Courts ‘let drug lords keep assets’

Published on Sunday 5 February 2012 00:00

ONE of Scotland’s top police officers has criticised prosecutors for allowing wealthy criminals to extend their jail sentences rather than being forced to sell their expensive crime-related assets for the benefit of the public.

Detective Superintendent Alan Cunningham, head of investigation services at the Scottish Crime and Drugs Enforcement Agency (SCDEA), said Scottish legal officials should adopt the tactics used more frequently in England to seize the trappings of criminal enterprise.

The SCDEA believes judges and sheriffs north of the Border have proved more hesitant in handing out proceeds of crime orders and making clear what they cover. “The criminal’s assets – his car, boat, holiday home – that’s not confiscated,” Cunningham said.

Cunningham was commenting on the impact of the Proceeds of Crime Act, which was introduced in Scotland a decade ago to allow the courts to seize the assets of convicted criminals, particularly in cases of lucrative drugs-related crime and money laundering.

He believes that prosecutors and the courts are not going far enough, although the act has been successful in seizing more than £12 million of assets in the last year. Some of the money is used on community projects.

In particular, he says, some criminals are managing to keep hold of their profits in return for serving more prison time.

“Say the court determines the value of your criminal assets is around £1m; it’s then up to that individual to dispose of their property [to raise the cash],” he said.

“But there have been several cases where the individual just has not paid. As a consequence they get an extended sentence and the settlement is then expunged.

“If criminals feel there’s a chance that if they don’t pay the bill then they will go to prison and the bill will either be set aside or drastically reduced, then a lot will take that.

“That’s the Crown’s decision. It’s up to prosecutors to deal with that.”

The SCDEA wants to adopt the English approach of “cars put on low loaders, yachts towed out of marinas”, he added. “In Scotland the view is that this is a bill and it’s up to them to dispose of it,” Cunningham said.

Cunningham believes the courts in England have been “less insistent” on identifying the source of criminal funds, allowing officers to seize assets more easily.

“In a number of cases here the sheriff has asked for more evidence around the offence, trying to link it to a specific offence.

“If you are talking about individuals who do not touch controlled drugs but live off the profits, it’s very difficult to try and link that to an offence. It’s the same legislation but the interpretation sometimes causes us a problem.

“We have had examples where cases have fallen because of that original element. The weight of evidence the court has required, it has not withstood that level of scrutiny. It’s particularly difficult if it’s two, three or even four years down the line and criminal funds have found their way into legitimate businesses.”

Kenneth Murray, head of forensic accountancy at the SCDEA, said the law now needed to be altered. “If common sense says it [the crime] is definitely money laundering, that should be a proper basis for establishing a charge,” he said.

“Then we would be better able to charge the bosses and lieutenants.”

In the last year, Cunningham said, the Crown Office had started to take a tougher stance, such as taking over the sale of homes where people refuse to accept offers from buyers or try to sell to a criminal accomplice at a knocked-down price. “That’s still fairly infrequent,” he added.

The Crown Office reacted angrily to the suggestion that the process of stripping criminals of their assets needed to be toughened up. Lindsey Miller, the head of its serious and organised crime division, said: “This year and last year have been record years for proceeds of crime. This year alone, assets to the value of £12,256,539 have been restrained.

“Since the act came into force, confiscation orders totalling £42,204,214 have been made by the courts, thanks to the partnership working of the Crown and law enforcement.”

She added: “Restraint of assets, particularly heritable property, makes it very difficult for those restrained to obtain credit, to remortgage their property or to free up any funds which could otherwise be used to finance ongoing criminal activity.

“Once a confiscation order is made, those criminals need to sell their assets, many of which are already restrained by court order.

“If criminals try to avoid selling their homes and other assets to pay confiscation orders, or in any other way are reluctant or resistant to paying up, then the Crown will appoint administrators to sell the assets.”

A Scottish Government spokesman added: “In 2011, amendments were made to the Proceeds of Crime Act in Scotland to provide law enforcement agencies with additional powers to target a wider range of criminals and criminal conduct. Scottish ministers have also given a public commitment that they will continue to look at ways to further refine the Proceeds of Crime Act.”

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