Ryan McNair v. Her Majesty’s Advocate [2017] HCJAC 6

Note of appeal against sentence:- The appellant pled guilty at the sheriff court by accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 , namely, being concerned in the supply of ecstasy on a single day. The appellant was sentenced to 12 months imprisonment and the sheriff ordered the forfeiture of the appellant’s car. The appellant appealed against the sentence imposed in relation to the order for forfeiture. The circumstances of the offence were that the appellant was seen by the police driving his car into a car park and subsequently the police recovered 108 ecstasy tablets from the appellant to which he admitted ownership. The value of the drugs was narrated to the sheriff as £100-200, albeit it appears that the sheriff proceeded to sentence on his own understanding that the street value was between £5 and £10 per tablet. Here the Crown conceded that no issue could be taken with the agreed narrative of the value of £100-£200. The sheriff was aware that the vehicle was worth around £9,000 and he made the order for forfeiture as the vehicle had been used to transport the drugs. Here the court allowed the appeal and quashed the order. The court observed that the sheriff did not state under what statutory provision the order for forfeiture was made albeit the sheriff made reference to a number of cases all of which related to orders made under section 33A of the Road Traffic Offenders Act 1998 where the order is triggered by the commission of a driving offence. It would appear that the sheriff made a suspended forfeiture order under section 21 of part II of the Proceeds of Crime (Scotland) Act 1995, which allows a suspended forfeiture order to be made where the court is satisfied that the property was being used for the purpose of committing or facilitating the commission of any offence which will depend upon an assessment by the sheriff of the extent it was used and also the proportionality of making an order having regard to the circumstances of the case. Also of relevance in the present case was that confiscation proceedings had been initiated and remained live and the sheriff had not taken account of the application of the Proceeds of Crime Act 2002 alongside the Proceeds of Crime (Scotland) Act 1995. The court noted that considerations of whether there is established a criminal lifestyle, the extent of any benefit from it and the available amount for making a confiscation order are different issues to the issue considered under section 21. It was conceded by the Crown here that the sheriff should not have been asked to make an order for forfeiture. The court referred to section 97 of the 2002 Act which makes clear that priority is given to confiscation proceedings and that the court must take account of the confiscation order before making other orders, including one for forfeiture under section 21 of the 1995 Act. Albeit the confiscation proceedings had since been abandoned by the Crown the Crown indicated here that, having regard to issues of proportionality, in particular, the value of the drugs, they did not seek a forfeiture order.