THE PROCURATOR FISCAL, FORFAR AGAINST DB
SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT FORFAR
[2017] SC FOR 4
PC2/16
JUDGMENT OF SHERIFF GREGOR MURRAY
In the cause
THE PROCURATOR FISCAL, FORFAR
Pursuer
Against
DB
Defender
Introduction
[1] On 29 December 2016, in chambers, the Pursuer sought orders in this Summary Application for extended detention of seized cash in terms of s.295(2) of the Proceeds of Crime Act 2002. I have prepared this Note as I was advised similar orders are regularly sought throughout Scotland, I have been unable to find any reported cases on them and as it appears Crown practice and the Summary Application Rules may need reconsidered.
The Pursuer’s Craves
[2] The Application contains 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 and (iv) for expenses if the Application is defended.
Summary of the Pursuer’s Averments
[3] The Pursuer avers that on 27 December 2016, police were called to a hotel following reports of a disturbance in a room and a male jumping from its 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 believed that the Defender’s cohabitee, a known drug dealer, was owner of the bag and the man who had jumped from the window. Consequently, in terms of s.294 of the 2002 Act, they seized the cash in the bag.
Procedure Under s.295 of the 2002 Act after Seizure and Detention of Cash
[4] So far as relevant to this case, s.295 provides:-
295 Detention of seized cash
(1) While the …constable continues to have reasonable grounds for his suspicion, cash seized under section 294 may be detained initially for a period of 48 hours…
(2) The period for which the cash or any part of it may be detained may be extended by an order made by … the sheriff; but the order may not authorise the detention of any of the cash—
(a) beyond the end of the period of three months beginning with the date of the order,
(b) in the case of any further order under this section, beyond the end of the period of two years beginning with the date of the first order…
(4) An application for an order under subsection (2)—…
(b) in relation to Scotland, may be made…by a procurator fiscal,
and the …sheriff may make the order if satisfied, in relation to any cash to be further detained, that either of the following conditions is met.
(5) The first condition is that there are reasonable grounds for suspecting that the cash is recoverable property and that either—
(a) its continued detention is justified while its derivation is further investigated or consideration is given to bringing (in the United Kingdom or elsewhere) proceedings against any person for an offence with which the cash is connected, or
(b) proceedings against any person for an offence with which the cash is connected have been started and have not been concluded.
(6) The second condition is that there are reasonable grounds for suspecting that the cash is intended to be used in unlawful conduct and that either—
(a) its continued detention is justified while its intended use is further investigated or consideration is given to bringing (in the United Kingdom or elsewhere) proceedings against any person for an offence with which the cash is connected, or
(b) proceedings against any person for an offence with which the cash is connected have been started and have not been concluded…
(8) An order under subsection (2) must provide for notice to be given to persons affected by it.
[5] Chapter 3.19 of the Summary Application Rules 1999 inter alia provides:-
Interpretation and application
3.19.1 (1) In this Part-
"the Act" means the Proceeds of Crime Act 2002…
a reference to a specified section is a reference to the section bearing that number in the Act; and any reference to a specified paragraph in a specified Schedule is a reference to the paragraph bearing that number in the Schedule of that number in the Act.
(2) This Part applies to applications to the sheriff under Part 3… of the Act…
Recovery of cash in summary proceedings
Applications for extended detention of cash
3.19.2 (1) An application to the sheriff for an order under sections 295(2) and (7) (extended detention of seized cash) shall be made by summary application.
(2) An application for any further order for the detention of cash under section 295(2) shall be made by minute in the process of the original application for extended detention of seized cash and shall be proceeded with in accordance with sub-paragraph (3) below.
(3) On the lodging of an application for any further order the sheriff shall-
(a) fix a date for determination of the application; and
(b) order service of the application together with notice of such date for determination on any persons whom he considers may be affected.
Applications for release of detained cash
3.19.3 (1) An application to the sheriff under section 297(3) (application for release of detained cash) or under section 301(1) (application by person who claims that cash belongs to him) shall, where the court has made an order under section 295(2), be made by minute in the process of the application for that order, and in any other case shall be made by summary application in the course of the proceedings or at any other time.
(2) On the lodging of such an application the sheriff shall-
(a) fix a date for a hearing; and
(b) order service of the application together with notice of such hearing on the procurator fiscal and any other person whom he considers may be affected by the granting of such an application.
Applications for forfeiture of detained cash
3.19.4 (1) An application to the sheriff under section 298(1)(b) (application by the Scottish Ministers for forfeiture of detained cash) shall, where the court has made an order under section 295(2), be made by minute in the process of the application for that order, and in any other case shall be made by summary application.
(2) On the lodging of such an application the sheriff shall-
(a) fix a date for a hearing; and
(b) order service of the application together with notice of such hearing on any person whom he considers may be affected by the granting of such an application.
Applications for compensation
3.19.5 (1) An application to the sheriff under section 302(1) (application for compensation) shall, where the court has made an order under section 295(2), be made by minute in the process of the application for that order, and in any other case shall be made by summary application.
(2) On the lodging of such an application the sheriff shall-
(a) fix a date for a hearing; and
(b) order service of the application together with notice of such hearing on any person whom he considers may be affected by the granting of such an application
Issues Raised
[6] I was asked (i) to dispense with citation of the Defender, (ii) grant an order before service for continued detention of the cash and (iii) to grant warrant for intimation as craved. After I queried whether the procedure proposed by the Crown was appropriate and/or competent, whether the application was brought against the correct Defender(s) and whether the averments made were sufficient to enable me to make an order for extended detention of the sum of cash, the hearing was adjourned briefly for more information to be obtained.
[7] 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. 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.
[8] On the third, there appeared to be insufficient averments to satisfy me that any of the conditions set out in ss.295(5) or (6) existed. Averments in the Application that the Defender was “believed and averred” to have been involved in a disturbance with her cohabitee and that he had been the person seen jumping from the window of the hotel room to avoid contact with police appeared unsupported by averments which would justify use of that term (Macphail, Sheriff Court Practice at 9.54).
The Crown Response
[9] It was submitted warrant to cite the Defender should be dispensed with as the purpose of the application would be otherwise defeated. s.295(2) required determination of the Application within 48 hours of the cash being seized. However, 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.
[10] The identity of the man who had jumped from the window was unknown. The cohabitee could not be traced. The Defender put herself alone in the room; however inconsistent that was with the evidence of bag containing male clothing, a disturbance being heard between a male and a female and a male being seen to disappear from the room, there were insufficient grounds to convene the cohabitee.
[11] As regards ss.295(5) and (6), it was submitted that the application required to aver no more than a factual basis for reasonable suspicion on the part of the Crown. Between 15 and 30 Diazepam tablets had been found along with a significant cash sum. Enquiries were continuing to trace the cohabitee and to ascertain who had booked the hotel room.
Discussion
[12] The scheme of s.295 is straightforward. Provided grounds for reasonable suspicion continue to exist, cash seized under s.294 may be detained by police for up to 48 hours. It may only be further detained by order of the Sheriff, initially for up to three months, thereafter for up to two years. The Sheriff may only make such an order if any of the conditions in ss.295(5) or (6) is met and notice of any such order must be given to any person affected by it. Thereafter, ss.297, 301 and 302 entitle such persons to make application to the court regarding the cash.
[13] As any initial application under s.295(2) for extended detention of seized cash will invariably be short on detail – it must be made within 48 hours, police enquiries will almost certainly be incomplete, a suspect may not have been identified and/or the results of any forensic examination are unlikely to be known – ss.295(5)(a) and (6)(a) anticipate such problems by referring to further investigation and consideration being given to bringing proceedings as conditions the Sheriff must take into account when determining whether an initial order should be made. In the same way, if a suspect has been identified and criminal proceedings have commenced, they will almost always not have been concluded. Consequently, ss.295(5)(b) and (6)(b) provide that the Sheriff may take that into account.
[14] Chapter 3.19 of the Summary Application Rules sets out the framework for implementation of the 2002 Act provisions. All applications to court must be made in the same process, initially by Summary Application, thereafter by Minute. In this way, the court has all relevant information before it at any stage, as occurs in other forms of procedure where such provisions are desirable, notably applications under the Adults With Incapacity (Scotland) Act and Ordinary Cause family actions.
[15] In addition, the Rules draw a clear procedural distinction between applications under s.295(2)(a) and all other applications. In terms of Rule 3.19.2(1), the former must be made by Summary Application. No provision is made that they must first be served. However, Rules 3.19.2(3), 3.19.3, 3.19.4 and 3.19.5 provide all other applications relating to seized cash – for further extension of detention, for release or forfeiture of the funds or for compensation – may only be determined after intimation on any person thought to be affected by them.
[16] The purpose of the distinction is explained when further consideration is given to ss.295, 297, 301 and 302. In the case of an initial s.295(2) application, if no suspect or person who is thought to be affected by the application has been identified, there is no Defender to convene. Even if someone has been identified, he or she may not have been traced (as has occurred in this case). Even if the identity and location of such a person is known, the requirement to urgently determine the initial application makes intimation prior to a court hearing impracticable. For these reasons, in my opinion, Chapter 3.19 does not require intimation of a s.295(2) application before it is determined. That construction is fortified by those Summary Application Rules which are of general application – unless otherwise provided, neither intimation nor citation is a required in any Summary Application (Rules 2.5 and 2.7(4)). In addition, very wide discretion is conferred on the Sheriff to determine procedure generally (Rule 2.31).
[17] While such a construction may appear unusual, it is supported by other factors. A number of safeguards exist to protect the interests of those who may be affected when a s.295(2) application is made. First, s.295(8) requires the Crown to intimate any such order to affected persons. Second, ss.297, 301 and 302 confer rights on those persons to apply to court in relation to the order. Third, any extensions are time limited. Fourth, if a further extension is sought at the end of the initial period under s.295(2)(b), the Rules provide such an application can only be determined after intimation on such persons; in addition, the continued application of ss.295(5) and (6) means the court may only grant such an application if the Crown continues to demonstrate reasonable grounds for suspicion. Finally, in the absence of timeous applications to court, the Crown’s statutory right to seize the funds falls.
Observations and Disposal
[18] 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.
[19] 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.
[20] 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.
[21] Finally in terms of observation, the crave for expenses is unnecessary as an initial application cannot, in my opinion, be opposed.
[22] 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.
Postscript
After intimation of this Note, the Crown helpfully drew my attention to two unreported decisions on Chapter 3 of Part 5 of the 2002 Act – Scottish Ministers v AB, a decision of (the then) Sheriff Principal Macphail in Edinburgh in 2004 and Scottish Ministers v KW, a decision of Sheriff Jamieson in Dumfries in 2009. The latter is the case referred to in paragraph 20 above and led to adoption of present Crown practice in such cases.
Unfortunately, the cases do not disclose a concluded view. In analogous (but not identical) circumstances, Sheriff Principal Macphail arrived at a similar conclusion to me, in particular by holding that a Summary Application in such cases need not have either a Defender or be served before it is determined. Sheriff Jamieson, in a directly analogous case, held the contrary applies. As it is important a concluded view is reached, that may only be achieved if an appropriate decision is appealed.