Her Majesty's Advocate & Anor v. McIntosh (Scotland)

Factual and Procedural Background

The Respondent pleaded guilty in the High Court of Justiciary to being concerned in the supply of heroin contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. On conviction, the prosecutor sought a confiscation order under Part I of the Proceeds of Crime (Scotland) Act 1995 (“the 1995 Act”). The prosecutor served a detailed statement and schedules, alleging inter alia that funds held in the name of Individual A were “implicative gifts” from the Respondent.

The Respondent lodged answers challenging both the factual assertions and the compatibility of section 3(2) of the 1995 Act with Article 6(2) of the European Convention on Human Rights (“ECHR”). Recognising this as a devolution issue, a debate was fixed. Judge Marnoch declined to pronounce the declarator sought by the Respondent, who then petitioned the nobile officium. A bench of three judges (majority) granted the declarator that the Crown had no power to invite the court to apply the statutory assumptions in section 3(2). Leave to appeal to the Judicial Committee of the Privy Council was granted to the Appellants (the Lord Advocate and the Advocate General).

Legal Issues Presented

1. Whether, at the confiscation stage, the Respondent is “charged with a criminal offence” for the purposes of Article 6(2) ECHR, thereby attracting the presumption of innocence.
2. If Article 6(2) applies, whether reliance on the rebuttable assumptions in section 3(2) of the 1995 Act is incompatible with that article.
3. Whether, even if incompatibility existed, the Lord Advocate would nevertheless possess power to act under section 57(2) of the Scotland Act 1998.

Arguments of the Parties

Appellants' Arguments

• The confiscation procedure is part of sentencing; therefore the Respondent is not “charged” with a new criminal offence under domestic or Convention law.
• Article 6(1) applies to the proceedings, but Article 6(2) does not. The Respondent already stands convicted and no further accusation is made.
• The section 3(2) assumptions are discretionary, rebuttable on the balance of probabilities, and proportionate to the legitimate aim of depriving traffickers of illicit gains.
• International instruments and comparative materials support reversing the burden of proof regarding the lawful origin of property connected with drug trafficking.

Respondent's Arguments

• Invoking the statutory assumptions amounts to asserting further drug-related criminal conduct; accordingly Article 6(2) is engaged.
• The assumptions are “baseless” because the prosecutor need not establish any grounds for suspecting unexplained wealth before the burden shifts.
• The absence of an initial prosecutorial burden violates the presumption of innocence and renders the scheme disproportionate.
• The decision in Donnelly & Donnelly v HM Advocate demonstrates that the court can make the assumptions without evidence of benefit from trafficking, underscoring the incompatibility.

Table of Precedents Cited

Court's Reasoning and Analysis

Issue 1 – Applicability of Article 6(2): The Committee held that the Respondent, already convicted, was not “charged with a criminal offence” in the confiscation proceedings. Key factors included: the application is part of sentencing; no new accusation is made; no jury verdict is sought; subsequent prosecutions for underlying conduct are not barred; and domestic and English authorities consistently view confiscation as ancillary, not accusatory. Strasbourg jurisprudence (Engel, Deweer, Eckle, Elton) did not compel a different conclusion. Consequently, Article 6(2) did not apply, though Article 6(1) fairness safeguards remained fully operative.

Issue 2 – Compatibility of the Statutory Assumptions (obiter): Assuming Article 6(2) applied, the Committee analysed the proportionality of section 3(2). Guided by Salabiaku, Hoang, and domestic precedent, it stressed:

• The prosecutor must first prove a drug-trafficking conviction beyond reasonable doubt.
• The assumptions are rebuttable on the balance of probabilities and concern matters peculiarly within the convicted person’s knowledge.
• The court retains discretion both to invoke the assumptions and to determine the confiscation amount, subject to appeal.
• The regime seeks to combat a grave social evil and aligns with international norms encouraging reversal of proof concerning illicit proceeds.

The Committee found the balance between public interest and individual rights reasonable and proportionate. It expressly disagreed with the majority’s reliance on Donnelly, holding that in practice a discrepancy between assets and legitimate income would first be demonstrated by the prosecutor.

Issue 3 – Residual Power of the Lord Advocate: As the appeal succeeded on the first two issues, this question did not arise.

Holding and Implications

ALLOWED – The appeal by the Appellants was upheld, and the declarator granted by the High Court of Justiciary was recalled.

Implications: Confiscation proceedings under the 1995 Act do not engage the presumption of innocence in Article 6(2). Even if they did, the rebuttable assumptions in section 3(2) are compatible with Convention rights. Prosecutors throughout the United Kingdom may continue to invite courts to apply those assumptions when seeking confiscation orders, subject to the proportionality safeguards identified. No new precedent was created, but the decision clarifies the Convention-compliance of the statutory regime.