Robert Mcintosh V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Prosser,Lord Kirkwood,Lord Allanbridge |
| Court | High Court of Justiciary |
| Date | 13 October 2000 |
| Docket Number | Misc.77/2000 |
| Published date | 18 October 2000 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Prosser Lord Kirkwood Lord Allanbridge
| Appeal No: Misc.77/2000 OPINION OF LORD PROSSER in PETITION to the nobile officium by ROBERT McINTOSH Petitioner: against HER MAJESTY'S ADVOCATE Respondent: ______ |
Petitioner: Shead, Devlin, Bennett & Robertson
First Respondent: Menzies, Q.C., A.D.; Crown Agent;
Second Respondent: L. Murphy cf. Advocate-General; H Macdiarmid
13 October 2000
[1]At a sitting of the High Court of Justiciary in Paisley, the petitioner Robert McIntosh was convicted on 30 June 1999 of an offence under section 4(3)(b) of the Misuse of Drugs Act 1971 during the period from 1 January to 6 March 1999. That offence is a "drug trafficking offence" for the purposes of the Proceeds of Crime (Scotland) Act 1995, in terms of section 49(5)(a)(ii) of that Act. The offence having been prosecuted on indictment was one to which, in terms of section 1(2), Part I of the Act applies; and in respect thereof, the court accordingly had power, in terms of section 1(1), on the application of the prosecutor, to make "an order (a 'confiscation order') requiring the accused to pay such sum as the court thinks fit". On the petitioner being convicted, the prosecutor applied for the making of a confiscation order.
[2]In terms of section 1(5) of the Act, it is provided that 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 what the court assesses to be "the value of the proceeds" of the person's "drug trafficking", subject to a limit related to what may be realised. The expression "drug trafficking" is defined in section 49(2) of the Act as meaning, subject to subsections (3) and (4) of the section, doing or being concerned in any of a list of activities, each of which would constitute a contravention of a statutory provision relating to controlled drugs. "Drug trafficking" is an expression which, in terms of the statutory definitions, is quite separate and distinct from a "drug trafficking offence".
[3]Section 9(1) of the 1995 Act provides that where the prosecutor applies for the making of a confiscation order, he may lodge with the clerk of court a statement as to any matters relevant, in connection with a drug trafficking offence, to the assessment of the value of the accused's proceeds of drug trafficking. Such a statement was lodged: it concerns assets and expenditure, with no allegations of drug trafficking as such, but stating a figure for proceeds of drug trafficking. Thereafter the petitioner lodged (and subsequently adjusted) Answers to that Statement. Section 9 contains a number of further provisions bearing upon the assessment of the value of the proceeds of drug trafficking when a statement has been lodged; but these give rise to no specific point in the present proceedings. Without prejudice to section 9, however, in terms of section 3(2) of the 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 the 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."
In terms of section 3(1), a person's "proceeds of drug trafficking" are defined as any payments or other rewards received by him at any time in connection with drug trafficking carried on by him or another; and the value of these proceeds of drug trafficking is the aggregate of the values of the payments or other awards. The figure for proceeds contained in the prosecutor's Statement apparently derives from an application of these assumptions.
[4]In his adjusted Answers to the Statement, the petitioner refers to the provisions of section 3(2) of the 1995 Act, and to Article 6(2) of the Convention for the protection of Human Rights and Fundamental Freedoms, which provides that "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." He avers that section 3(2) of the Act displaced this presumption of innocence by requiring the accused to prove that the assumptions were incorrect. Referring to section 57(2) of the Scotland Act 1998, he avers that by inviting the court to make the assumptions referred to, the Lord Advocate was seeking to act in a way which was incompatible with the accused's Convention rights. Such an invitation would therefore be ultra vires and incompetent. Upon the basis that the issue thus raised was a devolution issue, a diet of debate was fixed for 24 February 2000. The presiding judge was asked to pronounce a declarator that in the circumstances "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". It was conceded on behalf of the Crown that if the submissions were otherwise well-founded, the "invitation" in question would constitute an "act" for the purposes of section 57(2) of the Scotland Act and that such a declarator could properly be pronounced. The court declined to pronounce the declarator sought. While the prayer of the present petition to the nobile officium does not express the matter in this way, the petitioner asks that the decision of the court below be reversed, and that the declarator sought be now granted. On behalf of the Crown, the same concessions were made: while it might have been argued that the application was premature, no invitation to make the assumptions having yet been made to the court, the Crown were content to proceed upon the basis that there was a relevant act by the Lord Advocate, and that if the declarator sought by the petitioner were otherwise thought to be well-founded, it could properly be pronounced. The Crown's position was, however, that the declarator was ill-founded, and that the petitioner's motion should be refused.
[5]It is apparent that at the debate on 24 February, the devolution issue raised in the petitioner's Answers to the Statement was not supported by any very closely argued submissions; and the submissions for the Crown, as narrated by the presiding judge, appear likewise to have been advanced in somewhat simple terms. The judge says that having weighed up the competing submissions of counsel as best he could, he reached the view that those advanced on behalf of the Crown should prevail. He does not discuss any particular considerations or set out his analysis of the matter. In these circumstances, in the submissions advanced to us, counsel for the petitioner was not attacking the judge's reasoning as such; nor was the advocate depute relying upon any such reasoning. In effect, the issue before us was approached, on both sides, as if this appeal hearing was for practical purposes a hearing at first instance. That being so, although some of the ground covered was of course the same, it is not necessary for us to refer further to the opinion issued by the judge at first instance.
[6]In terms of Article 6(2) of the Convention, it is "everyone charged with a criminal offence" who is to be presumed innocent until proved guilty. In claiming to be a person "charged" with a criminal offence, the petitioner is not of course referring to the charge under section 4(3)(b) of the Misuse of Drugs Act, which had been disposed of by conviction before the prosecutor applied for a confiscation order and lodged the Statement. Nor indeed was counsel for the petitioner contending that his client was a person "charged with a criminal offence" as that expression would be understood as a matter of Scots law. He took as his starting point the fact that Article 6(1) provides that in the determination of any criminal charge against a person the person charged is entitled to a fair and public hearing "within a reasonable time". Counsel referred to Foti v. Italy (1983) 5 E.H.R.R. 313. At paragraph 52 on page 325, the court observed that one must begin by ascertaining from which moment the person was "charged". And after quoting the definition of "charge" given in Eckle v. Germany (1982) 5 E.H.R.R. 1 at paragraph 73, the court in Foti went on to say that "it may in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect." Counsel submitted that in construing the words "charged with a criminal offence" in Article 6(2), one must proceed not upon the basis of what these words would mean in Scots terminology, but upon the definition provided in Eckle - "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence" - as interpreted in Foti. I did not understand the advocate depute on behalf of the Crown to dispute this: the question was whether, upon application for a confiscation order and the lodging of the Statement, the petitioner was being "charged" in this sense with a criminal offence.
[7]Counsel for the petitioner, and subsequently the advocate depute, asked us to consider the essential nature of an application for a confiscation order, and the proceedings which followed on such an application. On behalf of the petitioner, counsel...
To continue reading
Request your trial