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Advocate General v Alexander McCartney
Case: XA2/25
Tuesday, 07 October 2025
10:30 to 13:00 then 14:00 until conclusion
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Advocate General v Alexander McCartney
XA2/25
Tuesday 7 October 2025
10:30 to 13:00 then 14:00 until conclusion
Extra Division
Appellant
Andrew MacKenzie, sol adv; Harper Macleod LLP
Respondent
Reid KC, Iridag; Office of the Advocate-General for Scotland
Minuters (Scottish Ministers)
David Welsh; Civil Recovery Unit
Section 303Z18 of the Proceeds of Crime Act 2002 provides, in certain circumstances, for persons whose accounts have been frozen under the Act to receive compensation.
The Advocate-General for Scotland, acting on behalf of HMRC, raised a summary application at Kilmarnock Sheriff Court for an Account Freezing Order under the Proceeds of Crime Act 2002, in relation to two bank accounts held by the defender, a retired company director. On 11 April 2023 the Sheriff at Kilmarnock granted the orders sought and made the AFO for 6 months from 6 April 2023. As a result, the defender’s finances were frozen from that date.
On 19 March 2024, the Advocate-General asked the Sheriff at Kilmarnock to recall the account freezing order. The defender minuted for compensation under s.303Z18 of the 2002 Act. The Advocate-General argued that no compensation should be awarded and further that the defender’s minute contained no relevant averments of loss and nothing was exceptional about the case. The Advocate-General further argued that the Scottish Ministers should be liable for any compensation, as the Civil Recovery Unit (the investigating body) was their responsibility.
On 24 July 2024, the sheriff found that the minute was irrelevant and refused it with no expenses due to or by in respect of the minute procedure; the summary application for the account freezing order was dismissed, also with no expenses due to or by. The Sheriff also made the following observation: “… I did not accept the [Advocate-General’s] subsidiary argument that [he] could not be held accountable for the actions of the Crown (sic) Recovery Unit as the investigating body, it being a separate department of government which is overseen by the Scottish Ministers. That proposition, if correct, makes a nonsense of the terms of subsection (5) of section 303Z18, as it could result in the [Advocate-General] being relieved of the obligation to fully compensate an applicant for the loss suffered as a result of [his] seeking the asset freezing order”. The defender appealed the sheriff’s interlocutor of 24 July 2024 to the Sheriff Appeal Court. The obiter comment as to the actions of the Scottish Ministers as the investigating body is also subject of a cross-appeal given the comment would be of more general application if correct.
The Sheriff Appeal Court, on 11 December 2024 remitted the appeal to the Inner House, on the defender’s unopposed motion, on the basis that the appeal is the first known application for compensation under s.303Z18 of the 2002 Act in the UK and so the appeal’s outcome was likely to be persuasive in other jurisdictions; further, the Advocate-General’s cross-appeal raised issues of constitutional law relating to the roles of a UK government department and the acts of Scottish Ministers.
The Scottish Ministers themselves have entered process as Minuters.
The matter will be argued at 10:30am on 7 October 2025 before an Extra Division chaired by Lord Doherty, sitting with Lord Tyre and Lady Wise.