Drug crime assets seizures suffer setback
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Government plans to seize the assets of convicted criminals have suffered a severe setback with a decision in the Scottish Court of Appeal. Three senior judges sitting in Edinburgh ruled yesterday that confiscation orders breached the European Convention on Human Rights (ECHR).
Government plans to seize the assets of convicted criminals have suffered a severe setback with a decision in the Scottish Court of Appeal. Three senior judges sitting in Edinburgh ruled yesterday that confiscation orders breached the European Convention on Human Rights (ECHR).
The judges said that Scottish legislation was unlawful as it required convicts to prove they had made their money lawfully, in effect presuming they were guilty. The ruling is being seen as a severe setback in the fight against the illegal drugs trade.
It follows a challenge by lawyers acting for a convicted drug dealer, Robert McIntosh, 38, of Greenock, Strathclyde, who was jailed for four years in June 1999 at the High Court in Paisley after pleading guilty to supplying heroin.
Ronald Thwaites QC, a senior English barrister, said that the decision was very surprising given that McIntosh had been a convicted drug dealer. "This will be a bloody blow to the Government's plan to take control of the proceeds of crime," he said.
Keith Mathison, a solicitor and expert on the Human Rights Act, said the decision would be "a major setback for the Government".
Both lawyers said that while Scottish courts do not set a precedent in the English courts, their decisions are usually considered "persuasive". Mr Mathison said: "It would be very unusual if the English and Scottish courts took a different view, given that the Human Rights Act legislation is the same in both countries."
John Wadham, of the civil liberties group Liberty, said: "I believe this will shift the onus of proof to the prosecutors to prove where money has come from. That will make it much tougher to seize assets."
There is already a statute in England that allows confiscation of the proceeds of serious crime after a conviction. Tony Blair has proposed strengthening and broadening seizure laws to tackle organised crime.
The Scottish Crown Office is considering an appeal against the judges' decision that would involve taking it to the House of Lords.
A spokesman for the Scottish Executive said it was determined to press ahead with plans to confiscate the profits of illegal activity and was looking at ways of amending the legislation. "We are already well under way in reviewing the law on this and will make sure that it is compatible with ECHR," he said.
"We are also determined to bring in stronger powers to seize the unlawful gains of suspected dealers and criminals, and have been working on this together with the Home Office. We have always recognised that these proposals must be compatible with ECHR."
Figures for the financial year 1999-2000 revealed that 17 confiscation orders were made under the legislation, netting a total of £822,720.