Donnelly v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 05 May 1999 |
| Neutral Citation | 1999 SCCR 508 |
| Date | 05 May 1999 |
| Docket Number | No 41 |
| Court | High Court of Justiciary |
JC
LJ-G Rodger, Lord Sutherland and Lord Coulsfield
Statutory offences—Misuse of drugs—Concerned in the supply of controlled drug—Sentence—Confiscation order—Whether appropriate—Discretion of court—Assumptions underlying exercise of discretion—Whether onus on any party to the proceedings—Proceeds of Crime (Scotland) Act 1995 (cap 43), secs 1 and 31
Section 1 of the Proceeds of Crime (Scotland) Act 1995 confers upon a court the power to make a confiscation order against a person who has been convicted, both where the conviction relates to drug trafficking offences and where it relates to non-drugs offences. Section 1(1) confers upon the court a discretion whether to make the order or not. Section 1 (4) enacts in the case of non-drugs offences that the court may make the order only if it is satisfied that the pannel has benefited from the commission of the offence. No such restriction exists in relation to drug offences. Section 1 (5) enacts that the sum which a confiscation order requires a pannel to pay in the case of a drug trafficking offence shall be an amount not exceeding (a) subject to para (b), 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 might be realised in terms of the 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. Section 3 enacts, inter alia, that: "(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 is the aggregate of the values of the payments or other rewards. (2) the court may, in making an assessment as regards a person under section 1(5), 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." Sections deals with the attachment of "implicative gifts" by a convicted person. Section 6(1)(b) defines these as being, inter alia, gifts "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”.
The first appellant was convicted in the High Court of Justiciary of being concerned in the supply of a controlled drug contrary to the Misuse of Drugs Act 1971 on a particular date. On his being convicted the Crown applied under sec 1 of the 1995 Act for a confiscation order and presented a prosecutor's statement to the court. A restraint order had earlier been made preventing the
second appellant from dealing with certain property, including implicative gifts received from the first appellant… A proof was held after which the judge made a confiscation order or £270,000. The appellants appealed to the High Court of Justiciary and argued,inter alia, that the assumptions under sec 3(2) (a), (b) and (c) only came into play if there was evidence to show, at least on aprima facie basis, that the person against whom an order was sought had received some payment or reward from drug trafficking.Held (1) that as the statutory provisions did not prevent the court from making an order even if it was satisfied that the pannel had benefited from the commission of the drugs offences, proof of actual benefit was not a necessary precondition to the exercise of the discretion to make a confiscation order in such cases; (2) that while there may be many circumstances which may be taken into account in deciding whether or not to exercise the power to make a confiscation order, there was nothing in the legislation to suggest that it was necessary that the court should have some evidence, or ground for suspicion, that the pannel has profited from drug-dealing before it could make the order; (3) that the only reconditions for the making of the assumptions were that the court had to be satisfied that the pannel has received payments or incurred expenditure, or both, which were matters that had to be proved beyond reasonable doubt and, once this has been accomplished, the court could proceed directly to make the assumptions unless they were shown to be incorrect; (4) that it would be inappropriate to attempt to define the relevant circumstances for the exercise of the statutory discretion on whether or not to make the assumptions but it was clear that that discretion was closely linked to the question of whether the assumptions have been shown to be incorrect so that what was required was evidence that the assumptions should not be made rather than evidence that they should; and appealsrefused.
Alexander Bain Donnelly was charged along with a co-accused on an indictment brought by the Rt Hon the Lord Hardie, QC, Her Majesty's Advocate, the libel, of which set forth, inter alia, a charge of being concerned in the supply of a controlled drug contrary to the Misuse of Drugs Act 1971.
The pannel pled not guilty and the cause came to trial before a judge and a jury in the High Court of Justiciary at Glasgow. On the pannel being convicted the Crown applied under sec 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 the pannel's wife, Mrs Alison Donnelly, from dealing with certain property, including implicative gifts received from the pannel. Answers were lodged and a proof was heard. After the proof the judge made a confiscation order in the sum of £270,000.
Both the pannel and his wife appealed.
Cases referred to:
Advocate (HM) v MacleanUNK 1993 SCCR 917
R v ClarkeUNK [1997] 4 All ER 803
R v DickensELR [1992] QB 102
R v KhanUNK [1996] CLR 508
R v RedbourneWLR [1992] 1 WLR 1182
R v RoseUNK [1993] 2 All ER 761
The cause called in the High Court of Justiciary before the Lord Justice-General, Lord Sutherland and Lord Coulsfield for a hearing.
At advising, on 5 May 1999, the opinion of the court was delivered by Lord Coulsfield.
Opinion of the Court—The appellant Alexander Bain Donnelly was tried, along with a co-accused...
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Her Majesty's Advocate V. Robert David Docherty Urquhart
...for suspicion that the accused has so profited, before making the assumptions set out in section 3(2) of the 1995 Act (see Donnelly v HMA 1999 SCCR 508). In my opinion, however, that need not prevent an accused from seeking to found on concessions as to facts on the part of the Crown, of th......
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HM Advocate and Another v Robert McIntosh
...even for suspecting that the accused had during the relevant period engaged in drug trafficking. He placed strong reliance on Donnelly and Donnelly v HM Advocate [1999] SCCR 508 in which Lord Coulsfield giving the opinion of the Court of Appeal said (at page 538): "there is, in our view, n......