Drug dealer wins appeal against forfeiture of vehicle

The Criminal Appeal Court ruled that the sheriff’s decision should be quashed after the Crown conceded that it should not have asked for the forfeiture order to be imposed.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Bracadale, heard that the appellant Ryan McNair pled guilty by section 76 procedure to a charge of being concerned in the supply of ecstasy on a single day.

At about 10pm on the day in question, a Ford Focus belonging to the appellant was seen by police officers to pull into the car park of a rugby club which was known to be closed.

The police followed and saw an individual described for convenience as a co-accused standing by the car.

A search of the area found a quantity of diamorphine under a nearby tree, along with cash of £7,465.

The co-accused admitted responsibility for the heroin.

It was subsequently accepted that the appellant had been in the car and a search of the vehicle led to the discovery of 108 tablets of ecstasy, which were valued between £100 and £200.

When the appellant was arrested at the home of the co-accused he admitted responsibility for the tablets and subsequently submitted a section 76 plea, while the co-accused pled guilty to a separate section 76 indictment.

In the case of the appellant, who had a prior conviction for supply of heroin for which he was sentenced to 40 months’ imprisonment, the procurator fiscal depute made a motion for forfeiture of the vehicle, which was said to be worth about £9,000.

The appellant’s solicitor described the car as his “pride and joy” and “only asset”, but the sheriff imposed a sentence of 12 months’ imprisonment and ordered forfeiture of the vehicle.

The sheriff noted that despite a “hefty sentence” previously the appellant had “continued to be involved in the drug scene” as a dealer to fund his habit and that the vehicle had been used in the transportation of his drugs.

However, the appellant appealed and the judges quashed the forfeiture order.

The court noted that the sheriff did not refer to the statutory provision under which he made the order but did mention a number of cases in which forfeiture of vehicles of some value was made by the court, but these were all cases under section 33A of the Road Traffic Offenders Act 1998.

Delivering the opinion of the court, the Lord Justice Clerk said: “The cases may be relevant to the extent that any issue of proportionality is considered therein, but the basis for making the order itself is different. In traffic cases the basis for making the order is triggered by the commission of a relevant driving offence.

“In the present case, the order was a suspended forfeiture order under s 21 of part II of the Proceeds of Crime (Scotland) Act 1995, in terms of which a suspended forfeiture order (which becomes final after 60 days or on an appeal settled in favour of the prosecutor) may be made where the court is satisfied that the property was, at the time of the offence, being used for the purpose of committing or facilitating the commission of any offence.

“That requires an assessment by the sheriff of the extent to which the vehicle was so used. It also requires an assessment of the proportionality of making such an order in all the circumstances of the case.

“Moreover, in the present case the sheriff was advised that confiscation proceedings had been initiated in this case and remained live, despite the fact that the only asset of the appellant appears to have been the motor car. The sheriff did not appear to address his mind to the interplay between the provisions of the Proceeds of Crime Act 2002 and those of the Proceeds of Crime (Scotland) Act 1995.

“The issues under confiscation proceedings include whether there is established a criminal lifestyle, a benefit from such, the extent of any such benefit and the available amount for making a confiscation order. The issues are quite different from the issue considered under section 21.”

The sheriff said that in confiscation proceedings regard would be had “to the present case as well as the previous conviction”, but the appeal judges pointed out that the way in which the effect of forfeiture may be taken into account in confiscation proceedings was “not as straightforward as the sheriff appeared to contemplate”, although the recovery proceedings had since been abandoned.

Lady Dorrian added: “Of more significance is section 97 of the 2002 Act which gives clear priority to confiscation proceedings, providing in section 97(3) that the court must take account of the confiscation order before making other orders, including one for forfeiture under section 21 of the 1995 Act.”

It was conceded by the Crown that in the circumstances the sheriff should not have been asked to make the forfeiture order and that he erred in doing so, and the judges agreed that the forfeiture order required to be quashed.