HM Advocate and Another v Robert McIntosh
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill,Lord Hope of Craighead,Lord Clyde,Lord Hutton |
| Judgment Date | 05 February 2001 |
| Neutral Citation | [2001] UKPC D1 |
| Court | Privy Council |
| Docket Number | No 4,DRA No. 12 of 2000 |
| Date | 05 February 2001 |
[2001] UKPC D1
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hoffmann
Lord Hope of Craighead
Lord Clyde
Lord Hutton
Privy Council
The respondent (Robert McIntosh) was charged jointly with his co-habitee Isobel Black with being concerned in the supply of heroin in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. Ms Black pleaded not guilty to that charge on 30th June 1999 at the High Court of Justiciary in Paisley and her plea was accepted. On the same date the respondent pleaded guilty to the charge. On the respondent's conviction the prosecutor applied for the making of a confiscation order and a prosecutor's statement supported by detailed schedules was duly served on him at court. Proceedings on the confiscation application were adjourned to enable the respondent to lodge answers, which he did, putting the prosecutor to proof of the matters set out in the schedules and expressly challenging the prosecutor's assertion that certain funds held in the name of Ms Black were "implicative gifts" by him to her. In adjusted answers by the respondent to the prosecutor's statement it was further contended on his behalf that section 3(2) of the Proceeds of Crime (Scotland) Act 1995 ("the 1995 Act"), on which the prosecutor intended to rely, was incompatible with article 6(2) of the European Convention on Human Rights and that under section 57(2) of the Scotland Act 1998 the Lord Advocate as prosecutor had no power to act incompatibly with the Convention. These contentions were recognised to raise a devolution issue within the meaning of paragraph 1(d) of Part I of Schedule 6 to the Scotland Act, and a diet of debate was fixed.
At that diet the judge (Lord Marnoch) was asked to pronounce a declarator that the "Crown has no power to invite the court to make the assumptions set out in section 3(2) of the Proceeds of Crime (Scotland) Act 1995". He declined to make the declarator sought and the respondent raised a petition to the nobile officium for review of Lord Marnoch's decision. The Advocate General for Scotland exercised her right to take part in the proceedings. The petition was heard by Lord Prosser, Lord Kirkwood and Lord Allanbridge, who on 13th October 2000 (Lord Kirkwood dissenting) allowed the respondent's appeal and made the declarator sought: see 2000 SLT 1280. Leave to appeal to the Judicial Committee of the Privy Council was granted to the Lord Advocate and the Advocate General.
The issue now before the Committee is whether the prosecutor is or would be acting incompatibly with the respondent's rights under article 6(2) of the Convention in inviting the court to rely on the assumptions set out in section 3(2) of the 1995 Act.
The legislation
As applicable in Scotland, the criminal law relating to controlled drugs is largely found in two statutes. The first is the Misuse of Drugs Act 1971, which creates a number of offences relating (among other things) to the production, importation and supply of such drugs. The other is the 1995 Act (which governs the confiscation of assets of convicted persons and is not restricted to crimes related to drugs). This body of legislation rests (so far as it concerns drug trafficking offences) on a series of important premises: that the unlawful consumption of drugs, particularly class A drugs, is a very grave, far-reaching and destructive social evil; that persistence of this evil depends on the availability of an adequate supply of drugs for consumption; that the availability of an adequate supply of drugs in its turn depends on the activity of those who traffic in drugs by manufacturing, importing, buying and re-selling them; that those who traffic in drugs reap rich rewards from their activity; that those who traffic in drugs go to great lengths to conceal their activities, cover their tracks and conceal their assets; that the evil consequences of drug trafficking are such as properly to engage the sanctions and procedures of the criminal law; that those convicted of trafficking in drugs should be liable to imprisonment for what may be very long periods, to punish them, to prevent them offending again and to deter others from similar offending; and that it is desirable to deprive traffickers of their ill-gotten gains, so that the hope of profit is heavily outweighed by the fear of punishment. These premises are reflected in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances adopted in Vienna on 19 December 1988, which the United Kingdom ratified in June 1991, and in the experience and practice of very many states all over the world.
Part I of the 1995 Act is entitled "Confiscation of the Proceeds of Crime". Section 1, so far as it relates to drugs, is in these terms:
"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; or
(b) in the case of summary proceedings (without proceeding to conviction) an order is made discharging him absolutely,
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; or
(b) on summary complaint if the offence is punishable by a fine of an amount greater than the amount corresponding to level 5 on the standard scale or by imprisonment for a period longer than 3 months or by both such fine and imprisonment,
but it does not apply to an offence under Part III of the 1989 Act (financial assistance for terrorism).
"(3) A confiscation order shall not be made unless the court orders some other disposal (including an absolute discharge) in respect of the accused.
…
"(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.
…
"(7) Any application under this section shall be made -
(a) in proceedings on indictment, when the prosecutor moves for sentence or, if the accused is remitted for sentence under section 195 of the 1995 Act, before sentence is pronounced; and
(b) in summary proceedings, following the conviction of the accused.
"(8) For the purposes of any appeal or review, a confiscation order is a sentence."
A number of points on the construction of this section are noteworthy:
(1) In proceedings on indictment the making of a confiscation order is dependent on conviction of the accused.
(2) The conviction must be of a drug trafficking offence, as defined in section 49(5) of the Act to embrace offences of importing, producing and supplying controlled drugs.
(3) The sum confiscated need not be the profit made from the drug trafficking offence of which the accused has been convicted (in contrast with the ordinary procedure in relation to other offences).
(4) An order may be made only on the application of the prosecutor.
(5) Where such application is made the court has a discretion whether to make an order or not.
(6) The court is required to assess the value of the proceeds of the accused's drug trafficking.
(7) "Drug trafficking" has a meaning distinct from and wider than "drug trafficking offence": it is defined in section 49(2), (3) and (4) of the 1995 Act so as to include conduct which would, but also conduct which would not, give rise to criminal offences under Scots law.
(8) The assessment made by the court is not final, but may later be adjusted (under sections 11 and 12 of the 1995 Act) if new information comes to light.
(9) A confiscation order is regarded as a sentence, and is subject to appeal like any other sentence.
Section 2 of the Act is largely concerned with non-drug offences, but contains a definition in broad terms of "property". Section 3 lies at the heart of this appeal 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 this 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...
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