HM Advocate v H [2007] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2007] CSOH 37

P2047/04

OPINION OF LORD MACPHAIL

in the Petition of

HER MAJESTY'S ADVOCATE

Petitioner;

against

Respondent:

for

A restraint order in terms of section 120 of the Proceeds of Crime Act 2002

________________

Petitioner: Comiskey, A.-D.; Crown Agent

Respondent: Jones, Solicitor Advocate; Brechin Tindall Oatts

16 February 2007

[1] This is a petition by the Lord Advocate for a restraint order in terms of section 120 of the Proceeds of Crime Act 2002 ("the Act"). On 22 December 2004 the Lord Ordinary granted a restraint order interdicting the respondent from dealing with any realisable property. It is common ground that a criminal investigation was instituted on 26 November 2004, and that no proceedings have yet been instituted. The respondent lodged a Note (no 7 of process) seeking the recall of the restraint order in terms of section 121(9) of the Act. The Lord Advocate lodged answers to the note (no 10 of process). A hearing on the note and the answers to the note was appointed for 28 April 2006 but was discharged on joint motion. On 25 July 2006 the Lord Ordinary pronounced an interlocutor in which he allowed answers by the respondent to the petition to be received and marked no 11 of process, allowed a hearing on the petition and the answers to the petition and appointed the hearing to proceed on 26 and 27 October 2006 along with the hearing already assigned in relation to the note and the answers to the note, and granted diligence for citing witnesses and havers. It appears from the latter part of the interlocutor that the Lord Ordinary envisaged that evidence might be led at the hearing.

[2 ] On 26 October 2006 the case was called before Lord Carloway. The interlocutor bears that the parties advised his Lordship that the issue raised in the note and answers nos 7 and 10 of process could not be resolved without proof and that neither of them was in a position to adduce such proof at that diet. On the parties' joint motion his Lordship allowed the noter's answers to the petition (no 11 of process) to be withdrawn, leaving as the only live matter before the Court the note and answers nos 7 and 10 of process. His Lordship allowed a minute of amendment of the note in response to the Lord Advocate's answers to the note to be received and marked no 13 of process, and allowed the noter to lodge answers to that minute of amendment. His Lordship also discharged the hearings set down for 26 and 27 October 2006; of new allowed to the parties a hearing on the note and answers nos 7 and 10 of process as adjusted; and granted diligence for citing witnesses and havers. It is clear from the minute of proceedings that the parties were of the view that it would be necessary for evidence to be led, and that eight days would be required.

[3 ] On 11 December 2006 the noter enrolled a motion to ordain the Lord Advocate to lead at the hearing on the note and answers. The motion called before me on 13 December 2006. The pleadings in both the note and the answers were fairly elaborate and it appeared that issues of great delicacy and complexity might arise if certain evidence were sought to be elicited at the hearing. Having heard parties, I continued consideration of the motion until 1 February 2007 and appointed parties to lodge notes of argument. Thereafter the parties decided to make substantial alterations to their pleadings. At the continued hearing of the motion on 1 February 2007 I allowed the pleadings to be amended, and allowed the noter's solicitor advocate to amend the note further at the Bar.

[4 ] The issue to be determined at the hearing on the note and answers arises in this way. Section 119 of the Act provides that the Court may exercise the powers conferred by section 120 (which include the power to make a restraint order) if any of certain specified conditions is satisfied. The first condition is that a criminal investigation (defined in section 154) has been instituted in Scotland with regard to an offence and there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct. It is common ground that such a criminal investigation was instituted on 26 November 2004. Section 121(9) provides, so far as material:

"(9) In the case of a restraint order, if the condition in section 119 which was satisfied was that an investigation was instituted [ . . . ], the court must recall the order if within a reasonable time proceedings for the offence are not instituted [ . . . ]"

The noter points out that the restraint order was made on 22 December 2004, and avers:

"No proceedings having been instituted [ . . . ] within a reasonable period, the Court must recall the interlocutor pronounced on 22 December 2004."

[5 ] The Lord Advocate admits that investigations have been going on since that time and that proceedings have not been instituted. She avers:

"Explained and averred that the time taken to investigate matters in relation to the Noter does not represent an excessive delay in terms of Section 121(9) of the said Act. The enquiry into the Noter and the individuals, companies and funds connected with the Noter has required numerous investigations abroad. The procedure for following enquiries in foreign countries to obtain material from foreign jurisdictions that can be properly used in a criminal investigation by the relevant Scottish authorities and which may be used for Court purposes necessarily involves significant periods of time to properly complete."

The Lord Advocate goes on to make detailed averments about the procedural steps which are necessary, including the use of International Letters of Request ("ILORS"). She continues:

"The period of time necessarily involved in pursuing enquiries in each foreign country to obtain material from foreign jurisdictions that can be properly used in a criminal investigation by the relevant Scottish authorities can take between about 18 months and 28 months or more."

In relation to the present case she avers:

"In the investigations into the Noter and the individuals, companies and funds connected with the Noter, ILORS have been sent to about 19 countries abroad, both within and outwith the EU, and the police have required to await replies from said judicial authorities abroad to enable them to progress and complete their enquiries."

[6 ] The Lord Advocate has also lodged a bulky volume which contains copies of the pleadings, a chronology of events, and copies of many documentary productions. She has lodged in addition two further chronologies relating to the investigations: a chronology by date running to 32 pages, and a chronology by country running to 27 pages.

[7 ] The question to be resolved at the hearing will be whether proceedings for the offence have not been instituted within a reasonable time. If that proves to be the case, the Court will be obliged to recall the order. The hearing before me, which had begun as a hearing of the noter's motion that the Lord Advocate should lead, resolved itself into a discussion of the procedure to be followed at the hearing. The parties were agreed that in view of the very substantial changes in the pleadings since the date of Lord Carloway's interlocutor of 26 October 2006 it was open to me to discharge the hearing then appointed and to consider of new the question of further procedure (Bendex v James Donaldson & Sons Ltd 1990 SC 259). Reference was made to rules 14.8, 15.2(3) and 28.1 of the Rules of the Court of Session. The noter's solicitor advocate did not press his motion that the Lord Advocate should lead, and I refused that motion in hoc statu.

[8 ] The solicitor advocate for the noter stated that it might be possible to resolve the question of "within a reasonable time" without hearing evidence, in accordance with the usual course of disposing of a petition in the light of whatever documentary evidential material might be placed before the Court (Court of Session Practice, ed Lord Macfadyen, paragraph H [23], [24]). The noter, however, could not take the chronologies at face value and could not know if everything stated in them was correct. It might be necessary to hear evidence if questions raised by an examination of the chronologies could not otherwise be resolved.

[9 ] Counsel for the Lord Advocate was opposed to the leading of evidence from witnesses in a civil court in relation to matters relative to an alleged criminal offence which was under investigation for consideration of the issuing of criminal proceedings. She proposed that the chronologies and the parties' submissions should enable the court to decide the question whether proceedings had not been instituted within a reasonable time.

[10 ] In my opinion the appropriate course is to discharge the hearing appointed by Lord Carloway and to appoint a hearing on dates to be afterwards fixed. The parties were agreed that two days would be required. I shall not grant diligence for citing witnesses and havers. I would ask parties to try to agree as many of the material facts as possible. The hearing before me was conducted on both sides with conspicuous good sense, and I have no doubt that the Crown will make all reasonable attempts to resolve before the hearing any questions of substance which the noter's legal advisers draw to their attention upon a consideration of the chronologies. Depending on the nature of any remaining differences between the parties there may be a question whether the chronologies should be supplemented by appropriate affidavits. At the hearing the Court will attempt to resolve the "reasonable time" question upon a consideration of the documentary productions and the parties' submissions. Only in the event of failure in that attempt should there be any contemplation of the prospect of the hearing of evidence.

[11 ] At the hearing before me there was some discussion of Dyer v Watson 2002 SC (PC) 89. It is inappropriate to consider such authorities at this stage. Reference was also made to the admissibility of hearsay evidence, under reference to section 2 of the Civil Evidence (Scotland) Act 1988. Since, however, the hearing will not be a proof, questions as to the admissibility of hearsay in the documentary productions will not arise. It was agreed that a clean print of the note and answers, as amended, would be lodged.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> HM Advocate v H [2007] ScotCS CSOH_37 (16 February 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_37.html Cite as: [2007] ScotCS CSOH_37, [2007] CSOH 37

Scottish Court of Session Decisions