Her Majesty’s Advocate v. Colin Coats [2017] HCJ 89

Application for a Confiscation Order in terms of the Proceeds of Crime Act 2002:-  On 8 April 2013, after a lengthy trial at Glasgow High Court, the respondent was convicted of various charges including murder and embezzlement. On the same date he was sentenced to life imprisonment with a punishment part of 33 years fixed in terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. The respondent was also convicted of charges of extortion which were lifestyle offence in terms of Schedule 4(9) of the Proceeds of Crime Act 2002. As such, in terms of section 142 of the 2002, the respondent was deemed to have a criminal lifestyle. A Prosecutor’s Statement was served on the respondent in terms of section 101 of the 2002 Act in respect of the respondent and the Crown sought a Confiscation Order. The ultimate benefit figure from his general criminal conduct was specified as £119,967.34 with an available amount of nil. The benefit figure of £119,967.34 represented the benefit figure for the relevant period of 6 years to 25 May 2012. The respondent represented himself at the Determination Hearing and he challenged the Crown’s analysis. Evidence was led from Jill Yahi, a forensic accountant employed by the Crown Office, who spoke to the relevant period and the various calculations including the respondent’s known income during that period. The ex-wife of the respondent, Angela Wotherspoon, had her statement introduced to the hearing which made reference to the respondent forging Ms Wotherspoon’s signature enabling the fraudulent transfer of funds to the respondent. Mrs Yahi was cross-examined by the respondent. No further evidence was led by the Crown and the respondent elected not to give evidence. On behalf of the Crown it was submitted that on a balance of probabilities the Crown had established their case and invited the court to hold that there was a benefit figure of £119,967.34 and the court should make an order for a nominal amount of £1.00. The respondent submitted that he had not received adequate disclosure from the Crown and he was being treated unjustly. It was further submitted that he had not received any unaccounted rental for properties and he did not accept the evidence of Ms Wotherspoon who did not give evidence in court and her evidence should be disregarded. Here the court held that the respondent had a criminal lifestyle in terms of section 142(1)(a) of the 2002 Act and, as such, the various assumptions under section 96 applied. The court considered that the respondent did not adequately challenge these and for the period from 25 May 2006 for 6 years the respondent benefited to the sum of £119,967.34. In terms of section 93(2)(b) of the 2002 Act the court went on to make a nominal award for the recoverable amount of £1 which would permit the court in the future to seek to invoke sections 104 to 109 of the 2002 Act which allows variations of the order for a re-calculation of the available amount in the event that additional information becomes available.