In this action brought by the Scottish Ministers' Civil Recovery Unit, the first defender was a convicted drug dealer, whom the police forces had received intelligence on in March 2010, indicating that he was once again involved in the sale and supply of heroin. That intelligence had been assessed by the police as credible and reliable, and accordingly, they sought and obtained a warrant authorising the search of the first defender’s property.

While no drugs were found during the search, the sum of £1,100 was found in a tin in the first defender’s jacket. The tin had been wrapped in cellophane. A further sum of £140 was found in another of the first defender’s jacket pockets. In this application, the Scottish Ministers sought a cash forfeiture order for these sums in terms of section 298 of the Proceeds of Crime Act 2002. The application was made in terms of a non-conviction based forfeiture, as it proceeded on the basis of intelligence gathered by the police forces, rather than on the basis of any conviction.

The first defender submitted that he was no longer involved in the sale and supply of drugs and that the sum of money found had been received as an inheritance, following his mother’s death earlier in the year. Having heard evidence, the Sheriff concluded that the first defender was not a credible and reliable witness. The Sheriff moreover found much of his evidence to be largely incredible claims, containing a number of material inconsistencies. The Sheriff accordingly preferred the evidence of the pursuers, and concluded that the first defender was still actively involved in drug dealing.

On that basis, the Sheriff noted that he was satisfied for the purposes of section 241 of the Act that the first defender was engaged in unlawful conduct and that he had intended to use the sum of cash found in his possession for that unlawful conduct. The Sheriff was also satisfied for the purposes of section 242 of the Act that the sum of £1,100 found represented the proceeds of unlawful conduct, and was therefore “recoverable property” in terms of section 304. The sum of £140 found separately was accepted by the Sheriff as being related to the first defender’s benefits. Accordingly, an order for forfeiture was made only in respect of the sum of £1,100.