Scottish Ministers v McGuffie & Ors [2006] ScotCS CSIH_54 (14 November 2006)

Scottish Ministers v McGuffie & Ors [2006] ScotCS CSIH_54 (14 November 2006)

Proceedings under Part V of the Proceeds of Crime Act 2002 are civil in nature and do not impose a penalty within the meaning of Article 7(1) ECHR. The recovery of property obtained through unlawful conduct is not punitive but remedial, aimed at removing property from the criminal economy for the public benefit. The retrospective application of such proceedings does not violate Article 7(1) ECHR as no penalty is imposed.

Citation
[2006] ScotCS CSIH_54
Parties
Petitioner: The Scottish Ministers; First Respondent: George McGuffie; Respondents: Others
Jurisdiction
Scotland
Judgment Date
14 November 2006
Procedural Posture
Petition for Interim Administration Order Under Proceeds of Crime Act 2002 / Appeal (reclaiming Motion) Against Interlocutor of Lord Ordinary
Outcome
Reclaiming motion refused; interlocutor of Lord Ordinary affirmed.
Legal Topics
Proceeds of Crime, Civil Recovery, Retrospective Legislation, European Convention on Human Rights Article 7, Penalty Definition
Civil Procedure Criminal Law Human Rights Proceeds of Crime Civil Recovery Retrospective Legislation European Convention on Human Rights Article 7 Penalty Definition

Case Brief

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Parties

The Scottish Ministers

Petitioner

George McGuffie

First Respondent

Others

Respondents

Procedural Posture

Petition for Interim Administration Order Under Proceeds of Crime Act 2002 / Appeal (reclaiming Motion) Against Interlocutor of Lord Ordinary

Legal Issues

  1. 1 Whether proceedings under Part V of the Proceeds of Crime Act 2002 impose a 'penalty' within the meaning of Article 7(1) ECHR
  2. 2 Whether such proceedings are criminal or civil in nature for Convention purposes
  3. 3 Whether retrospective application of recovery orders violates Article 7(1) ECHR

Ratio Decidendi

Proceedings under Part V of the Proceeds of Crime Act 2002 are civil in nature and do not impose a penalty within the meaning of Article 7(1) ECHR. The recovery of property obtained through unlawful conduct is not punitive but remedial, aimed at removing property from the criminal economy for the public benefit. The retrospective application of such proceedings does not violate Article 7(1) ECHR as no penalty is imposed.

Court Disposition

Reclaiming motion refused; interlocutor of Lord Ordinary affirmed.

Orders

  • Refusal of reclaiming motion
  • Affirmation of Lord Ordinary's interlocutor