The Scottish Ministers For A Recovery Order In Terms Of Section 266 Of The Proceeds Of Crime Act 2002 V. Brian Ellis
| Jurisdiction | Scotland |
| Judge | Lord Burns |
| Neutral Citation | [2014] CSOH 10 |
| Court | Court of Session |
| Published date | 24 January 2014 |
| Year | 2014 |
| Date | 24 January 2014 |
| Docket Number | P880/09 |
| OUTER HOUSE, COURT OF SESSION | |
| [2014] CSOH 10 | |
| P880/09 | OPINION OF LORD BURNS in the cause THE SCOTTISH MINISTERS For a Recovery Order in terms of Section 266 of the Proceeds of Crime Act 2002 Pursuer; against BRIAN ELLIS Defender: ________________ |
Pursuer: MacGregor, advocate; Civil Recovery Unit, Crown Office, Edinburgh
Defender: Party
24 January 2014
Introduction
[1] The petitioners are the enforcement agency for the purposes of the Proceeds of Crime Act 2002 ("the 2002 Act"). They seek a recovery order in terms of chapter 2 of Part 5 of the 2002 Act. The petitioners were represented by Mr MacGregor, advocate. The respondent is Brian Ellis who represented himself. No other parties appeared. The petition called before me for proof on 15 October 2013 and successive days. The petitioners seek recovery of the sum at credit in the Neilson's client account ledger in the name of the respondent which represents the proceeds of sale of the heritable property known as "SL" formerly owned by the respondent. They do not seek recovery of the Audi A4 or Nissan Primastar cars.
The statutory provisions
[2] Part 5 of the 2002 Act is headed "Civil Recovery of the Proceeds etc. of Unlawful Conduct". These provisions form part of an initiative to tackle serious crime across the United Kingdom (Assets Recovery Agency v T [2004] EWHC 3340 (Admin) at paragraph 22). They are civil proceedings. It is not part of the scheme to establish that some particular offence had been committed by any particular person. Section 240 (so far as material) provides:
"(1) This Part has effect for the purposes of:
(a) enabling the enforcement authority to recover, in civil proceedings before the...Court of Session, property which is, or represents, property obtained through unlawful conduct,
(2) The powers conferred by this Part are exercisable in relation to any property (including cash) whether or not any proceedings have been brought for an offence in connection with the property".
[3] The civil nature of the proceedings has been authoritatively recognised in Scottish Ministers v McGuffie 2006 SLT 1166 and Scottish Ministers v Doig [2009] SLT 1106.
[4] If the court is satisfied that any property is recoverable, the court must make a recovery order: section 266(1) provides:
"(1) If in proceedings under this Chapter the court is satisfied that any property is recoverable, the court must make a recovery order."
Section 266(3) provides for circumstances in which the court may not make a recovery order. The first of these relates to persons who have acquired property in good faith and does not arise in this case. Section 266(3)(b) provides that the court may not make in a recovery order any provision which is incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998). No issue arose in respect of this matter. Since the respondent was not represented, I have myself considered whether any question of incompatibility with the Convention does arise but I have concluded that it does not. I have had regard in particular to the sort of Convention rights issues which required to be examined in the cases of the Scottish Ministers v Doig 2009 SLT 1106 and in Scottish Ministers v Smith 2009 CSOH 167. The petitioners do not seek in this petition to lead evidence about alleged unlawful conduct which has formed the basis of an unsuccessful prosecution. These proceedings cannot be said to be the consequence of or to any extent the concomitant of any criminal proceedings.
[5] "Recoverable property" is defined in section 304 in the following terms:
"(1) Property obtained through unlawful conduct is recoverable property."
Section 241 defines "unlawful conduct". Sub section (1) provides:
"(1) Conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful conduct under the criminal law of that part".
The petitioners contend that the property at SL was obtained through unlawful conduct and that the proceeds of sale which are the subject of this petition were also obtained through unlawful conduct.
[6] Section 245 provided for associated property. Sub section (1) is in the following terms:
"(1) 'Associated property' means property of any of the following descriptions (including property held by the respondent) which is not itself the recoverable property -
(a) any interest in the recoverable property,
..."
Section 310 is in the following terms:
"(1) If a person grants an interest in his recoverable property, the question of whether the interest is also recoverable is to be determined in the same manner as it is on any other disposal of recoverable property.
(2) Accordingly, on his granting an interest in property ('the property in question') -
(a) where the property in question is property obtained through unlawful conduct, the interest is also to be treated as obtained through that conduct,
(b) where the property in question represents in his hands property obtained through unlawful conduct, the interest is also to be treated as representing in his hands the property so obtained."
[7] Section 305 provides for tracing property. So far as material it is in the following terms:
"(1) Where property obtained through unlawful conduct ("the original property") is or has been recoverable, property which represents the original property is also recoverable property.
(2) If a person enters into a transaction by which -
(a) he disposes of recoverable property, whether the original property or property which (by virtue of this Chapter) represents the original property, and
(b) he obtains other property in place of it,
the other property represents the original property."
The contention of the petitioners is that the sum at credit in the bank client account of Neilsons constitutes recoverable property in terms of this section.
Section 307 provides for accruing profits. It is in the following terms:
"(1) This section applies where a person who has recoverable property obtains further property consisting of profits accruing in respect of the recoverable property.
(2) The further property is to be treated as representing the property obtained through unlawful conduct".
The evidence
[8] The proof in this matter proceeded in two main chapters. The first was evidence relating to the unlawful conduct on the part of the respondent and his partner SG over a period from about 1999 to 2007 when the property at SL was sold. That unlawful conduct was said to comprise of conduct which would amount to theft and fraud under the criminal law of Scotland. Evidence was led which was designed to show that the respondent and SG had been involved in such conduct in the years leading up to the purchase of SL in 2002 and thereafter in order to demonstrate that the deposit paid by the respondent to purchase it was derived from unlawful conduct and that, thereafter, the mortgage was paid with the proceeds of such conduct.
[9] The second main chapter related to the obtaining of the mortgage over the property. Evidence was led to demonstrate that the mortgage was obtained as a result of fraudulent misrepresentations by the respondent as to his income as a result of which the mortgage was granted over the property.
Evidence in relation to Unlawful Conduct on the part of the respondent and SG
[10] Mr MacGregor presented evidence with a view to establishing that the respondent and SG had been involved in unlawful conduct over a long period of time. He did so in a number of different chapters.
[11] First there was an agreed list of previous convictions relating to the respondent (paras 35 to 40 of the joint minute). These are detailed below
[12] Secondly, there was direct evidence from a number of sources (both from police officers and from members of the public) of the respondent's involvement in acquisitive crime, mostly in the form of being a party, with SG, to the theft and subsequent use of credit and debit cards and of cheques.
[13] Thirdly, there was evidence of his being investigated by the police in respect of a number of different crimes of a similarly acquisitive nature and subsequently reported by the police to the Procurator Fiscal. The evidence was in the form of Standard Prosecution Reports (SPRs) contained as appendices 1 to 18 of the Report of Detective Inspector Gilchrist (6/59 of process) and spoken to by him. No proceedings had been taken by the Crown against the respondent as a result of these reports. DI Gilchrist gave evidence about the content of these reports, his own knowledge about the respondent's activities and from other sources which led him to form an opinion about the respondent's involvement in criminal activities.
[14] I will deal with these chapters of evidence in order.
1. Previous convictions. In November 1977 he was convicted of theft by housebreaking and housebreaking with intent to steal. In March 1980 he was convicted of theft. In February 1984 he was convicted of theft by opening lockfast places. In December 1985 he was convicted of theft. In May 1988 he was convicted of theft by opening a lockfast place, opening a lockfast place with intent and breach of the peace. In addition, 6/67 of process contains a further 3 previous convictions relating to the respondent. In March 1993 he was convicted of fraud in relation to the Road Traffic Act 1988, in December 2004 he was convicted of credit and debit card fraud and in October 2006 was convicted of a contravention of section 35(1)(B) of the Legal Aid (Scotland) Act 1986. The details thereof are agreed by para 43 of the joint minute to be contained in 6/52 of process. The respondent falsely declared to the Scottish Legal Aid Board for the purposes of his applications for legal aid on 6 August 2004 and 10 February 2005 that he had no capital whereas on those dates he had £10624.10 and £9606.26 respectively.
2. Direct evidence of the respondent's involvement in acquisitive crime came from a number of sources...
To continue reading
Request your trial