The Scottish Ministers V. George Mcguffie And Others For An Interim Adfministration Order In Terms Of The Proceeds Of Crime Act 2002 And For Warrant For Inhibition And Arrestme
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2006] CSOH 34 |
| Court | Court of Session |
| Date | 28 February 2006 |
| Published date | 28 February 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 34 | |
| OPINION OF LORD KINCLAVEN in the Petition of THE SCOTTISH MINISTERS Petitioners against GEORGE McGUFFIE and Others Respondents for An interim administration order in terms of the Proceeds of Crime Act 2002 and for warrant for inhibition and arrestment ________________ |
Petitioners: Cullen QC, Sheldon; Solicitor to the Scottish Executive
First Respondent: Woolman QC, Shead; Wilson Terris & Co, SSC
28 February 2006
Introduction
[1] This is a Petition by the Scottish Ministers for an interim administration order in terms of the Proceeds of Crime Act 2002 ("the 2002 Act").
[2] The case came before me for debate at the instance of the First Respondent, George McGuffie.
[3] The primary submission for the First Respondent was that the order sought is contrary to Article 7 of the European Convention on Human Rights and Fundamental Freedoms. It was submitted that the Petitioners were seeking to impose a retrospective criminal penalty on Mr McGuffie.
[4] Mr Woolman QC for the First Respondent invited me to uphold his argument in principle, to find that the Petitioners were seeking to impose a criminal penalty retrospectively and to put the case out By Order so that consideration could be given to a more limited form of order. Mr Woolman accepted that if there was no criminal penalty then his challenge to the Petition failed.
[5] Mr Cullen QC for the Scottish Ministers moved me to sustain the Petitioners' plea-in-law to the effect that the Respondent's case was irrelevant. He submitted that the Respondent's case should not be admitted to probation. I was invited to grant the prayer of the petition in so far as not already granted.
[6] Having heard counsel, I have decided that the Petitioners' submissions fall to be preferred. I was not satisfied that the First Respondent's arguments were well founded. I shall outline my reasons below.
[7] In the result, I shall sustain the plea in law for the Petitioners and repel the pleas-in-law for the First Respondent. I propose to grant the prayer of the present petition in so far as not already granted and I shall put the case out "By Order".
The Petitioners
[8] The petitioners are the Scottish Ministers. They are the enforcement authority in relation to Scotland for the purpose of the Proceeds of Crime Act 2002 (c. 29). By this petition the Scottish Ministers seek an interim administration order in terms of Chapter 2 of Part 5 of the 2002 Act and warrant for inhibition and arrestment. Section 286 of the 2002 Act provides, subject to certain exceptions which are not applicable in the present case, that orders under that Chapter may be made by the Court of Session in respect of a person wherever domiciled, resident or present. There is no dispute that this Court has jurisdiction.
The Respondents
[9] The respondents are the persons mentioned in Part I of the Schedule to the Petition. They are individuals who the petitioners aver hold the property mentioned in Parts II and III of the Schedule. The Petitioners aver that that property is recoverable property or as the case may be associated property within the meaning of the 2002 Act.
The Procedural Background
[10] The present petition is for an interim administration order. It was lodged on 2 March 2004.
[11] On 3 March Lord Brodie granted an order in terms of section 256 of the Proceeds of Crime Act 2002 for the detention, custody and preservation of the property mentioned in Parts II and III of the Schedule to the Petition. In outline, Lord Brodie granted paragraphs (i) to (iii) and (v) to (xiv) of the prayer of the petition. An interim administrator was appointed.
The Answers for the First Respondent
[12] Answers were lodged only by the First Respondent. As Mr Woolman very fairly stated the only substantive answer to the Petition is Answer 5.
[13] Answer 5 for the First Respondent includes the following:-
"5.1 Admitted that the respondent has a number of previous convictions. Quoad ultra denied. Explained and averred that, with limited exceptions, the petition seeks recovery of property in respect of criminal offences which were alleged to have been committed by the first respondent before the Act came into force. Separatim. Apart from the offences which have resulted in conviction it is alleged that the first respondent has committed a number of other offences. ... To invite the court to make the orders sought would be for the petitioners to act incompatibly with the first respondent's rights under Article ... 7(1) of the Convention. Such an act would be ultra vires. Reference is made to s.57 (2) of the Scotland Act 1998."
[14] The only argument which was advanced by the First Respondent relates to Article 7 of the Convention. The other arguments for the First Respondent (in his Answers and Note of Argument) were not insisted upon.
The Petitioners' averments and response to the Answers
[15] The Petitioners aver (in paragraph 5.3 of the petition) inter alia:-
" ... Explained and averred that section 316(3) of the Act provides that for the purpose of deciding whether or not property was recoverable at any time (including times before commencement of the Act) it is to be assumed that Part 5 of the Act was in force at that and any other relevant time. ... Further explained and averred that Article 7(1) is not engaged in the circumstances of the present case. The present proceedings are civil proceedings brought under and in terms of Part 5 of the Act. Part 5 has effect for the purposes of enabling the petitioners to recover in civil proceedings in the Court of Session property which is, or represents, property obtained though unlawful conduct. In the present application the petitioners seek the appointment of an interim administrator and certain other protective relief. The present proceedings were not initiated by nor are they being pursued by a prosecuting authority; they do not involve the arrest or charge of any person with a criminal offence; and they will not culminate in a conviction, the imposition of any penal sanction or the acquisition of a criminal record. The proceedings are being pursued in a civil court: which will apply civil rules of evidence and procedure. The present proceedings are directed against property. The petitioners are not seeking to re-open cases as averred by the first respondent. Further explained and averred ... that any decision to prosecute or to refrain from prosecuting in any particular case is a decision that lies within the exclusive responsibility of the Lord Advocate in his capacity as head of the Crown Office and Procurator Fiscal Service. Any such decision, and the reasons for it, do not raise issues that are relevant to the present proceedings. In any event, the petitioners have no responsibility for such matters. ...".
The central issue
[16] The central issue is whether, as the First Respondent argues, Article 7 of the Convention is engaged in the circumstances of the present case.
Article 7 of the Convention
[17] The Articles of the Convention are set out in Schedule 1 to The Human Rights Act 1998. In particular, Article 7 provides:-
"(1) No one shall be guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
(2) This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations."
[18] I also bear in mind, as I was invited to do, the provisions of Sections 1, 2 and 3 the 1998 Act.
Section 57(2) of the Scotland Act 1998
[19] Section 57(2) of the Scotland Act provides:-
"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law."
The Proceeds of Crime Act 2002 ("the 2002 Act")
[20] The Proceeds of Crime Act 2002 (c. 29) received the Royal Assent on 24 July 2002. It came into force in accordance with provisions made by the Scottish Ministers and the Secretary of State. Chapters 1 and 2 of Part 5 the Act came into force on 30 December 2002 and 24 February 2003 respectively (S.I. No 2002/3015 and S.I. No 2003/120).
[21] The 2002 Act describes itself as follows:-
"An Act to establish the Assets Recovery Agency and make provision about the appointment of its Director and his functions (including Revenue functions), to provide for confiscation orders in relation to persons who benefit from criminal conduct and for restraint orders to prohibit dealing with property, to allow the recovery of property which is or represents property obtained through unlawful conduct or which is intended to be used in unlawful conduct, to make provision about money laundering, to make provision about investigations relating to benefit from criminal conduct or to property which is or represents property obtained through unlawful conduct or to money laundering, to make provision to give effect to overseas requests and orders made where property is found or believed to be obtained through criminal conduct, and for connected purposes."
[22] In general terms, Part 5 of the 2002 Act enables the enforcement authority to recover property which is, or which represents, property obtained through unlawful conduct. Section 244 of the Act provides inter alia that proceedings for a recovery order may be taken by the enforcement authority in the Court of Session against any person who the authority thinks holds recoverable property. Subsection 266(1) of the Act provides that if in proceedings under Chapter 1 of Part 5 of the Act the court is satisfied that any property is recoverable, the court...
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