Sheriff calls for amendment to summary application rules in ‘proceeds of crime’ cases

Sheriff Gregor Murray at Forfar called for the rules to be amended to provide that where notice of the result of an application is given to persons who may be affected by it, any affected person must be provided with an explanation that they have rights in relation to the funds.

In his note the sheriff said that on 29 December 2016, in chambers, the procurator fiscal sought orders in a summary application for extended detention of seized cash in terms of s.295(2) of the Proceeds of Crime Act 2002.

The pursuer averred that on 27 December 2016, police were called to a hotel following reports of a disturbance in a room and a male jumping from the window.

Officers were voluntarily admitted to the room by the defender, where a sports bag was seen to contain male clothing, diazepam tablets, anabolic steroids, hypodermic needles and £2,250 in cash.

While the defender admitted the bag was hers, she also said it was occasionally used by her brother, denied any knowledge of the drugs and cash and any disturbance and said she was staying in the room alone.

However, police seized the cash in the bag in terms of s.294 of the 2002 Act as they believed that the defender’s cohabitee, a known drug dealer, was owner of the bag and the man who had jumped from the window.

The application contained craves seeking (i) to dispense with citation of the defender (ii) to grant an order under s.295(2) of the 2002 Act authorising continued detention by police of a sum of cash for up to three months (iii) to grant warrant to serve the application on the defender with copies of sections of the 2002 Act.

The sheriff observed that on the first issue, it appeared the application sought to draw an “artificial distinction” between citation and intimation and did not appear to comply with the procedural scheme set out in s.295 and chapter 3.19 of the summary application rules.

On the second, though police suspicion was directed towards the defender’s cohabitee, he was not convened as a defender, nor was intimation of the application on him sought.

On the third, there appeared to be “insufficient averments” to satisfy the sheriff that any of the conditions set out in ss.295(5) or (6) existed.

On behalf of the Crown it was submitted warrant to cite the defender should be dispensed with as the purpose of the application would be otherwise defeated.

Section 295(2) required determination of the application within 48 hours of the cash being seized, but warrant to intimate was required in terms of s.295(8).

In addition, as a matter of fairness, intimation was necessary to ensure the defender was made aware of her statutory rights under ss.297, 301 and 302 in relation to the cash.

In a written judgment, Sheriff Murray said: “As I understand Crown policy, similar orders to those I was asked to make are sought in all cases. For the reasons given above, I consider any such policy needs reconsidered. In my opinion, an initial s.295(2) summary application need not name any person as a defender. No order for intimation or citation before the first hearing is required, nor is any crave for dispensation of citation or intimation. The Sheriff should simply consider the application, any productions and submissions and determine it in absence having regard to the conditions in ss.295(5) and (6). The distinction the Crown seeks to draw between citation and intimation is misconceived.

“Further, s.295(8) only requires notice of the result of an application to persons who may be affected by it not, as was submitted to me, of the application being made. If the application is refused, no person is affected by it; accordingly, notice is not then required. If the Crown has details of persons to whom they think notice should be given if the application is ultimately granted, warrant to notify them can be craved.

“The unusual wording of the third crave, which seeks warrant to intimate the application on the defender with a copy of s.297 of the Act derives, I was told, from judicial comment in another case that recipients of the application would not otherwise appreciate they held rights in relation to the funds. I agree. However, a more practical solution would be for chapter 3.19 of the summary application rules to be amended to provide that notice given to any affected person in terms of s.295(8) be accompanied by a new form in the appendix to the rules which explain those rights.”

He added: “As regards disposal of this application, a number of my initial concerns remain – the reason for police attending the hotel was not drug related. It was not averred the defender had been engaged in dealing controlled drugs. It is not illegal per se to possess diazepam, anabolic steroids, needles or cash. No underlying factual basis is pled to justify the Crown averring it ‘believes and avers’ the cohabitee was at the scene.

“However, after hearing further submissions, I concluded with hesitation that there are reasonable grounds for suspicion that the cash is recoverable property and that its continued detention is justified while its derivation is further investigated and consideration given to bringing proceedings. Further enquiry, which it is averred is ongoing, may enable the cohabitee to be traced and questioned; witness or forensic evidence may also come to light that he booked the room or place him at the locus.

“I therefore granted an order for extended detention of the cash, but only until 11 January, to enable those enquiries to be completed. In addition, I ordered that notice of the decision be given to the defender and the cohabitee, together with copies of the documents specified in the crave.”

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