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BBC Scotland's Bob Wylie examines the ramifications
"There's an emergency meeting in the Lord Advocates office"
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Friday, 13 October, 2000, 13:29 GMT 14:29 UK
Drug profit confiscations outlawed
Police devote a lot of energy to drug related crime
Confiscation orders used to seize the profits of illegal drug dealing have been outlawed following a successful European human rights challenge.

The Court of Criminal Appeal in Edinburgh ruled that proceedings brought by the Crown breach the European Convention on Human Rights.

The confiscation orders were introduced under the 1995 Proceeds of Crime (Scotland) Act which was aimed at stripping drug barons of their profits.

Under the legislation the Crown can raise proceedings going back over a six-year period inviting a court to assume that proprty or cash has come from drugs.

After the controversial ruling, on Friday, the Crown was granted leave to appeal against the decision to the judicial committee on the Privy Council.

Illegal drug dealing attracts big profits
Last year 17 confiscation orders were made in Scotland permitting the seizure of 822,720.

The largest amount clawed back by the Crown was 270,000 against heroin dealer Alexander Donnelly in 1997.

But now the appeal court has thrown the entire system into disarray after upholding a challenge brought by Robert McIntosh, who was jailed for four years last year at the High Court in Paisley for heroin trafficking.

Lord Prosser and Lord Allanbridge ruled in McIntosh's favour over a challenge he brought against a Crown bid to seize assets it claimed were from drugs, with Lord Kirkwood issuing a dissenting opinion.

Lawyers acting for McIntosh claimed the confiscation proceedings breached Article 6(2) of the European convention which guarantees the presumption of innocence until proved guilty.

Chris Shead, for McIntosh, argued that under the Proceeds of Crime (Scotland) Act that presumption of innocence was displaced and the onus was placed on the person involved to prove the Crown's assumptions incorrect.

Heroin package
Scotland has a significant heroin problem
A prosecutor serves a statement for a confiscation order assessing the value of the accused person's proceeds from drug trafficking.

Mr Shead argued that in taking action against McIntosh the Lord Advocate was acting in a way incompatible with his rights by inviting the court to assume that assets held by him were from drugs, unless it could be shown this was incorrect.

To assume without any evidence that property or assets were from drugs was "totally inconsistent with the presumption of innocence", he said.

Mr Shead asked the appeal judges to declare the Crown has no power to invite the court to make the assumptions about assets set out in the proceeds of Crime (Scotland) Act.

It is clear that what is at stake in cases of this nature is the public interest in the fight against the evils of drug trafficking

Lord Kirkwood
Lord Prosser ruled in favour of McIntosh and said: "The existing provisions would, in my opinion, plainly be in violation of Article 6(2) if they were applied to ordinary criminal proceedings.

"They are in my opinion equally in violation of the Article when applied to confiscation proceedings."

Lord Prosser said he was satisfied that the Lord Advocate in seeking assumptions about alleged drug wealth and a confiscation order with no other foundation had contravened the law introducing the European Convention into Scotland.

The senior judge he entirely accepted the importance of comabtting "the scourge of drug trafficking".

He said this could have been achieved if the relevant part of the proceeds of crime legislation was in different terms.

Lord Kirkwood said in his dissenting opinion he did not consider presumption of innocence was breached by the confiscation proceedings.

He said: "The statutory provisions relating to confiscation orders have been described as draconian but they have to be balanced against the importance of what is at stake, namely, the protection of society from the evils of drug trafficking and attempts to ensure that a convicted drug trafficker does not profit from any drug trafficking activities."

The appeal was held in Edinburgh
"I have reached the conclusion that the provisions in question do not exceed reasonable limits and are not incompatible with Article 6(2) of the Convention," he said.

Lord Kirkwood said in his opinion: "It is clear that what is at stake in cases of this nature is the public interest in the fight against the evils of drug trafficking.

"In this case I consider that regard must be had to the special nature of drug trafficking crime and the threat which it poses to a democratic society."

The dissenting judge added: "It is well known that substantial profits can be and are made as a result of drug trafficking and it has been seen as important to take steps to prevent those who are engaged in such activities from benefiting therefrom and to interrupt the profits generated by drugs."

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See also:

10 Oct 00 | Scotland
Pledge on crime assets
09 Oct 00 | Scotland
New powers to seize drug profits
14 Jun 00 | Scotland
Call to seize criminal assets
25 Feb 00 | Scotland
Drug chief issues warning
20 Jan 00 | Scotland
More cash for drugs battle
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