Scottish Sheriff Court Decisions

SHERIFFDOM OF NORTH STRATHCLYDE AT DUMBARTON

PC5/08

 

JUDGEMENT

of

SHERIFF SIMON W. H. FRASER

in the cause

THE SCOTTISH MINISTERS

Pursuer

against

RUSSELL STIRTON

Defender

 

Dumbarton December 2013

 

 

The sheriff, having resumed consideration of the cause Finds in Fact:-

 

1. The pursuers are The Scottish Ministers as constituted by Section 44 of the Scotland Act 1998, acting in the exercise of their functions in terms of section 298(1) of the Proceeds of Crime Act 2002 ("the 2002 Act"). The defender is Russell Stirton residing at the Limes, Mugdock, Milngavie, Glasgow. The defender is unemployed, and has been for some years. He was unemployed as at 6^th December 2007.
2. The Third Party Minuter was Alexander Anderson, (hereinafter "the late Mr Anderson"), residing latterly at 37 Cowan Wynd, Uddingston, Glasgow, G71 6TP. The late Mr Anderson died on 6 December 2012, and in terms of his will appointed Peter Shirley, care of Argyle Accountants, 1007 Argyle Street, Glasgow, G3 8LZ his executor. The said Peter Shirley has accepted his apointment as executor-nominate to the late Mr Anderson. In this action the late Mr Anderson asserted a claim to an unspecified part of the cash to which this action relates, and accordingly his estate has an interest in the subject matter of the action. By interlocutor of 3 April 2013 the interest of the late Mr Anderson in the cause was transferred to the said Peter Shirley qua executor-nominate of the late Alexander Anderson. The said Peter Shirley has not, however, made himself a party to these proceedings. As at 6^th December 2007 the late Mr Anderson owned and operated a public house known as Thomsons Bar in Springburn, Glasgow, via a limited liability company called Pineloch Limited. As at 6^th December 2007 the licencee of Thomsons Bar was Christine Brown.
3. On or about 3^rd March 2005 the defender and the late Mr Anderson were both made the subject of an Interim Administration Order, as a result of which they were unable to open bank accounts . The terms of this order were not further established in evidence, but on 31^st March 2005 the order was varied to allow payment to the defender and the late Mr Anderson of monthly sums by way of allowances for living expenses.
4. On 3^rd December 2007 the defender and the late Mr Anderson attended at the Habib Bank, 141 Norfolk Street, Glasgow. In terms of an arrangement with the interim administrators appointed in respect of the defender and the late Mr Anderson, the bank was authorised to make payment to the defender and the late Mr Anderson of their monthly allowances, payable in cash. The monthly allowance for the defender was £6,960 and for the late Mr Anderson £3,420. The money paid to the defender consisted of nineteen £50 notes, three hundred £20 notes, and one £10 note. The cash paid to the late Mr Anderson consisted of eight £50 notes and one hundred and fifty one £20 notes.
5. On or about 6 December 2007 officers of the Scottish Crime and Drugs Enforcement Agency (hereinafter "SCDEA") undertook a directed surveillance operation against James Hagen, (hereinafter "Mr Hagen"), owner of a white van, registration J111 HGN. Intelligence received indicated that Mr Hagen might be about to be involved in a drugs related meeting at which a transaction might take place. Said surveillance was part of an intelligence led investigation entitled "Operation Salute". Production 5/1-1 is the relative authorisation to perform directed surveillance in terms of the Regulation of Investigatory Powers (Scotland) Act 2000/or Part II of the Regulation of Investigatory Powers Act 2000. The observations carried out on Mr Hagen on 6 December 2007 were recorded on a surveillance log numbered 11215, now 5/1-6 of process.
6. Mr Hagen was first observed driving his said van at Burns Drive in Wemyss Bay at about 6:57pm on 6 December 2007. From there he drove to the Braehead Shopping Centre, where he stopped for a few minutes. He thereafter left the shopping centre. A short distance from the shopping centre Mr Hagen began following a black Volkswagen Golf motor vehicle registered number B6 JGD. The two vehicles drove together to Bogmoor Road in the Shieldhall area of Glasgow. Vehicular access to Bogmoor Road can only be obtained via Renfrew Road. From Renfrew Road Bogmoor Road runs generally southeast and then southwest. The buildings on Bogmoor Road are mainly industrial units and premises, and therefore largely unoccupied in the early evening. Any vehicle entering the section of Bogmoor Road which runs generally southwest would be immediately obvious to anyone already in that section of Bogmoor Road.
7. Having entered Bogmoor Road together James Hagen's vehicle and the black Volkswagen Golf drove to the far end of Bogmoor Road, on the section running generally southwest and parked, James Hagen parking his van behind the Volkswagen Golf. A figure was seen to emerge from the black Volkswagen Golf and go to the passenger side of James Hagen's vehicle but nothing more could be observed. The choice of Bogmoor Road as a meeting place was probably designed to frustrate surveillance of any meeting.
8. After a few minutes James Hagen's vehicle and the black Volkswagen Golf left Bogmoor Road and drove off in opposite directions. From Bogmoor Road Mr Hagen drove back towards junction 26 of the M8 motorway, where he drove completely round the roundabout before joining the M8 westbound. Circling the roundabout as he did was probably an anti-surveillance technique designed to detect or throw off any following vehicle.
9. Mr Hagen thereafter drove to the premises known as World of Golf on the A82 road in Clydebank, via the M8 motorway, the Erskine Bridge, and the eastbound A82, known also as Great Western Road.
10. The A82 road at that point is a dual carriageway running generally northwest to southeast, access to the World of Golf being possible only from the eastbound carriageway of the A82.
11. Any vehicle being driven into the World of Golf complex, after leaving the A82, travels for a short distance on an access road in an easterly direction before arriving in the car park serving the World of Golf. The World of Golf consists of a driving range and the main building for the facility is situated on the north side of the car park. The car park consists of a number of rows of parking bays between the World of Golf building and the northern boundary of the A82. At night the car park is reasonably well lit both with its own lighting and lighting from the World of Golf building. The exit from the World of Golf car park is at the eastern end of the car park consisting of a slight slope or ramp down into another car park serving a football facility known as Goals. Any driver wishing to leave the World of Golf car park must drive down the ramp and through Goals car park, and thereafter eastwards on a short public road leading to a roundabout at the junction with Fettercairn Avenue, which runs generally north and south. Any driver leaving Goals car park and wishing to re-join the A82 would execute a right turn at the roundabout and drive southwards on Fettercairn Avenue.
12. Having entered the World of Golf car park Mr Hagen parked his vehicle at 8:26pm. At 8:30pm he either made or received a call on his mobile telephone. This call lasted for approximately four minutes, during which time he examined something on the front passenger seat of his vehicle.
13. At about 8:36pm the defender drove into the World of Golf car park in a grey Volkswagen Golf motor vehicle registered number RE56 JHX, and parked alongside Mr Hagen's vehicle. One of the officers carrying out covert surveillance within the World of Golf car park recognised the defender and broadcast his name to other officers involved in the surveillance operation.
14. Having parked his said motor vehicle the defender left it, walked to the open driver's window of Mr Hagen's vehicle and received from Mr Hagen a dark coloured carrier bag, which was passed by Mr Hagen through his open driver's window. Having received this bag from Mr Hagen the defender then returned to his own vehicle.
15. Both the defender and Mr Hagen then drove their respective vehicles out of the World of Golf car park, through the Goals car park, and out onto Fettercairn Avenue.
16. Once on Fettercairn Avenue the defender drove northwards to the roundabout at Kilmore Crescent, which he circled completely before driving southwards on Fettercairn Avenue towards the A82. Such a manoeuvre was probably an anti-surveillance technique designed to detect and/or throw off any following vehicle.
17. Immediately after the defender had received the dark coloured carrier bag from Mr Hagen and returned to his own vehicle with it, the officer in charge of the surveillance operation broadcast an instruction that the defender was now to be the subject of the surveillance operation, and that he was to be detained in terms of Section 23 of the Misuse of Drugs Act 1971.
18. Acting on the instruction that the defender was to be detained police Constable Stephen McBride and a colleague, both uniform road patrol officers, observed the defender's vehicle on the A82, stationary at a set of traffic lights next to a retail park. Once the lights had changed to green, and it was safe to do so Constable McBride indicated to the defender's vehicle that he should pull over and stop, an instruction with which he complied.
19. The defender's vehicle at that point contained the defender, his wife Mrs Jacqueline Stirton, in the front passenger seat, and their daughter, then aged about seven or eight, in a rear seat. Constable McBride told the occupants of the vehicle that they were being detained in terms of section 23 of the Misuse of Drugs Act 1971, and administered a common law caution. He thereafter noted the particulars of the occupants of the defender's vehicle in his notebook, now 5/2-1 of process. Thereafter the defender was removed from his vehicle and taken to Constable McBride's vehicle. As he was being placed in Constable McBride's vehicle the defender said "There's sixty grand in the car, it's mine. I took it out the bank".
20. The defender, his wife and daughter, and his vehicle were thereafter removed to Clydebank police office. At about 10:05pm the defender's vehicle was searched by Detective Constables (hereinafter "D/Cs") John West, Iain Lobban and Lawrence Malley, in the presence of the defender. Before the search commenced the defender was again cautioned that he was not obliged to say anything or make any comment regarding any article found, but that anything said would be noted. The defender indicated that he understood the caution. Within the front passenger foot well of the defender's vehicle was found a Tesco carrier bag containing two bundles of money, predominantly ten pounds notes, tied with a plastic bag. When this article was found the defender said "It's my money". This bag is now 5/1-9 of process. Thereafter a dark green Marks and Spencer carrier bag, together with a white Tesco carrier bag (now 5/1-8 of process) were found containing a large quantity of paper. These were also found in the front passenger foot well of the defender's vehicle. When these items were found the defender said "It's money. It's £60,000". Shortly after this the defender said that the money was part of a larger sum of £200,000, which he had withdrawn from the bank, and not long after that he mentioned the sum of £400,000.
21. Thereafter a white Nokia mobile telephone and battery were separately found on the back seat of the defender's vehicle. When these items were found the defender said "It was in the car. It's no my car". When asked who the car belonged to, the defender replied "G. A. Mann, it's a garage".
22. Also found within the door well at the front driver's door was a blue and white Nokia mobile phone. When this was found the defender said "It's no my car".
23. A BT bill and Scottish Power bill in the defender's name were found at the front driver's door well. The defender said nothing when these were found.
24. A passport in the name of the defender was found within the passenger visor of the car. When this item was found the Defender said "It's my old wan".
25. Following upon this search both the defender and Mrs Stirton were informed that they were being detained under section 14 of the Criminal Procedure (Scotland) Act 1995.
26. Thereafter Mrs Stirton was twice interviewed under caution by D/Cs West and Malley. The first interview took place between 11.13 and 11.21 pm on 6^th December 2007, and the second between 00.15 and 00.17am on 7^th December 2007. When asked for her occupation Mrs Stirton said that she was a bar hand at Thompsons Bar. Having provided her details Mrs Stirton declined to answer any further questions during the course of the interview replying "no comment" or words to that effect to each question. In particular when asked if she wished to proffer any explanation as to why she would have such a large amount of money in the car she declined to comment. A transcript of the interviews of Mrs Stirton is now 5/1-22 of process.
27. Between the first and second interviews of Mrs Stirton the defender was twice interviewed by D/Cs West and Lobban. The first interview took place between 11.28 and 11.39 pm on 6^th December 2007, and the second between 00.08 and 00.10 am on 7^th December 2007. The defender said nothing at all during the course of these interviews. In particular during the interviews he was invited to provide any explanation he had for the large sums of money found within the vehicle which he had been driving, but said nothing. A transcript of these interviews is 5/1-21 of process.
28. Shortly thereafter the defender and Mrs Stirton were released from police custody.
29. At some time during December 2007, the date not being precisely established in evidence the defender raised a Summary Application at this court under section 84 of the Civic Government (Scotland) Act 1982 against the Chief Constable of Strathclyde Police, seeking reversal of his decision of 7^th December 2007 to refuse to make available to the defender cash in the amount of approximately £60,000 owned by the defender which was removed from his possession on 6 December 2007. In article 2 of Condescendence of that action the defender averred "A full and detailed explanation as to the ownership of the money was provided by the [defender] to the arresting officers". After a hearing the defender's application was refused.
30. Shortly thereafter, the date not being precisely established in evidence, but being probably in early 2008, the defender raised an ordinary action at this court against the Chief Constable of Strathclyde Police seeking delivery of the bank notes amounting to £60,000 removed from his possession on 6^th December 2007 which failing decree in the sum of £60,000. This action remains sisted.
31. On 4 June 2008 D/Cs McArthur and McPherson attended at Clydebank police office and there examined productions 5/1-8 and 5/1-9. Production 5/1-8, a green Marks and Spencers carrier bag with a white Tesco carrier bag within, was found to contain £48,820, consisting of thirteen £100 notes, eighty-seven £50 notes, one thousand nine hundred and sixty eight £20 notes, three hundred and seventy eight £10 notes, and six £5 notes. Production 5/1-9, a Tesco carrier bag, was found to contain £9,880 consisting of four hundred and thirty six £20 notes and one hundred and sixteen £10 notes.
32. On 20^th June 2008 D/Cs Murdo McArthur and Douglas McPherson attended at Clydebank Police Office where they seized the cash contained within productions 5/1-8 and 5/1-9 in terms of sections 294 and 295 of the Proceeds of Crime Act 2002.
33. Mr Hagen was interviewed on 3^rd June 2008 at Greenock police office by D/Cs David Somerville and Graeme Paul, after having been detained in terms of section 14 of the Criminal Procedure (Scotland) Act 1995. He denied knowing the defender, or Thompsons Bar in Springburn. He was interviewed about his movements during the evening of 6^th December 2007. He was co-operative with the interviewing officers, and answered all of their questions, until the point where a question was put about his having driven to Bogmoor Road in company with the Black Volkswagen Golf B6 JGD. At that point his demeanour changed. He began to pick at his fingers, broke off eye contact with the interviewing officers, and thereafter declined to comment, when asked about his subsequent actions during the course of the evening. The transcript of this interview is 5/1-23 of process.
34. Drug dealing is a cash based activity. The possession of a large sum of cash which is otherwise unvouched and unexplained is consistent with involvement in such activity. The possession of a substantial quantity of cash avoids normal banking procedures. The avoidance of normal banking procedures avoids the creation of an audit trail for cash. Accordingly the avoidance of normal banking procedures is also consistent with involvement in unlawful conduct such as drug dealing. The handover of the package by Mr Hagen to the Defender in the World of Golf car park on the evening of 6 December 2007 was a handover of cash which was probably either the proceeds of drug dealing, or cash intended for use in drug dealing.

 

Finds in fact and law:

The cash recovered from the defender's motor vehicle on 6 December 2007 is recoverable property or intended for use in unlawful conduct in terms of section 298(2) of the Proceeds of Crime Act 2002.

 

Therefore Finds in law:

The cash recovered on 6 December 2007 and detained in terms of sections 294 and 295 of the Proceeds of Crime Act 2002 on 20 June 2008 being recoverable property or intended for use in unlawful conduct the pursuers are entitled to the order sought; Therefore Sustains the fourth plea in law for the pursuers and in terms thereof Grants an order under and in terms of section 298 of the Proceeds of Crime Act 2002 for the forfeiture of the sum of £58,700 Sterling together with any interest accrued thereon seized and detained by Murdo McArthur and Douglas McPherson both officers of the Scottish Crime and Drugs Enforcement Agency, Osprey House, Inchinnan Road, Paisley, PA23 2RE on 20^th June 2008 at 0800 hours and thereafter placed in an interest bearing account with Royal Bank of Scotland Plc, Charing Cross branch, Glasgow in an account numbered 00132470; quoad ultra Repels the remaining pleas in law for the pursuers in so far as not already dealt with and Repels the pleas in law for the defender in so far as not already dealt with; Reserves meantime the question of expenses and appoints parties to be heard thereon on

 

 

 

 

 

Note:

[1] The pursuers seek an order in terms of Section 298 of the Proceeds of Crime Act 2002 in respect of cash totalling £58,700 which was admittedly seized from the defender's motor vehicle in the late evening of 6^th December 2007. The action proceeded by way of a Summary Application lodged at this court on 20 June 2008, some hours after the cash had been detained in terms of the 2002 Act, having been in the custody of Strathclyde Police from and after 6^th December 2007. When the Summary Application was first raised it was directed only at the defender. On 5^th November 2008, however, the late Mr Anderson was granted leave to enter the process as a Third Party Minuter claiming that a part, albeit unquantified, of the cash seized was his. That too is the defender's position on Record. These positions will be examined more closely below. In any event after sundry procedure I heard proof on 23^rd, 24^th, 25^th and 26^th October 2012, the pursuers being represented by Mr Heaney, advocate, and the defender by Mr Cheyne, advocate. The late Mr Anderson represented his own interests. At the conclusion of the proof on 26^th October the matter was adjourned to enable further days for proof to be identified. What happened then was that Mr Anderson died on 6^th December 2012, so that further procedure in the cause was not possible until such time as the late Mr Anderson's executor (he died testate with an identified executor-nominate) either sisted himself as a party to the proceedings or the cause could be transferred against him. Finally, after further procedure, a minute of transference was granted on 3^rd April transferring the interests of the late Mr Anderson to his executor-nominate, Mr Peter Shirley. Mr Anderson's executor-nominate has chosen, however, not to take part in these proceedings. As a result when the proof resumed on 7^th October 2013 the late Mr Anderson's answers were repelled, on the unopposed motion of the pursuers. By then the pursuers had amended article 1 of condescendence to take account of this change of circumstances, narrating inter alia that the late Mr Anderson had entered this action "as Third Party Minuter and asserted a claim to £52,740 or thereby of the cash to which this action relates". I am not sure where this figure comes from, and can find no trace of it in the answers lodged by late Mr Anderson. I have therefore have made no further reference to it. When the proof resumed on 7^th October the pursuers were again represented by Mr Heaney and the defender by Mr Cheyne. I would wish to record my thanks to both for the way in which the case was conducted.

 

[2] As Mr Cheyne observed during the course of his submissions, this case turns very much on its facts, and very little on the law, and it is therefore to the facts that I now turn.

 

[3] As part of an on-going investigation called Operation Salute, being conducted by the SCDEA, authorisation was granted under the Regulation of Investigatory Powers (Scotland) Act 2000 and/or part II of the Regulation of Investigatory Powers Act 2000 on 11 October 2007. The authorisation thereby granted was effective from that date until 10 January 2008. A copy of the redacted surveillance authority with certificate of authentication is now 5/1-1. On 6^th December 2007 a briefing was held at the agency's premises in Osprey House, Paisley, in connection with a specific surveillance operation to be carried out within the context of Operation Salute, later that evening. The object or target of the surveillance was a man called James Hagen, and the surveillance was being carried out as a result of intelligence which indicated that Mr Hagen might be engaged in a drugs related transaction or handover of some sort, later that evening. The officer in charge of the surveillance being carried out on 6 December was D/C Douglas McPherson, and a number of officers was involved. D/C Sam McLaughlan was assigned to be the logist. His duties involved not only surveillance, but also keeping a record or log of any observations reported by radio by all the other officers involved in the surveillance. His handwritten record of observations recorded is now 5/1-6, a type written transcript being 5/1-5. The log itself is broken into four columns, the left hand most being the time of any observations recorded, the next column being for recording the call sign of whoever calls in an observation, and the main column is for recording the substance of any observation called in. The right hand column is for the initials of the officers making observations recorded, and is not completed until the post operation de-briefing, when the log is gone over and checked for accuracy. If any particular officer is satisfied that his observation, as recorded by the logist, is accurate, then he initials the appropriate entry in the column provided. If, however, any amendment or correction to any observation is necessary, that is recorded on the log at the de-briefing, and then authenticated by the officer who made the observation.

 

[4] Mr Hagen was first sighted at 6:57pm on the same evening driving his white Ford Connect van registration J111 HGN in the Wemyss Bay area. He was followed along the M8 to the Braehead Shopping Centre where he parked briefly, entering and leaving the shopping centre a few minutes later. He then drove out of the shopping centre and at some point, as he passed a nearby Ikea store, was observed to be following a black Volkswagen motor vehicle B6 JGD. These two vehicles travelled together to Bogmoor Road in the Shieldhall area. The characteristics of Bogmoor Road are more fully set out in finding in fact [6] and do not need to be rehearsed here. Suffice to say that as one enters the road from Renfrew Road it is a dog leg to the right, in that on the first leg a driver would travel southeast for a distance, and then turn 90⁰ right and travel southwest. This the two vehicles did, parking towards the bottom of the south westerly leg. The surveillance officer who recorded the movements of the vehicles, D/C Derek Park, was satisfied that what he was witnessing was an anti-surveillance technique designed and executed to make observation of a covert meeting difficult or impossible. As it was he was only able to see that, once the two vehicles were parked, an unidentifiable person got out of the black Volkswagen and went to the passenger side window of Mr Hagen's vehicle. A very short time thereafter both vehicles emerged from Bogmoor Road at Renfrew Road, and went in opposite directions. From there Mr Hagen drove back towards the M8 until he came to the main roundabout at junction 26. At this roundabout he went all the way round the roundabout, passing the exit which he eventually took after completing the circuit of the roundabout, to get back onto the westbound M8. The officer observing this, again D/C Park, was satisfied that he was witnessing another recognised anti-surveillance technique designed to alert a driver such as Mr Hagen to anyone following him. From junction 26 Mr Hagen then travelled back along the M8, crossed the Erskine Bridge, and joined the A82 at Clydebank. From there he travelled eastwards on the A82, eventually leaving it on a small access road leading from the north side of the A82 into the World of Golf. Again the layout of the World of Golf and its car park are more particularly described in finding in fact [11]. Once in the World of Golf car park he eventually selected a parking bay in one of the rows and came to a halt. At some point, however, he moved forward into the parking bay immediately ahead of his vehicle. Having finally parked Mr Hagen alighted from his vehicle very briefly and walked round to the front nearside, and then returned to the driver's seat. Once there he was observed to make or receive a telephone call, during which he was seen to look at something which was, presumably, lying on the passenger seat to his left hand side. His telephone conversation ended at 8:34pm.

 

[5] All of the foregoing was spoken to by a variety of the officers who took part in the surveillance of Mr Hagen. It was not the subject of serious challenge on behalf of the defender, and indeed it would be difficult to see how it could have been, since none of it involved the defender. That this was an intelligence led operation became obvious from the evidence of D/Cs Dukes and Gow. They had been engaged in following Mr Hagen up until the point where he entered Bogmoor Road. At that point, however, they had been instructed to travel to the World of Golf and take up observations there. The exact time of their arrival in the World of Golf car park was not established in evidence, but it was clear from their undisputed evidence that they were already within the World of Golf car park when they saw Mr Hagen drive his van in. In fact by that point Mr Gow had left the vehicle which he had been sharing with Mr Dukes and was observing matters on foot. What then took place is the kernel of this case.

 

[6] Put shortly the pursuers' case was that about 10 or 11 minutes after Mr Hagen drove into the World of Golf car park and parked, the defender's vehicle drove into the same car park and parked next to Mr Hagen's van. The defender then alighted from his vehicle and walked to the driver's door of Mr Hagen's vehicle where he received a package through the open driver's window of the van. The defender then returned to his own vehicle, and both he and Hagen then drove out of the car park. Having exited the Goals' car park beyond, the defender, arriving at the roundabout at Fettercairn Avenue, turned left and drove northwards to the roundabout at Kilmore Crescent, before going completely round the roundabout and then driving southwards on Fettercairn Avenue until he re-joined the A82. It was said that this was an anti-surveillance manoeuvre, similar to that carried out by Mr Hagen earlier at junction 26 of the M8. Having re-joined the A82 (which by this point is known as Great Western Road) he travelled eastwards for a short distance until being stopped by traffic officers acting on the instructions of the officer in charge of the surveillance operation, D/C McPherson.

 

[7] The defender's case, on the other hand, was that he drove into the World of Golf car park, and through it, in order to access the Goals car park beyond, so that he could pick up his son, whom he had dropped off earlier in the evening for football practice. With him in his vehicle were his wife Jacqueline Stirton and his daughter. It was his intention to go and watch his son play football. He did not, however, apparently stop in the Goals car park, but instead drove back up into the World of Golf car park and went round it, possibly stopping very briefly although not parking, but then left, as his daughter wanted something to eat. Upon exiting the Goals car park onto Fettercairn Avenue he became confused, not being familiar with the area, turned left by mistake and went up Fettercairn Avenue, and only went round the roundabout at Kilmore Crescent to regain his intended route, which had been to go down Fettercairn Avenue, onto the A82, and thus to Burger King at a retail park, a short distance eastwards along Great Western Road. No transaction of any sort had taken place between him and Mr Hagen.

 

It was not in dispute that when the defender's vehicle was later searched, at Clydebank police office, large sums of money were recovered from the passenger foot well. It was the defender's position that the bulk of these monies was the accumulated takings from Thompsons Bar, which at the time had been run by the late Mr Anderson, and which had been brought into the car by his wife, who worked in Thompsons Bar and had been reluctant to leave them in their house, which at the time was insecure. The remainder of the money represented his and the late Mr Anderson's allowances, which had been kept together, since being withdrawn from the Habib Bank on 3^rd December.

 

[8] So far as what took place in the World of Golf car park is concerned I had no hesitation in preferring the evidence of D/Cs Gow and Dukes to that of the defender and Mrs Stirton. Both officers spoke to the defender's vehicle pulling up alongside Mr Hagen's van where it was parked in the World of Golf car park, and of thereafter seeing the defender leave his vehicle, walk round to the driver's door of Mr Hagen's van and receive a package from Mr Hagen through the open window of the van. Thereafter he returned to his own vehicle and both his and Mr Hagen's vehicle then left. Both officers reported their sightings by radio to D/C McLaughlan, the log keeper, and both later initialled the entries which he made in the log at 20.36 and 20:37 hours. It was immediately upon the report of this transaction that the officer in charge of the surveillance operation, D/C McPherson, ordered that the object of the surveillance operation was now to be the defender. D/Cs Gow and Dukes viewed the transaction between the defender and Mr Hagen from different vantage points within the World of Golf car park, D/C Gow having left the vehicle in which he and D/C Dukes had driven there, very shortly after their arrival. A discrepancy between their respective accounts of what they saw was heavily relied upon by counsel for the defender in closing submissions as discrediting their accounts, in that they did not agree which side of Mr Hagen's van the defender had stopped his vehicle on. In my view this discrepancy between their accounts of what they saw from their different vantage points is not of such weight as to cause me to doubt the credibility or general reliability of the officers' accounts. Both were clear that having pulled up the defender then alighted from his vehicle, went to Mr Hagen's open driver's window, and received an item from him described by D/C Dukes as a dark package which was shiny in the light, and by D/C Gow as a dark coloured bag. It was the transaction itself which was the focus of the officers' attentions, and not necessarily the respective positions of the participants' vehicles. The officers were also giving evidence of events which took place over a very short space of time, two minutes at the most, but which they were being asked to recollect almost five years later, and in that situation it did not seem to me that there was anything unusual about discrepancies of detail occurring in their evidence. Indeed it might have been a matter for comment had their accounts matched each other in every detail after the passage of such a long time.

 

[9] The defender's account was that he entered the World of Golf car park in order to pass through it into the Goals car park situated to the east, to pick up his young son from football practice in the Goals complex. He then, however, drove back into the World of Golf car park. Why he did so, since he was meant to be picking his son up from the Goals complex, was not clear. At any event at some point during these manoeuvres, he said, it was decided not to wait until his son his son had finished playing football, but to go and get his daughter something to eat. He therefore drove out of the World of Golf car park, passed through the Goals car park, and went on towards Fettercairn Avenue. Asked by his own counsel if he had stopped in the car park the defender said it was possible, and when asked if that would have been in the Goals or World of Golf car park, he answered by saying that, if he remembered, the Goals car park had been very busy, so that it was possible that he had gone into the World of Golf car park. He did not explain why he should have stopped in the World of Golf car park, if he stopped at all. It was plain from the defender's evidence that he did not accept that he had at any time left his vehicle in either car park. His wife on the other hand said that at one point the defender got out of the car, and stood beside it, but did not speak to anybody. It was not clear from her evidence which car park this took place in, and the matter was not pursued further. I found these accounts improbable, and indeed in places illogical. It made sense that to get to the Goals car park the defender required to pass through the World of Golf car park. There was no other way of getting there. It made no sense at all, however, to return to the World of Golf car park, whether the intention was either to pick master Stirton up, or to leave altogether to get Miss Stirton something to eat. Furthermore there was unchallenged evidence that, immediately after the handover described by D/Cs Gow and Dukes in the car park had been broadcast on the police radio system, the officer in charge of the operation ordered that the focus of surveillance should shift from Mr Hagen to the defender. As counsel for the defender put it in his closing submissions, this was a resource rich, intelligence led, surveillance operation, and it seemed to me that that was an accurate description. Plainly there had been a degree of intelligence based planning, and a considerable number of officers and vehicles were involved. If the defender and his wife are to be believed, however, it inevitably follows that it must be accepted that the focus of this resource rich, intelligence led, operation was suddenly switched from Mr Hagen, the subject of intelligence led and authorised surveillance, who had been followed in anticipation that he might be involved in some drug related transaction, to the defender, for no reason at all, far less any cogent one, given that, according to the defender, he had done nothing more than drive into and out of the World of Golf car park, twice, and then leave via the Goals car park, but without having any contact whatever with Mr Hagen. The defender, however, advanced no explanation in evidence as to why the police should have chosen, apparently on a whim, to abandon their surveillance of Mr Hagen, and instead turn their attentions to an entirely unconnected individual who had done nothing more sinister than drive into and out of a car park. This scenario also involves accepting that it can only have been by, from the defender's point of view, the most unfortunate coincidence, that when stopped a few minutes later by other officers his vehicle was found to contain more than £58,000 worth of cash, the bulk of which was in a dark coloured carrier bag. The defender's account of the events of that evening seemed to me improbable and illogical, and I had no hesitation in rejecting it, instead preferring the evidence of D/Cs Dukes and Gow that a transaction took place between the defender and Mr Hagen in the World of Golf car park, involving the hand-over to the defender of a dark package.

 

[10] Indeed, what took place after that transaction only served to reinforce my view of the defender's and Mrs Stirton's credibility and reliability. Having driven through the Goals car park and come to the roundabout at Fettercairn Avenue the defender turned left and travelled northwards to the next roundabout at Kilmore Crescent, which he then went round completely, before travelling southwards on Fettercairn Avenue towards Great Western Road. To D/C Moncreiff, who observed the defender's car going round the roundabout at Kilmore Crescent, this was an anti-surveillance tactic designed to reveal the presence of and/or throw off any following vehicle. The defender, however, said in evidence that he had only lost his way, turning left instead of right, as he should have done to regain the A82. I reject that evidence as incredible. According to the defender himself he had dropped his son off at the Goals complex some two hours earlier and had then left it to return home. There was no suggestion that after leaving the Goals car park for the first time that evening he had any trouble in finding his way back to Great Western Road, and I find it unbelievable that he should have done so such a short time later, since he evidently knew exactly where his intended destination (a nearby Burger King on Great Western Road) was. In my view it is far more likely that, having received the package from Mr Hagen, the defender was carrying out a recognised anti-surveillance technique to see whether he was being followed or not.

 

[11] Having got back onto Great Western Road the defender then travelled eastwards and stopped at traffic lights at, or just past, the entrance to the industrial estate in which the Burger King was situated. Immediately after those lights turned green and the defender moved off he was pulled over by Constable McBride and his colleague. Having detained the occupants of the vehicle in terms of section 23 of the Misuse of Drugs Act 1971, I was satisfied that Constable McBride's evidence that he had noted the details of the occupants of the defender's vehicle, at the point when it was stopped, was truthful, and that at that point Mrs Stirton gave her occupation as "unemployed". Mrs Stirton denied that any details had ever been supplied to Constable McBride. Constable McBride said that he had noted the details of those in the car in his notebook, now 5/2-1 of process, and it was at no point suggested that any of the details noted by Constable McBride were erroneous, save for Mrs Stirton's occupation, which was disputed, and the spelling of Miss Stirton's first name, which Constable McBride appears to have misheard as "X" rather than "Y". He also noted the child's date of birth. If that small detail did not come from either the defender or Mrs Stirton, or perhaps the child herself (and there was never any suggestion that any police officer ever spoke to her), one wonders where else it would have come from. No doubt the defender supplied his details at the uniform bar, when he was processed later, and Mrs Stirton undoubtedly gave her date of birth, as apparently accurately recorded by Constable McBride in his notebook, during her interview, but nowhere does Miss Stirton's date of birth feature in any subsequent dealings between the defender and Mrs Stirton, on the one hand, and the authorities on the other, and it is difficult to think of any reason, in the context of the defender and Mrs Stirton's dealings with the authorities, why Miss Stirton's date of birth would be a matter for discussion. Accordingly either Constable McBride was telling the truth when he said he noted the details of the occupants of the car he stopped, or he has taken the trouble to glean the information recorded in his notebook at a later stage from other sources and, in the case of Miss Stirton's date of birth, made a very lucky guess. I do not believe that is the case, and prefer the officer's evidence that he did in fact obtain the details of the vehicle's occupants at the point when it was first stopped, and they detained.

 

[12] It was not in doubt that after the stopping and detention of his vehicle the defender was removed from it and taken by Constable McBride to his car, while his colleague remained with Mrs Stirton and her daughter. I accepted Constable McBride's evidence that, having given the defender a cursory search, the defender, as he was being placed in Constable McBride's vehicle, said "There's sixty grand in the car, it's mine. I took it out the bank". The defender denied saying any such thing, and there was no room for doubt about his position so far as any of the remarks later attributed to him was concerned - he had said nothing to the police that night. Again, if the defender is correct in his assertion that he made no such remark as was spoken to by Constable McBride, then that officer displayed uncanny prescience. There was undisputed evidence that, upon his arrival at Clydebank police office, and having handed the defender into the custody of other officers, Constable McBride then composed a handwritten statement of his involvement in events that evening, which was then passed to officers of SCDEA. A transcript of that statement is now 5/2-6, and it was not suggested to Constable McBride in evidence that the contents of the statement were not what he had put in it, nor that he made it at the time he said he had. In that statement he narrated the remark which he attributed to the defender last quoted. At the point when he removed the defender from his vehicle, Constable McBride had no way of knowing that there was in fact any money at all in the Defender's car, and nor was it suggested that he had. At the time when he was committing his statement to paper other officers were aware that they had taken possession of bags containing a quantity of money, but there was no suggestion that they had, at that stage, counted it. As a matter of fact, however, the remark attributed to the defender by Constable McBride is a very close estimate of the amount of money actually found in the vehicle, and demonstrated knowledge of a state of affairs which simply could not have been within the knowledge of Constable McBride. In all these circumstances I am satisfied that Constable McBride's evidence of the remark made by the defender, as with the statement made by Mrs Stirton as to her occupation, was truthful and reliable, and to be preferred to their accounts.

 

[13] Once at the police office various procedures were gone through. The defender's vehicle was searched in his presence and the various items found, and the defender's remarks in relation to some of them, are recorded in findings in fact [20], [21], [22], and [24]. The defender's position, as already recorded, was that he had made none of the remarks attributed to him. I preferred the evidence of the officers who spoke to the conduct of the search and the remarks attributed to the defender. Even on the defender's own account of the events of that evening it would have been impossible for those officers to have known how much cash was in the vehicle. According to the defender, however, he was, in his words, "as silent as a rock" when dealing with the police. One therefore searches in vain for an explanation of how the officers were able falsely to attribute a statement to the defender which was so remarkably close to the truth ("It's money. It's £60,000"). The logical and preferable explanation is that the defender actually made the remark attributed to him. Similarly I was satisfied that it was from the defender that the officers learned and recorded the answer to the question "who does it belong to?" According to the defender the answer recorded - "G A Mann it's a garage" - was accurate. Also according to the defender, however, the police must have acquired this information by checking registration records, since he had not said what was attributed to him. No doubt such a check could have been done, although one wonders why, but even allowing for the fact that it might well have been done, no possible logical explanation occurs as to why the police should falsely attribute a factually accurate, and not remotely incriminating, statement to the defender if he had not said it. Again I had no hesitation in rejecting the defender's account as false.

 

[14] I have also found that in the course of the search of the defender's vehicle, and probably very shortly thereafter, the defender made various assertions that the money was part of £200,000 which he had obtained from the bank, and part of a sum of £400,000, but these assertions seem to have been made without any specific context. The defender denied making any such assertions. I did not accept his evidence on this point, but that having been said I have not thought it appropriate to draw any particular conclusions from the fact that these assertions were made.

 

[15] Following upon the search of the vehicle Mrs Stirton was interviewed on tape by D/Cs West and Malley. Having given her personal details, including telling the officers that her occupation was a bar hand at Thompsons Bar, Mrs Stirton agreed with the first part of the question which was asked of her by D/C West, to the effect that she had been with her husband earlier in the evening but, to the second part of the question, which was "you were stopped in a vehicle on Great Western Road, is that correct?" she responded "no comment", which was, with minor variations, her response to every question put to her in the interview. The exceptions were when, after she had again said she was not prepared to comment in answer to a question, D/C West asked "And why is that?" to which she responded "I don't feel I need to do so". Shortly after that she was asked "But do you feel you can see the point as to why I must ask these questions?" to which she replied "Yes, but I don't wish to comment on them". Just before a break in the interview, having again said that she did not wish to comment, she was asked "Basically it doesn't matter what we're going to say to you that's [no comment] going to be your answer?" to which she responded "I'm going to say that I don't want to comment". She was then asked "Okay but we were duty bound to put these questions to you. Do you agree?" To which she responded "I understand that". In evidence Mrs Stirton explained her interview by saying that she had been totally scared about the mention of drugs, with which the interview at first had been concerned, worried about her children, and that she simply wanted out of the police office as quickly as possible. She was asked specifically, and on more than one occasion, about the money which had been found in the car, and indeed the second part of Mrs Stirton's interview, which resumed after a break of 54 minutes, was entirely devoted to the issue of the money found in the car, albeit the interview lasted only for about 2 minutes. During it Mrs Stirton was asked about the way in which the money was bagged. Throughout, apart from agreeing that she understood the caution with which the interview resumed, Mrs Stirton replied "no comment", except in answer to the very last question which was "No comment so it doesn't really matter what I'm going to say, you're going to say no comment" to which she replied "Yes I'm going to answer no comment". In evidence, however, Mrs Stirton's position was that she had taken the money with her, bagged as later found, when she had gone with her husband and daughter to pick up their son from football practice at Goals. There were two sums of money, separately bagged, the larger being accumulated takings from Thompsons Bar, a public house operated by the late Mr Anderson through a company called Pineloch Limited. As a result of the interim administration order referred to earlier it was Mrs Stirton's position, and the defender's, that neither they nor the late Mr Anderson could operate bank accounts, so that all their dealings required to be in cash. Further, as a result of some damage which had been sustained at her home, the house was insecure, so that whenever she left she had to take the accumulated takings from the bar with her for safekeeping. From these takings were paid all the outgoings from the public house, including stock, staff wages, VAT, etc., all payments being made in cash. The smaller sum of money recovered from the car was, she said, her husband's and the late Mr Anderson's allowances which they had drawn from the bank earlier in the week.

 

[16]The defender's position in evidence about the two sums of money found in the car was broadly the same as Mrs Stirton's. In respect of the smaller sum of money the defender elaborated, accepting, as I understood it, the evidence of Mr Khan, the gentleman who was in charge of branch operations at the Habib Bank, Norfolk Street, Glasgow. Mr Khan's evidence was to the effect that the defender and Mr Anderson had called at the branch on 3^rd December 2007 to collect the monthly allowances which they were allowed to receive, and which had been authorised by the Court of Session. The details of the authorisation were not explored in evidence. From his records Mr Khan was able to say that cash totalling £10,380 had been paid out to the defender and the late Mr Anderson during this visit to the bank. This sum was composed of two smaller sums being £6,960, the defender's allowance and £3,420, being the late Mr Anderson's allowance. The defender's allowance had consisted of nineteen £50 notes, three hundred £20 notes and one £10 note. The late Mr Anderson's allowance had been composed of eight £50 notes, and one hundred and fifty one £20 notes. The cash withdrawal forms signed by both the defender and the late Mr Anderson for both these sums of money are now 5/1-37. On the reverse of the withdrawal forms is the cashier's breakdown of each allowance, again apparently signed by the defender and the late Mr Anderson. Mr Khan did not personally count the notes making up these allowances, but he had no reason to doubt the accuracy of the cashier's annotations as to how these allowances were made up, and therefore neither did I.

 

[17] So far as the larger quantity of cash was concerned the defender, like his wife, said that this was the accumulated takings from Thompsons Bar. The defender had also been interviewed, on 6^th and 7^th December, by D/ Cs and Lobban. The defender's interviews in fact took place during the interval between the first and second parts of Mrs Stirton's interview. They are notable for the fact that the defender remained completely mute throughout, not even answering his name. The various comments which I have found as a fact were made by the defender, both immediately after his initial detention at Great Western Road, and during the search of his vehicle later at Clydebank police office, were put to him, including the references he had made to the money being part of larger sums of £200,000 and £400,000, but he remained silent. By contrast D/C West said that once the tape was switched off the defender was quite jovial and chatty. The defender, however, was adamant that he had said not a word to the police at any point. That that was the case during his taped interview is beyond doubt. Otherwise, however, I did not accept the defender's evidence, for the reasons already given in connection with the remarks made by him earlier. In so far as his demeanour after the abortive taped interview was concerned I preferred the evidence of D/C West to that of the defender as to his demeanour.

 

[18] I found the explanations proffered by the defender and Mrs Stirton for the presence of the money in the vehicle in which they were stopped on 6^th December 2007 to be entirely incredible. In the first place, for the reasons already explained, I was quite satisfied that the defender had received a package from Mr Hagen, passed to him by Mr Hagen through the open driver's window of his van. In description that package closely resembled the Marks and Spencer's bag, and possibly also the Tesco bag, found very shortly thereafter in the front foot well of the defender's VW Golf. In the second place I did not accept Mrs Stirton's explanation in evidence that the larger sum of money was the accumulated takings from Thompsons Bar. That evidence was wholly inconsistent with the defender's statement to Constable McBride that the money was his and that he had taken it out of the bank. Furthermore, had the money indeed been legitimate takings from Thompsons Bar I could see no good reason why Mrs Stirton would decline to say so when given the opportunity at interview on 6^th December. She was, of course, within her rights to decline to answer questions and that, of course, could not be a matter of comment in criminal proceedings. In civil proceedings such as these, however, when determining the probability or otherwise of a particular piece or chapter of evidence, it is perfectly legitimate to take account of Mrs Stirton's refusal to provide any explanation of the provenance of the money. In weighing that refusal in the balance it seems to me it is also legitimate to have regard to the reasons advanced for it. Mrs Stirton would have had me believe that she was scared, worried for her children, and that she simply wanted to get out of the police office. The last of these factors may well have been the case, but is not by any stretch of the imagination an explanation for failing to advance what is later said to have been a legitimate reason for possession of such a large sum of cash in such unusual circumstances. As to concern for her children again that simply does not bear weight as an explanation for Mrs Stirton's reticence. By the time of her interview her son had, (and, by her own acknowledgement, with the co-operation of the police), been collected from his football practice by her daughter Lisa, who had then come on to the police office, where she remained with Mrs Stirton's other daughter. There was, accordingly, nothing for Mrs Stirton to be concerned about so far as the welfare of her children was concerned. In any event in interview, as already noted, Mrs Stirton was asked at one point if she wished to proffer any explanation for her declining to answer questions, and specifically declined to do so. Had any of her concerns been legitimate, that was the moment to advance them. Mrs Stirton, however, chose not to do so. As to her being scared of the situation in which she found herself that explanation is belied by the measured tones in which Mrs Stirton dealt with various of the questions as quoted above. Having made clear to the police that she simply did not wish to answer any of the questions put to her, D/C West clarified with her that he was duty bound to put these questions to her, and asked if she agreed, to which she responded "I understand that". That is not redolent of an interviewee who is fearful. That is redolent of an interviewee who has taken a deliberate and considered decision not to answer questions, which were designed specifically to give her an opportunity to explain the presence of what, on any view, was a very large amount of cash, found at her feet in the vehicle in which she was travelling. As already observed it was Mrs Stirton's right to decline to answer these questions, but the very exercise of that right to decline to advance what are later said to be legitimate reasons for her possession of that cash, and in particular the circumstances in which she exercised that right, in my view goes a very long way to undermining those later explanations.

 

[19] In any event, even if advanced at the time, I should not have been inclined to accept those explanations at face value without some evidence to support them. Although not the licensee of Thompsons Bar, that position being occupied by Christine Brown, who was not called to give evidence, Mrs Stirton said that she dealt with all the financial matters relating to the bar, although she disavowed the description of executive manageress. Nevertheless she said that she was responsible for dealing with all the finances of the bar and meeting all its commitments. It was entirely obscure from the evidence as to why the bar takings could not be banked. Mr Khan of the Habib Bank explained, in cross-examination on behalf of the defender, that the account from which the monthly allowances payable to the defender and the late Mr Anderson were drawn was a business account, the business being a public house, presumably Thompsons. He said that he could not recall cash deposits made into that account, either by the defender, or the late Mr Anderson, or both, but said he would need to check the bank statement. He agreed that no regular cash payments were made into the account. The tenor of his remarks, however, in particular that he would need to check the bank statement to see whether or not cash deposits had been made into the account, strongly suggests that, in his mind at least, whatever order prevented the defender and/or the late Mr Anderson from withdrawing money from that account, save as authorised by the Court of Session, did not prevent cash deposits being made. Even if that were the situation, however, I still found Mrs Stirton's explanation unconvincing. According to her evidence her own house was insecure, having been damaged by a fallen tree. As a result, so she said, she was reluctant to leave large sums of money unattended in an insecure house. That is understandable. What was not understandable was why Mrs Stirton, if she felt that the takings from Thompsons Bar would be insecure if left on the bar premises (although that was never in fact expressly said in evidence), and would be equally insecure if left in her damaged home, did not pass the takings to Mr Anderson who, by all accounts, had a perfectly good home in Uddingston which, so far as was known, was secure. The explanation advanced by Mrs Stirton for that apparently obvious step not to have been taken was that the late Mr Anderson and her husband were busy with an ongoing litigation. Why that should have prevented the late Mr Anderson from simultaneously attending to a fairly straightforward aspect of his business activity, particularly when he presumably relied upon it for a living, was not immediately apparent. Presumably the inference which was intended was that the late Mr Anderson was too busy to go to Thompsons Bar and collect the takings. Presumably with that in mind counsel for the pursuers enquired of Mrs Stirton whether, rather than be responsible for so much cash while living in an insecure house, it would not have been a better idea for her husband to pass the accumulated takings on to Mr Anderson when they met, which Mrs Stirton agreed they probably often did. That suggestion, however, was dismissed by Mrs Stirton on the basis that her husband did not have any dealings with Thompsons Bar. I have to say that I found that answer completely implausible. It made no sense at all for Mrs Stirton, apparently living in an insecure house, and concerned enough about the security of the accumulated takings that she would not be parted from them when leaving that house unoccupied, that she would not take the first opportunity to pass those takings into the safekeeping of their owner, whose own house was, by all accounts, perfectly secure. The defender might not have had any dealings with Thompsons Bar, but he was evidently in very regular, if not daily, contact with the late Mr Anderson. It would therefore have been simple for Mrs Stirton to divest herself of the bar takings into the hands of their rightful owner, via her husband the defender, had she wished to.

 

[20] Even leaving all that aside, however, it was apparent from the evidence that Thompsons Bar was owned or operated by Pineloch Limited, a company in which the late Mr Anderson, as I understood the evidence, had the beneficial interest. The company evidently employed staff and paid VAT and therefore, presumably, tax. Tax and national insurance would no doubt require to be deducted from employee wages and accounted for to HMRC. Even an entirely cash operated business, particularly when operating as a limited liability company, requires to keep books and records vouching its financial dealings. No vouching of any description, however, was produced in the proof, relating to the operation of Thompsons Bar. Since, as I understood Mrs Stirton's evidence, that operation was still continuing as at the time when she gave evidence, and that she continued to work in the bar, production of such vouching ought to have presented no difficulty whatever. In all the circumstances, therefore, I had no hesitation in rejecting the contention that the larger sum of money found in the defender's motor vehicle on the evening of 6^th December 2007, had anything at all to do with Thompsons Bar.

 

[21] As to the smaller sum Mrs Stirton confined herself to saying that she understood that the cash represented the defender's and the late Mr Anderson's allowances collected from the bank in the recent past. The defender said likewise in evidence. I believed neither of them. According to the unchallenged evidence of D/C McArthur, who later counted the cash seized, the amount found within the Tesco bag, £9,880, was composed of four hundred and thirty six £20 notes and one hundred and sixteen £10 notes. According to Mr Khan the bank documentation for the withdrawals made by the defender and the late Mr Anderson on 3 December demonstrated that the cash handed over to the defender and Mr Anderson consisted, in total, of twenty seven £50 notes, four hundred and fifty one £20 notes and one £10 note. While the number of £20 notes handed over by Mr Khan and the number found on 6^th December are not that far apart, no £50 notes were found in the smaller bundle of cash, while one hundred and sixteen £10 notes were found, as opposed to the one £10 note handed over by Mr Khan. No explanation for the very different make ups of the cash found, on the one hand, and the cash delivered by Mr Khan, on the other, was offered by the defender. There is an arithmetical difference of £500 between, on the one hand, the amount of cash found, (£9,880) and on the other hand the total of the allowances paid out three days earlier (£10,380). Asked to account for the difference between the two sums (although not in strict arithmetical terms) the defender thought that he might have bought some fuel. Given that only three days had passed between the withdrawal of the allowances from the Habib Bank and the discovery of the money in the foot well of the Defenders vehicle I had no hesitation in rejecting that explanation.

 

[22] On the whole matter therefore, I had little difficulty in finding that Mr Hagen travelled from Wemyss Bay, via the Braehead Shopping Centre, to Bogmoor Road, having fallen into convoy with another vehicle after leaving the shopping centre, and that in Bogmoor Road he had a brief meeting with someone from that other vehicle in circumstances which strongly suggested that he did not want that meeting to be closely observed. Having concluded that meeting he then carried out what was probably an anti-surveillance technique, by orbiting junction 26 at the M8 motorway, before joining that motorway westbound and making his way to the World of Golf, where he parked in the car park. A few minutes later he was joined by the defender who parked his vehicle alongside Mr Hagen's van. The defender then made his way to the open driver's window of Mr Hagen's van, and there received a dark parcel with which he returned to his own vehicle, whereafter he and Mr Hagen then drove out of the World of Golf car park through Goals car park, and from there to the roundabout at Fettercairn Avenue. Once there, however, rather than turning south to re-join the A82, the defender turned north, travelling to the roundabout at Kilmore Crescent, where he orbited the roundabout in what was, probably, once more an anti-surveillance manoeuvre. He then drove southbound to the A82 and joined it eastbound, being stopped after a short distance by Constable McBride and his colleague. Having been removed from the vehicle he told Constable McBride that there was "sixty grand" within in it, which was his and which he had got from the bank. He was thereafter removed to Clydebank Police Office where his remarks as already recorded were noted. At no time did he proffer any explanation for his possession of the money, and in particular at no time did he volunteer the information that any part of the money was the accumulated takings for Thompsons Bar. Although he told the police at one point that he had withdrawn £60,000 from the bank, which was manifestly untrue, at no point did he volunteer the information that any part of the money represented the allowances received by him and the late Mr Anderson from the Habib Bank. That, of course, was in stark contrast to the position adopted by the defender in his action against the Chief Constable of Strathclyde Police, seeking reversal of his decision of 7^th December to refuse to make available to the defender the monies seized on 6^th December 2007. In Condescendence 2 it was averred that "A full and detailed explanation as to the ownership of the money, was provided by the [defender] to the arresting officers". That averment did not even accord with the defender's own version of events in evidence, and his explanation for it, so far as it went, was that he told his lawyer what had happened, that he had never spoken to the police, and perhaps the late Mr Anderson had given his lawyer an explanation. I barely understood, far less accepted, the defender's explanation for the difference between his stated position on record, in pleadings at his instance which were framed relatively recently after 6^th December, and his position in the witness box. It was also notable that this action, like the action of delivery, also against the Chief Constable, and which is still sisted, was raised by the defender in his name alone. Neither involved the late Mr Anderson, despite the fact that both the defender and his wife were later to claim in evidence that the greater part of the money was in fact his.

 

[23] In all these circumstances I had no difficulty in finding that in fact no credible explanation for the defender's possession of any of the money found in his vehicle on 6^th December 2007 had been established in evidence.

 

[24] Parties were largely at one so far as the law was concerned. In terms of section 298 of the 2002 Act (read short) the sheriff may order forfeiture of cash seized if it:-

 

"(a) is recoverable property, or

(b) is intended by any person for use in unlawful conduct"

 

[25] Recoverable property is defined in section 304 of the 2002 Act as "property obtained through unlawful conduct". In terms of section 241 of the Act "unlawful conduct" is "conduct unlawful under the criminal law Scotland". The pursuers' case against the defender was that the cash seized from his car on the evening of 6^th December was recoverable property because it was being used in connection with drug dealing in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971, or was intended for use in the drugs' trade. It was said that the offence of being concerned in the supply of drugs created by that section was very wide, covering a great range of activities in the drug trade from, on the one hand, someone being involved in the day-to-day supply of drugs to, on the other, someone engaging in distant activities such as acting as a financier, go-between, contact, and the like, who might never actually come into any direct physical contact with narcotic substances at all. While the onus was on the pursuers to satisfy the court that forfeiture was justified, it was not necessary that they prove that the cash was obtained through or for use in a specific criminal act. The court was not asked to find that any particular person committed a particular offence, but only to make a finding about the provenance of the cash. The standard of proof was the balance of probabilities, with the court drawing such inferences as it thought legitimate from the facts proved. It was necessary to consider the totality of the evidence, and that the court take a common sense approach to the inferences to be drawn from, e.g a failure to provide an explanation for possession of the cash, or the giving of untruthful explanations, or a failure by a defender to keep the usual records which an honest man would be expected to keep. Whether an adverse inference was appropriate would inevitably depend on the circumstances of each case, but where appropriate it was argued that such an inference could properly be drawn from a failure to provide a credible explanation of an apparently suspicious dealing. It was not necessary to itemise each individual admincle of evidence, but rather to consider all the evidence in its context.

 

[26] In the present case there was no direct evidence of any involvement by any party in drug dealing. For the pursuers, however, I heard evidence from Mr Kenneth Simpson, now the Statement of Opinion Co-ordinator with Police Scotland, formerly in the same role with SCDEA. His report is now 5/2-4 of process. His expertise in the field of drugs was impressively vouched and unchallenged in any way. He spoke about the drugs trade in general, but also about the events of 6^th December 2007, as he understood them, based on D/C McLaughlan's log 5/1-6. It was, for Mr Simpson, significant that the operation being carried out on the evening of 6^th December was intelligence led, since it was his experience that such operations were properly evaluated, being expensive to run both in terms of finance and resources. He gave it as his opinion that Mr Hagen's meeting in Bogmoor Road, while unremarkable when viewed in isolation, took on a more sinister complexion in light of his behaviour immediately after leaving Bogmoor Road, when he travelled round the roundabout at junction 26 more than once. In Mr Simpson's opinion that was an anti-surveillance manoeuvre, which in turn suggested to him that the brief meeting in Bogmoor Road immediately preceding it had been crime related. His general experience was that it was more common for anti-surveillance manoeuvres to be conducted during and immediately after criminal activity had taken place. He was then taken through the events, as he understood them, in the World of Golf car park, and the defender's detention thereafter. It was his opinion that this was a classic example of crime related activity. It was the invitation of counsel for the pursuers to accept that the cash found in the defender's car was from the trade in illicit drugs, or for use in that trade, in the absence of any credible alternative explanation established in evidence. Counsel for the defender argued that Mr Simpson's evidence was irrelevant because the pursuers had not, as a matter of fact, established, on the balance of probabilities, that the factual underlay on which Mr Simpson's opinion was based had been established.

 

[27] For the reasons already narrated I am satisfied that the essential facts on which the pursuers' case is based have been established in evidence. I was also satisfied that the defender's explanations for his possession of the cash found in his vehicle that night were false. In Scottish Ministers v Smith [2009] CSOH167 Lord Bracadale said:

 

"Evidence of intelligence material featured in the case. I am prepared to have regard to the intelligence material as background material which partly informs Mr Simpson's expert evidence as to the structure of the drugs trafficking business and the practises of drug dealers. Such evidence has been routinely recognised in the criminal courts for years. Further, I have noted that the intelligence material forms a basis for applications under RIPSA. However, in identifying the relevant primary evidence from which to draw any inferences which may be available I looked to the facts spoken to by individual police officers and to the contents of the surveillance logs. I also have regard to the interpretation of the facts offered by Mr Simpson."

 

[28] I adopt the same approach in the present case. While there was nothing to suggest that the defender was aware of Mr Hagen's actings in the hour or so before his brief meeting with Mr Hagen, it is nevertheless open to me to draw, as I do, the inference on the evidence of Mr Hagen's actings that he, Mr Hagen, had been involved in a crime related meeting shortly before his encounter with the defender. The meeting itself between Mr Hagen and the defender, involving as it did the handover of a package containing a large quantity of cash, at night, in a car park, followed immediately thereafter by the defender, on leaving that car park, carrying out an anti-surveillance technique by driving all the way round the roundabout at the junction of Fettercairn Avenue and Kilmore Crescent, would, even without the evidence of Mr Simpson, have excited the deepest suspicions, if no more. Thereafter the defender went on to make remarks which indicated that he knew, in broad terms, how much money was in the bags seized. Those remarks proved to be accurate, although at that point the police could not have known how much money was in the car. Those same remarks, however, contradict the defender's own explanation, since he said that he did not know how much money was in the car. That was plainly false evidence. He thereafter, of course, and by his own admission, gave no explanation at all to the police for his possession of the money. In all these circumstances I am quite satisfied that the much more probable explanation for the defender's possession of the cash found was that it was either derived from, or intended for use in the drugs trade. That being so the order sought is granted.

 

[29] Counsel for the pursuers invited me to reserve the issue of expenses, a suggestion from which counsel for the defender did not demur. I have therefore assigned a diet at which expenses can be dealt with.