Scottish Ministers v Russell Stirton and Alexander Anderson

Summary of the appeal decision

In January 2012, following a petition by Scottish Ministers to seek a recovery order under the Proceeds of Crime Act 2002 against Russell Stirton and Alexander Anderson, the court found that there was recoverable property and made a recovery order over money and property which it decided had been acquired as a result of unlawful  conduct.

Mr Stirton and Mr Anderson were investigated by the police between 2003 and 2005 in Operation Maple, a police operation concerned with allegations of money laundering and of extortion.  Although they appeared on petition and were released on bail, no indictment was ever served on them.  

Mr Stirton and Mr Anderson both appealed against the court’s decision to make a recovery order.

An administrator had been appointed to establish the extent of any recoverable property and the identity of any persons holding it.  The administrator adopted a pseudonym in order to protect her identity while she carried out her work and when she gave evidence, due to fears for her safety.  Mr Stirton and Mr Anderson sought to have her identity disclosed during the proof but this was met with a Public Interest Immunity (PII) certificate from the Lord Advocate.  However shortly after cross examination of the administrator commenced she became ill and on medical evidence was subsequently excused from further attendance at the proof.  The Lord Ordinary did not rely upon the evidence of the administrator in reaching any decisions on the merits of the case and considered that she did not regard the content of the administrator’s report as binding upon her.

The appeal against the decision of the Lord Ordinary sought to establish the existence of bias in respect of a number of procedural decisions taken in the course of the proof.  In particular they sought to challenge the decision by the court to uphold the terms of the (PII) certificate in its entirety, the failure to ascertain the identity of the administrator, the failure to investigate the administrator’s ill-health, the decision to disregard the administrator’s evidence after making Avizandum and the definition of extortion relied upon by the Lord Ordinary.

The appeal court concluded that the decision reached by the Lord Ordinary, that the houses and other assets of the respondents were derived from unlawful conduct was entirely justified on the evidence presented.  Regarding other grounds of appeal the court found no defect in the reasoning and conduct of the Lord Ordinary and no evidence of any apparent bias against the reclaimer’s interests.

For all these reasons the reclaiming motion on the grounds presented was refused.  However, further grounds remain to be argued.

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