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Recoverable proceeds

14 July 08

Comment on part of the article "Dirty Money?", June 2008, p18 on recovering proceeds of crime

by Ken Swinton

I read with interest David Adamson’s article “Dirty Money” (Journal, June, 18). On p 20 Mr Adamson asserts that the approach of the Crown in Scotland and England differs in relation to recovery of gains, particularly with heritable property, citing the example of the spouse of one of the Great Train Robbers. However the suggestion that in Scotland the recovery sought is only the original sum invested, and not recovery based on the current value of the property, does not appear to reflect the underlying law or practice.

Section 304(1) of the Proceeds of Crime Act 2002 provides that where criminal property is converted to another form, the property which represents that original recoverable property is itself recoverable. Further, s 305 provides that where tainted property is mixed with other property, the proportions remain the same in the new property. For example if recoverable cash of £20,000 is used to pay the deposit on a house and the balance of £80,000 is obtained by way of a mortgage, the recoverable proportion will always be 20%. In Scottish Ministers v Buchanan [2008] CSOH 05 these very issues are discussed at paras 51 et seq. I am of the view that this decision clearly demonstrates that there is no difference between the policy of the Crown in Scotland and England in the implementation of what are UK-wide provisions relating to civil recovery. This is covered further in my article at 2008 SLG 17.

l Ken Swinton,Senior Lecturer, Abertay University