Sheriff Appeal Court rejects challenge to £277,000 proceeds of crime order

The appellant challenged the sheriff’s decision to make the order under the Proceeds of Crime Act 2002 after finding that he had led a “criminal lifestyle” and benefitted from his “criminal conduct”, but the Sheriff Appeal Court upheld the decision.

‘Criminal lifestyle’

Appeal Sheriff Alasdair MacFadyen, Appeal Sheriff Andrew Cubie and Appeal Sheriff Norman McFadyen heard that the appellant John Farrell, 25, and his father John Farrell, 76, were prosecuted together on a summary complaint which libelled two charges against both of them: namely, being concerned in the supplying of the class A drug cocaine, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971; and possession of the class B drug cannabis, contrary to section 5(2) of the Act.

The appellant pled guilty to both charges, while his co-accused pled not guilty, and the Crown accepted their pleas.

Thereafter, having adjourned the diet for the reports and deferred sentence for the appellant to be of good behaviour, the sheriff ultimately admonished the appellant.

Meantime, confiscation proceedings commenced and a following a proof, the sheriff was satisfied that the appellant had led a “criminal lifestyle” and the statutory assumptions that he had inter alia benefitted from his “general criminal conduct” and obtained property as a result followed, in terms of sections 92 and 96 of the Proceeds of Crime Act 2002.

The defence failed to show that the four assumptions were “incorrect” or that there would be a “serious risk of injustice”, therefore the sheriff decided that the recoverable amount was £277,382.14 and made the confiscation order, requiring the appellant to pay that amount within six months.

‘Serious risk of injustice’

However, the appellant appealed against the order, arguing that, in the particular circumstances of this case, the sheriff had erred in failing to find that there had been a serious risk of injustice if he found that the four assumptions should be made.

It was claimed that the appellant’s father, whose not guilty plea had been accepted by the Crown, was the source of the property in the appellant’s possession, but he was unable to give evidence to that effect because was suffering from dementia.

Solicitor advocate John Scott QC, on behalf of the appellant, submitted that the confiscation order should be quashed and replaced either with no order at all or an order for the restricted sum of £35,575 – a figure identified by the appellant’s forensic accountant.

In reply for the respondent, advocate depute Alex Prentice QC argued that the case raised “nothing of any novelty or speciality”.

The sheriff had heard and rejected the appellant’s evidence and it was submitted that there was “no flaw” in his reasoning that he could make the four statutory assumptions as to the source of the appellant’s assets, or that it was “proportionate” to make the order.

Sheriff’s decision ‘beyond criticism’

Refusing the appeal, the appeal sheriffs said they preferred the respondent’s arguments.

Delivering the opinion of the court, Sheriff MacFadyen said: “The route to the sheriff’s decision to make the confiscation order is set out in the provisions of the 2002 Act. The index offence, being concerned in the supply of cocaine, a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971, triggered the finding that the appellant had a criminal lifestyle. He had assets.

“The sheriff decided that, without incurring the risk of serious injustice, he could make the four statutory assumptions as to the source of those individual assets. Then, so long as the decision was proportionate in respect of each asset considered separately, the sheriff had to make a confiscation order in respect of each asset to which the assumption applied.

“As already noted, the sheriff made the assumptions, having decided that to do so did not risk serious injustice, decided that it was proportionate to make the confiscation order in respect of each item of property described in the statement of information and therefore made it.”

On the issue of the extent of the recoverable amount, the court observed that the sheriff had rejected the appellant’s evidence as to the source of each of the items of property and therefore was “obliged” to make all of the assumptions in respect of all of the assets in question.

In determining whether the sheriff had erred in deciding that there was no risk of serious injustice if the section 96 assumptions were made, the court held that the sheriff’s decision was “beyond criticism”.

Sheriff MacFadyen added: “We cannot see any factor which might have justified a finding of a risk of serious injustice. The appellant gave evidence…The sheriff sets out, at paragraph of his report a summary of the appellant’s account of how he came to possess the assets in question.

“He then goes on to explain that he found that evidence ‘utterly unconvincing’ and concludes that the appellant was endeavouring to protect, for the family, the benefit which he had obtained through criminal activities. In our view, that is a reasonable explanation of the approach taken to the appellant’s evidence by the sheriff. We can find no reason to fault his approach, far less to question his conclusion.”