 indictment.  In the case of the appellant, the procurator fiscal depute made a motion for forfeiture of the vehicle.  The sheriff reports that he was advised that the drugs were valued between £100-£200.  From his report it would appear that he was told this by the Crown, since the material is contained in the narrative of the facts, and before the section headed “mitigation”.  Counsel for the appellant indicated her understanding that the figure was given by the defence but not disputed by the Crown.  However it came about, the sheriff in fact proceeded on his own understanding that the street value of such a drug might be between £5 and £10 per tablet.  The advocate depute confirmed that issue could not be taken with the narrative of a value of £100-£200.  The sheriff states that he was aware that the vehicle was reasonably valuable and worth about £9,000 but it is not clear whether this information was provided by the Crown or the defence.

[3]        The appellant has a prior conviction for supply of heroin for which he was sentenced to 40 months imprisonment.  On the present charge, the sheriff imposed a sentence of 12 months imprisonment.  He also ordered forfeiture of the vehicle:  it is in relation to that last order that the appeal is advanced.  In relation to this order the sheriff stated:

“It appeared that despite a hefty sentence previously the appellant had continued to be involved in the drug scene as a dealer to fund his habit.  The vehicle had been used in the transportation of his drugs and when the procurator fiscal moved for forfeiture of the vehicle I agreed to this after hearing representations from the appellant’s solicitor that it was his pride and joy and only asset.”

[4]        The sheriff does not refer to the statutory provision under which he made the order in question.  He refers to a number of cases in which forfeiture of vehicles of some value was made by the court, but these are all cases under section 33A of the Road Traffic Offenders Act 1998.  The cases may be relevant to the extent that any issue of proportionality is considered therein, but the basis for making the order itself is different.  In traffic cases the basis for making the order is triggered by the commission of a relevant driving offence.  In the present case, the order was a suspended forfeiture order under s 21 of part II of the Proceeds of Crime (Scotland) Act 1995, in terms of which a suspended forfeiture order (which becomes final after 60 days or on an appeal settled in favour of the prosecutor) may be made where the court is satisfied that the property was, at the time of the offence, being used for the purpose of committing or facilitating the commission of any offence.  That requires an assessment by the sheriff of the extent to which the vehicle was so used.  It also requires an assessment of the proportionality of making such an order in all the circumstances of the case.

[5]        Moreover, in the present case the sheriff was advised that confiscation proceedings had been initiated in this case and remained live, despite the fact that the only asset of the appellant appears to have been the motor car.  The sheriff did not appear to address his mind to the interplay between the provisions of the Proceeds of Crime Act 2002 and those of the Proceeds of Crime (Scotland) Act 1995.  The issues under confiscation proceedings include whether there is established a criminal lifestyle, a benefit from such, the extent of any such benefit and the available amount for making a confiscation order.  The issues are quite different from the issue considered under section 21.  The sheriff says (page 5) that in confiscation proceedings regard would be had “to the present case as well as the previous conviction”.  In fact, the way in which the effect of forfeiture may be taken into account in confiscation proceedings is not as straightforward as the sheriff appeared to contemplate, having regard to Sections 94 and 95 of the 2002 Act but we need not go into that, since we are advised that the recovery proceedings have been abandoned.

[6]        Of more significance is section 97 of the 2002 Act which gives clear priority to confiscation proceedings, providing in section 97(3) that the court must take account of the confiscation order before making other orders, including one for forfeiture under section 21 of the 1995 Act.  It was conceded by the Crown that in the circumstances the sheriff should not have been asked to make the forfeiture order, and that he erred in doing so.  We agree that the forfeiture order requires to be quashed.  Although confiscation proceedings have now been abandoned, the Advocate Depute advised us that she did not seek such an order, having regard to the proportionality issues arising in the case, and the Crown concession regarding the value of the drugs.