His Majesty’s Advocate v. Grant Robert Broadfoot [2024] HCJ 1

Application by His Majesty’s Advocate for a Confiscation Order:- On 5 April 2022, at a Preliminary Hearing at Glasgow High Court, the respondent pled guilty to a charge of being involved in serious organised crime contrary to section 28(1) of the Criminal Justice and Licensing (Scotland) Act 2010. On 10 May 2022, the respondent was sentenced to 5 years and 3 months imprisonment discounted from 7 years due to his plea of guilty. Guilty pleas were accepted from two co-accused, Stuart Bryant and the respondent’s father, Ian Broadfoot, to charges relating to the same course of criminal conduct for which they received sentences of imprisonment and a Community Payback Order respectively. In respect of all three the Crown served statements of information under section 101 of the Proceeds of Crime Act 2002. In due course settlements were reached between the Crown and both the respondent’s former co-accused. In relation to Stuart Bryant the court made a Confiscation Order assessing the value of the proceeds of his general criminal conduct at £115,000 and the available amount as nil. In relation to the respondent the application for a Confiscation Order proceeded to a determination hearing in which various matters were agreed including:- (1) that the respondent had been convicted of an offence which satisfied the test for the definition of a criminal lifestyle under section 142(1) of the Act; (2) that the respondent had benefited from criminal conduct and that a confiscation order fell to be made; (3) that the available amount was £29,309.15; and (4) that the benefit to the respondent, calculated in accordance with the Act, was £62,500 exclusive of the value of drugs recovered. The issue to be determined at the determination hearing was whether some or all of the value of the drugs recovered should be included in the benefit to the respondent which was a matter that could become significant in the future in the event the Crown made an application for a recalculation of the available amount in terms of section 107 of the 2002 Act. It was submitted on behalf of the Crown that the respondent had “obtained” all of the drugs seized, that his benefit was the whole value of those drugs and had joint power of disposition or control over them and there was no basis for apportionment of benefit among the co-accused. It was further submitted that the agreed narrative when the pleas were tendered made clear that the respondent was not simply a courier as he controlled the movement of the drugs and was not an example of an accused person participating in the supply chain through duress or involved in a one off event. On behalf of the respondent it was submitted that no sum should be added to the benefit figure in relation to the value of the drugs as it was the respondent’s position that he had not paid for the drugs nor had he the opportunity to realise their value. Here the court considered that the drugs recovered by the police should be included in the calculation of the property obtained by the respondent in connection with his criminal conduct. The court noted that the critical word in section 143 of the 2002 Act is “obtains” which encompasses both securing and procuring and from the available evidence, including the Encrochat messages, it was clear the respondent was more than a courtier and played a central role in the serious crime operation for the transportation of cannabis to Scotland and the fact he would not gain any personal benefit form a portion of the particular quantity of drugs seized was irrelevant. The court ordered that the total value of the benefit of the respondent’s criminal conduct was £177,500 being the agreed benefit of £62,500 plus £115,000 being the value of the cannabis recovered and made a Confiscation Order for the sum of £29,309.15.