Anonymized Summary of Opinion — Judge Braid

Factual and Procedural Background

The Plaintiff sought (i) a declarator that sums seized from his premises on 22 October 2015 had been and continued to be unlawfully retained and that £534,545 and €3,295 of that money belonged to him; (ii) an order for specific performance requiring transfer of those sums to him; and (iii) an interim order under section 47(2) of the Court of Session Act 1988 for interim possession ad interim of those sums. The motion for the interim order was called before Judge Braid.

On 22 October 2015 officers of Company C seized £903,370 and €3,295 in relation to an alleged VAT fraud. The sums were retained during subsequent criminal proceedings, which concluded on 9 December 2025 with the Plaintiff pleading guilty to a reduced charge and being fined. A Crown motion for confiscation (seeking £725,059.38) was dropped, and no payment was made by the Plaintiff. A production release note issued on 23 December 2025, but instead of returning the funds they were referred to Company B. At the Plaintiff's request most funds had earlier been banked. On 12 February 2026 the Second Defender requested the bank withdraw the funds; on 16 February 2026 two officers of Company C seized a cheque for the funds using the power in section 294 of the Proceeds of Crime Act 2002. Forfeiture proceedings under section 298 were commenced by the First Defender at The City Sheriff Court on 17 February 2026; the cheque was detained under section 295 and is being retained pursuant to section 298(4). A hearing in the forfeiture proceedings was fixed for 9 April 2026.

Legal Issues Presented

1. Was the Second Defender's continued retention of the cash from 23 December 2025 until 16 February 2026 lawful, and if so on what basis?
2. When was the cash seized by the Second Defender — on 16 February 2026 or on an earlier date?
3. Was the Second Defender disqualified from using the section 294 power solely because it already held the cash in a bank account?

Arguments of the Parties

Plaintiff's Arguments

• The Second Defender's seizure on 16 February 2026 was invalid and amounted to an abuse of process; any forfeiture application was incompetent.
• After the production release note on 23 December 2025 the Crown had no coherent basis to retain the funds; retention thereafter was unlawful.
• If the Second Defender had any entitlement it was time-limited; a six-week delay was unreasonable and an abuse of process.
• The balance of convenience favoured interim return of £534,545 because the Plaintiff required the funds for legal fees and to pay his fine.

First Defender's Arguments

• The seizure was ex facie valid and competent forfeiture proceedings had been raised in The City Sheriff Court; challenges belong in that forum.
• Authorities permit a reasonable grace period after an original detention power lapses to decide whether section 294 should be exercised; the six-week interval fell within that period.
• There is no statutory time limit for exercising section 294; any procedural error would not necessarily invalidate forfeiture proceedings.
• The balance of convenience and public interest favoured refusal of the interim order; the requested ad factum praestandum to order payment was not competent.

Second Defender's Arguments

• Section 298(4) of the 2002 Act requires detention of the funds until forfeiture proceedings conclude; the Plaintiff could not obtain interim return while such proceedings are ongoing.
• Any irregularity in seizure did not invalidate the forfeiture proceedings; challenges should be pursued by judicial review.
• The retention and subsequent seizure were lawful and not an abuse; the time taken to consider seizure was not unreasonable.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Case A v Case B [2024] 1 WLR 2157	Recognition that re-seizure may raise abuse of process/power issues.	Referenced by the Plaintiff; court noted English authorities permit abuse challenges but found the Plaintiff's averments insufficient.
Case C v Case D [2006] EWHC 451 (Admin)	Police/authority have no common law power to retain property after statutory power lapses (absent short grace period).	Used to assess whether continued retention between release note and re-seizure was lawful; assisted court's conclusion that extended retention was unsupported.
Case E v Case F [2011] EWHC 705 (Admin)	Section 294 may be lawfully exercised in relation to money previously detained under a different statutory power if done within a short period.	Cited in submissions; court distinguished the present facts and considered the relevance of how original detention arose when assessing any grace period.
Case G v Case H 2006 SLT (Sh Ct) 42	Example of post-prosecution retention and later exercise of seizure powers after a period of further retention.	Discussed as a Scottish authority with similar facts; court did not find it decisive and remained unpersuaded that retention here was lawful for six weeks.
Case I [2006] 1 AC 340	Errors in procedure do not necessarily invalidate confiscation/confiscatory proceedings where statute indicates otherwise.	Relied on by defenders to argue that even if there were technical failings, forfeiture proceedings could remain valid; court noted the statutory construction point.
Case J v Case K [2012] EWHC 402 (Admin)	Question whether original unlawful seizure should render subsequent forfeiture impermissible; discussion of 'fruits of the forbidden tree' argument.	Cited to illustrate tension between deterrence of unlawful conduct and statutory regimes that may allow forfeiture despite prior illegality; court found the point relevant but did not resolve it in this action.
Case L v Case M [2004] EWCA Civ 206	General thrust that authorities lack common law power to retain property after statutory power lapses, save perhaps briefly to make a fresh application.	Used to support the view that prolonged retention without statutory basis is questionable; influenced court's view on permissibility of retention between release and re-seizure.
Case N v Case O 2004 SC 1	Challenges to seizure and detention may require judicial review.	Cited by defenders to show the appropriate procedure for challenging seizures; court agreed that judicial review would be the appropriate route for certain challenges.
Case P v Case Q 2002 SC 517	Principles governing interim orders for consignation and limits on ad factum praestandum in monetary contexts.	Invoked in relation to competence of ordering payment by interim order; court concluded such an order was not appropriate here.
Case R v Case S [2003] QB 1041	Statutory construction can determine whether subsequent confiscatory measures are dependent on lawfulness of initial acts.	Quoted to illustrate the argument that statutory regimes may allow forfeiture despite earlier unlawful actions; court noted the relevance but did not decide the point here.
Practice Manual (4th Edition) (2023), paragraph 21.41	Authority on competency of ad factum praestandum orders to enforce payment of money.	Relied on by defenders to contend that an order compelling payment was not competent; court accepted that principle.

Court's Reasoning and Analysis

Judge Braid addressed three preliminary questions corresponding to the legal issues presented.

First, the court concluded that there was no convincing legal basis in the 2002 Act for the Second Defender to retain the funds between 23 December 2025 (the production release note) and 16 February 2026. Comparative English authorities show that retention beyond the lapse of a statutory detention power is generally impermissible except for a short grace period tied to the source of the original entitlement to detain; the judge was unpersuaded that a six-week retention here had any clear statutory or common-law foundation.

Second, the court held that the formal "seizure" occurred on 16 February 2026 when officers of Company C took the cheque: the statutory definition of "cash" (section 289) and related provisions meant that sums held at bank could not be treated as seized cash prior to that formal act.

Third, the court accepted that the fact the Second Defender had previously held the funds in a bank account did not, of itself, disqualify use of section 294; authorities permit re-exercise of seizure powers where appropriate.

Turning to remedies, the court considered forum and procedure. The Plaintiff had not pursued judicial review to challenge the seizure or to suspend the sheriff court forfeiture proceedings; the Lord Ordinary could have converted the action to a petition for judicial review under RCS 58.15 but declined to do so because the Plaintiff was not presently seeking an order directly challenging seizure or forfeiture, and because permission for judicial review was not evidently likely on the pleadings. The court found the Plaintiff's averments of abuse of process insufficient given his concession that officers had reasonable grounds to suspect recoverable property. The appropriate forum to contest the forfeiture was the ongoing forfeiture proceedings in The City Sheriff Court unless judicial review were successfully pursued.

On balance of convenience, the court held the public interest in preserving suspected proceeds of crime pending resolution of statutory forfeiture proceedings outweighed the Plaintiff's private prejudice. Finally, even if the court had been disposed to order interim possession, an ad factum praestandum to compel payment of money was not a competent interim remedy.

Holding and Implications

MOTION FOR INTERIM ORDER REFUSED

Direct effect: The Plaintiff's motion for an interim order for return of funds was refused; the seized funds remain detained pursuant to the ongoing forfeiture proceedings before The City Sheriff Court. The Plaintiff may challenge the seizure or the competence of the forfeiture proceedings by appropriate judicial review or within the sheriff court proceedings.

No broader legal innovation was announced; the decision applies the existing statutory scheme and established procedural routes for challenging seizures and forfeiture actions.