Outer House refuses interim fund transfer order of cash seized under Proceeds of Crime Act after end of prosecution

About this case:

• Citation:
  [2026] CSOH 31
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

Mohammed Mirza raised a claim against the Lord Advocate in her capacity as representing the Crown and the Advocate General as representing HMRC seeking payments of £534,545 and €3,295. He argued that he required the funds to pay his legal fees in the connected criminal proceedings and the fine imposed on him following a plea of guilty, noting that the second defender had also petitioned for his sequestration in respect of a debt larger than the cash involved in this action.

The case was heard in the Outer House of the Court of Session by Lord Braid, with Deans, advocate, appearing for the pursuer. Blair, advocate, appeared for the Lord Advocate as first respondent and Massaro, advocate, for the Advocate General as second respondent.

Abuse of process

On 22 October 2015, the sums of £903,370 and €3,295 were lawfully seized from the pursuer by HMRC officers in relation to an alleged VAT fraud and retained in relation to subsequent criminal proceedings against him lest they be required as productions. At the pursuer’s request that the money should be held in an interest-bearing account, the Lord Advocate passed the bulk of the sums to HMRC to be banked. Criminal proceedings against the pursuer concluded in December 2025 after he pled guilty to a reduced charge and was fined.

Although a production release note was issued on 23 December 2025, instead of returning the cash to the pursuer the Crown referred the matter to the CRU. On 12 February 2026, the second defender made a request of the bank that the funds be withdrawn, with a view to their seizure. A cheque was available for uplift by Monday 16 February 2026, on which date two officers of HMRC flew to London to collect the cheque, which they seized later that day on their return to Scotland, utilising the power under section 294 of the 2002 Act.

It was expressly conceded by the pursuer that the officers had reasonable grounds for suspecting the cash seized to be recoverable property. However, it was submitted that the seizure was an abuse of process and the application for forfeiture had not been competently made. The common law power of the Crown to hold productions had been relinquished, and the forfeiture application made by the second defender had been made out of time.

For the first defender it was submitted that, having accepted that there were reasonable grounds for suspecting the cash to be recoverable, the appropriate forum to challenge the competency of the seizure was the sheriff court. In any event, the pursuer’s arguments against seizure were misconceived. The second defender added that forfeiture proceedings were still ongoing, and any irregularity in the seizure did not invalidate those proceedings.

At best very weak

In his decision, Lord Braid said of the legality of the seizure: “The averments of abuse of process, at their highest, are that the Lord Advocate, acting in a different capacity, through a procurator fiscal depute, agreed to return of most of the cash to him, but as counsel for the first defender pointed out, that is of no relevance in deciding whether either the second defender, or the Lord Advocate in her capacity as representing the CRU, is guilty of any abuse of process. One can perhaps test the matter by contrasting what actually happened with a counterfactual world in which the second defender had returned the cheque to the pursuer, then immediately seized it back under section 294. Would that have been an abuse of power? If so, why?”

He continued: “The pursuer has not pled a prima facie case that there was any defect in the seizure of the cash or that either it or the forfeiture proceedings amounted to an abuse of process. Further, to the extent that he does wish to challenge the seizure, he would require to do so by means of judicial review. Consequently, there is no basis for this court interfering with the forfeiture proceedings and ordering that the money which has been seized and which is the subject of those proceedings should be returned to him at this time. Even if that is wrong, the pursuer’s case is at best very weak, a factor to be weighed in the balance of convenience.”

Agreeing that Glasgow Sheriff Court was the appropriate judicial forum in the current forfeiture proceedings, Lord Braid said: “While there may be a dispute as to the ultimate destination of the pursuer’s money, there is no dispute that the money being retained is his and that, but for the seizure and forfeiture proceedings, he would be entitled to it. In that sense, it would have been open to the court to regulate its possession by means of a section 47 order had it been appropriate to do so. Section 298(4) does not of itself prevent the court from making an order, since it merely prevents money from being returned to the pursuer under the provisions of that Act, pending resolution of the forfeiture proceedings.”

He concluded: “It is not appropriate to make an order, partly because the mechanism for determining what is ultimately to happen to the money is contained within the 2002 Act; and partly because section 47(2) allows the court to regulate possession of any property while a court action is ongoing: implicit in the concept of ‘possession’ being the preservation of the property, whereas the pursuer’s avowed intention is not to preserve it but to spend it. Further still, to the extent that section 47(2A) provides that the power under section 47(2) includes the power to make an order ad factum praestandum, such an order is not competent so as to order the payment of money. It follows that even if I had taken a rosier view of the pursuer’s prospects, I would not have been prepared to make the order sought.”

The pursuer’s motion for an interim order was therefore refused.