Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT PEEBLES

JUDGMENT   by   SHERIFF NEIL J. MACKINNON, Advocate, Sheriff of Lothian and Borders at Peebles   in the cause   THE SCOTTISH MINISTERS, CIVIL RECOVERY UNIT, P.O. BOX 2002, EDINBURGH Minuters:   against   WAYNE PETER HOLLOWAY, residing at Flat 2/a, 4 Casselbank Street, Edinburgh Defender ___________

Act: MacGregor

Alt: Bannerman

 

Peebles, 20 October 2009

The Sheriff having resumed consideration of the cause finds the following facts admitted or proved:

1. The Minuters are the Scottish Ministers, Civil Recovery Unit, P.O. Box 2002, Edinburgh.

2. The defender is Wayne Peter Holloway, residing at Flat 2/A, 4 Casselbank Street, Edinburgh.

3. James O'Donnell is a friend of the defender. The defender and Mr O'Donnell have known each other for a number of years.

4. The defender and Mr O'Donnell are drug addicts. The defender and Mr O'Donnell have been addicted to heroin for a number of years. Mr O'Donnell has a number of convictions for offences under the Misuse of Drugs Act 1971.

5. On 28 July 2008 the defender and Mr O'Donnell were travelling south on the A702 in the defender's car, a blue Ford Escort with registration number P180 HTS.

6. The A702 is a main road between Scotland and England.

7. The A702 is used by criminals as a main route to transport drugs and cash between Scotland and England.

8. As at 28 July 2008, both the defender and Mr O'Donnell were unemployed. They had been unemployed for a number of years.

9. The defender's car was stopped by the police shortly after 12.40 hours on 28 July 2008. Mr Holloway was driving the vehicle and Mr O'Donnell was in the passenger seat.

10. The police officers who stopped the vehicle were P.C. Neil Wilson and P.C. Russell Copeland. They were joined by P.C. Michael Norrie and P.C. Michelle Adams.

11. When the defender's vehicle was stopped, the police officers observed a large quantity of drugs paraphernalia on the back seat of the defender's vehicle. There were syringes and citric acid there. Such items are routinely used to inject heroin.

12. The police officers detained the defender and Mr O'Donnell and a search was carried out of the defender's vehicle.

13. During the course of this search the police discovered a large amount of cash within a wash bag. The wash bag was on the back seat of the vehicle. A small amount of brown powder was discovered to be in Mr O'Donnell's possession. This was later tested and discovered to be heroin.

14. At the time of the discovery of the cash within the defender's vehicle, the defender claimed that the cash was his and that there was £6,000 in cash in the wash bag.

15. The cash was seized by the police officers under the Proceeds of Crime Act 2002 and the defender and Mr O'Donnell were taken to Peebles Police Office. The defender's vehicle was taken to Peebles Police Office and searched. Apart from various items of drug paraphernalia nothing else was discovered within the car. A thorough search of the vehicle had been carried out by the police.

16. The cash found within the wash bag was later counted by D.S. Andrew Ferguson and D.C. Kenneth Young. Both officers were attached to the Financial Investigation Unit Branch of Lothian and Borders Police at Fettes Avenue, Edinburgh. The cash amounted to £12,120 sterling in a mixture of denominations. The issue date of the bank notes ranged from 1991 to 2007.

17. The cash seized has been deposited in an interest bearing bank account with the Royal Bank of Scotland Plc, St Andrews Square branch, Edinburgh by officers of the Financial Investigation Unit branch of Lothian and Borders Police.

18. At Peebles Police Office the defender and Mr O'Donnell were interviewed separately.

19. Prior to conducting said interviews P.C. Norrie checked the police intelligence database. The database contained an entry stating that the defender and Mr O'Donnell were involved in the supply of controlled drugs. In particular they were sourcing drugs in England and returning to Scotland to sell these in Edinburgh.

20. The defender was cautioned prior to his interview commencing. The defender chose to answer questions put to him by police officers. During the interview the defender maintained that the cash in the wash bag was compensation from a road traffic accident that the defender had been involved in a number of years in the past. No alternative explanation for the source of all or any of the cash was given by the defender.

21. During interview, the defender stated to the police officers that he had a bank account. There was approximately £1,000 in the bank account.

22. The defender stated that he had removed the compensation money from his bank account in 2006.

23. During said interview the defender maintained that he had been travelling to England to buy a vintage vehicle or vehicles with the money in the car. The defender was not sure where the vehicles were situated or how much they would cost. The defender stated that the person selling the vehicles was called "Tom". He was unable to provide a surname for this individual or an address. The defender maintained that he had a telephone number for "Tom". No telephone number was provided by the defender to the police. No relevant documentation was produced by the defender to vouch the proposed purchase of any vehicles either at the interview or subsequently.

24. The defender did not mention during said interview that he received any loans or generated funds through legitimate work.

25. As at 28 July 2008 the defender was unemployed. His monthly income from state benefits was approximately £759.20. His monthly expenditure on household bills, his car and drugs was approximately £1,000. His outgoings exceeded his income. Any sums recovered by way of compensation following an accident had been expended by July 2008.

26. The sum of £12,120 seized by the police was not money that the defender had received from an accident compensation claim.

27. Drug dealing is a cash based activity. The possession of a large sum of money which is otherwise unvouched is consistent with involvement in the supply of controlled drugs.

28. Many drug users become involved in the supply of controlled drugs to feed their habit.

29. On 28 July 2008 the defender and Mr O'Donnell were travelling to England to purchase controlled drugs. The sum of £12,120 seized by the police was the proceeds of unlawful activity, namely the supply of controlled drugs and was to be used in the furtherance of a drugs related transaction.

30. Within his home the defender had a safe bolted to a concrete floor. He kept poor health, and derived his income from benefits which included invalidity benefit. His property was frequented by numerous visitors.

 

FINDS IN FACT AND IN LAW

1. The monies recovered by the police were funds which represented the proceeds of unlawful conduct, in particular the supply of controlled drugs and were intended for use in unlawful conduct all in terms of the Proceeds of Crime Act 2002.

Accordingly:

1. Orders forfeiture in terms of Section 298 of the Proceeds of Crime Act 2002 of the sum of TWELVE THOUSAND ONE HUNDRED POUNDS (£12,100) STERLING together with any interest accrued thereon detained by interlocutor of the Sheriff at Duns on 30 July 2008; continues the cause on the question of expenses and appoints parties to be heard thereon on .

 

NOTE:
1. This is an application under Section 298 of the Proceeds of Crime Act 2002 in respect of funds seized on 28 July 2008.

2. At the Proof I heard evidence over a number of days at Peebles Sheriff Court. The Minuters were represented by Mr McGregor, Advocate and the Defender was represented by Mr Bannerman, Solicitor.

3. The first witness for the Minuters was P.C. Michael Norrie. He spoke to the defender's vehicle having been stopped on the A702 on said date. That road was used by drug dealers heading south to buy drugs at cheap prices, to be transported back to Edinburgh. He spoke to the search of said vehicle which disclosed drugs paraphernalia and a sum in cash found hidden in a wash bag on the back seat. The Defender, he recalled, stated that there was £6,000 there, although it was now known that there was £12,100 in cash. A stringent search was carried out to the vehicle and in cross examination the witness explained that he had not seen a magazine such as that lodged as a production on behalf of the Defender. The witness spoke to the police interview in which the Defender explained that the cash had been from a claim from a motorbike accident, with the sums involved being one cheque for just under £3,000 and another cheque for £8,000. The defender had also outlined his household outgoings of some £1,000. He had stated he received invalidity benefit and income support, but did not mention any work he had been carrying out, nor did he mention any loans having been taken out. I considered this witness to be credible and reliable.

4. P.C. Denise Adams also gave evidence. The search of the car had been a thorough one. I considered this witness also to be credible and reliable.

5. P.C. Russell Copeland gave evidence for the Minuters. He spoke to the defender's vehicle being stopped on said date. The defender was the driver and Mr O'Donnell was the passenger. A brown substance was found in Mr O'Donnell's wallet, which he explained was heroin for his own personal use. The A702 was known for drugs to be moving into the Edinburgh area. I considered the witness to be credible and reliable.

6. D.C. Andrew Ferguson gave evidence for the Minuters. He worked in the Financial Investigation Unit of Lothian and Borders Police. He gave evidence about the nature of dealing in controlled drugs and the arrangements made for financing and transporting drugs. Generally, people moving drugs around would take large amounts of cash, and some drug users dealt in drugs themselves. The benefit of dealing in cash was that it left no trace. The possession of large amounts of cash by a drug user, which could not be explained, was consistent with that individual being involved in the supply of controlled drugs. I considered this witness to be credible and reliable.

7. The Defender gave evidence. On his account of events, he was not presently working although he would sell items at car boot sales on a Sunday morning, and in the past he used to attend auctions, obtaining items which he would sell on for a small profit. Although objection was taken to evidence about this, I have treated the evidence as admissible, as bearing on the whole circumstances of the case. The Defender had purchased items involving a blue china vase and a number of laptops. Insofar as this evidence showed that the Defender was in a position, in 2008, to expend sums in the purchase of small items and goods, I accepted it. I did not consider that I could hold it established that the defender had amassed significant savings from trading in such items on a regular basis.

8. According to the Defender he had become involved with travelling people when he was 17 or 18 years of age, travelling all over Europe working with fairs and circuses. Objection was taken to a line of evidence about renovation of showman's trailers. I heard this evidence under reservation of issues of competency and relevancy. I have treated the evidence as admissible, as potentially bearing on the whole circumstances of the case. The defender explained that following a motor vehicle accident he received compensation in the region of £6,200.

9. Mr Holloway explained that on the day his vehicle was stopped, he was with his friend Mr O'Donnell. When the cash was discovered he explained to the police that there were two bundles of £6,000. I was unable to accept this evidence as credible and reliable; by contrast I accepted the clear evidence of the police witnesses as to what he did then. Mr Holloway was on his way to Worcester to drop some money off with his mother and he was going to Herefordshire to see a "showman" and possible a few other vehicles.

10. According to the Defender he was a person who kept his money in cash. He did not believe in banks. He had a safe in his bedroom. As the Defender was explaining what he meant by vintage vehicles, objection was taken on the grounds of lack of fair notice and specification in the pleadings. I heard the evidence under reservation and I have treated it as admissible as potentially bearing on the whole circumstances of the case. Mr Holloway explained the magazine (Number 6/1 of Process) was with him when he was stopped by the police, with markings within said magazine in respect of particular vehicles. I was unable to treat this evidence as credible and reliable. The police witnesses had given evidence of a thorough search of the vehicle. No such item was discovered.

11. Mr Holloway denied ever dealing in drugs. He gave evidence about whether he was a drug addict all as discussed, infra. Following the motor vehicle accident in respect of which he had obtained compensation, he sustained further injury in 2006 when a titanium bar broke within his leg. This happened in circumstances where he had been engaged in working on vehicles, west of Aberdeen, in winter time. His use of heroin was a matter of pain relief. I was unable to treat the Defender's evidence of working as at 2006 as credible and reliable. He had explained to the police in interview that he was someone who had been unemployed since 2001.

12. In his evidence the Defender narrated that he had done work at a garage belonging to an old traveller named "Shuggie", and in particular had finished off a vehicle for him. He maintained that £1,200 was paid to himself and Mr O'Donnell. The garage itself had no name. I considered this evidence to be unconvincing and vague. Curiously, it was at variance with the pleadings, where specific reference was made to a specific garage - "A. J. S. Autos in Leith". Objection was taken to this evidence against the background of said discrepancy between the pleadings and evidence, but, quantum valeat, I have treated the evidence as admissible.

13. As the Defender developed his evidence in chief, he appeared for a time to maintain that the sums recovered came from his motor bike accident (Notes 2/124). He then claimed the sums were amassed from "saving my money" and offered the observation that it was "nobody else's money", i.e. no mention was made of there being any loan monies from third parties. Although his agent, in chief, asked him about Mr Vine, the Defender at this stage did not make mention of any loan from that individual, by contrast with his subsequent evidence.

14. The Defender spoke to receipts in respect of motor vehicles (6/3), and suggested that he was buying and selling vehicles in respect of which he would effect repairs and sell them on. Mr O'Donnell assisted him. I did not hear evidence from individuals whose cars were said to be involved and I had reservations as to whether I could treat this evidence as credible and reliable.

15. In cross examination the Defender volunteered that Mark Vine borrowed (by which the Defender plainly intended to convey "loan") him £4,000 with the Defender promising to pay this back within a period of two months. This evidence was given on a different day from the day on which he maintained that the sums recovered were "nobody else's money". As discussed infra, it appeared to me that the Defender at times lost sight of exactly what his position on crucial matters was particularly where there was an interval between days of evidence, and ultimately this was a factor in leading me to conclude that I could not treat his evidence as credible and reliable.

16. The Defender's mother Sandra Holloway gave evidence. She recalled her son visiting her from time to time, not telling her when he was coming, but visiting two or three times each year. As discussed, infra, her testimony diverged on matters such as the purpose of the Defender's visit to England (in respect of the proposed purchase). I had reservations as to this witness's credibility and reliability.

17. Objection was taken during the re-examination of Mrs Holloway in respect of questioning directed towards whether the witness could tell if the Defender had been taking drugs. I have accepted Mr Bannerman's submission that there was a basis for the question (Notes 3/119) and, quantum valeat, I have treated the evidence as admissible.

18. Charlene Robertson gave evidence. She described the Defender as being her boyfriend, and described her regular visits to his flat. She described his safe, kept in the bedroom under the bed. There was quite a lot of money in it. He had the safe "for safety more than anything, there's a lot of people come in and out". I accepted this witness's evidence as to there being a safe in which substantial sums were kept, in a property frequented by numerous individuals.

19. Objection was taken to a line of evidence relating to car boot sales. Quantum valeat, I have treated this evidence as admissible.

20. According to Miss Robertson, the significant sum held within the Defender's safe came from work the Defender did for "Shuggie", and money from someone called Mark, together with the Defender's own money from benefits. She did not consider the Defender to be an illegal drug user.

21. I was not satisfied that I could treat this witness as credible and reliable. The witness's evidence as to the Defender's drug use appeared to contradict what the Defender himself had told the police. She did not appear to attribute any of the funds in the safe to the compensation claim, and overall her evidence reinforced my overall impression of the evidence presented on behalf of Mr Holloway lacking congruity and coherence.

22. Mark Vine gave evidence for the Defender. He worked as a sound engineer on a self employed basis. He knew the Defender. He had, he recalled, helped the Defender to finance the obtaining of a couple of trucks. This would have been in April/May 2008, the loan being for £4,000 with repayment within six months. The witness expected he would himself receive some one £1,500 from the profit to be made on the vehicles.

23. Although the witness had convictions under the Misuse of Drugs Act, he maintained that he was not himself a drug dealer. As discussed, infra, I considered the evidence about the loan, with the diverging accounts of the repayment timetable, lacked the qualities of congruity and coherence which would allow me to treat that evidence as reliable. I did not find Mr Vine to be an impressive witness and I was not satisfied that I could treat his testimony as credible and reliable.

23 .James O'Donnell gave evidence for the Defender. He was unemployed, and was a friend of the Defender, having known him for at least 20 years. He recalled the day when he was in Mr Holloway's vehicle when it was stopped by the police. He had been a heroin user for some 9 years, and within the vehicle there were items including citric acid and needles together with a small bag of heroin on his person. According to Mr O'Donnell, the Defender told the police there were "two bundles of £6,000 and £125 separate". The money was in Mr Holloway's bag. Mr O'Donnell had been trying to persuade the Defender to a buy a showman's trailer. First, they were going to the home of the Defender's mother in Worcester. They were also going to see someone who had access to dealers in elderly vehicles and also they were going to visit Martin Pirie's scrap yard in Bromyard. He dealt in vintage vehicles which needed restoring. The Defender's money was to be used on a business venture, in which Mr O'Donnell would do work on the vehicle. They were not purchasing or dealing in drugs. The magazine (6/1 of Process) had pictures marked with the Defender's handwriting where vehicles were of interest.

24. So far as this witness was concerned, the Defender did not have a "heroin habit", as he was someone who travelled about. The witness acknowledged he had a criminal record which included an offence of attempting to pervert the course of justice.

25. The witness had told the police, when asked about the money found in the car, about money paid out for an accident some years ago. He also was aware of the Defender having purchased items at auctions, from time to time. The Defender had also borrowed some money and wanted to get it paid back quickly.

26. In cross examination the witness explained that he and the Defender did some work for Mr McInnes - "Shug" - and got paid about £600 each. I was not satisfied that I could treat this evidence as credible and reliable. The witness had told the police during his interview that the Defender did not work "at the minute". The witness was definite that the Defender had told the police there were two bundles of £6,000.

27. In the course of his interview with the police, Mr O'Donnell was asked about where the Defender kept his money. Rather than mentioning the Defender's safe, the witness responded by explaining that he kept it in the back of the car. I was not satisfied I could treat this witness's testimony as credible and reliable.

 

SUBMISSIONS

28. Written submissions were prepared on behalf of the Minuters. These are summarised infra. The Minuters founded on a number of authorities, notably A.R.A v Green (2005) EWHC 3168 (Admin) and Muneka v Commissioners of Customs and Excise (2005) EWHC 495 (Admin). I was also referred to the cases of Butt v H.M. Customs and Excise (2001) E.W.H.C. 1066 (Admin), Bassick & anr v Commissioners of Customs and Excise, Q.B.D. 22 March 1993, 161 J.P. 377, and Nevin v Customs and Excise, Unreported, Q.B.D., 3 November 1995. In Muneka, supra, the Court rejected the proposition that because the appellant had lied, that was not sufficient evidence to establish that money was obtained as a result of unlawful conduct. At paragraph 9 Mr Justice Moses observed "the fact that this appellant lied was evidence upon which the District Judge was entitled to conclude that the very suggestions put to him were in fact true on the balance of probabilities".

29. It was submitted that the Defender had told material lies regarding the source and destination of the money. The Court was invited to reject Mr Holloway's account of his reasons for carrying the cash as untruthful. It should be inferred that the cash originated from the Defender's involvement in the supply of controlled drugs and was intended to be used in furtherance of his activities as a drug dealer. Reference was made to Scottish Ministers v Lindsay Unreported Glasgow Sheriff Court 24 September 2008, and Scottish Ministers v Stewart, Unreported Inverness Sheriff Court 1 August 2008.

30. It was submitted that the Defender was concerned in the supply of controlled drugs. If this were not to be accepted, in respect that the Defender maintained that he had been working without informing the authorities and without paying tax and national insurance, this was a common law fraud. Reference was made to Kerr v HMA 1986 J.C. 41 and HMA v Emma Grant 2008 SLT 339.

31. The Minuters founded on the combination of the following circumstances:-

(a) Confidential intelligence held by Lothian and Borders Police.

(b) The Defender having been detained on the A702.

(c) Lies told to the police.

(d) A lack of verifiable income.

(e) Drugs and drug paraphernalia within the vehicle.

(f) A loan from a convicted drug dealer.

It was submitted that an adverse inference as to the source and destination of the monies should be drawn from the lies told to the police. A forfeiture order, or at least a partial forfeiture order should be granted.

32. Mr McGregor supplemented the written submissions. Although the material founded on by the Minuters was circumstantial, the Court should take an holistic view. The Court should have regard to the lies told by the Defender. The safe, referred to in evidence, did not feature in the written pleadings. The Defender's evidence should be rejected. The Court was referred to Hutchison v Ali, Peterhead Sheriff Court 8 June 2004. In that case the Court was able to draw inferences expressly based on the rejection of the respondent's evidence.

33. It was significant that the loan involving Mr Vine did not feature in the Defender's evidence in chief. The Court could have regard to evidence as respects intelligence available to the police, subject to matters of weight. The Court should make an order as sought in the crave, which failing a partial recovery order.

34. Written submissions were also submitted on behalf of the Defender. It was submitted that the Defender had not been involved in unlawful conduct. In the car, the syringes and citric acid were clearly on view. When interviewed, the Defender gave a clear and cogent explanation of matters. The evidence of Mr Holloway was credible and reliable. He gave evidence about the magazine (6/1 of Process) and his mistrust of the banking system. He also gave evidence that he was not a drug addict.

35. Charlene Robertson and Sandra Holloway gave evidence which should be accepted. Mr O'Donnell's evidence corroborated that of Mr Holloway.

36. Mr Holloway had suffered an accident which left him unable to do any regular work, and he was clear that he had earned income from occasional work on a self employed basis in a garage. There was nothing to infer that drug dealing was taking place and that Mr Holloway was involved in such conduct.

37. The Defender received a significant sum from a road traffic accident and had taken four years to ingather other funds. There was nothing inherently suspicious in the limited sums involved. The Court should conclude that the funds were not held from unlawful conduct, but from his clearly stated intention of travelling to purchase one or more vintage vehicles.

38. It was submitted that it was not criminal to have an imperfectly formed idea as respects the use of said funds. Further, part of the money belonged to Mr Vine. In any event, in respect of Mr Holloway's occasional trading, those matters did not involve significant sums.

39. Even if the Court were to hold that some of the funds were from the proceeds of criminal conduct, it would be open to the Court to return both the £6,000 from Mr Holloway's road traffic accident compensation and the £4,000 loaned to him by Mr Vine.

40. Mr Bannerman supplemented the written submissions at the hearing on evidence on 5 August 2009. The case of Hutchison, supra, supported Mr Holloway's secondary position. In any event, at least the sums referable to the road traffic accident compensation should be returned.

41. In considering the whole matter, it would be relevant to have regard to cultural issues relating to the lifestyle of Mr Holloway (cf. Hutchison, supra). There was no evidence that Mr Holloway was aware that Mr Vine was a drug dealer.

42. The case of McLeod v Lowe 1993 S.L.T. 471 gave assistance in considering the approach which the Courts adopt in assessing evidence about intelligence.

 

DISCUSSION AND DECISION

43. I considered the Defender to be an unimpressive witness. His evidence on matters such as whether or not he was addicted to heroin and the purpose of his trip to England I considered confused and contradictory, with additional variations occurring when evidence was given on separate dates.

44. As respects whether he was addicted to heroin or not on the date when his vehicle was stopped, he gave evidence that he dabbled in it, he never really did it on a regular basis and he was using it casually. He gave the police specific responses in interview "to just give them an answer". He was not addicted. He also accepted that he had told the truth to the police and used £20 worth of heroin a day. On the final day of his evidence he thought his response in the interview was a bit of a mix up.

45. So far as the purpose of the trip was concerned, the Defender's evidence in chief was that he was going to drop some money off with his mother and thereafter he was going to Herefordshire to see a "showman" and possibly other vehicles. He had never previously bought a showman's trailer. His mother thought that he had previously bought a vehicle in which one could live and this was still on his friend's farm. According to the Defender's mother Mr Holloway had contacted her advising her that he would leave some money with her. This would be if Mr Holloway did not go to see the vehicle. He explained that he would leave money with her because he didn't like leaving too much money "up here". I found this evidence curious. If, as the Defender explained he had over the years left money with his mother, there would have been no need on this occasion to explain to his mother why he felt it necessary to leave money with her.

46. In light of the evidence Mr Holloway gave about having a safe in his home, bolted to a concrete floor, it appeared to me that the evidence about leaving money with his mother appeared strange and unconvincing.

47. As to the prospective purchase itself, the accounts given by witnesses varied. Mrs Holloway mentioned at various points in her evidence, a Triumph Stag, and a Triumph Herald. Mr O'Donnell initially gave evidence that he was trying to persuade Mr Holloway to buy a showman's trailer but ultimately it was his position that he did not really know exactly what he was going to buy "for his money".

48. In his interview with the police Mr Holloway maintained that the money discovered in the vehicle was from a claim from a motorbike accident, paid out in February 2004, which was paid out to him by cheque for just under £3,000 together with a cheque for £8,000, the funds being thereafter paid into the Halifax at Leith. In the interview he claimed he had taken all of this money out of the Halifax in 2006.

49. Were this account true, it would mean that, to the extent that the funds discovered represented to some extent the compensation monies withdrawn in 2006, these were funds which for some reason or other were not taken down to the Defender's mother's home for safekeeping in the period 2006-2008. I found the Defender's evidence in this regard unconvincing and implausible.

50. The documentation produced anent the compensation claim appeared to disclose that payments were made (a)  of £4,945.31 paid on 8 January 2001 and (b)  £1,249.25 paid on 13 May 2004, a total of £6,194.56. On record, the Defender asserted that monies were borrowed from an acquaintance and that the funds discovered represented, in part, monies loaned to him, together with the compensation and monies earned by himself and Mr O'Donnell. In his interview with the police Mr Holloway claimed he was unemployed. He did not assert that the funds represented monies loaned to him by others. I found his evidence on this unconvincing. His evidence appeared to shift by gradations as the case progressed. I found it unsurprising for example that Mr Bannerman found himself referring in his written submissions to the Defender being both "an admitted drug addict" (page 4) yet referring also to the Defender's evidence "that he was not addicted to heroin" (page 9).

51. To the extent that the Defender claimed that funds were obtained by way of loan, I was not satisfied I could treat the evidence of the Defender as credible and reliable. Mr Holloway did not advise the police that funds had been provided by way of loan. His evidence about the timescale for payment differed significantly from the evidence given by Mr Vine, and I was not satisfied overall that the evidence about loan monies had the qualities of coherence and congruity which would allow me to treat it as credible and reliable.

52. In respect that the Defender maintained that he had derived some income from working, and that this provided at least to some degree the source of certain of the funds in the vehicle, I found that I could not treat this evidence as credible and reliable. Mr Holloway explained in his police interview that he was unemployed and in receipt of state benefits including invalidity benefits. During the course of the evidence the Defender was self evidently indisposed at times and emphasised in the witness box that he was suffering pain even on standing.

53. I was unable to accept that the defender engaged in the types of work he recounted in evidence - work done to enable vehicles to pass MOTs, or work involved in panel beating and similar work. It appeared to me that, quite apart from the circumstance that the Defender denied to the police that he had any other way of raising income, such work would have required a degree of physical fitness and stamina. I noted that in his interview to the police Mr O'Donnell maintained that the Defender did not work. Further, Charlene Robertson confirmed that the Defender was not physically capable of working. It appeared to me inherently unlikely that the Defender would have been in a position to undertake such works.

54. It was the Defender's position that he was also trading at car boot sales (Notes 2/117). That was not mentioned to the police in said interview and I was unable to treat this evidence as credible and reliable. Nor was I satisfied that he derived any significant income from buying and selling items purchased at auctions.

55. Accordingly I did not consider that the monies discovered within said vehicle represented to any extent compensation received from a road traffic accident. In my view the funds from the compensation would have been used up by the date when Mr Holloway was stopped by the police, particularly having regard to the level of his benefit income and outgoings. I was not satisfied that the Defender derived said monies to any extent by way of loan all as discussed supra. Further I was not persuaded that these funds represented to any extent the income derived from working on motor vehicles as discussed supra. Nor was I persuaded that the monies were derived from trading at car boot sales, although I was able to accept that the Defender's lifestyle was such that he was in a position to make purchases of items such as computers for the benefit of himself or others.

56. I was however impressed by the testimony of D.S. Ferguson, and in particular his evidence concerning the tendency of drug dealers to avoid using financial institutions, dealing in cash only. He considered that the possession of large amounts of cash by a drug user, which could not be explained was consistent with that individual being involved in the supply of controlled drugs.

57. It appeared to me that the Defender was an unemployed drug user in poor health and in receipt of invalidity benefit who was driving a vehicle on a road used as a route for the transportation of controlled drugs, all whilst in possession of a substantial amount of money in cash. He was an individual who had within his home a safe bolted to a concrete floor notwithstanding that his income was derived from state benefits. His house was frequented by numerous individuals.

58. In terms of Section 298 subsection 2 of the Proceeds of Crime Act 2002 it is provided inter alia that "the Court or Sheriff may order forfeiture of the cash or any part of it if satisfied that the cash or part...(a)  is recoverable property or (b)  is intended for use in unlawful conduct".

59. "Recoverable property" is defined in Section 304 of said statute as "property obtained through unlawful conduct". "'Unlawful conduct' defined in S.241 in these terms:

"Conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part."

60. The standard of proof is proof on the balance of probabilities (Section 241 (subsection 3)).

61. In analysing the evidence and applying the standard of the balance of probabilities, it appears to me that for the Minuters to succeed, the Court must be satisfied that the actings and the circumstances of the Defender raise more than a mere suspicion that the sum detained constitutes recoverable property or was intended for use in unlawful conduct.

62. In the instant case I was not satisfied that the anomalies and inconsistencies in the Defender's evidence as respects what he told the police and what he told the Court in evidence could be explained by a reluctance to mention Mr Vine by name or to make reference to sources of income otherwise undisclosed to H.M.R.C. As discussed, supra, it did not appear to me that the Defender, a recipient of invalidity benefit, would have been capable at the material times of carrying out demanding physical work.

63. As the Court observed in Butt, dealers generally deal in cash (para 33). The Defender was stopped on the A702, a road used for the transportation of controlled drugs. The Defender kept a safe within his home, bolted to a concrete floor. Charlene Robertson's evidence appeared to describe a significant degree of footfall to the property.

64. It is contrary to the Misuse of Drugs Act 1971 to be concerned in supplying controlled drugs. It appeared to me to be established on a balance of probabilities that the monies detained following said vehicle being stopped were "recoverable property" in that they were monies obtained through unlawful conduct, in particular from being concerned in the supply of controlled drugs. Further, in respect that the vehicle was stopped on said road, used as a route for the transportation of controlled drugs, I was satisfied that the funds recovered were intended for use in unlawful conduct, in particular the purchase of controlled drugs for supply to another or others.

65. Accordingly I have granted an order as craved by the Ministers. I have reserved all questions of expenses meantime.