THE SCOTTISH MINISTERS v. OMAR SHARIF

The case called before me on 6 July 2011 for a diet of proof. On the Minuters' motion, of consent, the diet of proof was discharged and the action dismissed. The Minuters moved for the expenses of the action to be dealt with on a no expenses due to or by basis and that motion was opposed. I heard submissions from Mr Collins for the Minuters and Mr Farrell for the Defender.

Mr Collins invited me to dispose of the action with no expenses due to or by on the basis of the approach adopted by the Court of Appeal in England in the case of Regina (Perinpanathan ) v City of Westminster Magistrates' Court and another [2010]EWCA Civ 40 ("Perinpanathan"). The point has not been argued in Scotland before and I was asked by parties to write on the question as it has some importance for the regime of cash forfeiture in Scotland in general. Mr Collins contention was that, based on the Perinpanathan case, my starting point should be a no expenses due to or by disposal.

The Civil Recovery Unit act as law agents for Scottish Ministers in the use of their Part 5 powers. The Ministers entered the process by way of Minute on the basis that investigations to that point had done nothing to dispel the reasonable suspicion. The action was warranted on 7 January 2011 and after sundry procedure it called before me on 6 July 2011 for proof.

Forfeiture was sought on the basis of the intelligence and the documents and admission which suggested that the Defender earned around �40,000 per annum from the supply of khat which Ministers considered was equivalent to a fulltime job. The Defender's position was that the money was savings which he had made from the benefits he received from the UK Border Agency. The Defender received �432 per week. This money was for the purchase of food, clothing and other sundries, Council tax, utilities and housing costs being paid for separately. The Defender supports a wife and eight children.

Secondly, the Ministers' position in relation to the Defender's ability to save from his benefits proceeded upon mis-information provided by the UK Border Agency. Mr Collins had precognosced an officer from the Agency who had advised that the Defender would receive his benefits by way of a pre-paid card known as an azure card. The Defender's position was that he received cash. The UK Border Agency subsequently confirmed that they had given Mr Collins incorrect information and that the Defender did indeed receive cash from them. Since 2003 the Defender has received �153,664.18 in cash.