Tuesday, February 9th, 2016

The Lord Advocate v Gary Mackie & Diane McColm [2015] CSIH 88

Barry Divers represented the Crown in this reclaiming motion against an interlocutor of the Lord Ordinary dated 11 December 2014 refusing the second respondent’s motion for expenses against the Crown.  The second respondent is the partner of the first respondent and they live together in a house in Ayr.

The first respondent was convicted of supplying of drugs under section 4(3)(b) of the Misuse of Drugs Act 1971 in September 2009 and sentenced to 4 years in prison. In the meantime, restraint orders in terms of section 120 of the Proceeds of Crime Act 2002 had been imposed, interdicting the respondents from dealing with any realisable property, including the house in Ayr. In August 2010 a confiscation order was made under the 2002 Act following a Joint Minute entered into between the first respondent and the Crown.  The proceeds of crime were agreed at almost £225,000, with the first respondent’s realisable assets being £20,000 - the only realisable asset was agreed as being the equity in the house.

The last date for payment was 19 February 2011, but there was an outstanding balance of £16,750. There was a petition lodged that sought the appointment of an enforcement administrator. However, by the time the matter called in December 2014, the first respondent had paid the full balance. On the motion of the Crown, the petition was dismissed the first respondent was found liable in the expenses of the Crown.  The second respondent sought her expenses against the petitioner, but her motion was refused.

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This has been appealed on 3 grounds. Firstly, that the Lord Ordinary erred in exercising his discretion under the Court of Session Rules relating to abandonment of an action - the usual consequence of abandonment of an action was payment of the expenses. However, Mr Divers submitted on the Crown’s behalf that the petition had been properly presented and when the first respondent satisfied the confiscation order, the petition had no practical purpose and was thus dismissed.

Secondly, the second respondent argued that the house in Ayr was not actually ‘realisable property’ as it was in her name alone.  The petition did not state that it had been a tainted gift in terms of section 144 of the 2002 Act. Additionally, the confiscation order was incompetent, as it had been stated to be under the repealed 1995 Act. However, the first respondent had declared the equity in the house as part of his realisable assets. Mr Divers submitted that it had been open to the second defendant “to make representations both in the confiscation proceedings and in the earlier restraint proceedings, but she had declined to do so.”  In terms of the reference to the 1995 Act, it had simply been a typographical mistake, which did not render the order incompetent. In any event, the first respondent completed the order by completing payment.

The final ground of appeal was the fact that the Lord Ordinary “had failed to give proper weight to the fact that the second respondent might lose her house by virtue of the legal aid clawback provision”. In response Mr Divers submitted, “if the second respondent had an entitlement to expenses, that right lay against the first respondent.  The second respondent had been invited by the Lord Ordinary to make such a motion, but she chose not to do so.”

Lord Carloway delivered the opinion of the court. He commented at the outset that appeals based solely on expenses “should not be entertained except where there has been an obvious miscarriage of justice…”. On consideration of the grounds advanced by the second respondent, each were considered in turn. Dealing first with the Court of Session Rules, “there was no requirement to award the second respondent her expenses, even if the case had involved “abandonment” of the petition” as that is a matter for the discretion of the judge. The petition was only made because the first respondent had not complied with the confiscation order. The first respondent caused the litigation and so any expenses of the second petitioner fall on him, but no application was made to recover expenses from him.

In terms of the house in Ayr not being ‘realised property’ Lord Carloway stated it was  “reasonable for the [Crown] to proceed on the basis that that property had been acquired by the second respondent with the assistance of funds provided by the first respondent”. Whilst not stated, the house could have been considered to be a tainted gift as the second respondent’s title had been registered in November 2005 and there had been criminal proceedings against the first respondent since February 2009. There had been no challenge to the house being realised property following the restraint order. The confiscation order proceeded properly and was completed in December 2014 – the error in the date of the statute did not have the effect that the second defender claims.

In terms of legal aid clawback, Lord Carloway considered it to not be a relevant factor. Overall, there is no injustice in the decision of the Lord Ordinary that would justify interference. The reclaiming motion was refused.

A copy of the Court's Opinion can be found here.

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