LLOYDS and SCOTTISH FINANCE Ltd v H. M. ADVOCATE
| Jurisdiction | Scotland |
| Judgment Date | 25 October 1973 |
| Date | 25 October 1973 |
| Docket Number | No. 5. |
| Court | High Court of Justiciary |
JC
Lord Justice-General, Lords Cameron, Johnston.
Procedure—Sentence—Forfeiture of property used for purpose of committing offence—Motor car in possession of accused under hire-purchase agreement—Vindication of right of innocent true owner—Criminal Justice Act, 1972 (cap. 71), sec. 23 (5).
Statute—Provision for forfeiture of property used for purpose of committing offence—No provision for vindication of right of innocent true owner—Nobile Officium—Criminal Justice Act, 1972 (cap. 71), sec. 23 (3) and (5).
The Criminal Justice Act, 1972, enacts by sec. 23:—"(5)In Scotland, where a person is convicted on indictment of an offence, and the court which passes sentence is satisfied, in regard to any property which was in his possession or under his control at the time of his apprehension, that the property has been used … for the purpose of committing, or facilitating the commission of, any offence, that property shall be liable to forfeiture, and any property forfeited under this section shall be disposed of as the court may direct." Subsec. (3) of sec. 23 provides for the delivery of such property to its true owner, but this provision does not apply to Scotland.
A hire-purchase company, as the owners of a motor car for the disposal of which an order had been made in the Sheriff Court by virtue of sec, 23 (5), without any reference to their interest, presented a petition to the High Court of Justiciary praying the court, in the exercise of thenobile officium, to quash the order, and moved for a new order, which would properly preserve their right in the car. The Crown concurred in the application. The parties were agreed that the value of the petitioners' right was £299.
The court granted the prayer of the petition, ordereddelivery of the ear to the Sheriff-clerk, in order that he might sell it by public auction, and directed that the free proceeds should be paid, in so far as not exceeding £299, to the petitioners, and, in so far as exceeding that sum, to the Queen's and Lord Treasurer's Remembrancer.
Lloyds And Scottish Finance Limited presented a petition to thenobile officium of the High Court of Justiciary, in which they prayed the court to quash an order made in the Sheriff Court at Hamilton for the forfeiture of a motor car which was being held in the possession of the police at Wishaw, upon the instructions of the Sheriff-clerk at Hamilton. The petition was intimated to the Lord Advocate, who lodged answers.
The circumstances out of which the petitioners' application arose are fully narrated in the petition and answers, which were in the following terms:— (Stat. 1) "That the petitioners are a company incorporated under the Companies Acts and have a place of business at Finance House, Orchard Brae, Edinburgh." (Ans. 1) "Admitted." (Stat. 2) "On 1st January 1972 the petitioners in the course of their business entered into a hire-purchase agreement with John Potter, 61 Robert Smillie Crescent, Larkhall, in terms of which they hired to him with an option to purchase a Ford Corsair 2000E motor car, registered number NYL 908E. The total hire-purchase price was £584.68, payable by 36 monthly instalments of £13.13. The said car was at the date of the said agreement and remained at all material times...
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Rr, Petitioner
...HCJAC 35; 2018 JC 182; 2020 SLT 634; 2018 SCCR 189 Lang, Petr 1991 SLT 931; 1991 SCCR 138 Lloyds and Scottish Finance Ltd v HM Advocate 1974 JC 24; 1974 SLT 3; [1975] Crim LR 108 M v HM Advocate (No 2) sub nom CJM v HM Advocate [2013] HCJAC 22; 2013 SLT 380; 2013 SCCR 215; 2013 SCL 361 Mark......
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Donald, Petitioner
...this application to the nobile officium of the High Court of Justiciary.” Case referred to: Lloyds & Scottish Finance Ltd v HM AdvocateSC 1974 JC 24 The prayer of the petition was in the following terms: “[T]o hold that the forfeiture of said motor vehicle was, in the circumstances stated, ......