Criminal

Drug trafficking confiscation order following conviction rebuttable assumption that assets proceeds of drug trafficking not contrary to presumption of innocenceHM Advocate and Another v...Drug trafficking confiscation order following conviction rebuttable assumption that assets proceeds of drug trafficking not contrary to presumption of innocenceHM Advocate and Another v McIntosh: PC (Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Clyde and Lord Hutton): 5 February 2001Upon the defendants conviction for being concerned in the supply of heroin contrary to section 4(3)(b) of the Misuse of Drugs Act 1971 the prosecutor applied for a confiscation order to be made against him under pursuant to section 1 of the Proceeds of Crime (Scotland) Act 1995.

The defendant raised as a devolution issue the argument that the rebuttable assumptions, laid down in section 3(2) of the 1995 Act (similar to those applicable in England and Wales under section 2(3) of the Drug Trafficking Offences Act 1986) that property transferred to or expenditure by a convicted drug trafficker within the six years prior to his being indicted of the offence were the proceeds of drug trafficking and thus liable to confiscation, were incompatible with the right of a person charged with a criminal offence to be presumed innocent pursuant to article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953).

The judge decided that the assumptions were not incompatible with article 6(2) but was reversed by the Appeal Court of the High Court of Justiciary.

The prosecutor and HM Advocate General for Scotland appealed.Neil Davidson QC, Solicitor General for Scotland, and M.

Howlin (instructed by Crown Office) for the first appellant; Lynda Clark QC, HM Advocate General for Scotland, Laurence Murphy QC and Philip Sales, of the English bar, (instructed by Office of the Solicitor to HM Advocate General for Scotland) for the second appellant; Edward Targowski QC, Christopher M Shead and Andrew M Devlin (instructed by Bennett & Robertson, Edinburgh for Lyons Laing & Co, Greenock) for the defendantHeld, allowing the appeal, that the defendant had to establish that a person against whom application for a confiscation order was made was, by virtue of that application, a person charged with a criminal offence within the meaning of article 6(2) of the Convention; that although the defendant faced a financial penalty (with a custodial penalty in default of payment) it was a penalty imposed for the offence of which he had been convicted and involved no accusation of any other offence; that accordingly he could not overcome the problem of showing that he was charged or that he was accused of any criminal offence for the purposes of article 6(2); that, however, if article 6(2) did apply to an application for a confiscation order following conviction it was not unreasonable or oppressive to call on a proven drug trafficker to proffer an explanation for any significant discrepancy which could be established between his property and expenditure on the one hand and his known sources of income on the other.

(WLR)