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HIGH COURT OF JUSTICIARY
[2006] HCJ11
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OPINION OF LORD WHEATLEY
in Petition of
HER MAJESTY'S
ADVOCATE
Petitioner;
against
MICHAEL GEORGE
VOUDOURI
Respondent;
and
TRUSTUNION LLC
First Minuter;
and
CHRYSTALLA
VOUDOURI, NICOLETTE VOUDOURI and GEORGINA VOUDOURI
Second Minuters:
________________
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Petitioner: Divers, A.D.;
Crown Agent
Respondent: Belmonte, Solicitor Advocate; Belmonte & Co.,
Edinburgh
First Minuter: Targowski, Q.C., Hughes; Trainor Alston, Coatbridge
Second Minuters: Keegan, Solicitor Advocate; Fairbairns,
Edinburgh
21 November 2006
[1] On
23 October 2001, the
respondent appeared on petition at Alloa Sheriff Court
charged with a contravention of section 72(1) of the Value Added Tax Act
1994 and various other offences. On 11 May 2004, the respondent pled
guilty to the contravention of section 72(1); the essence of this charge was the fraudulent
evasion of Valued Added Tax. The
respondent had engaged in a complex VAT fraud scheme which was concerned with
the large scale purchase and resale of computer parts. The scheme involved what is termed a carousel
fraud, based on the fact that VAT is not levied on goods imported into this
country from another Member State
of the European Economic Community. The respondent then charged VAT on the resale
of these goods to other companies under his control, without VAT being
accounted for. These other companies
then disappeared, so that the VAT could not be recovered. The total amount of the respondent's
fraudulent evasion of tax was £3,041,114.07.
[2] On
11 May 2004, when the
respondent tendered his plea of guilty, sentence was deferred until 8 June 2004, on which date the
appellant was sentenced to four years imprisonment. On this latter date the petitioner served
upon him a statement under section 9 of the Proceeds of Crime (Scotland)
Act 1995. The statement specified the
amounts that the petitioner then claimed were the proceeds of the respondent's
criminal conduct, and also described the realisable property said to be then
owned by the respondent. Among other
things, this consisted of heritable property at 3 Clackmannan
Road, Alloa, 20 Shawlands Close, Edmonton,
London, and The Manse, 34
Kennilworth Road, Bridge
of Allan, Stirling. In addition there were several bank accounts
in various names, 12 motor vehicles and a cherished number plate. The petitioner sought an order from the court
in terms of the statement confiscating all of these various items of heritable
and movable property.
[3] The
petitioner's motion on 8 June 2004
was opposed by the respondent, who lodged answers to the prosecutor's
statement. In addition, minutes of
appearance were lodged by Trustunion LLC, the first minuter, in whose name
title to the property at 34 Kennilworth Road
is taken. Further, the respondent's wife
and daughters, who claimed ownership of some of the realisable assets described
in the prosecutor's statement, and who resided with him at 34 Kennilworth
Road, also lodged answers.
[4] Certain
key figures were agreed for the purposes of the confiscation proof that was
then heard on the prosecutor's statement and the answers for the respondent and
the other minuters. In particular, it
was agreed that the total amount of the fraudulent evasion of VAT by the
respondent, in respect of the charge to which he pled guilty, was
£3,041,114.07. It was further agreed
that his realisable property for the purposes of the present action included
the house at 3 Clackmannan Road, Alloa valued at £130,000; a one-half share of the potentially free
proceeds of sale of the property at 20 Shawlands Close, Edmonton, London
with a value of £85,000; the sum of
£56,106.07 held at Barclay's Bank plc Account No.40229628; a one-half share in Barclay's Bank plc
Account No.80923494 totalling £959; a
sum of £10,407.77 held in the Bank of Cyprus Account No.01417601; the sum of £24,950 held in the Bank of
Scotland Account No.07007587; 4 named
motor cars with a total value of £80,000;
and a cherished number plate worth £6,000. It was therefore agreed that the total
realisable value of the respondent's assets was at least £392,942.34. In addition, the petitioner claimed that the
property at 34 Kennilworth Road
should also be included in the respondent's realisable assets, and this was
disputed by the first minuter, who claims title to the property. The respondent and the second minuters played
little or no active part in this dispute, which by the time of the proof was
the only live issue in the case.
[5] The
circumstances of the acquisition by the first minuter of the property at 34 Kennilworth
Road were as follows. In early 2002 the trustees of the Chalmers
Church of Scotland Congregation in Stirling instructed
their solicitors, Messrs JM and J Mailer, to sell the former manse at 34 Kennilworth
Road, Bridge
of Allan. The property was thereafter advertised at an
upset price of £390,000. On 21 February 2002 the respondent
viewed the property, and left his telephone number with the solicitors'
property manager, saying that he would be putting in an offer. Some time later, the solicitors drew up a
list of those who in fact had made offers, and the list included the name of
the respondent. It was clear to the
sellers' solicitors at this point that, in their understanding, they were
dealing with the respondent personally in his attempt to purchase the
property. At a later stage, he then told
the solicitors' property manager that he would be making an offer on behalf of
the first minuter. On 25 February 2002 the sellers
received an offer to purchase the property in the sum of £600,000, from a firm
of solicitors, Paul Gebal & Co. That
offer was in the name of Trustunion LLC, the first minuter in the present
action. The sellers' solicitors then
sought and received confirmation from Paul Gebal & Co that the offer from
Trustunion was the same offer that they had been discussing informally with the
respondent. The sellers' solicitors thereafter
continued to be of the understanding that while the offer was in the name of
Trustunion, it came in fact from the respondent. This understanding was confirmed by a letter
to the sellers' solicitors from Paul Gebal & Co dated 20 March 2002
which, following the completion of missives, enclosed the principal disposition
for signature, and which designated the respondent as the purchasing
client. A further formal letter from
Paul Gebal & Co to the sellers' solicitors, also dated 20 March 2002, again gave the respondent's name
as the client in the transaction. On
21 March 2002 Paul Gebal & Co sent to JM & J Mailer a cheque for
£600,000 drawn on their client account, and again identified the respondent as
their client in the accompanying letter.
In addition it was specifically the evidence of Stanley Moffat, a partner
in Paul Gebal & Co, that throughout this transaction the respondent was the
client for whom they were acting, and this view was amply confirmed from an
examination of his firm's files.
[6] Thereafter
the disposition of the property was delivered to the respondent's
solicitors. The deed was dated
21 March 2002 and the title was disposed in favour of Trustunion LLC, who
were described as being incorporated in the State of Delaware, United States of
America, and having its registered office at 1 Commerce Centre, 1201 N
Orange, Suite 762, Wilmington, Delaware 19801.
[7] It
was therefore the view of both sets of solicitors that throughout this
transaction the solicitors who offered to purchase this property were acting on
a day to day basis on the instructions of the respondent personally. The sellers' solicitors also became aware
that the respondent had been given a Power of Attorney by Trustunion LLC, and
this deed was produced in evidence. The
Power of Attorney bore to be granted by Trustunion LLC to the respondent on 21 January 2002 and gave to the
attorney wide powers. In particular, the
deed included the following clauses:
"1 To transact, manage,
carry on and do all and every business matters and things requisite or
necessary or in any manner connected with or having reference to the business and
affairs of the company and for such purpose to sign, execute, complete, alter,
modify or cancel any contracts or submit any applications and effect any
payment or undertake any obligations in relation to the signing or execution of
any contract, as aforesaid.
...
3 To accept and register in
the name of the company any property moveable or immovable and give valid
receipts and make and sign any declarations.
...
8 To sign execute and
deliver all deeds or other documents necessary or desirable for the purpose
aforesaid any of them or for the management and development of the business of
the company.
9 Generally to do all acts
necessary or expedient in the interest of the company or its business as fully
and effectively as the company might do, and to concur in doing any of the acts
or things hereinafter mentioned in conjunction with any other person or persons
interested in the business and to employ professional assistance for the better
and more effectually executing the power or authorities aforesaid or any of
them."
[8] Following
the delivery of the disposition, the respondent took up residence in the house
at Kennilworth Road,
together with his wife and daughters. Thereafter,
the respondent paid for the buildings and contents insurance of the property in
the sum of £3,080.11 on 15 September
2004 by means of his credit card with Lloyds TSB. There was no other evidence in respect of any
of the other financial arrangements which may have existed between the
respondent and the first minuter in respect of the respondent's occupation of
the property.
[9] Prior
to the purchase of 35 Kennilworth Road,
the respondent in 2000 had instructed a firm of solicitors, Walter Rule &
Company, in the purchase of the property at 3
Clackmannan Road, Alloa. The solicitors understood that they were
acting in that matter for the respondent personally, and were put in funds by
him for the purpose of buying the house.
A fee note was issued to him in respect of the purchase on 29 June 2000, and appears to have
been paid by him. The process of
purchasing the property was protracted, and it was clear that the respondent
issued instructions throughout to the solicitors, who regarded him as their
client. On 25 July 2000 the respondent and his wife wrote to
Walter Rule & Company, advising that the property was to be taken solely in
the name of Mrs Chrystalla Voudouri, who is the respondent's wife and the
first-named of the second minuters. At that
time Mrs Voudouri had no income, and it was plain that the respondent had
instructed and controlled the conveyancing process. The purchase price was £74,000 and there is
neither a Standard Security nor any charges over the property. Despite the fact that the property is in the
name of Mrs Voudouri, it is accepted by the respondent that it falls to be
included in his realisable property, with a value of £130,000. It appears that the property is presently
occupied by Mr Nikolas (otherwise Nicos) Savva, who is the respondent's
father-in-law.
[10] On 10 September
2004, the petitioner sent Letters of Request to the competent
authorities in the United States of America
seeking assistance in the investigation then being conducted into the
respondent's money laundering activities, following his criminal
activities. The Letters of Request
outlined the position as alleged by the petitioner, and sought assistance in
particular in respect of any documentation concerning the formation of
Trustunion LLC, to identify the directors, representatives and employees of the
company. Information was particularly
sought about those who might have knowledge of the transfer of funds to an
account in the name of the first minuter from a bank in Athens,
which appeared to have been used to purchase the house at 34 Kennilworth
Road. The
Letters of Request also sought general financial information about the company
in respect of the respondent, his wife, his father-in-law Nikolas Savva, and
Mr Savva's wife. By letter dated
3 March 2005 in response from the US Department of Justice, it was made
clear that while any corporation registered in the State of Delaware must have
a registered office and appoint a registered agent, there was no requirement to
specify the nature of the business carried on by the company, nor any need to
supply any information about the principals, the principal place of business,
or the specific business activities of the corporation. It was also indicated that there was no requirement
that the principals of any such corporation should ever set foot in Delaware,
nor was it normal for the agents to have any personal knowledge of the
individuals involved in the business dealings of the corporation. Such information as became available to the
petitioner about the first minuter indicated that as from 5 October 2001, Nikolas Savva was the
principal officer, and indeed sole member, of Trustunion LLC. No trading records or accounts of this
company could be, or were, produced. Had
the company been registered in the United
Kingdom, trading and other accounts, and
other financial information, would have been available to the prosecution
authorities. Further, the petitioner's
investigations revealed that for the years from 2001-2004 the respondent
declared that his only income in this country was the sum of £4,000 yearly from
property rental, and that Mr Nikolas Savva has made no income tax returns,
nor made any application for tax credits during that period, but since 2001 has
been in receipt of a retirement pension only.
[11] In these circumstances the petitioner requests the court in
this process to make an appropriate confiscation order against the respondent's
assets. The petitioner and respondent
were in agreement as to the legal basis on which such an order should be
made. Section 1 of the Proceeds of Crime (Scotland)
Act 1995 reads (inter alia) as
follows:
"(1) Subject to the provisions of this Part,
where in respect of any offence to which this Part applies -
(a) the accused is convicted,
whether in solemn or summary proceedings;
or
(b) in the case of summary
proceedings (without proceeding to conviction) an order is made discharging him
absolutely,
the court, on
the application of the prosecutor, may make an order (a 'confiscation order')
requiring the accused to pay such sum as the court thinks fit.
...
(6) The sum which a confiscation order
requires an accused to pay in the case of an offence not mentioned in
sub-section (5) above, must not exceed the lesser of -
(a) the amount of the benefit
-
(i) from the commission of
the offence; or
(ii) where section 2(4) of
the Act applies, from the commission of the offence and any other offence, not
being a drug traffic offence, to which this Part of this Act applies; and
(b) the amount that might be
realised at the time the order is made."
Section 4
of the Act provides:
"(1) In this Act 'realisable property' means, subject to
sub-section (2) below -
(a) the whole estate wherever
situated of a person -
(i) against whom proceedings
have been instituted for an offence to which this Part of this Act
applies; or
(ii) in respect of whom a
restraint order has been made by virtue of section 29(3) of this Act;
(b) the whole state wherever
situated of a person to whom any person whose sole estate is realisable by
virtue of paragraph (a) above as (directly or indirectly and whether in
one transaction or in a series of transactions) made a gift caught by this Part
of this Act or, as the case may be, an implicative gift;
(c) any other property in the
possession or under the control of a person mentioned in paragraph (a) or
(b) above; and
(d) any income or estate
vesting in a person mentioned in paragraph (a) or (b) above."
[12] Against that statutory background, both the petitioner and the
respondent were in agreement that the question of whether and how the court
should come to make a compensation order in a case such as the present should
be considered in five stages.
[13] The first question which has to be determined is the amount of
benefit which arises out the respondent's course of offending. In the present case, this exercise is
straightforward; it is agreed between
the parties that the amount of benefit to the respondent in the present case is
£3,041,114.07, which was the sum involved in the respondent's plea of guilty to
the charge of fraudulent evasion of Value Added Tax.
[14] The second matter which has to be considered in terms of the
statutory provisions is the amount of the respondent's realisable
property. In the present case, the
extent of the respondent's realisable property is in some measure agreed. As indicated above, the values of the
respondent's property interests, his bank accounts, motor cars and other items
which are to be held as falling within the description of his realisable
property is £392,942.34.
[15] The third decision which has to be reached in terms of the
statutory provisions is what is the lower of these two amounts. In the present case it is clear that, even
with the added value of the property in Kennilworth
Road, the respondent's realisable property will be
lower than the benefit which he obtained from his criminal activities.
[16] The fourth issue which has to be settled is whether any
disputed items should or should not fall within the definition of the
respondent's realisable property, within the meaning of section 4 of the
Proceeds of Crime (Scotland) Act 1995. What
is in dispute in the present case is whether the property at 34 Kennilworth
Road should be regarded as part of the
respondent's realisable property. It is
however not in dispute that the value of this property is £900.000.
[17] Finally, if the court does take the view that any disputed
asset falls within the definition of realisable property, the court has a
discretion as to whether that asset should be added to the respondent's
realisable property, and further to decide upon the value of that property
which should be added to the total amount.
[18] Whether any disputed asset falls within the realisable property
of an accused in any particular case depends upon the terms of
section 4(1) of the Act cited above.
In terms of section 4(1)(c), read together with section 1(a), provides
that realisable property includes any (other) property in possession or under
control of a person convicted, whether in solemn or summary proceedings. If, therefore, it is shown that the house at 34 Kennilworth
Road was in the possession or control of the
respondent at the time the prosecutor's statement was served on him, that house
would be liable to confiscation.
[19] In assessing the evidence, the Advocate Depute accepted that
the onus of proof was on the petitioner to establish that the house was under
the respondent's possession and control.
Although this may not be wholly clear from the terms of the Act, the
Advocate Depute accepted that this was what Parliament intended, and in this
context referred to the report from the Scottish Law Commission which had led
to the present Act. In particular, he
submitted, the Scottish Law Commission Report (No.147) at page 51,
paragraph 6.11 made it clear that what was proposed was that the
prosecution would always have to prove beyond reasonable doubt that any
disputed assets should fall within the respondent's realisable property. If the court decides that it does, then it
has a discretion as to whether that asset should be included in the realisable
property, and if so what value should be attributed to that asset. This approach was endorsed by counsel for the
first minuter.
[20] In these circumstances, therefore, the petitioner required to
satisfy the court that on the evidence led, the respondent enjoyed control and
possession of the house property at Kennilworth Road
in terms of section 4(6) of the Act, if a confiscation order was to be
made in respect of that property. The
Advocate Depute submitted that there were four areas of the evidence in support
of his submission. First, he relied on
the Power of Attorney granted by the first minuter to the respondent in 2002,
some of the terms of which are cited above.
It was abundantly clear that this gave to the attorney wide powers to
intromit in any way with the assets of Trustunion LLC. The only asset owned by Trustunion LLC, so
far as the evidence disclosed, was the house at 34 Kennilworth
Road. In
particular, in terms of the Power of Attorney the respondent had the power to
buy the property, and by logical extension he must also have the power to
sell. This proposition was not in any
way challenged by any of the other parties, particularly the first minuter. In these circumstances the Advocate Depute
maintained that short of outright ownership, it was difficult to see how much
more control an individual might have over any piece of heritable
property.
[21] Secondly, it was submitted that the respondent had clearly
controlled the purchase of the property at Kennilworth
Road. From
the records recovered from the respective solicitors' offices, and from the
evidence of the principal solicitors involved, it was clear that the respondent
gave all of the relevant instructions for the purchase of the property. He viewed the house, and left his telephone
number with the property manager. He
said he would be putting in an offer.
Both sets of solicitors clearly understood that it was the respondent
who was arranging the purchase of the property, and who was giving clear and
detailed instructions for this purpose.
There was no suggestion that Trustunion LLC gave any instructions in
respect of the transaction. The
respondent's name appears alone in significant items of correspondence from
both sets of solicitors indicating that he was the client, including the letter
from Paul Gebal & Co enclosing the cheque for £600,000 in settlement of the
bargain. The solicitors' fee note in
respect of the transaction was settled by the respondent. Again, for these reasons, it was clear from
the petitioner's point of view that the respondent had controlled the
acquisition of the property through the necessary conveyancing process.
[22] The third argument put forward by the Advocate Depute concerned
the question of possession. It is
accepted that following the completion of the conveyancing, the respondent
lived with his family in the property until he was sent to prison. While in possession and occupation of the
property, he had personally paid the sum of £3,080.11 to insure the house and
contents in 2004. In these circumstances,
therefore, the petitioner maintained that the respondent had enjoyed both
control and possession of the property at 34 Kennilworth
Road following its purchase.
[23] For the respondent, counsel maintained that what was important
in respect of the purchase of Kennilworth Road
was the source of funding which enabled that purchase to go forward. The petitioner had not demonstrated that the
money to buy the house had come from the respondent. In terms of their Letters of Request to the
American authorities the Crown had maintained that the funds used to buy the
house came into the possession of the first minuter from two bank accounts in
Athens on 29 October 2001, and were then used to buy the property. Unlike the purchase of the house in Alloa,
where the funds had apparently come from the respondent, the purchase price in
the present case appears to have come to Mr Savva from another bank, about
which there had been no evidence. There
was therefore nothing illegal or suspicious about the source of these
payments. There was no evidence that the
source of these funds to Paul Gebal & Co was from anyone other than
Mr Savva, as principal of Trustunion LLC.
There was no evidence that the property had been put in anyone else's
name other than the true purchaser. The
respondent, as agent in terms of the Power of Attorney, could do no more or
less than is prescribed in that document.
He was empowered to act on the part of the first minuter
but beyond that there was no link between them.
The fact that the respondent paid the insurance for the house was
neither here nor there. In a
relationship between an agent and a principal, such as found in the Power of
Attorney, there was no need for exact accounting (Russell v Clelland (1885)
23 SLR; Reid v McCabe's Executor 1988
S.L.T. 531).
[24] Counsel for the respondent further maintained that on a proper
reading of the Law Commission's Report, the idea of ownership of property was
important in considering the question of what amounted to realisable
property. In paragraph 4.9, the
words "lawfully belong to him" are used, after interim orders had been considered.
If all that was required to define realisable property was possession
and control, questions must arise where there is no apparent title to a
particular asset (see paragraph 4.10).
But in the present case, the respondent was acting as agent for a
disclosed principle, who legitimately and properly owned the property. In these circumstances, the Crown was not
allowed to claim that the property at 34 Kennilworth
Road is part of the respondent's realisable
assets.
[25] I have come to the conclusion that in this matter the
submissions of the petitioner are to be preferred. The respondent's position depends essentially
on the question of ownership as the prime, and indeed sole, criterion for
determining whether a particular asset should fall within the category of
realisable assets. That is clearly not
the case. The terms of the statute, and particularly
those of section 4(1)(c), define
possession and control of an asset to be the determining characteristic of what
should be included in the realisable property of an accused which is subject to
confiscation. No mention is made of
ownership. The principal reason for that
is obvious. It would be the easiest of
matters for those who have profited from criminal activities to transfer the
proceeds of that activity into the ownership of another in order to avoid the
confiscation process. On the other hand,
the Act provides specifically that when assets remain under the control and
possession of the offender, they can be recovered under the terms of the Act
irrespective of the identity of the title holder of those assets. No doubt the identity of the title holder may
be of significance, in one way or another, in many cases. However, essentially what the Act seeks to do
is to allow the prosecutor to recover the proceeds of criminal behaviour, and
not simply those assets which remain in the physical ownership of the
criminal. It would be naïve to assume
that all such proceeds would remain in the nominal ownership of the criminal,
and repugnant to the idea of justice that criminals could put the proceeds of
their activities completely outwith the prospect of recovery merely by
transferring such assets to others. It
is therefore entirely appropriate that the statute should seek to define
possession and control as the determining factor in what can and cannot be
recovered in the wake of criminal activities, rather than the question of
ownership.
[26] In the present case, there is no direct evidence before the
court that the respondent laundered any of the proceeds of his criminal
activities to any other party for the purpose of acquiring the property at Kennilworth
Road. The
money for this purchase, it was agreed, came from the respondent's
father-in-law, who forwarded funds to the first minuter in circumstances which,
as I understand the submissions by counsel for the first minuter, allowed
Trustunion LLC to purchase the home in question. But even if it cannot be completely
demonstrated that the purchase price for Kennilworth
Road came directly from the respondent, the proven
fact (which I find established beyond reasonable doubt) is that he had possession
and control over this property, and that in itself justifies the conclusion
that this property should fall within the respondent's realisable assets. It does not therefore matter that there is no
manifest and direct link between the respondent and the provision of the
purchase funds. The mere fact that
possession and control of the property is proved in terms of the Act is
sufficient to establish the link between the proceeds of criminal activity and
the right of the prosecution to recover those proceeds.
[27] The evidence which demonstrated that the respondent had control
and possession of the property at 34 Kennilworth Road
was both unequivocal and scarcely contested by any of the other parties. The respondent had plainly controlled the
process by which the property was acquired from start to finish, and enjoyed a
Power of Attorney from the nominal owner which gave him unfettered powers to
deal with the property in any way he wished.
He took his family to live with him in the house, and paid for the
insurance. As the Advocate Depute
submitted, these simple statements could not make it plainer than that the
respondent enjoyed both control and possession of the property; indeed it was difficult to imagine what
greater control or fuller possession could be enjoyed over the property, short
of outright ownership. In these
circumstances I found no difficulty in concluding, beyond reasonable doubt,
that the respondent enjoyed both control and possession of the property at Kennilworth
Road at the material time, and that as a result
the house falls within the definition of the respondent's realisable property
in terms of the Act, and is therefore liable to confiscation.
[28] I should make it clear that I am satisfied that the respondent
enjoyed both control and possession of the house in Kennilworth
Road.
However, it would have been enough if the Crown had established only one
of these features, either possession or control. That is what section 4(1)9c) of the Act
provides, and this reflects the intentions of the Commission (para. 4.9).
[29] Having said that, I was not satisfied that I could agree with
the submission of counsel for the respondents that the evidence failed to
demonstrate that his client had no link with the provision of the purchase
price of the house at Kennilworth Drive.
It appears to be accepted by the respondent that Mr Nikolas Savva
provided the substantial funds used to purchase the property to Trustunion
LLC. Mr Savva had obtained the
funds from bank accounts in Greece. Mr Savva is the respondent's
father-in-law and lives in a house in Alloa purchased by the respondent. Mr Savva has no income in this country,
apart from a State Retirement Pension which he has enjoyed since 2001. Mr Savva is the sole member of Trustunion
LLC, which in terms of the evidence has had no other business activity other
than the purchase of the house in question.
By May 2004 the respondent had acquired over £3 million from
his criminal activities. The respondent
had complete control over the acquisition of the house (as he had in the
purchase of the house his father-in-law now occupies in Alloa
Road, Clackmannan) and has enjoyed its occupation
and paid for its insurance subsequent to acquisition. Although this is not part of the petitioner's
case, the circumstances appear to me to be such that, particularly in the
absence of any other explanation that might seem remotely plausible, I am
entitled to reject the respondent's claim made in submissions that this was a
legitimate arms-length transaction in which the respondent had no interest or
involvement. From the narrative of facts
above described, I considered it would be perfectly reasonable to infer that
the respondent had provided the funds for the purchase of the house at Kennilworth
Road.
[30] The agreed value of the respondent's realisable assets, as
noted above, is £392,942.34. The
undisputed valuation of the property at 34 Kennilworth
Road, Bridge
of Allan is £900,000. I can see absolutely no reason why I should
not exercise my discretion in adding this property and its valuation to the
realisable assets of the respondent, nor was any such reason suggested. It was
clear that the house had been acquired from the proceeds of crime. I therefore would propose to make an order in
favour of the petitioner requiring the respondent to pay the sum
of £1,292,942.34 in terms of section 1(1) of the Proceeds of Crime
(Scotland) Act 1995, and for that purpose appoints the case to call on
28 November 2006 in Edinburgh High Court at 10.00am. .
