Sheriff Appeal Court holds sheriff was entitled to exclude Italian man from hearing on frozen bank account

About this case:

• Citation:
  [2022] SAC (Crim) 4
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Murray

Cristian Picco, who was not present when the sheriff approved the extension under sections 336A and 336B of the Proceeds of Crime Act 2002 as amended, argued that the decision of 22 May 2019 was fundamentally flawed. He made a further challenge based on a perceived ambiguity in the statutory provisions governing the procedure.

The appeal was heard by Sheriffs Principal Mhairi Stephen QC and Duncan Murray, along with Appeal Sheriff Andrew Cubie. The appellant was represented by Hann, solicitor, and the Crown by Wilson, advocate depute.

Natural justice

The appellant, a chef, was the part-owner of a property in Italy which was sold in March 2019. Following the sale, approximately £170,000 worth of euros was transferred to a TSB bank account in his name. The court was informed that the appellant intended to use the funds to purchase a home close to his children, who lived with his partner outside Edinburgh, however over £100,000 of the fund was spent in the month prior to the freeze during a period of alcohol abuse.

In April 2019, the bank froze the appellant’s account and asked him to provide information on the source of the funds. On 23 April 2019, officers of the National Crime Agency refused consent for activity on the account to resume, commencing a 31-day moratorium period. On 17 May 2019, the appellant learned that the Crown intended to present an application for extension, but the detective constable who contacted him did not give any indication of what was being investigated. The appellant was later advised that the Crown were seeking to have him excluded from the hearing of the application.

Inviting the court to recall the interlocutor excluding him from proceedings and extending the moratorium period, the appellant submitted that the sheriff had acted contrary to natural justice and in contravention of his rights under Article 6 of the ECHR. The statutory scheme did not provide a basis for him to be excluded from the whole hearing before the sheriff and thereby deny him an opportunity to oppose the Crown petition.

It was further submitted that the terms of section 336B was ambiguous and inconsistent with assurances given to Parliament in the course of the passage of a Bill which later amended the 2002 Act as the Criminal Finances Act 2017. Counsel sought to lead Parliamentary material, including a ministerial statement recorded in Hansard, to clarify this perceived ambiguity.

Entitled to exclude

Delivering the opinion of the court, Sheriff Principal Murray said of the need for reference to Hansard: “We are satisfied that the terms of section 336B(3) are not ambiguous and there is no basis for us to have regard to the Hansard references or to the explanatory memorandum to which we were referred. We reserve our position on whether the materials beyond the Hansard report would be relevant for consideration in terms of Pepper v Hart were we to have found ambiguity.”

He continued: “The terms of section 336B(3) also satisfy the dicta of Lord Hoffman in R v SSHD ex parte Simms (2000) that the power to exclude must be clearly stated. The words ‘any part of the hearing’ have the effect of permitting the sheriff to exercise his discretion exclude the appellant or his agent from the whole hearing.”

Turning to whether the appellant had suffered any obvious prejudice, Sheriff Principal Murray said: “We can see force in the submission that the appellant could have been represented for at least part of the hearing especially to address the sheriff on the question of exclusion. This court only considered the information which was available to the sheriff. We are satisfied on the basis of the information available to the sheriff, which included the letter from the appellant’s agents, he was entitled to exclude the applicant and his representative from the whole hearing.”

He concluded: “We also observe it was not really challenged by the appellant that he was validly excluded from that part of the hearing where sensitive information was disclosed by the police. Having regard to the margin of appreciation afforded to the state, we accept that the procedures followed were proportionate in balancing the rights of the appellant and the interests of the state in avoiding money laundering, and did not contravene the appellant’s Article 6 and Protocol 1 Convention rights.”

For these reasons, the appeal was refused. In a postscript addressing the length of time taken to resolve the case, the Sheriff Principal added: “Having regard to the requirement that the proceedings should be determined as soon as reasonably practicable, the appeal ought to have been heard and determined more speedily. It would appear that the novelty of the proceedings may have inadvertently caused there to be insufficient focus on expedition.”