ROBERT McINTOSH v. HER MAJESTY'S ADVOCATE [2000] ScotHC 97 (13th October, 2000)

ROBERT McINTOSH v. HER MAJESTY'S ADVOCATE [2000] ScotHC 97 (13th October, 2000)

The assumptions permitted by section 3(2) of the Proceeds of Crime (Scotland) Act 1995, when applied in confiscation proceedings that constitute a 'charge' of a criminal offence under the Convention, are incompatible with the presumption of innocence guaranteed by Article 6(2) ECHR. The statutory regime allows baseless assumptions without evidential foundation, imposing an unreasonable burden on the accused and violating Convention rights. The Lord Advocate's act in seeking such assumptions is ultra vires under section 57(2) of the Scotland Act 1998.

Citation
[2000] ScotHC 97
Parties
Petitioner: Robert McIntosh; Respondent: Her Majesty's Advocate
Jurisdiction
Scotland
Procedural Posture
Petition to the Nobile Officium / Appeal From First Instance Decision on Declarator Regarding Compatibility of Statutory Assumptions With Convention Rights
Outcome
appeal allowed
Legal Topics
Confiscation Orders, Presumption of Innocence, Drug Trafficking, Compatibility With European Convention on Human Rights, Burden of Proof, Devolution Issues
Criminal Law Human Rights Law Constitutional Law Confiscation Orders Presumption of Innocence Drug Trafficking Compatibility With European Convention on Human Rights Burden of Proof +1 more

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Parties

Robert McIntosh

Petitioner

Her Majesty's Advocate

Respondent

Procedural Posture

Petition to the Nobile Officium / Appeal From First Instance Decision on Declarator Regarding Compatibility of Statutory Assumptions With Convention Rights

Legal Issues

  1. 1 Whether section 3(2) of the Proceeds of Crime (Scotland) Act 1995 is compatible with Article 6(2) of the European Convention on Human Rights
  2. 2 Whether the statutory assumptions in confiscation proceedings violate the presumption of innocence
  3. 3 Whether the application for a confiscation order constitutes a 'charge' of a criminal offence under the Convention

Ratio Decidendi

The assumptions permitted by section 3(2) of the Proceeds of Crime (Scotland) Act 1995, when applied in confiscation proceedings that constitute a 'charge' of a criminal offence under the Convention, are incompatible with the presumption of innocence guaranteed by Article 6(2) ECHR. The statutory regime allows baseless assumptions without evidential foundation, imposing an unreasonable burden on the accused and violating Convention rights. The Lord Advocate's act in seeking such assumptions is ultra vires under section 57(2) of the Scotland Act 1998.

Court Disposition

appeal allowed

Orders

  • Declarator granted that the Crown has no power to invite the court to make the assumptions set out in section 3(2) of the Proceeds of Crime (Scotland) Act 1995 in contravention of Article 6(2) ECHR.