Alexander Bain Donnelly And Alison Donnelly V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Sutherland,Lord Coulsfield |
| Court | High Court of Justiciary |
| Date | 05 May 1999 |
| Docket Number | C511/97 |
| Published date | 25 May 1999 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Justice General Lord Sutherland Lord Coulsfield | Appeal Nos: C511/97 C552/97 HIGH COURT OF JUSTICIARY OPINION OF THE COURT delivered by LORD COULSFIELD in APPEALS by ALEXANDER BAIN DONNELLY and ALISON DONNELLY Appellants; against HER MAJESTY'S ADVOCATE _______ |
Act: Burns, Q.C., Smith, Shead; O'Donnell Vaughan, Aitken Nairn
Alt: Bell, Q.C., A.D.; Crown Agent
5 May 1999
The appellant Alexander Bain Donnelly was tried, along with a co-accused Linda Powell, at the High Court in Glasgow on an indictment which contained a total of 12 charges, 10 of which related to drugs. Eventually, Miss Powell pled guilty to one charge of being concerned in the supply of cannabis resin and Mr. Donnelly was convicted of one charge of being concerned in the supply of diamorphine in Glasgow on 25 April 1995. According to the trial judge's report, Mr. Donnelly was apprehended on 25 April 1995 while he had in his pocket a bag containing 200 grms. of diamorphine. The diamorphine was of a low level of purity and the value was perhaps, according to the trial judge, in the region of £6,000. The trial judge draws attention to certain of the circumstances of the case and observes that in his view it would not be proper to draw inferences from the bare facts described. He also mentions that five of the charges brought against Mr. Donnelly related to a very large quantity of drugs which had been found in the boot of a car which belonged to him and which was in the garage at a private house occupied by others. He observes that the police evidence in relation to this matter was in certain respects very unsatisfactory. All these charges were found by the jury to be not proven.
Immediately after the conviction, the Advocate depute applied under section 1 of the Proceeds of Crime (Scotland) Act 1995 for a confiscation order and presented a prosecutor's statement to the court. A restraint order had earlier been made preventing Mrs. Donnelly from dealing with certain property, including implicative gifts received from Mr. Donnelly. Both Mr. and Mrs. Donnelly lodged answers to the prosecutor's statement and there was eventually a proof, after which the judge made a confiscation order requiring Mr. Donnelly to pay £270,000. Both Mr. and Mrs. Donnelly have appealed, and the principal issue raised in both appeals relates to the circumstances in which a court should exercise the discretion under the statute to make a confiscation order and, in particular, as to what assumptions should be made in exercising that discretion and as to whether there is any onus on any party to the proceedings. A number of other issues, affecting particular items of property which were taken into account by the judge at the proof, were also raised but it is convenient to postpone these until the main question has been considered.
In approaching the principal issue, it is necessary to have regard to the whole of the relevant provisions of the statute. The 1995 Act deals both with confiscation orders following upon convictions of drug-related offences and confiscation orders following upon conviction for other offences. There are marked differences in the manner in which these two types of offences are dealt with. So far as concerns drug-related offences, the material provisions are as follows:
"1(1)Subject to the provisions of this part, where in respect of any offence to which this part applies -
(a)the accused is convicted, whether in solemn or summary proceedings;
...
The court, on the application of the prosecutor, may make an order (a 'confiscation order') requiring the accused to pay such sum as the court thinks fit.
(2)This part applies to any offence which has been prosecuted -
(a)on indictment;
...
(4)Except where the offence is a drug trafficking offence, the court may make a confiscation order against an accused only if it is satisfied that he has benefited from the commission of the offence concerned.
(5)The sum which a confiscation order requires an accused to pay in the case of a drug trafficking offence shall be an amount not exceeding -
(a)subject to paragraph (b) below, what the court assesses to be the value of
the proceeds of the person's drug trafficking; or
(b)if the court is satisfied that the amount that might be realised in terms of
this Act at the time the confiscation order is made has a value less than that of the proceeds of the person's drug trafficking, what it assesses to be that amount.
(8)for the purposes of any appeal or review, a confiscation order is a
sentence".
Section 2 of the Act applies only to cases which are not drug-related and sets out the manner in which it is to be determined whether an accused person has benefited from the commission of an offence. Section 3 concerns assessment of the proceeds of drug trafficking and provides:
"3(1)For the purposes of this Act -
(a)any payments or other rewards received by a person at any time (whether
before or after the commencement of this Act) in connection with drug trafficking carried on by him or another are his proceeds of drug trafficking, and
(b)the value of his proceeds of drug trafficking is the aggregate of the values
of the payments or other rewards.
(2)Without prejudice to section 9 of this Act the court may, in making an assessment as regards a person under section 1(5) of the Act, make the following assumptions, except in so far as any of them may be shown to be incorrect in that person's case -
(a)that any property appearing to the court -
(i)to have been held by him at any time since his conviction; or, as
the case may be,
(ii)to have been transferred to him at any time since a date six years
before his being indicted, or being served with the complaint, was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him;
(b)that any expenditure of his since the date mentioned in paragraph (a)(ii)
above was met out of payments received by him in connection with drug trafficking carried on by him, and
(c)that, for the purpose of valuing any property received or assumed to have
been received by him at any time as such a reward, he received the property free of any other interests in it".
Subsection (3) excludes certain offences from the ambit of subsection (2) and subsection (4) provides that assets are to be left out of account if they have been taken into account in a confiscation order being made by other courts.
Sections 5 and 6 deal with gifts. Section 5 sets out a scheme for the attachment of gifts made by a convicted person and section 6, which is headed "implicative gifts", applies the scheme to drug trafficking offences. Section 6 provides:
"6(1)In this Act references to an 'implicative gift' are references to a gift (whether made before or after the commencement of this Act) -
(a)made not more than six years before the date on which, in respect
of a person suspected of, or charged with, a drug trafficking offence, the proceedings were commenced or a restraint order was made (whichever first occurs); or
(b)made at any time if the gift was of property -
(i)received by the giver in connection with drug trafficking carried
on by him or another, or
(ii)which, in whole or in part, directly or indirectly represented in
the giver's hands property received by him in that connection.
(2)The value of an implicative gift shall be assessed in accordance with section 7 of this Act.
(3)Where the court is satisfied, on the application of a person in receipt of an implicative gift made before or after compensation order has been made -
(a)that the person received the gift not knowing, not suspecting and not
having reasonable grounds to suspect that the giver was in any way concerned in drug trafficking; and
(b)that he is not, and has never been, associated with the giver in drug
trafficking; and
(c)that he would suffer hardship if the application were not granted,
it may make an order declaring that the gift or a part of the gift shall not be an implicative gift and that the property or part of the property of the recipient of the gift shall not be, or shall cease to be, realisable for the purposes of this part of this Act, and, if a confiscation order has already been made, varying that order accordingly, where necessary".
It should be added that, under section 4 of the 1995 Act, the property realisable in satisfaction of a confiscation order includes the whole estate of a person against whom proceedings have been instituted for an offence to which the Act applies and also the whole estate of any person to whom such a person has made an implicative gift, as well as any other property in the possession or under the control either of the person against whom proceedings have been instituted or of the recipient of an implicative gift, subject to certain exceptions not material for the present purpose.
At the proof, the appellants submitted, in reliance on a number of English authorities, that the assumptions set out in section 3(2)(a)(b) and (c) only came into play if there was evidence to show, at least on a prima facie basis, that the person against whom the order was sought had received some payment or reward for drug trafficking. Parties were agreed, before the judge, on two matters; firstly, that the Crown required to establish beyond reasonable doubt that the accused had been convicted and that certain property had been held and expenditure incurred by him; and, secondly, that, in so far as it was incumbent upon the accused to "show the contrary" for the purposes of section 3(2), the standard of proof was that of the balance of probabilities. The judge rejected the appellants' argument and held that it was not necessary that there should be evidence to establish that an accused had benefited from drug trafficking before the assumptions could be relied on. The judge records in his opinion that the Crown made no...
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