The ex-wife of a man found guilty of murder and being concerned in the supply of cannabis is to be removed from her “family home” after a judge granted a proceeds of crime order for administrators to recover the property.
Margaret Duncan, former wife of convicted killer and drug dealer James Duncan, opposed the application because she and her granddaughter continued to live in the property and sale would cause them “hardship”.
However, in the first case of its kind a judge in the Court of Session was not persuaded that their circumstances justified refusal of the application and ruled that they should be removed, but did postpone the recovery until the end of the year to allow them to find alternative accommodation.
Lady Wise heard that the noter, Bill Cleghorn, a chartered accountant, was appointed as “enforcement administrator” in terms of section 128 of the Proceeds of Crime Act 2002 to take possession of the realisable property of Mr Duncan.
The respondent Mrs Duncan, 68, married Mr Duncan in 1967 and the couple had four children together before they were divorced in 1980, following what was described as a “turbulent” marriage characterised by arguments about her husband “extramarital affairs”.
But after the divorce they reconciled and separated from time to time and continued to live together on almost a full-time basis until Mr Duncan’s incarceration.
In 2007 Mr Duncan was sentenced to life imprisonment with a punishment part of 17-and-a-half years after being found guilty of murder, and given a concurrent sentence of five years’ imprisonment after being convicted of growing cannabis for sale and distribution.
A join minute entered into by the Crown and on behalf of Mr Duncan stated that the proceeds of his “general criminal conduct” amounted to more than £740,000 and that his realisable interest included a number of heritable properties.
In 2015 the noter was appointed to take possession of Mr Duncan’s realisable property, including Toll Cottage in Lamington, 40 Ayr Road, Rigside, and the family home at 4 Douglas Street in Blantyre.
The noter brought the proceedings under section 98 of the 2002 Act to seek the disposal of the family home and decree of removal of Mrs Duncan and her 16-year-old granddaughter Christie Wilson from the property.
The case was apparently the first opposed application under section 98(2) of the 2002 Act.
Mrs Duncan, who suffers from epilepsy, asked the court to refuse the orders sought, failing which to grant the application subject to a condition that the property be disponed to the respondent for no consideration, and failing either of those outcomes to grant the application subject to a condition that the net free proceeds of sale be divided by the noter and the respondent, with the majority going to the respondent.
It was common ground that the property was a family home within the meaning of section 98 and that the prosecutor had not satisfied the court that Mr Duncan’s interest in it was acquired as a benefit from his criminal conduct.
Mrs Duncan submitted that she had not been involved in Mr Duncan’s criminal activities although she accepted that she knew he was growing cannabis at Toll Cottage.
It was argued that she had made a capital contribution, albeit indirectly, to the property and that considerable hardship would be caused by the order being granted.
The final fall-back position was that the court should postpone the granting of the order for 12 months, but the judge rejected her arguments.
In a written opinion, Lady Wise said: “In considering all of the evidence and the submissions made to me carefully, I consider that the needs and financial resources of the respondent and Christie Wilson are not particularly significant matters in deciding whether the order sought by the noter should be granted. The limited means of the respondent will alter little should the order be granted. She may secure tenancy for a local authority accommodation in due course, which failing it is agreed that there are a number of privately owned homes in South Lanarkshire available for rent.
“Neither is the length of the period during which Mrs Duncan and subsequently her granddaughter Christie have occupied the family home as a residence a particularly significant issue in this case. She did not live there with her ex-husband for any substantial period of time. Her granddaughter Christie has lived there for a relatively short period.”
The judge also noted that refusing the order sought in this case would result in Mr Duncan retaining title to the property and that in any event Mrs Duncan would unlikely to be able to live in the property in the long term, standing the date on which the secured loan requires to be redeemed or the property sold in 2019.
She added: “Having regard to all these circumstances and the evidence of Christie Wilson that she is likely to relocate with the respondent I am not persuaded that the circumstances of this case justify refusal of the application. However, I consider it reasonable to allow a period of postponement to enable the respondent and her granddaughter to secure alternative accommodation. She is already on a waiting list for local authority accommodation and will be able, during the period of postponement, to advise a local authority that in the expiry of that postponement, she will be in urgent need of accommodation.
“In all the circumstances, I am satisfied that the order sought by the noter should be made. However, I intend to postpone the granting of the application for a period of four months, on the expiry of which the noter will be entitled to obtain vacant possession of the property with a view to disposing of Mr Duncan’s interest in it.”