SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
PC15/05
INTERLOCUTOR
in causa
THE SCOTTISH MINISTERS, Civil
Recovery Unit, PO Box 2002, Edinburgh
APPLICANTS
against
STUART DAVID WRIGLEY, 11
Balshagray Avenue, Jordanhill, Glasgow
G11 7EG
RESPONDENT
Act: Crawford, Advocate
Alt : Brabender, Advocate
GLASGOW,
28 November 2005
The Sheriff, having heard Counsel on the
unopposed oral motion of the respondent to receive at the Bar a Minute of
Amendment tendered on behalf of the respondent, open up the record and allow it
to be amended in terms of the said Minute, and close of new, Grants same
and in so doing Allows the Minute to F I form number 12 of process:
thereafter, having heard Counsel in debate, Repels the respondent's
first, second and third pleas in law, and Allows both parties a
proof of their respective averments: Assigns 7th, 8th, 9th
& 101h March 2006 within the Sheriff Court House, 1 Carlton Place, Glasgow
as a diet thereof: having heard Counsel on the issue of the expenses occasioned
by the diet of debate, Finds the respondent liable to the applicants in
those expenses and Allows an account thereof to be given in and Remits
same when lodged to the Auditor of Court to tax and to report thereon.
NOTE
[1] In this summary
application, brought under section 298 of the Proceeds of Crime Act 2002
("the Act"), the applicants seek an order under and in terms of that
section for the forfeiture of the sum of £17,010.00 Sterling ("the sum of money")
together with any interest accrued thereon seized and detained by a Detective
Constable of the Financial Investigation Unit of Strathclyde Police. The
respondent opposes that request. In his answers he seeks dismissal of the application.
The scope of the debate
[2] After sundry
procedure the application was assigned to a diet of debate on the applicant's
pleadings. The pleas-in-law to be debated were the respondent's first, second
and third. All three were supported by a Note of Basis of Preliminary Pleas,
number 8 of process. At the outset of the debate Counsel for the respondent
indicated that she did not wish to insist in the respondent's third plea-in-law,
which accordingly should be repelled. In addition she tendered a Minute of
Amendment and asked for leave to have it received as number 12 of process and
thereafter amend the Record number 11 of process in terms thereof Counsel for
the applicants did not oppose that motion and I granted it. The debate then
proceeded on the respondent's remaining two preliminary pleas. They
each sought dismissal: the first on the ground that the application was
incompetent; and the second that the applicants had failed to comply with the
terms of section 295.
[3] At the conclusion
of the debate I gave my decision orally and ex tempore. I then dealt with
the questions of expenses and further procedure as contained in my interlocutor
of 28 November 2005. Subsequently I was asked by the applicant's law agent to
prepare a written Note, not for the purposes of appeal, but in the hope that it
might be of some general assistance to those working in this area of the law. I
was happy to oblige in the full knowledge that this Note necessarily confines
itself to the issues canvassed in the debate and is not intended to do service
for any more general purpose.
The averments for the applicants
[4] The
pleadings of the applicants set out the background to the action. The respondent
is a self-employed tattoo artist who trades as Terry's Tattoo Studio from
premises at 23 Chisholm Street, Glasgow. On 11 February 2003 officers of Strathclyde
Police Drugs Squad went to the premises for the purpose of searching them. They
had in their possession a search warrant obtained on the suspicion that the
respondent was concerned in the supplying of drugs controlled under the Misuse
of Drugs Act 1971. In execution of that warrant they conducted a systematic
search of the premises, in the course of which they found two safes. In one
they found one hundred tablets of the controlled drug commonly known as "Ecstasy"
and the sum of money in cash. In addition they found three tablets of
"Ecstasy" in a drawer at a workstation used exclusively by the
respondent. The applicants describe the quantity of Ecstasy found in the safe
as being in excess of what is used for personal consumption and consistent with
a dealer amount.
[5] On completion of
the search the officers detained the respondent under section 14 of the
Criminal Procedure (Scotland) Act 1995 and took him to Stewart Street Police
Station, Glasgow where he was interviewed under caution. During the course of
that interview the respondent admitted ownership of both the drugs and the sum
of money but denied any involvement in supplying drugs. When
interviewed under caution regarding the sum of money he maintained
that he ran "cash business" and declined to bank his takings so as to
avoid "the V A T people" accessing his account. He further stated
under caution: "I am running a personal business. I'm just a wee
businessman here. I'm creaming the top but I'm not fucking Rockerfeller".
The respondent maintained under caution that his income arose legitimately from
his business as a self-employed tattoo artist. The applicants found upon the
whole terms of the transcript of the interview which a held to be
incorporated brevitatis causa.
[6] He was subsequently
indicted to appear in Glasgow Sheriff Court charged with, inter alia,
being concerned in the supplying of class A drugs (contrary section 4(3)(b)
of the Misuse of Drugs Act 1971). He went to trial on that indictment in
January 2005 and the jury returned a verdict of not proven on February 2005.
The sum of money seized during the search had been retained and lodged as a
Crown production in that trial. It remained with the Production Keeper of
Strathclyde Police Drugs Squad until 10:00 hours on Tuesday 10 May 2005 when it
was seized by Detective Constable Robert Noble of the Financial Investigation
Unit of Strathclyde Police in terms of section 294 of the Proceeds Crime Act
2002.
[7] The applicants
aver that the respondent maintains a lifestyle and expenditure which
substantially exceeds the extent of his income declared to the Inland
Revenue. They found upon a financial profile prepared on behalf of the Crown on
about 9 June 2005 whose whole terms are held to be incorporated brevitatis
causa. That profile concludes from an examination of the respondent's financial
accounts that in the years 1997/98 to 2002/03 he benefited from criminal
conduct to the extent of £427,953. In that same period his total
expenditure was £564,871.90. His known income for that same period was
£136,918.32. There are no business accounts available for the business of
Terry's Tattoo Studio. Notwithstanding his acquittal on a charge under section
4(3)(b) of the Misuse Drugs Act 1971 the presence of the sum of money taken
together with the substantial quantities of class A drugs on his premises
indicate an involvement with controlled drugs on the part of the respondent. Moreover,
keeping
substantial sum of cash in the manner condescended upon avoids normal
banking procedures, and that avoidance is consistent with involvement in
controlled drugs. Separatim the respondent admitted under caution to
running a "cash business", to avoiding normal banking procedures so
as to prevent access by "the V A T people" to his banking records and
that: "I'm creaming the top". He therefore admitted to evasion of
both Value Added Tax and Income Tax. That evasion constitutes offences under
statute punishable, inter alia, by imprisonment. In the event that the
sum of money arises from the respondent's involvement with controlled drugs, it
is recoverable property. In the event that it arises from his evasion of Value Added
Tax and/or Income Tax it is also recoverable property. In either event the sum
of money is recoverable property in terms of Section 298 (2) of the Proceeds of
Crime Act 2002, having been obtained through unlawful conduct, and as such is
liable for forfeiture under Section 298 of the said Act as sought in the
application.
The respondent's answers
[8] The respondent
admits that the sum of money was seized as averred from the premises from which
he conducts his business as a tattoo artist and that he maintained under
caution that his income arose legitimately from that business. He avers that
the sum of money has been unlawfully detained since 13 February 2003 and that
requests for the return of that sum to him dated 12 February 2003, 11 February
2005 and 4 April 2005 have been unlawfully refused thereby rendering the
application incompetent. Moreover, he explains that he leased premises at 24-25
Grey Place, Greenock, that during January and February 2003 those premises were
in the process of being renovated and that he intended to fund those
renovations with the sum of money.
The submissions for the respondent
[9] Counsel for the
respondent supported the two remaining preliminary pleas in a submission that
fell into three parts: the background to the application, the relevant
provisions of the Act and an analysis of the history of detention of the sum of
money after it was seized in the search. She invited the conclusion that there
was no lawful authority for the detention of the sum of money since
2
February 2005 by what she consistently and repeatedly described as "the
State" and that the purported seizure and detention on 10 May 2005 was
unlawful. She did not volunteer any further explanation or definition of what
she meant by that entity. The action was incompetent and the respondent's first
and second pleas-in-law should be sustained, the application dismissed and an
order made to release the sum of money.
The background to the application
[10] The background to
the application consisted of a chronology of events culled (for the most part)
from the pleadings. Counsel's starting point was the search on 11 February
2003. The following day law agents acting on behalf of the respondent wrote
Strathclyde Police in the terms found in production number 6/1 of process
asking them for the return of the sum of money found in the course of the
search. Counsel commented that the agents received no response to that letter
albeit this is not in the pleadings. On 12 September 2003 the Court granted a petition
warrant in the name of the respondent (this fact is not in the pleadings but
nothing turned on this for either party as the debate was argued). On 2
February 2005 the defender was acquitted following trial. The sum of money had
formed part of the productions in that criminal case. On 11 February 2005 the respondent's
law agents wrote to the office of the Procurator Fiscal in the terms set out in
Production No 6/2 of process requesting return of the cash. That did not occur.
On 4 April 2005 the respondent's law agents wrote again as set out in production
number 6/3 of process with the same negative response. Thereafter, on 10 May
2005 the sum of money was seized. The present application was lodged in court
the following day. The date of service on the respondent was 23 May 2005. It
was only then that the respondent became aware of that act of seizure.
The
relevant provisions of the Act
[11] Turning to the relevant provisions of the
Act, Counsel submitted that the application was governed by Part 5 of the Act
which came into force on 30 December 2002. Section 240 set out the general
purpose of that Part. Subsection (2) directed that the powers conferred by Part
5 were exerciseable in
relation to any property (including cash) whether or not any
proceedings had been brought for an offence in connection with the property.
Chapter 3 of Part 5 dealt with the recovery of cash in summary proceedings.
Section 289 conferred on a customs officer or constable a power of search for
cash which inter alia fell within the statutory definition of
recoverable property. Section 293(1) obliged the applicants to make a code of
practice in connection with the exercise by constables in relation to Scotland
of the powers conferred by section 289. They had complied with that requirement
by promulgating a "Code of Practice for Constables in Scotland under the
Proceeds of Crime Act" by means of Scottish Statutory Instrument 2002/569.
Section 294(1)(a) provided that a customs officer or constable may seize any
cash if he had reasonable grounds for suspecting that it was recoverable
property. Section 295(1) provided that the initial detention period for such
seized property was 48 hours. That section also made provision for extending
that period for a period of up to two years if either one of the two conditions
set out in subsections 295(5) and 295(6) were met. Counsel confirmed that for present
purposes she was founding only upon 295(5). Section 296 made provision for the
treatment of interest and directed that any cash detained under section 295 for
more than 48 hours must be paid into an interest-bearing account and the
interest accruing on it added to the cash on its forfeiture or release, unless the
cash fell within 295(3). This dealt with the situation where the cash was required
as evidence of an offence or evidence in proceedings under Chapter 3. Section
297 dealt with the release of cash detained under section 295. It could be released
on the application of the person from whom the cash had been seized. Section
298 dealt with the forfeiture of cash. Subsection (4) provided that where an
application for the forfeiture of any cash was made under section 298, the cash
was to be detained and not released under any power conferred by Chapter 3 until
any proceedings in pursuance of the application were concluded, including an
proceedings on appeal.
The periods of detention
[12] For the third part
of her submission Counsel said that there were four periods of detention. The
first ran from 17 February 2003 to 2 February 2005, the
second from 2 February 2005 to 10 May 2005, the third from 10 May
2005 to 23 May 2005 and the fourth from 23 May 2005 to the date of the debate.
[13] For the first
period, the original seizure and detention required to be seen within the
context of the relevant provisions of the Act and the background to the
application. Prior to 30 December 2002 when Part 5 of the Act came into force the
state could only seize and detain cash without the existence of a previous
conviction if the cash were being imported or exported to or from the United Kingdom.
The provisions of Part 5 of the Act represented the first opportunity for the
state to recover cash within the United Kingdom. Part 5 envisaged that civil proceedings
would, as she put it, "cross over" with criminal proceedings. Section
294 did not preclude seizure whilst acting under a different statutory authority.
She found support for this proposition in the provisions of the Code of Conduct
and, in particular paragraph 2 of it. Accordingly, a constable could seize cash
under other legal provisions. Section 295 allowed the state to seize cash
whilst an investigation was ongoing and section 296(3) to hold cash as a production
in proceedings. Although all relevant provisions of the Act were in force at
the commencement of the first period, no seizure had been made in terms of
section 294. Because of that there was no application made under section 295
and therefore the respondent could not apply under section 297 for the release
of the sum of money. The respondent did not dispute that the state had the
power to hold on to the cash for the first period of detention, but on his
acquittal the sum of money ought to have been returned to him. The state had no
lawful authority to continue to detain that sum from the date of his acquittal.
[14] For the second
period, from 2 February 2005 if a constable had had reasonable grounds for
suspecting that the sum of money was recoverable property then it ought to have
been seized under section 294. If the applicants had been unable to lodge an
application under section 298 within 48 hours of that seizure they could have
applied under section 295 to continue the period of detention in order to allow
for the raising of the present application. If they had done that then the
respondent could have applied for the release of the sum of money. However, for
the entire duration of this second period no such seizure
was made and the respondent was therefore denied the opportunity
given by the Act to seek its return. The applicants state on record that an
officer of Strathclyde Police detained the sum of money for the whole of the
second period of detention. If this were a seizure of cash under section 294
then the state had failed to seek an extension of the period of detention
beyond the 48 hours that had begun on 2 February 2005. In failing to apply for
such an extension the state had failed to comply with the statutory scheme and
had failed to provide him with the statutory opportunity under section 297 to
apply for release of the detained cash. It could not be contended that the
seizure on 10 May 2005 cured any earlier irregularity because the statutory
scheme was specific and unambiguous. It allowed for seizure pending proceedings
raised under section 298. It did not allow for either detention without any
lawful authority for a period of some three months or seizure purportedly under
section 295 three months after the cash had been seized. For all these reasons,
Counsel submitted the state had no lawful authority to hold on to the cash from
and after 2 February 2005 and the purported seizure on 10 May 2005 was
therefore, unlawful.
[15] Counsel submitted
that in light of her analysis of the first and second periods of detention,
what she had to say about the third and fourth periods was presented on an esto
basis. If that analysis found favour then she invited the conclusion that
the respondent's second plea-in-law should be sustained. If not, but the esto
case found favour, then the respondent's first plea-in-law should be sustained.
[16] For the third
period, the applicants aver in article 2 of condescendence that the sum of
money was seized at 10.00 hours on 10 May 2005. The respondent received no
notification of that seizure. He was entitled to such notification in order to
apply for release of the cash but was denied any such opportunity by the
applicants' failure to notify him of the seizure. The applicant's failure to
notify rendered the seizure unlawful. It could not be said that the applicants
were unaware of whom it was that the sum of money belonged to. The unlawful
nature of the fourth period followed automatically from the third if the esto
case were accepted.
The submissions for the applicants
[17] Counsel for the
applicants began her submissions by inviting the conclusion that the respondent's
first and second pleas-in-law be repelled and the parties allowed a proof on
the applicants' first plea-in-law and the respondent's fourth. She took no
issue with the fact that the respondent's preliminary pleas were not pled on an
esto or separatim basis.
[18] Counsel's
submission was that the respondent's submissions were based upon a fundamental
misunderstanding of Part 5 of the Act, which rendered the respondent's argument
misconceived. Part 5 of the Act was divided into four chapters. Its general
purpose was set out in section 240(1)(a). The "enforcement authority"
there referred to was defined for Scotland in section 316(1) of the Act as meaning
the applicants which was why they had brought the present proceedings. The
applicants were not the Crown or "the state" as Counsel for the respondent
had constantly referred to. Section 241 defined "unlawful conduct" and
established the standard of proof. In particular, subsection (1) defined unlawful
conduct occurring in any part of the United Kingdom as conduct unlawful under
the criminal law of that part. Subsection (3) required the sheriff to decide on
a balance of probabilities whether it was proved (a) that any matters alleged
to constitute unlawful conduct had occurred, or (b) that any person intended to
use any cash in unlawful conduct. Proof was accordingly on the civil, not
criminal, standard. The applicants did not seek to prove that the respondent had
committed a crime, but did offer to prove to the required standard that he had
involved himself in unlawful conduct. The present proceedings were civil in nature:
they did not involve the Lord Advocate or the Procurator Fiscal bringing criminal
proceedings. For present purposes it did not matter whether or not criminal
proceedings had taken place and, if they had, that they resulted in an
acquittal. Criminal proceedings were entirely irrelevant for the purposes of
Part 5 which concerned itself with civil recovery. For these reasons, it was misconceived
to submit that there was a "cross over" between the civil law and the
criminal law. For criminal features of the Act she turned to Part 3 (which deals
with the provisions for Scotland of the confiscation of the proceeds of
crime) and in particular pointed out that section 92 required the
court to act and made this action mandatory. Confiscation followed on the
motion of the prosecutor on conviction or on a disposal. The Crown could move
for a restraint order under section 119 and such an application was made by the
prosecutor. Parts 3 and 5 of the Act were different. Reading the Parts together
highlit [sic] the distinction that had to be drawn between criminal and civil
matters and between the applicants and the Lord Advocate.
[19] Within Part 5 of
the Act, Chapter 2 related to civil recovery in the Court of Session and
Chapter 3 to the recovery of cash in summary proceedings. The powers of search
set out in section 289 were granted in relation to civil proceedings under
Chapter 3 provisions and did not involve the use of criminal powers. The Code
of Conduct related to searches conducted under section 289.
[20] It was no part of
the present application that the search in February 2003 had been conducted
under section 289. That search followed on the grant of a warrant under the
criminal law either at common law or under the Misuse of Drugs Act and as such
it was not conducted under section 289. The present application was presented
under section 298. Section 304 defined "recoverable property" in
Chapter 4 which was headed "General". Section 298 invited the court
to permit the forfeiture of cash that represented the proceeds of unlawful conduct.
The application sought such forfeiture. It was an action in rem, not an action
for payment of the sum sought by the respondent. Section 295 dealt with the
detention of seized cash. Subsection (4) gave the applicants or the Procurator Fiscal
the right to apply to the sheriff. Under subsection (5) the existence of the
criminal proceedings involving the respondent was irrelevant because the cash under
the Act was not seized under the power given by section 294 until 10 May 2005.
Subsection (8) provided that an order under section 295(2) must provide for
notice to be given to persons affected by it. It did not make provision for
such notice to be given within the initial 48 hour period. Counsel was unable
to speculate why that was so but pointed out that the Act was designed to
recover the proceeds of crime and to give notice of an intention to do that
might prejudice the intended purpose of the Act. The date of first deliverance
of the present
proceedings was 11 May 2005 which was within the 48 hour period
following the seizure of the cash. The fact that service was effected after the
end of that period was irrelevant. The applicants' averments supported seizure
under the Act being effected on 10 May 2005 and it was no part of the
applicants' case that there was seizure on an earlier date. It did not fall
within the knowledge of the applicants whether the respondent had been
acquitted on 2 February 2005 but for present purposes they did not doubt that
fact. Prior to 10 May 2005 the sum of money was not detained under any of the
provisions of the Act. The applicants therefore disputed the contention of the
respondent that in fact there was an earlier detention under section 295
detention. The fact that further detention may be allowed under the Act pending
criminal proceedings did not trench against that submission. The Act might
allow a constable to seize cash on the occurrence of an acquittal or pending
further criminal proceedings but it did not require the C I constable to do
that. With regard to the productions numbered 6/1, 6/2 and 6/3 of process,
Counsel commented that the applicants had no record of receiving any of these
letters. This was not surprising because 6/1 bore to having been sent to Strathclyde
Police and 6/2 and 6/3 to the office of the Procurator Fiscal. In any event it
was irrelevant to say that the respondent had sought release from either of those
authorities. If it were said that following the acquittal of the respondent the
police should have released the sum of money to him, and counsel expressly made
no concession in respect of that hypothesis, then he might have a right of
relief against the police, for example, for loss of interest on the sum of
money.
The response for the respondent
[21] In response,
Counsel for the respondent made two points of substance. Firstly, she did not
dispute that the application had been lodged within 48 hours of the seizure on
10 May 2005, but said that section 297 contained no provision that the sum of
money be detained under section 295(2). Section 297 was simply a protective
measure while cash was detained under section 295. The protection was therefore
to cash seized immediately and the respondent needed to know that a seizure and
detention had taken place. He received no such notification until 23 May 2005.
She was unable to point to any statutory provision that required notification
or service of the fact of seizure within the 48 hour period.
[22] Secondly, under reference to section 294, it was incorrect of
the applicants to say that the police were acting in a criminal capacity
between 2 February 2005 and 10 May 2005. They were acting then either under
statute or at common law.
My decision
[23] I prefer the
submissions for the applicants. The application is neither incompetent nor
irrelevantly pled. Accordingly I repel the first and second pleas-in-law for
the respondent as well as his third plea in which he did not insist. As a consequence
I allow parties a proof of their respective averments grounded in the remaining
pleas-in-law.
[24] The plea to the
competency of the application rests upon the proposition I that the applicants
have failed to comply with the terms of sections 294 and 295 of the Act and are
therefore prevented from requesting an order under section 298. As presented in
her submissions, Counsel grounded her attack on the fact that the respondent
had been acquitted of the criminal charge that had followed upon the original
seizure of the sum of money. As a consequence the sum of money ought to have
been returned to him on that acquittal or alternatively ought to have been seized
under section 294 and the appropriate procedure set in train then. Neither occurred
and the failure to comply then with the statutory scheme of the Act could not
be cured by the subsequent purported seizure on 10 May 2005.
[25] It seems to me that
the starting point for deciding whether this attack is well founded raises a
matter of statutory interpretation. The right to bring the present application
is given to the applicants by the Act, and the remedy sought is a creature of
the Act. It is therefore to the Act that one must look to determine what powers
have been granted and how, by whom and in what circumstances they may be
invoked. The researches of Counsel were unable to find any judicial authorities
that might assist in this task.
[26] The principal and
broad purpose of the Act is to prevent persons benefiting from criminal
conduct. This can be determined readily from the terms of its long
title which provides inter alia that the Act is "to
provide for confiscation orders in relation to persons who benefit from
criminal conduct and for restraint orders to prohibit dealing with property, to
allow the recovery of property which is or represents property obtained through
unlawful conduct or which is intended to be used in unlawful conduct, to make
provision about money laundering, to make provision about investigations
relating to benefit from criminal conduct or to property which is or represents
property obtained throught [sic] unlawful conduct or to money laundering".
[27] The power to
confiscate assets is central to how Parliament intended the Act to operate. In
furtherance of that the scheme of the Act provides for detailed provisions
delineating the power to confiscate and the mechanism whereby that may be
achieved which are self-contained for each of the separate legal jurisdictions
comprising the United Kingdom. For Scotland they are contained in Part 3 which
runs from section 92 to section 155. The way in which those provisions have
been framed signals that Parliament intended the confiscation of assets
determined to be the proceeds of crime to be an aspect of the criminal law. In
particular, as was mentioned in the course of the debate, section 92 entrusts
to the prosecutor the responsibility of asking the court for a confiscation
order. In addition I note that subsection (13) provides that the court which
must entertain such a request is either the High Court of Justiciary or the
sheriff, who must in this context be construed as exercising his criminal
jurisdiction. Moreover a confiscation order is a sentence for the purposes of
any appeal or review (subsection 11). Admittedly, as was pointed out,
subsection (9) directs that the standard of proof required to decide any question
arising in a confiscation order is on the balance of probabilities rather than
beyond reasonable doubt, but I do not construe that as altering the character
of the remedy.
[28] While the
confiscation order is central to the operation of the Act it is by no means the
only weapon in its arsenal. One of the other available ones is the recovery of
cash under Part 5. This Part applies to the whole of the United Kingdom with
express variations for each separate legal jurisdiction. For Scotland section
240(1)(b) directs that cash which is, or represents, property
obtained through unlawful conduct, or which is intended to be used
in unlawful conduct, may be forfeited, that an application for forfeiture is
presented to the sheriff and that the proceedings are directed to be civil in
nature. This jurisdiction is taken up again in Chapter 3 of Part 5, comprising
sections 289 to 303. This Chapter gives to a customs officer or constable the
right and the power to search premises for cash (section 289). It also sets out
detailed provisions regarding the exercise of that power (sections 290 and
291), and directs for Scotland that the applicants were required to make a Code
of Practice in connection therewith by constables (section 293). Parties agreed
that the applicants fulfilled this requirement by making the Code of Practice
referred to in the course of the debate. Chapter 3 also details the necessary
concomitant powers of seizure (section 294) and detention (section 295) of
cash, the circumstances in which it had to be placed in an interest-bearing
account (section 296), and the conditions on which subsequently it may be
released (sections 297 and 301). Of particular importance for the present
application is the power granted to the applicants under section 298 to make
application to the sheriff for an order forfeiting the whole or part of the
cash seized. The parties did not dispute that the applicants had made the
present application under that section and that the sum of money could be construed
as recoverable property as defined in Chapter 4 of Part 5.
[29] Counsel for the
respondent submitted that Part 5 envisaged that civil proceedings would
"cross over" with criminal proceedings. She did not elaborate on what
she understood by this but from the content of her submissions I surmise that
it seemed to carry the idea that the two were interrelated and interwoven in
some unexplained way. I disagree. I do so on the ground of the construction of the
Act urged by Counsel for the applicants. The Act has been framed in a way that
permits recourse to certain of its powers by the application of the specific provisions
laid down in the body of the Act for each individual power. One such remedy is
the power to seek forfeiture of cash seized under section 294 and detained under
section 295. Put shortly, Chapter 3 of Part 5 creates provisions which are
self-contained and free-standing whose purpose is to expedite the recovery of
cash by way of summary civil proceedings.
[30] In light of this
approach I find no support in the scheme or terms of Chapter 3 for the
respondent's attack. Firstly, I agree with the submission of Counsel for the
applicants that as presently pled the original seizure of the sum of money was
not made under section 289 of the Act. It was made either a common law or under
another statutory power, unspecified in the averments of fact but likely to
have been under the Misuse of Drugs Act 1971. Accordingly although the
provisions of Part 5 of the Act were in force as at the date of that seizure,
they were not invoked. From this it follows that on the eventual acquittal of
the respondent whatever legal right he had to request or require the
release of the sum of money, it was not under the Act.
[31] Secondly, the
respondent's submission is predicated upon the requirement that the sum of
money be seized under the Act on the acquittal of the respondent. I find no
support for this requirement in the Act. The initiating act that sets in motion
the statutory scheme of Chapter 3 is a seizure of cash under section 294. That
occurs, read short for present purposes, with an exercise of discretion by a
constable who has reasonable grounds for suspecting that the cash
involved is recoverable property. The Act does not indicate when or in what
circumstances a constable may exercise that discretion beyond saying that it
must be on reasonable grounds. I do not find it in the least bit surprising
that the Act is silent on any such indication. Parliament enacted the Act to
prevent persons benefiting from criminal conduct. In order to achieve
that laudable aim Parliament has inter alia vested a constable with a
broad discretion to invoke the statutory power of seizure of such cash. To have
directed when and in what circumstances would have fettered that discretion
with the attendant risk that in an individual situation the intention of
Parliament might be thwarted. While the discretion is broad the power is
limited by the requirement that the initial period of detention is restricted to
48 hours and by the various powers of oversight granted to the sheriff if there
is a desire to extend that initial period. Whether any given seizure is made
under section 294 is in each case a matter of fact and circumstance. The
respondent therefore is ill founded in submitting that the absence of a seizure
of the sum of money under sections 294 and 295 on his acquittal renders the
present application
incompetent, there being no statutory requirement for that to occur.
For the foregoing reasons I repel his first plea-in-law.
[32] In the present
application, the applicants' aver as a fact, and offer to prove, that the
seizure of 10 May 2005 was made under section 294. Whether there ought to have
been an earlier seizure, as the respondent urged, is for present purposes not a
live issue given my analysis of the scheme of Chapter 3. Moreover, I
specifically make no comment one way or the other on the hypothesis adverted to
by Counsel for the applicants without making any concession in that regard that
the respondent might have a right of relief against Strathclyde Police. In the
context of the debate it was a pure hypothesis and I do not need to address it
in reaching my decision on what was argued in the debate. On one matter of nomenclature
I will make a comment: the regular adoption by Counsel for the respondent
during the debate of the phrase "the State". She did not volunteer a definition
of what she meant by that entity for the issues debated. I do not find that
phrase used anywhere within those sections of the Act that featured in the debate,
nor do I find it defined for any of those purposes. I prefer, and find much
more helpful, the approach of Counsel for the applicants who confined herself
to using the designations of those legal entities, including the applicants,
specifically referred to in the Act.
[33] Turning to the
respondent's submission that he was entitled to notification of the seizure on
10 May 2005 and that its absence rendered the seizure unlawful, I conclude that
this too is ill founded. If by notification on the respondent Counsel intended
to convey an entitlement to advance notice of the fact of search then the Act
does not require such notification. I do not find this surprising, for the
reasons referred to above on the purpose and intention of the Act. As for the
suggestion that the respondent was entitles to notification of the fact of that
seizure within the period of 48 hours beginning with the act of seizure, I am
satisfied that it is sufficient for compliance with the provisions of the Act
regarding notice to the respondent as the person affected by continued
detention that he received such notification on service of the application. For
the foregoing reasons I conclude that the respondent's attacks on the relevancy
of the applicant's
pleadings are without foundation and therefore I repel his second
plea-in-law. The parties are accordingly entitled to an opportunity to prove
their respective averments and that enquiry is by way of proof prout de iure.
[34] Lastly, I wish to
express my gratitude to both Counsel. Their submissions clearly focused the
issues in controversy in the debate and made it a pleasure to preside over the
debate.
Expenses
[35] At the conclusion
of the debate I heard Counsel on the question of expenses of the diet. Counsel
for the applicants moved for an award of expenses in respect that the first and
second pleas-in-law for the respondent had been repelled. Counsel for the
respondent moved that there be no expenses due t by either party because the
basis of the pleas had only become clear, consequence of a Minute of Amendment
lodged by the applicants on or about November 2005. Counsel for the applicants
responded to that by saying that the Minute dealt with the issues of relevancy
raised by the respondent's Note of Basis of Preliminary Pleas and that Note had
only come to hand after pressure had been applied to obtain it. In the exercise
of the discretion I had I awarded the expenses of the debate to the applicants
in respect that they had been successful in seeing off the challenges of the
respondent.
Further procedure
[36] Both Counsel were
agreed that the diet of proof ought to be assigned for four days and this was
done.
