APPLICATION FOR A COFNISCATION ORDER BY HMA AGAINST GRANT ROBERT BROADFOOT [2024] ScotHC HCJ

HIGH COURT OF JUSTICIARY

[2024] HCJ 1

IND2021-2435

OPINION OF LORD TYRE

in the application by

HIS MAJESTY'S ADVOCATE

Prosecutor

against

GRANT ROBERT BROADFOOT

Accused

for a confiscation order under section 92 of the Proceeds of Crime Act 2022

Prosecutor: Heaney, AD, Crown Office

Accused: N Shand; Bridge Legal

4 June 2024

Introduction

[1]

At a preliminary hearing on 5 April 2022 the accused pleaded guilty to the following

charge:

"Between 13 November 2019 and 3 June 2020, both dates inclusive, at [addresses in

Glasgow and Paisley], HM Naval Base, Faslane and elsewhere you GRANT ROBERT

BROADFOOT were involved in serious organised crime and did do something you

knew or suspected or ought reasonably to have known or suspected would enable or

further the commission of serious organised crime, in that you were concerned in the

purchase, sale and supply of cannabis, did offer to supply ammunition, were

concerned in the transfer, possession and use of criminal property, namely money,

and did use encrypted and non-encrypted electronic devices and the encrypted

communication platform Encrochat to send and receive messages in connection

therewith, use motor vehicles registered numbers [numbers specified] and motor

vehicles belonging to the Ministry of Defence to transport said cannabis and money,

have in your possession a cash counting machine and a vacuum sealing machine and

other items for counting criminal property and packaging drugs: CONTRARY to

Section 28(1) of the Criminal Justice and Licensing (Scotland) Act 2010".

Guilty pleas were accepted at the same time from two co-accused, Stuart Bryant and

Ian Broadfoot (the accused's father), to lesser charges relating to the same course of criminal

conduct. On 10 May 2022, the accused was sentenced to imprisonment for a period of

5 years and 3 months, discounted from 7 years to reflect his guilty plea. Stuart Bryant was

sentenced to a shorter period of imprisonment and a community payback order was

imposed on Ian Broadfoot.

[2]

The advocate depute tendered statements of information under section 101 of the

Proceeds of Crime Act 2002 ("the Act") in respect of each of the accused. After sundry

procedure, settlements were reached between the Crown and each of the two co-accused. In

the case of Stuart Bryant, the court made a confiscation order on 1 February 2024 assessing

the value of the proceeds of his general criminal conduct at £115,000 and the available

amount as nil.

[3]

The application for a confiscation order against the accused proceeded to a

determination hearing. For the purposes of the hearing it was agreed by joint minute:

that the accused had been convicted of an offence which satisfied the test for the

definition of a criminal lifestyle under section 142(1) of the Act;

that he had benefited from criminal conduct and that a confiscation order fell to

be made; and

that the available amount was £29,309.15.

It was further agreed that the benefit to the accused, calculated in accordance with the Act,

was £62,500 exclusive of the value of drugs recovered. The issue for decision at the

determination hearing was whether some or all of the value of the drugs recovered should

be included in the benefit to the accused. That is a matter which would have practical

significance should the Crown decide in future to make an application under section 107 for

recalculation of the available amount.

Circumstances of the offence

[4]

The following is derived from the agreed narrative presented to the court when the

guilty pleas were tendered.

[5]

At the time of the offences the accused and Stuart Bryant were serving Royal Marine

Commandos based at Faslane. On Wednesday 3 June 2020, the police received information

that drugs would be transported from England to Scotland in a Ford Transit van belonging

to the MOD. The van, driven by Stuart Bryant, became the subject of surveillance as it

travelled north. At about 8pm it came to a halt in Glasgow in front of a Renault Kangoo van.

The two vehicles were driven in convoy to an address in Mount Vernon, Glasgow, where

they stopped close to one another. Police officers formed the view that a drugs handover

was taking place. They detained the accused, Stuart Bryant and Ian Broadfoot.

[6]

When the Ford Transit van was searched, 11 vacuum packed bags each containing

1kg of cannabis were found. A further 19 such bags were found in the Renault Kangoo van.

When the accused's home was searched, a box containing cash totalling £27,370 was found.

A search of Ian Broadfoot's home produced a number of items including a cash counting

machine with an invoice for it in the accused's name, more cash, a vacuum sealer machine,

and another bag containing cannabis. Cannabis plants were found in a garage. When the

accused's quarters at Faslane were searched, a bag containing live ammunition was found.

[7]

The police obtained further evidence against the accused and Stuart Bryant by

successful infiltration of an encrypted communications platform called Encrochat, used by

persons involved in organised crime. The accused's user "handle" was active from

27 March to 3 June 2020, during which time he conducted a number of chats which

demonstrated his involvement in serious and organised crime, including transportation of

drugs and collection of money. In certain conversations he appeared to be offering to

supply ammunition, to which he had access as a storeman at Faslane. Messages leading up

to 3 June included arrangements for the transportation that was intercepted by the police.

[8]

According to the police STOP unit, the cannabis in the 30 vacuum packed bags

recovered from the two vans would be bought/sold as 1kg weights with a value of

approximately £3,800 each, giving a total value of about £114,000. The bag recovered from

Ian Broadfoot's address contained 182.52 grams of cannabis, which was not a recognised

weight/deal. It might have been the remainder of a larger amount and had a value of

approximately £1,000.

[9]

At the determination hearing the accused gave evidence. He confirmed that he had

been involved in making arrangements on Encrochat for the transportation of the 30 kilo

bags. His intention was to pass 20 bags to a friend in Edinburgh as a favour, and to retain

the other 10 bags himself for resale in Glasgow in quantities of 1 kilo. He was not required

to pay up front for the cannabis; he would be expected to pay for the bags which he

retained, at a price of £3,000 per kilo, out of the proceeds of his resales. He would not have

had any financial interest in the resale of the 20 kilos in Edinburgh. These bags would have

been taken to Edinburgh by Stuart Bryant. When it was put to him in cross-examination

that this was not his first contact with suppliers in Liverpool, or the first time he had used an

MOD van to transport drugs, his answers were evasive. He accepted that in relation to the

3 June transaction he was a middle man.

[10]

Evidence was led on behalf of the accused from Mr Kenneth Lee, a retired detective

sergeant with many years' experience of drug related crime, who is now a director of Expert

Drug Witness Services Ltd providing expert evidence on matters such as "street" and

wholesale prices of drugs in Scotland. His opinion, which accorded with that of the STOP

unit noted above, was that at the material time the 30 kilo bags of cannabis would have had

an individual value of £3,800 if marketed in the west of Scotland. Large quantities of drugs

would benefit from a discount by the supplier of the order of 10 to 20%. Supplying drugs

"on tick" was standard practice.

Benefit from criminal conduct: the law

[11]

In terms of section 92(5)(b) of the Act, where the court has decided that the accused

has a criminal lifestyle, it must decide whether he has benefited from his general criminal

conduct. If it so decides, the court must then, in accordance with section 92(6), (a) decide the

recoverable amount and (b) make a confiscation order requiring him to pay that amount,

subject to the proviso that (b) applies only if, or to the extent that, it would not be

disproportionate to require the accused to pay the recoverable amount. Section 93(1) defines

the recoverable amount as an amount equal to the accused's benefit from the conduct

concerned. If, however, the accused shows that the available amount is less than that

benefit, then under section 93(2) the recoverable amount is the available amount, or a

nominal sum if the available amount is nil. As already noted, the issue in this case is not the

available amount but rather the amount of the accused's benefit from his general criminal

conduct.

[12]

As regards the meaning of benefit, section 143 provides as follows:

"...(4) A person benefits from [criminal] conduct if he obtains property as a result of

or in connection with the conduct.

(5) If a person obtains a pecuniary advantage as a result of or in connection with

conduct, he is to be taken to obtain as a result of or in connection with the conduct a

sum of money equal to the value of the pecuniary advantage.

(6) References to property or a pecuniary advantage obtained in connection with

conduct include references to property or a pecuniary advantage obtained both in

that connection and in some other.

(7) If a person benefits from conduct his benefit is the value of the property

obtained."

[13]

In R v May [2008] 1 AC 1028 at paragraph 48, the House of Lords made the following

observations on the exercise of the power of the court to make confiscation orders. The

legislation is intended to deprive defendants of the benefit they have gained from criminal

conduct, whether or not they have retained such benefit, within the limits of their available

means. The benefit gained is the total value of the property or advantage obtained, not the

defendant's net profit after deduction of expenses or shares paid to co-conspirators. A

defendant ordinarily obtains property if in law he owns it, which will ordinarily connote a

power of disposition or control, as where a person directs a payment or conveyance of

property to someone else. Mere couriers or custodians or other very minor contributors to

an offence, rewarded by a specific fee and having no interest in the property or the proceeds

of sale, are unlikely to be found to have "obtained" that property.

[14]

In R v Ahmad and Fields [2015] AC 299, the UK Supreme Court emphasised at

paragraphs 41-51 that the word "obtains" did not connote ownership of an item or money

but rather control over its use. Where there were two or more co-conspirators, they might

be regarded as having jointly obtained the item or money concerned, so that it would often

be appropriate to hold that each had obtained the whole of the property. On the other hand

there might be cases where a conspirator was able to show that he was only involved to a

limited extent, and did not obtain the property which was obtained as a result of the crime.

Where however an item was jointly obtained, each of the co-conspirators was to be treated

as having obtained the item or money concerned, and the value of each's benefit was the

whole value.

[15]

The English cases, including R v May and R v Ahmad and Fields, were considered in

Mooney v HM Advocate 2020 JC 1, where the Lord Justice Clerk, Lady Dorrian, observed at

paragraph 7 that the determination of whether there was a "benefit" for the purposes of the

Act was highly fact sensitive. The extent to which an individual might have exerted a power

of control or disposition over the assets in question in such a way that they may be described

as having obtained a benefit therefrom might be relevant, as might the distinction between

someone who acted only as a courier and someone who took a more central role, although

this too would not be determinative. The essence of "benefit" was to be found in the word

"obtain", which covered both securing and procuring (ibid paragraphs 12 and 13).

Argument for the Crown

[16]

On behalf of the Crown it was submitted that the accused had "obtained" all of the

drugs seized and that his benefit was the whole value of those drugs. He had had joint

power of disposition or control over them. There was no basis for apportionment of benefit

among the co-accused. It was clear from the agreed narrative and from the accused's

evidence that he had not been a mere courier; he controlled the movement of the drugs,

including sending some to Edinburgh. This was not analogous to the situation of an

individual who participated in a drug supply operation through duress. It was not a one-off

event; the accused was accustomed to acting as a middle man. Because this was a lifestyle

offence the focus was not merely on the intercepted transaction. The proportionality proviso

to section 92(6) was irrelevant: it related to the recoverable amount, not the assessment of

benefit.

Argument for the accused

[17]

On behalf of the accused it was submitted that no sum should be added to the benefit

figure in relation to the value of the drugs. In the circumstances of this case it would not be

proportionate to do so. According to the accused's evidence he had not paid for the

cannabis recovered from the vans and he had obviously not had an opportunity to realise its

value. Alternatively, if that argument were to be rejected, he should be found to have

obtained only the 10 kilos of cannabis which he was entitled to dispose of for his own profit.

So far as the other 20 kilos were concerned, he was no more than a courier with no right of

disposal. There was no reference in the calculation in the statement of information to the

remaining bag valued at £1,000, and so on any view it should be excluded.

Decision

[18]

I am satisfied, having regard to the whole circumstances of the case, that the

property obtained by the accused in connection with his criminal conduct included all of the

drugs recovered by the police, including the 20 kilos destined for Edinburgh and the bag

found at his father's home. As the case law makes clear, the critical word in section 143 is

"obtains" which, as the Lord Justice Clerk observed in Mooney, encompasses both securing

and procuring. On the basis of the agreed narrative, including the content of the Encrochat

messages, there is no doubt that the accused was much more than a courier. He played a

central role in a serious crime operation for the transportation of cannabis to Scotland,

including use of MOD vehicles. The fact that he stood to gain no personal benefit from a

portion of the particular load intercepted by the police is neither here nor there. He, along

with his co-accused Stuart Bryant, procured and thus obtained the drugs recovered from the

two vans in the course of criminal conduct. The smaller amount of cannabis recovered from

Ian Broadfoot's house was clearly also obtained by the accused and his co-accused in

connection with that conduct.

[19]

The accused's proportionality argument is misconceived. Section 92(6) is not

concerned with the assessment of benefit obtained, and there is therefore no statutory

requirement to address proportionality in that context. Proportionality must be addressed

by the court when deciding whether to require the accused to pay the amount which it has

decided is the recoverable amount, which will not be more than the available amount. In the

circumstances of this case, proportionality may have a role to play if the Crown seeks at

some future date to recalculate the available amount, but it has no part to play in assessing

the amount of the accused's benefit as defined by section 143.

[20]

In terms of section 143(7), the benefit from criminal conduct is the value of the

property obtained. The value of the 30 bags discovered in the vans is agreed to have been

£3,800 per bag, ie £114,000 in total. At one stage it was argued that this figure should be

reduced to reflect the discount which would be given for bulk sales. That argument cannot

be sustained, because the accused's evidence was that he intended to sell the kilo bags

individually. The relevant value is the value on sale and not the purchase price (cf R v

Elsayed [2014] 1 WLR 3916) which on the basis of the agreed narrative was £3,800 per kilo

bag. The value of the bag recovered from Ian Broadfoot's house is also agreed as being

£1,000. The total value of the benefit of the accused's criminal conduct is therefore £177,500,

being the agreed benefit of £62,500 plus £115,000.

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