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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Her Majesty's Advocate v. Kiloh [2005] ScotHC HCJAC_0 (21 January 2005) URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_0.html Cite as: [2005] ScotHC HCJAC_, [2005] ScotHC HCJAC_0, [2005] HCJAC 0 |
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Her Majesty's Advocate v. Kiloh [2005] ScotHC HCJAC_0 (21 January 2005)
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HIGH COURT OF JUSTICIARY |
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OPINION OF LORD KINGARTH in application under Section 9 of the Proceeds of Crime (Scotland) Act 1995 by HER MAJESTY'S ADVOCATE Applicant; against JEAN MARY KILOH Accused - Respondent:
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Act: Divers, Advocate Depute
Alt - Respondent: C Shead; Lindsay and Kirk
21 January 2005
[1] On 9 May 2003 the accused pled guilty in Aberdeen High Court to charges 1 and 3 on an indictment which contained eight charges against her. Charge 1 was that on 10 May 2002 at 24 Lang Stracht, Aberdeen and elsewhere she was concerned in the supplying of a controlled drug, namely cocaine, to another or others contrary to the Misuse of Drugs Act 1971 Section 4(3)(b). Charge 3 was in identical terms, except that it related to the controlled drug cannabis resin. The other charges (to which her pleas of not guilty were accepted) were in identical terms but related respectively to the controlled drugs ecstasy, cannabis, diazepam, temazepam, amphetamine and lysergide. On 30 May 2003 she was sentenced to four years' imprisonment in respect of charge 1, and eighteen months' imprisonment in respect of charge 3, both sentences to be served concurrently. She appealed against the sentences imposed. On 2 October 2003 the Appeal Court quashed the sentence of four years' imprisonment and substituted for it a sentence of two and half years' imprisonment. [2] At the same time as moving for sentence on 9 May 2003 the Advocate Depute made an application for a Confiscation Order under and in terms of section 9 of the Proceeds of Crime (Scotland) Act 1995, and served upon the accused a Statement for the Prosecutor. Answers to that Statement were in due course lodged, and after sundry procedure the matter came before me for debate. Putting the matter broadly, counsel for the accused sought to challenge the way in which the Crown proposed to deal, in these proceedings, with certain sums of money found at 24 Lang Stracht, Aberdeen on the day of the offences to which the accused pled guilty (sums totalling £10,725), and in particular sought to argue that the Crown was seeking to depart from a position adopted during the earlier sentencing process. Before setting out the arguments more fully, it is necessary to describe the background in more detail. [3] A transcript of proceedings both on 9 May 2003 and 30 May 2003 was available. On the first of these dates the Advocate Depute explained that on 10 May 2002 police officers executed a search warrant at the premises referred to in the charge, being premises where the accused lived. Within a wardrobe, in the pockets of a leather jacket, there was found a total of £1,520 in cash. Underneath a chest of drawers in the same room a bag containing a total of £9,000 in cash was found. In the kitchen a further £205 in cash was discovered. In addition it was said that 15.96 grams of cocaine with a street value of between £890 and £1,320 was discovered, together with 255.97 grams of cannabis resin with a total street value said to be £870. In the kitchen there were said to have been discovered a box of disposable gloves, a set of electronic scales, three rolls of clingfilm and a number of self-seal bags. In the course of his submission the Advocate Depute said:"Now, My Lord, with regards to the monies, there is plainly a dispute as to whom the money belongs and for that reason there is no motion for forfeiture of the money but the money is included within the Proceeds of Crime Statement which has been served upon the accused and accordingly can be resolved through that particular channel".
"I think in fairness to the learned Advocate Depute on 9 May he advised My Lord that there was plainly a dispute concerning the money and he didn't move for forfeiture, but of course the Proceeds of Crime Prosecutor's Statement was served on Miss Kiloh and that procedure will be utilised to determine what happens to the money".
The Advocate Depute who then appeared (who was not the same Advocate Depute who had appeared on 9 May) made no submission in response (nor was he invited to) before the trial judge proceeded to sentence the accused.
[5] Before the Appeal Court the argument on behalf of the accused was that the trial judge had been wrong to take the view (as he apparently reported he had) that the picture presented by the various items found in the house was consistent with a well-established drug dealing operation. It is recorded in the Opinion of the Court that the submission was that the sentencing judge's approach was inconsistent with the general rule that the Court will accept what is said in mitigation, in the absence of any significant contradictions by the Crown. It appears that the Court asked for further information from the Advocate Depute then appearing (who had not appeared before) as to the Crown's position. In the Court's Opinion it is said: "In this connection, the Advocate Depute has informed us that the Crown's position was not to contradict what was said in mitigation in relation to the two sums of money and indeed not to seek an order for forfeiture of either of these sums, nor was it disputed by the Crown that the scales and other items were for purposes other than drug dealing". In that situation, the Court reached the conclusion that it could be said that the sentencing judge had erred in his approach. [6] The Statement by the Prosecutor lodged to support the motion for a confiscation order follows the now standard form. It sets out a calculation of the alleged proceeds of drug trafficking by totalling, first, the accused's expenditure on the acquisition of assets over the five years prior to 10 May 2002 (£14,821). To that is added her expenditure on other items over that five year period (£31,512), producing a total sum of expenditure of £46,333, from which figure her total known income over the period (£33,448.48) is deducted, leaving a figure for the alleged proceeds of drug trafficking of £12,884.52. The sum of £14,821 said to represent her expenditure on the acquisition of assets over the five year period is shown by schedule 2 to be confined to the cash seized at the time of her arrest (£10,725), together with what is said to be the wholesale value of drugs apparently seized at the same time (amounting in total to £4,096). These drugs are said to include cocaine (albeit an amount of 71.41 grams) and cannabis resin, and also the drugs apparently referred to in the six charges to which the accused's pleas of not guilty were accepted. The value of the accused's realisable property is assessed as being the value of the cash recovered, namely £10,725. It is apparent from this that the Crown's treatment of the monies found on 10 May 2002 (as being the property of the accused) plays a significant, indeed determinative, part in the claim which is made. [7] On behalf of the accused Mr Shead argued that in these confiscation proceedings the Crown was inviting the Court to proceed on a hypothesis of fact in relation to the cash found which the Crown had departed from in the proceedings against her. After counsel for the accused had made her position plain in respect of the money on 30 May, the Advocate Depute then appearing said nothing to contradict that position. This amounted to an implied acceptance. Such an implied acceptance could be taken to form the basis of the practice of the court to sentence on the basis of facts presented in mitigation which were not disputed (unless in exceptional circumstance they could be regarded as inherently incredible). Even if it was not right that the accused's position could be said to have been accepted on 30 May, the position was clear by the time of the appeal. The Advocate Depute then appearing could have contradicted the position which the appellant maintained, but did not. In these circumstances overall it could be said that in seeking to proceed against the accused in the confiscation proceedings on the basis that the cash was hers, the Crown was acting in breach of her rights under Article 6(1), or was acting oppressively, or alternatively that the claims made in respect of the monies should not be admitted to probation. What the Crown perhaps should have done initially was to move for an order for forfeiture under section 21(2)(a) of the Proceeds of Crime Act 1995, which could have been suspended pending any intervention by Mr Duncan, or the accused's brother. In the present process the Crown appeared to be claiming not merely that the money was hers but that it was directly produced from drug trafficking. The Statement in the present case differed from that lodged in the vast majority of other cases in which the Crown looked back at other unexplained expenditures over the five year period. Reference was made to HMA v Bowie and HMA v Urquhart, both reported together at 2004 S.C.C.R. 105, albeit the specific arguments which were advanced on behalf of the accused in those cases (unsuccessfully) were different, and there was no intention to repeat them here. [8] Mr Shead also submitted that, for a number of reasons, the Crown could be said to have departed from the position earlier adopted in respect of the drugs found on the day in question. In response, the Advocate Depute indicated that the Crown intended to restrict the claims made in the Statement to the wholesale value of the cocaine and cannabis resin which had been referred to on 9 May 2003. In these circumstances the argument before me came to be restricted to the monies which were found. [9] The Advocate Depute submitted that, whereas it might be different if the Crown had clearly accepted that the cash was not the accused's, not only could that not be said, but in this case the Crown had made it clear from the outset, and counsel for the accused clearly understood, that there was a dispute about the money and that it would fall to be resolved in the course of the confiscation proceedings. It was not true, in any event, to say that failure to contradict an accused's position in mitigation was tantamount to acceptance of what had been said. [10] I have come to the clear view that the arguments on behalf of the Crown are to be preferred. In the first place, it does not appear to me that the Crown are seeking to claim directly (as I think was suggested in at least part of Mr Shead's presentation) that the sums were the product of dealing in drugs. Rather the Statement proceeds on the basis that the sums represent part of her expenditure over the five year period from which total known income is deducted to produce an overall figure of apparent proceeds of drug trafficking. This approach is not significantly different from other cases of the type referred to, albeit the moneys in question are significant in their impact on the calculations. Secondly, and more significantly, while it is true that the Crown are seeking to claim in the confiscation proceedings that the cash was the accused's (both for the purposes of calculating her expenditure and as being her realisable assets), there can be little doubt in this case that by the time the trial judge proceeded to sentence it had been made clear that it was accepted that there was a dispute as to the money and that that dispute would fall to be resolved in the course of the confiscation proceedings - all as acknowledged by counsel appearing for the accused on 30 May. In these circumstances it cannot be said that the Advocate Depute's silence on 30 May amounted to an implied acceptance of the accused's claims. It is not clear to me that the Crown's position would have been different if they had moved for a suspended forfeiture order. As it was, it seems to me that their position was fairly and clearly explained, and was favourable to the accused so far as the initial sentencing process was concerned. [11] In the Appeal Court it appears that the Crown accurately reported that on 30 May the accused's position advanced in mitigation had not been contradicted. Although no mention was made of the apparent dispute which it was intended to resolve later in the confiscation proceedings (which, no doubt, would have given a more complete picture) it might have been thought unnecessary to do so at that stage. What the Court was concerned to discover was whether the trial judge had been wrong to take the view that the monies were to be treated for the purposes of the sentence as directly relevant to the drug dealing offences to which the accused had pled guilty. In any event, it does not appear that anything said in the Appeal Court was meant to be understood as a new, reconsidered position. Thus, even if it could be said that what was said was an incomplete (or inaccurate) rehearsal of what the Crown position had been, it is difficult to see how it could be said that this represented a departure from it. It was certainly not something that disadvantaged the accused. [12] Although that is enough for the decision in this case, I should perhaps add that I am unable to accept the proposition that silence by the Crown, in the face of detailed claims in mitigation, is necessarily tantamount to implied acceptance of them. No authority to that effect was put before me. No doubt as a general rule the Court will accept what is said in mitigation in the absence of specific contradiction (c.f. McCartney v HMA 1997 S.C.C.R. 644), and the lack of contradiction may indeed be, in many cases, because the Crown does accept what is said. In other cases, however, the absence of contradiction will be because the Crown is not in a position, or does not seek, for the purposes of the plea, to contradict the claims which are then made; a distinction often recognised in practice and apparently, for example, recognised in Renton & Brown's Criminal Procedure paragraph 18-29.1. [13] In these circumstances I shall repel the preliminary challenge to the Crown's claim. What requires to be decided on 21 January 2005, when the case next calls, is further procedure.
