HIGH COURT OF JUSTICIARY [2007] HCJ05
	OPINION OF LORD MACFADYEN in the petition of HER MAJESTY'S ADVOCATE Petitioner; against JOSEPH WRIGHT Respondent; for the making of a Confiscation Order in terms of sections 92 and 104 of the Proceeds of Crime Act 2002. __________

Petitioner: Comiskey A.D.; Crown Agent.

Respondent: Moir; Liam O'Donnell & Co.

29 May 2007

Introduction

[1] On 26 July 2004 at the High Court at Glasgow the respondent pled guilty to a charge of contravening section 4(3)(b) of the Misuse of Drugs Act 1971. He was sentenced to 21 years imprisonment. On appeal, the sentence was reduced to 13 years imprisonment.

[2] At the time of the respondent's conviction, the prosecutor did not ask the court to act under section 92 of the Proceeds of Crime Act 2002 ("the 2002 Act"). The court accordingly did not do so, and no confiscation order was made against the respondent.

[3] In this petition the petitioner invokes section 104 of the 2002 Act, with a view to the court's now acting under section 92 and making a confiscation order. A preliminary issue has arisen as to whether one of the conditions for the application of section 104, namely that the prosecutor has evidence which was not available to him at the date of conviction, is satisfied. A hearing, confined to that preliminary issue, has now taken place.

The legislation

[4] The primary provisions regulating the making of a confiscation order are contained in section 92 of the 2002 Act. That section provides inter alia as follows:

"(1)	The court must act under this section where the following three conditions are satisfied.
(2)	The first condition is that an accused falls within either of the following paragraphs -
	(a)	he is convicted of an offence or offences, whether in solemn or summary proceedings, or
	(b)	...
(3)	The second condition is that the prosecutor asks the court to act under this section.
(4)	The third condition is that the court decides to order some disposal in respect of the accused; and an absolute discharge is a disposal for the purpose of this subsection."

Subsection (5) then requires the court, if it acts under the section, to decide whether the accused has a criminal lifestyle; if so, to decide whether he has benefited from his general criminal conduct; and if not, to decide whether he has benefited from his particular criminal conduct. Subsection (6) requires the court, if it decides that the accused has benefited in either of the ways contemplated in subsection 5(b) or (c), to decide the recoverable amount, and make a confiscation order requiring him to pay that amount.

[5] Section 104 provides for reconsideration of the question of the making of a confiscation order at a later stage. The section provides inter alia as follows:

"(1)	This section applies if -
	(a)	the first condition in section 92 is satisfied, but no court has proceeded under that section,
	(b)	the prosecutor has evidence which was not available to him on the relevant date,
	(c)	before the end of the period of six years starting with the date of conviction the prosecutor applies to the court to consider the evidence, and
	(d)	after considering the evidence the court thinks it appropriate for it to proceed under section 92.
(2)	The court must proceed under section 92, and when it does so subsections (3) to (8) below apply.
...
(9)	The relevant date is -
	(a)	if the court made a decision not to proceed under section 92, the date of the decision;
	(b)	if the court did not make such a decision, the date of the conviction."

The issue

[6] For section 104 to apply, four requirements require to be satisfied. There is no dispute between the parties that the requirement of subsection (1)(a) is satisfied, in respect that the respondent was convicted of an offence in solemn proceedings, and the first condition in section 92 is thus satisfied, but no court has proceeded under that section. There is no dispute that the requirement of subsection (1)(c) is satisfied, in that this application has been made before the end of the period of six years starting with the date of conviction. It was agreed between the parties that subsection (1)(d) confers on the court a discretion as to whether it is appropriate, if the other requirements of the subsection are satisfied, to proceed under section 92. Mr Moir for the respondent accepted, however, that he could point to no circumstances that might in that event justify me in exercising my discretion to the effect of deciding not to proceed under section 92. The matter thus comes to turn on whether the requirement of subsection (1)(b) - that the prosecutor has evidence which was not available to him on the relevant date, which in this case is the date of conviction, 26 July 2004 - is satisfied.

[7] The petitioner, in statement 3 of the petition, makes the following averments:

"That on 26 July 2004 no realisable assets had been identified as being held in the name of Joseph Wright. That subsequently, the Petitioner received information that the said Joseph Wright is the current owner of the property at 65 Queens Drive, Walton, Liverpool held in the name of Joseph Wright and Mary Wright. That the Petitioner obtained a Restraint Order on 7 October 2004 which has been served on said Joseph Wright and Mary Wright."

[8] The respondent in answer 1 of his Answers to the Statement of Information by the Prosecutor, avers that:

"at the time of [the respondent's] conviction the prosecutor was aware, [or] should have been aware, that the accused had ownership of a half share in the property at 65 Queens Drive, Walton, Liverpool. In particular, Officers of Strathclyde Police were advised by the accused at interview on 13^th February that this was his home address. That Officers of Strathclyde Police were advised that he owned the said property. The said property was his address for bail purposes. That the property was searched by the police. There were numerous documents within the house including title deeds to the said property in the name of the accused and his wife, Mary Patricia Wright. Further the title to the property was recorded in 1984 in the Birkenhead (Old Market) District Land Registry, Old Market House, Hamilton Street, Birkenhead, Merseyside, CH41 5FL."

The evidence

[9] Evidence was given by Detective Sergeant Garry Deans, an officer of the Money Laundering Unit of what is now the Scottish Crime and Drug Enforcement Agency (SCDEA), about financial investigations which he made in relation to the respondent on 7 October 2003 (the day after the respondent's initial arrest), with a view to ascertaining whether there was a basis for confiscation proceedings against him. These investigations disclosed inter alia (1) that the respondent (a) was in receipt of sickness benefit, and (b) declared no income for the purposes of income tax, and (2) that he had no mortgage. Investigation was also made at the relevant Land Registry, since it was known that the respondent resided at 65 Queens Drive, Liverpool, L4 6SF ("No. 65"). That investigation took the form of accessing an electronic database, Land Registry Direct. The database was accessed by entering the address and postcode. That yielded the document which is now production 1, and only that document.

[10] Production 1 relates to title no. MS222800, and shows the entries subsisting in the Register on 7 October 2003. In paragraph A1, it bears to relate to a piece of freehold land shown edged in red on the title plan, comprising a number of properties in Queens Drive, including No. 65. In paragraph B1 the proprietors are identified as Jonathan Howard Roberts and Janet Ann Thain. In paragraph C1 and the Schedule annexed thereto various properties within the description in paragraph A1 (but not No. 65) are said to be subject to 999 year leases created between 1906 and 1908. From the fact that the respondent was not disclosed as a proprietor of No. 65 and the fact that there appeared to be no long lease of No. 65, DS Deans inferred that No. 65 was probably local authority property. He based that inference in part on his experience of the fact that local authority houses did not appear when the Scottish land register database available to him was similarly interrogated. Combining the apparent absence of reference to the respondent in the Land Register with his lack of income other than benefits and the fact that he did not have a mortgage, DS Deans concluded that the respondent did not own No. 65.

[11] DS Deans accepted that he had at the time of his inquiry little experience of searching the English Land Registry electronically. With the experience he now has, he would have realised that production 1 did not tell the whole story, and would have made further inquiries of the Land Registry by telephone. In the event, however, having formed the view he did, he made no report to Crown Office. Such a report is made when the inquiries reveal assets in respect of which a confiscation order may be sought, but not when no such assets are uncovered.

[12] The operation of the English Land Registry was explained by Patrick John Brough, who is a qualified lawyer and Land Registrar at the Birkenhead (Old Market) District Land Registry. In dealing with production 1, he drew attention to paragraph A4, which contains the following statement:

"The land edged and numbered in green on the filed plan has been removed from this title and registered under the title number or numbers shown in green on the plan."

He also drew attention to the heading of the document, which contained the warning:

"The current edition of the title plan cannot be viewed in Land Registry Direct".

It followed that, without sight of the plan, it was impossible to tell from production 1 whether No. 65 still formed part of title MS222800. Mr Brough identified production 2 as an official copy of title MS222800, including the title plan, as it stood on 19 October 2004. Reference to the plan showed that No. 65 was edged in green, and had thus been removed from title MS222800, and bore the new title number MS462012. Production 3 showed that the respondent and Mrs Wright obtained leasehold title to No. 65 in July 1984 for £10,000, originally under title No. MS 207886. Production 9 is an historical copy of the Register as it stood on 7 October 2003 (the date of DS Deans' inquiry). It showed, now under title No. MS306354, the leasehold title to No. 65 acquired by the respondent and his wife in 1984 and, under title No. MS462012, the freehold title to No.65 which they acquired in 2002. Mr Brough explained that the leasehold title number changed from MS207886 to MS306354 because of the replacement of a lost title certificate. The freehold and leasehold titles both appeared on the register, because the two interests had not been consolidated.

[13] Mr Brough said that he would have expected a search of Land Registry Direct against 65 Queens Drive, Liverpool, L4 6SF on 7 October 2003 to have yielded the then current leasehold and freehold titles, MS306354 and MS462012 respectively, and not to have yielded MS222800, which no longer at that date related to No. 65. He was unable to explain how it had come about that DS Deans' inquiry had yielded production 1. He was, at the same time, unable to challenge the accuracy of DS Deans' evidence that he had indeed interrogated Land Registry Direct by reference to the address and postcode of No. 65, and that that inquiry had yielded production 1. He said that there were many changes in the system being implemented at that time, as well as changes in the relevant legislation, although he was not able to say that these changes had resulted in the form in which DS Deans' inquiry was answered. Under cross examination, Mr Brough said that, if a telephone inquiry had been made on 7 October 2003, the inquirer would have been told that the respondent and his wife owned No. 65.

[14] To complete the Land Registry chapter of evidence, Stuart Sangster, a retired officer of the SCDEA, explained how it came about that it was realised by the police that the respondent had a proprietary interest in No. 65. The North West Asset Recovery Team in Liverpool were involved in a separate inquiry in relation to the respondent. They were aware that he and his wife owned No. 65, and wished to find out whether any confiscation order affecting that property had been made in the Scottish proceedings. They therefore contacted the SCDEA's predecessor, the SDEA, and on or about 23 August 2004 spoke to Mr Sangster. They faxed him a copy of the title MS306354 (production 8). He consulted the SDEA records and found that they had not previously been aware of the respondent's proprietary interest in No. 65. He therefore made a report to Crown Office. He confirmed DS Deans' evidence that such a report would be made when investigation revealed the existence of assets, but that no report would be made when the investigation failed to reveal the existence of assets. He further stated that when the electronic means of interrogating the English Land Registry became available, it was a management decision that it was to be used exclusively, because it was cheaper than other forms of inquiry. The electronic facility was available in 2003.

[15] The other chapter of the evidence related to the events of 13 February 2004, when No. 65 was searched, and the respondent was conveyed to Scotland and subsequently interviewed. Two officers of the SDEA who were present when the search was carried out gave evidence, namely Detective Inspector Thomas Lochhead and Detective Constable Craig Waugh. Although they were present when the search was carried out, it was carried out not by them but by English police officers. They were unable to say what was found, except by reference to the record which was kept. They had no recollection of the question of who owned the house being asked or answered in the course of the search. DI Lochhead and DC Waugh conveyed the respondent from Liverpool to Scotland after the search was completed. Each of them maintained that he had sat in the back of the car with the respondent and that the other had been the driver. DI Lochhead denied under cross examination that during the journey the respondent had expressed concern as to whether he might lose his house. DC Waugh said that he had no recollection of hearing anything of that sort. DI Lochhead and DC Waugh conducted the interview of the respondent which took place on their return to Scotland, and of which production 5 is a transcript. In that interview, No. 65 was stated to be the respondent's address, but nothing was said or asked about who owned it.

[16] Detective Constable Michael Cain of Merseyside Police was the officer responsible for maintaining the record of the search (productions 6 and 7). His experience was that in such a search title deeds of the house would not be specifically sought. The question of ownership of real property would be followed up by means of a Land Register inquiry at a later date. He was not aware of any discussion of ownership of No. 65 in the course of the search. There was no mention of title deeds in productions 6 or 7. In the course of his evidence a video record of the search was shown. His attention was drawn to a cabinet in the living room shown in the video, but he did not recall its being searched.

[17] The respondent also gave evidence. He confirmed that he and his wife were at the time of his arrest the joint owners of No, 65. They had bought it in 1984 for £10,000. There was no mortgage. The title deeds were kept in a red folder in a drawer in the cabinet in the living room. The respondent's evidence was that in the course of the search the contents of the cabinet were removed, but then put back. He did not see anyone open the red folder.

[18] The respondent confirmed that he was conveyed from Liverpool to Scotland by DI Lochhead and DC Waugh. His recollection was that DC Waugh accompanied him in the back of the car and that DI Lochhead drove. He said that, in the car, DI Lochhead said: "That's a nice house you've got". He was concerned about the house, and asked DI Lochhead: "Is there a chance they'll take the house off me?" DI Lochhead replied: "If you tell us where Campbell's [a co-accused's] money is, we're not interested in you". Under cross examination, the respondent accepted that he knew that in such cases his house could be confiscated. When asked why, if he was concerned about losing the house, he drew attention to his ownership of it by asking the question he claimed to have done of Lochhead, the respondent offered no convincing explanation.

The facts established by the evidence

[19] It is clear that at all material times the respondent and his wife were joint owners of No. 65. The titles confirm that they acquired the leasehold interest in 1984 and the freehold in 2002.

[20] The Scottish police were aware in October 2003 that the respondent lived at No.65. DS Deans made inquiries on 7 October 2003 with a view to ascertaining whether the respondent owned or had a proprietary interest in No. 65. The inquiry took the form of accessing the electronic database, Land Registry Direct. That facility had been relatively recently introduced, but the Scottish police had decided at management level to use it in preference to other more expensive forms of inquiry. There was no evidence that that was an unreasonable decision. The database was accessed by DS Deans in the appropriate way, by entering the address and postcode of the property in question. The response to the inquiry took the form of production 1. That response was inaccurate, because the title sheet produced in production 1 (MS222800) no longer applied to No. 65. The inquiry should have yielded copies of MS306354 and MS 462012, respectively the leasehold and freehold titles to No. 65, but did not do so. The reason for that failure was not explained in evidence. The terms of production 1 (in particular paragraph A4) would have revealed to a person experienced in searching the English Land Register that, contrary to the indication given in paragraph A1, MS222800 might not apply to No. 65. Even an experienced person would have required to go beyond production 1 to complete the inquiry, because the title plan was not available on Land Registry Direct, and it was only by reference to the green annotations on that plan that it would have been discoverable that No. 65 had been removed from MS222800 and now appeared on different title sheets. If an inquiry had been made of the Land Registry by telephone, the correct information, that the respondent and his wife owned No. 65, would have been provided. DS Deans in good faith did not fully understand production 1, and mistakenly thought that it indicated that No. 65 was probably a local authority house. The practice was that the police reported to Crown Office the discovery of assets which might be the subject of confiscation proceedings, when such assets were discovered, but made no report when no such assets were discovered. In accordance with that practice, DS Deans, having concluded that the respondent had no income other than benefits, and no assets, made no report of Crown Office.

[21] The title deeds of No. 65, examination of which would have disclosed that the respondent and his wife owned No. 65, were present in No. 65 at the time of the search on 13 February 2004. They were contained in a red folder kept in the cabinet in the living room. That red folder was removed from the cabinet in the course of the search, then returned to the cabinet. I base these findings on the evidence of the respondent. I have no reason to reject that aspect of his evidence. The red folder and its contents were not seized. There is no evidence that any officer involved in the search realised that the red folder contained title deeds, or that the respondent and his wife owned No. 65. There was no discussion in the course of the search about who owned No. 65.

[22] The respondent was transported from Liverpool to Scotland by DI Lochhead and DC Waugh. DI Lochhead drove the car. As to the identity of the driver, I prefer the circumstantially relatively detailed evidence of DC Waugh, supported by the respondent, to the evidence of DI Lochhead. I regard DI Lochhead as mistaken on this point, but do not find in that mistake any reason for doubting the credibility or reliability of his evidence generally. I reject the evidence of the respondent that he voiced to the police officers concern that he might lose the house (and thus implicitly disclosed to them his ownership of it). He accepted that he knew that he might lose the house, and I do not find it credible that in that situation he would say anything to the police to draw their attention to his ownership. In addition, both police officers gave evidence, which I accept, that there was no discussion which referred to the ownership of the house.

[23] When the respondent was interviewed on 13 February 2004, it was recorded that he lived at No. 65, but there was no discussion of who owned it.

[24] The fact that the respondent and his wife were joint owners of No. 65 came to the knowledge of the SDEA on or about 23 August 2004. The North West Asset Recovery Team in Liverpool contacted the SDEA in connection with a separate inquiry of their own, in order to discover whether No. 65 had been affected by confiscation proceedings in Scotland. A copy of the correct titles was faxed to Mr Sangster. When he realised that these titles showed that the respondent was an owner of No. 65, he reported that fact to Crown Office.

Crown submissions

[25] Having, as the first chapter of her submissions, reviewed the evidence, the Advocate depute turned, in the second chapter, to the construction of section 104(1)(b). First, she emphasised that the question related to the evidence available to "the prosecutor" at the relevant date, the date of the conviction. The prosecutor, she submitted, was the Lord Advocate, and included those acting on his behalf and under his direction in the Crown Office and Procurator Fiscal Service. The police were not encompassed within the expression "the prosecutor". The issue was therefore what information was available at the date of the conviction to the Crown Office, not what information was then available to the police. Since by the date of conviction no report had been made by the police to the Crown Office that the respondent was joint owner of No. 65, the evidence of his ownership subsequently uncovered and reported to Crown Office by Mr Sangster in August 2004 was evidence which was not available to the prosecutor at the date of conviction.

[26] The second point made by the Advocate depute in relation to the construction of section 104(1)(b) related to the phrase "was not available to him". Availability was a matter of fact. Evidence either was or was not available to the prosecutor at the date of the conviction. The language of the paragraph left no room for consideration of whether evidence which was not in fact available to the prosecutor might have been made available by the exercise of greater diligence or by inquiries which were not in fact carried out, or whether there was a good excuse for its not having been available. Section 104(1)(b) did not pose the sort of test adopted in relation to appeals based on fresh evidence under section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"), where in terms of section 106(3A) there had to be a reasonable explanation of why the evidence tendered in support of the appeal was not heard at the original proceedings. Section 104(1)(b) was to be contrasted also with section 268(2) of the 1995 Act which empowers a judge to permit additional evidence to be led where inter alia he accepts that at the commencement of the trial the additional evidence "was not available and could not reasonably have been made available". The latter provision illustrates the language which Parliament can use if it wishes to make the test not merely actual availability, but potential availability if reasonable inquiries were made. It was thus irrelevant to the test set by section 104(1)(b) to examine whether the evidence of the respondent's part ownership of No. 65 might have been made available by the date of the conviction if different inquiries had been carried out, or whether there was a lack of care or diligence in the fact that those different inquiries were not carried out.

[27] The Advocate depute in the third chapter of her submissions sought to derive assistance from Regina v Soneji [2006] 1 AC 340. That case was concerned with the consequence of failure to adhere to a statutory timetable in confiscation proceedings in England under the Criminal Justice Act 1988 as amended. The Advocate depute referred to the speech of Lord Steyn at paragraph 15, where his Lordship quoted at length from the speech of Lord Hailsham of St Marylebone LC in London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 at 189-190 (1980 SC (HL) 1 at 30-31), and endorsed Lord Hailsham's departure from the old test of whether a statutory requirement was mandatory or directory, and his adoption of "a more flexible approach of focusing intensely on the consequences of non-compliance, and posing the question, taking into account those consequences, whether Parliament intended the outcome to be total invalidity". I understood the Advocate depute to contend that an analogy could be drawn between failure to adhere to a statutory timetable and the issue arising in the present case under section 104(1)(b). The Advocate depute also drew attention to several passages in the speeches in Soneji in which Parliament's policy in enacting the legislation regulating the confiscation of the proceeds of crime was identified. She referred to the speech of Lord Steyn at paragraph 1, where his Lordship said:

"Parliament has firmly adopted the policy that in the fight against serious crime, apart from ordinary sentences, a high priority must be given by the courts to the making of confiscation orders against defendants convicted of serious offences."

At paragraph 24, his Lordship made reference to "the ... public interest in not allowing a convicted offender to escape confiscation for what were no more than bona fide errors in the judicial process" (see also per Lord Cullen of Whitekirk at paragraph 45 and Lord Brown of Eaton-under-Heywood at paragraph 77).

[28] The Advocate depute's submission therefore was that, since the Crown Office did not have at the time of the conviction the evidence that the respondent and his wife were joint owners of No. 65, the requirement of section 104(1)(b) had been satisfied. The Advocate depute therefore sought a finding that section 104 applied, and the continuance of the petition to a notional diet, for consideration of further procedure.

The respondent's submissions

[29] The submission advanced by Mr Moir on the respondent's behalf was simple and straightforward. Once it was known to the prosecutor, as it was in the present case, that an accused person was resident at a particular property, he had the power to investigate the ownership of that property. It was for the prosecutor to decide how to ingather evidence on that matter. If he chose to delegate the investigation to the police, that did not affect the question of the availability of evidence to him. The evidence of the respondent's ownership of No. 65 was contained in a public register, the English Land Registry. Access to the content of the register was available to the public. That evidence could have been obtained by the prosecutor from the Land Registry by a simple inquiry by letter or telephone (as confirmed by Mr Brough in evidence). In that context, what happened to the inquiry made by DS Deans by accessing Land Registry Direct was beside the point. The evidence that the respondent and his wife were the owners of No. 65 was at all material times available to the prosecutor. The petitioner had therefore failed to satisfy the requirement of section 104(1)(b). The petition should therefore be refused.

Discussion

[30] In order to determine whether, in the circumstances of the case, the petitioner has satisfied the requirement of section 104(1)(b) that "the prosecutor has evidence that was not available to him on the relevant date" it is necessary to construe the words "prosecutor" and "available". Each of these words is capable of more than one meaning. "Prosecutor" might mean the Law Officer, Advocate depute or member of the Procurator Fiscal Service who conducted the proceedings on the date of any decision not to proceed under section 92 (section 104(9)(a)) or on the date of conviction (section 104(9)(b)). Alternatively, it might mean the Lord Advocate as head of the system of public prosecution, or it might extend to include the whole Crown Office and Procurator Fiscal Service. In that situation, it seems to me to be legitimate to construe "prosecutor" in the light of the system of public prosecution which prevails in Scotland. "Available" can bear various shades of meaning. A dictionary definition is "capable of being used; at one's disposal; within one's reach" (OED). That being so, it is in my view legitimate to have regard to the policy and public interest underlying the legislation of which section 104 forms part. It is therefore legitimate in construing what is meant by "available" to bear in mind that Parliament has given a high priority to the confiscation of the proceeds of crime (Soneji, per Lord Steyn at paragraph 1) and that there is a public interest in not allowing convicted criminals to avoid confiscation as a result of bona fide mistakes in procedure (Soneji, per Lord Steyn at paragraph 24). These considerations would tend to point away from a construction of available that would enable the accused person too readily to escape confiscation proceedings.

[31] I turn therefore to the construction of "prosecutor". In view of the fact that serious crime is prosecuted in Scotland by a public prosecutor, the Lord Advocate, who heads and directs a public prosecution service, the Crown Office and Procurator Fiscal Service, I do not consider that it would be realistic to construe the word "prosecutor" in section 104(1)(b) as referring to the individual prosecutor who conducted the proceedings on the relevant date. I consider that the word should be given a broader, institutional meaning, encompassing the whole prosecution service. It is in general for the Lord Advocate, and those acting under his or her direction, to secure that, within the service, evidence which is available to the service finds its way to the individual member of the service who requires it. I do not exclude the possibility that circumstances might arise in which evidence which was available to one Procurator Fiscal might be held not to be available to another Procurator Fiscal in another part of the country. Prima facie, however, I consider that the question of non-availability to the prosecutor raised by section 104(1)(b) should be regarded as a question of non-availability to the prosecution service as an institution. There remains, however, the question of the role of the police, and whether the police should be regarded as falling within the scope of "the prosecutor". In my opinion they should not. Although the police (at least, the Scottish police) are subject to direction by the Lord Advocate, they are, in my opinion distinct from the prosecution service, and it would be giving too broad a meaning to the word "prosecutor" to regard it as encompassing the police. That does not, however, in my view exclude the possibility that there may be circumstances in which the availability of evidence to the police may have a bearing on whether that evidence is to be regarded as available to the prosecutor; but that is an aspect of the meaning of "available" rather than an aspect of the meaning of "prosecutor".

[32] I turn now to the question of availability. There is an attractive simplicity about the submission made on the respondent's behalf that, once it was known to the prosecutor, as it was long before the relevant date, that No. 65 was the respondent's place of residence, the evidence that he had a proprietary interest in that house which was available in a publicly accessible register, the Land Registry, was "available" to the prosecutor. It could have been obtained by a simple inquiry. It was, to adopt one of the dictionary definitions, within the prosecutor's reach. It seems to me that in some circumstances that approach might prevail. If the situation as at the relevant date had been (a) that the prosecutor knew that the respondent lived at No. 65, (b) that the Land Registry showed that the respondent had a proprietary interest in that house, but (c) that the prosecutor had taken no steps to make any form of inquiry as to what the Land Register showed as to the ownership of No. 65, I am inclined to think that it would be difficult for the prosecutor subsequently to satisfy the requirement of section 104(1)(b). In my opinion, however, the circumstances of the present case are much more complex than that.

[33] It is in my view necessary, in considering the question of availability, to take into account the whole actual circumstances. The prosecutor by the relevant date was well aware that the respondent ordinarily lived at No. 65. It is clear that the Land Registry contained unequivocal evidence of his proprietary interest. But as at the relevant date the prosecutor did not know that. That was because (a) although an inquiry was made of the Land Registry, the police officer concerned in good faith and with some (although not complete) justification misunderstood the response to his inquiry, and (b) because of that misunderstanding, but in accordance with normal practice when evidence of ownership of assets is not uncovered, no report was made to Crown Office. In my opinion, the evidence shows that the form of inquiry undertaken by DS Deans, by accessing Land Registry Direct, was one of the ways of obtaining information from the register made available by the Land Registry. I do not consider that DS Deans can be criticised for accessing Land Registry Direct rather than making an inquiry of the Land Registry by letter or telephone. That is particularly so in the light of the evidence that it was a decision made at management level within the police that that form of inquiry should be adopted. Nor do I think that DS Deans should be criticised for not understanding that paragraph A4 of production 1 potentially overruled the statement in paragraph A1 that MS222800 applied to No. 65. Although a person with more experience of the Land Registry might have understood the significance of paragraph A4, and the need to follow it up by ascertaining what the title plan showed, the fact remains that production 1 was erroneous. MS222800 ought not to have been provided as a response to an inquiry about No. 65. The circumstances therefore are that, through an unexplained failure on the part of Land Registry Direct to give a correct answer to DS Deans' inquiry, he was misled into thinking that the respondent did not own No. 65. As a result, no report was made to Crown Office. In that situation, leaving aside for the present the matter of the title deeds in the cabinet in No. 65, I am of opinion that the petitioner has established that the requirement of section 104(1)(b) is satisfied. The evidence which ought to have been obtainable from the Land Registry was not available, in any practical sense, to the prosecutor as at the relevant date.

[34] Turning now to the evidence that the title deeds to No. 65 were in a cabinet in the house at the time of the search, I am of opinion that there is insufficient evidence to justify a conclusion that that constituted evidence which was at the relevant date available to the prosecutor. Although I have accepted the respondent's evidence that the title deeds were in a red folder in the cabinet and that the red folder was removed from and returned to the cabinet in the course of the search, there was no evidence that any officer involved in the search saw the title deeds, still less understood their significance for confiscation proceedings. Had the red folder or its contents been seized, that would probably have been different, because it would, I think, be difficult for the petitioner to argue that material seized by the police in the course of the search was not available to the prosecutor. In the event, however, the evidence did not go that far.

[35] I have already explained that I reject the respondent's evidence that he implicitly told DI Lochhead in the car that he owned No. 65. No question therefore arises as to whether any such statement would have been evidence available to the prosecutor.

[36] My conclusion that the evidence of the respondent's ownership of No. 65 was not available to the prosecutor at the relevant date has been reached on an examination of the circumstances of the case as disclosed in the evidence which I heard. I have found it unnecessary to express a concluded view on whether the petitioner could have succeeded on the simple basis that as at the relevant date the Crown Office had received no report identifying the respondent as having a proprietary interest in No. 65. I have also found it unnecessary to reach a concluded view on whether evidence not in fact known to the prosecutor might be said to be available to him, if it could have been obtained if further or different inquiries had been made. The contrast between section 104(1)(a) of the 2002 Act and section 268(2) of the 1995 Act suggests that the question whether evidence which has not been discovered but might have been discovered by reasonable inquiries is "available" may require to be decided in another case. In the present case, I prefer to reserve my opinion on those issues. My decision is one which turns on a detailed examination of the rather unusual circumstances of the particular case.

Result

[37] I therefore find that section 104 has been shown to apply in the present case. I shall appoint the case to a notional diet at which further procedure can be determined.