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You are here: BAILII >> Databases >> European Court of Human Rights >> O'NEILL v. THE UNITED KINGDOM - 41516/10 - HECOM [2012] ECHR 1995 (13 November 2012) URL: http://www.bailii.org/eu/cases/ECHR/2012/1995.html Cite as: [2012] ECHR 1995

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FOURTH SECTION

Application no. 41516/10
Charles Bernard O’NEILL
against the United Kingdom
lodged on 15 July 2010

STATEMENT OF FACTS

 

The applicant, Mr Charles Bernard O’Neill, is a British national who was born on 4 July 1962 and lives in Glasgow. He is represented before the Court by Mr James Rhodes of McClure Collins, a firm of solicitors practising in Glasgow.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  The initial investigation

On 16 February 1998 Robert McGarrigle reported to Strathclyde Police that his wife, Allison McGarrigle, was missing.

On 24 February 1998 the police carried out a forensic investigation of an apartment which Allison McGarrigle and her son had shared with the applicant and William Lauchlan. Three days later, on 27 February 1998, the Procurator Fiscal at Kilmarnock wrote to the Crown Office advising that the inquiry could become a homicide inquiry with the applicant and Mr Lauchlan as suspects.

The police obtained a search warrant and on 30 June 1998 the applicant’s apartment was subjected to a full forensic examination.

On 18 August 1998 the applicant and William Lauchlan were sentenced to imprisonment following their conviction for (unrelated) sexual offences.

On 11 September 1998 the police sought written authorisation for the release of the applicant and William Lauchlan from HMP Peterhead into their custody so that they could be interrogated with regard to the suspected murder of Allison McGarrigle.

On 17 September 1998, while serving his sentence at HMP Peterhead, the applicant was detained by the police under section 14 of the Criminal Procedure (Scotland) Act 1995 and removed to Queen Street Police Office in Aberdeen. On the same day the applicant was interrogated by police officers in a series of interviews lasting several hours. During those interviews the applicant was asked questions relating to the alleged offence and was directly accused by police officers of murdering Allison McGarrigle.

On 5 November 1998 the police inquiry concerning Allison McGarrigle was “stood down”.

The applicant was released from custody on licence on 22 May 2003. However, his licence was revoked by the Scottish Executive on 10 July 2003 as he had travelled abroad without notification.

On 21 and 23 April 2004 European Arrest Warrants were issued for the applicant and William Lauchlan in connection with the breach of the notification requirements of their respective licences. The applicant was arrested by police in Spain and on 11 May he agreed to extradition. He was subsequently committed to prison in Scotland and sentenced on 4 April 2005 to a further three years’ imprisonment, which was reduced on appeal to eighteen months.

2.  The charges

On 5 April 2005 the applicant and William Lauchlan were brought before a sheriff on a petition charging them with the offences of murder and attempting to pervert the course of justice. They were committed to prison for further examination.

On 6 June 2005 the Crown Office provisionally fixed a preliminary hearing date for 12 September 2005.

The applicant lodged a devolution minute relating to a potential violation of the reasonable time guarantee contained within Article 6 § 1 of the Convention. This was intimated to the Lord Advocate and the Advocate General on 18 August 2005.

On 14 October 2005 the Sheriff Court held that the devolution minute had been raised prematurely as no indictment had been served. The applicant appealed against this decision.

On 2 November 2005 the Crown fixed a new preliminary hearing date for the proposed indictment on 17 January 2006.

On 7 December 2005 the High Court heard the applicant’s appeal regarding the devolution issue. However, the appeal was dismissed as the High Court agreed with the Sheriff Court that the devolution minute had been raised prematurely. Leave to appeal to the Judicial Committee of the Privy Council was refused.

Pursuant to sections 65(1)(a) and (1A) of the Criminal Procedure (Scotland) Act 1995, a trial had to take place within twelve months of the accused’s first appearance on petition in respect of the offence although that period could be extended retrospectively. However, on 10 February 2006 Crown Counsel took the view that a conviction of the applicant was not sufficiently likely. The Lord Advocate did not seek an extension of time which would have allowed the proceedings to remain live. The decision was communicated to the applicant on 26 April 2006.

3.  The indictment

On 10 September 2008 the applicant and William Lauchlan were served with an indictment which contained the same charges as were included in the 2005 petition, namely murder and attempting to pervert the course of justice. The applicant and William Lauchlan were also charged with a number of sexual offences, some of which had allegedly been committed against Allison McGarrigle’s son.

On 16 September 2008 the applicant and William Lauchlan lodged a further devolution minute in which they argued that they could not receive a fair trial within the meaning of Article 6 because of the significant delay which had occurred.

On 10 October 2008 a preliminary hearing was held at the High Court in Glasgow where further preliminary and devolution minutes and notices were served on behalf of the applicant and William Lauchlan. The Crown also made an application under section 65(3)(a) of the Criminal Procedure (Scotland) Act 1995 for a retrospective extension of the twelve-month time-limit contained within section 65(1) of that Act.

Following a hearing on 20 February 2009 the Crown’s application for an extension was granted. The High Court judge found that between 1997 and 2008 the Crown had acted properly in investigating and reviewing the evidence, that the expiry of the section 65 time-limit had come about through a positive decision rather than through inadvertence, and that new evidence had come to light following the expiry of the time-limit. The applicant and William Lauchlan were granted permission to appeal, but that appeal was refused on 5 June 2009.

At a continued preliminary hearing beginning on 29 June 2009, a different High Court judge was invited to consider a number of issues including the 16 September 2008 devolution minute. The judge refused to dismiss the devolution minute. However he did not dismiss any of the charges on the indictment as he found that the proceedings had began on 5 April 2005, that the “reasonable time” permitted by Article 6 had not been exceeded, that the fairness of the upcoming trial had not been affected, and, in any case, dismissal would not be just or appropriate. He therefore decided to leave the decision on delay and any appropriate remedy until after the trial had taken place.

His Lordship also decided that it was appropriate to separate the charges relating to the sexual offences from those relating to the murder of Allison McGarrigle, as there would be a real risk of prejudice to the two accused if the charges were tried together.

The applicant and William Lauchlan appealed against the decision not to dismiss the charges against them. The Lord Advocate brought a cross-appeal against the decision to separate the charges.

Both appeals were dismissed on 26 November 2009. In dismissing the appeal against the decision not to dismiss the charges against the applicant and William Lauchlan, the Appeal Court concluded that while there was no question that the police had interrogated the applicant and William Lauchlan “robustly” in 1998, they were not “charged” until 5 April 2005, that the Crown had acted without fault, and that in this case it could not be said that the matter would not be determined within a reasonable time. The court also noted that as Allison McGarrigle’s body had never been found the case entailed “particular complexity”.

On 27 November 2009 the Appeal Court refused leave to appeal against this decision to the Supreme Court and on 22 February 2010 the Supreme Court refused to grant special leave to appeal.

3.  The trial of the applicant and William Lauchlan

The trial of the applicant and William Lauchlan began at the High Court in Glasgow on 17 May 2010. At trial neither the Crown nor the defence were able to call a witness who had allegedly seen Allison McGarrigle several weeks after she was believed to have been murdered as that witness could no longer be traced. Additionally, items that the witness claimed had been left behind by Allison McGarrigle in a public house had been sold by the police and so were unavailable at the trial.

On 10 June 2010 the applicant and William Lauchlan were convicted of murder and attempting to pervert the course of justice. The applicant was sentenced to life imprisonment with a tariff of thirty years.

4.  The appeal against conviction and sentence

Both the applicant and William Lauchlan appealed against conviction and sentence. Leave was refused on the first sift in 2011. However, following an oral hearing on 8 February 2012 the Appeal Court granted permission to appeal on two grounds: namely, the alleged unfairness which resulted from leading evidence of a police interrogation during trial and an alleged misdirection in relation to a charge of a sexual offence against a minor. With regard to the remaining grounds the court held that, far from there being insufficient evidence to convict the applicant and William Lauchlan, there was a strong circumstantial case against both men in relation to the murder and the disposal of the body. Moreover, the court further found that the long delay in the case coming to trial did not cause any material prejudice to either defendant. In reaching this conclusion the court agreed with the lower courts that the starting point for the Article 6 § 1 analysis was 5 April 2005.

The applicant’s appeal against conviction has not yet been decided by the Appeal Court.

In the meantime the applicant and William Lauchlan have sought leave to appeal to the Supreme Court against the decision of the Appeal Court of 8 February 2012 to refuse to grant leave to appeal on certain grounds. On 19 April 2012 the Appeal Court granted the applicant leave to appeal with regard to the starting-point used by the lower courts in the assessment of reasonable time under Article 6. While the lower courts had used the date of charge, the Supreme Court had suggested in Ambrose v. Harris [2011] UKSC 43 that the relevant date was in fact the date of interview by police under caution.

The Supreme Court hearing has been fixed for 1 and 2 May 2013.

B.  Relevant domestic law and practice

1.  The Criminal Procedure (Scotland) Act 1995

a.  Right of appeal

Section 106 of the 1995 Act grants any convicted person the right to appeal against conviction or sentence (where such sentence is not fixed by law), provided that the leave of the court under section 107 of the Act has been obtained.

b.  The note of appeal and the written report

Section 110(1) of the 1995 Act, as in force at the material time, allowed six weeks for the lodging of a written note of appeal. The note was required to identify the proceedings; contain a full statement of all the grounds of appeal; and be in as near as may be the form prescribed by the relevant rules. The note of appeal is generally lodged on the basis of the issues at trial and after consideration of the trial judge’s charge to the jury.

Section 110(4) provided that it was not competent for the applicant to found any aspect of his appeal on a ground not contained in the note of appeal.

Section 110(2) provided that the six-week time limit for lodging the note of appeal could be extended at any time before it expired.

Section 110(1) of the 1995 Act provides that when a convicted person lodges a note of appeal with the clerk, the clerk must send a copy to the judge who presided at trial.

Under section 113 of the 1995 Act:

“(1) As soon as is reasonably practicable after receiving the copy note of appeal sent to him under section 110(1) of this Act, the judge who presided at the trial shall furnish the Clerk of Justiciary with a written report giving the judge’s opinion on the case generally and on the grounds contained in the note of appeal.

(2) The Clerk of Justiciary shall send a copy of the judge’s report-

(a) to the convicted person or his solicitor;

(b) to the Crown Agent; ...

(3) Where the judge’s report is not furnished as mentioned in subsection (1) above, the High Court may call for the report to be furnished within such period as it may specify or, if it thinks fit, hear and determine the appeal without the report.

...”

c.  The sift

Section 107 of the 1995 Act provides, insofar as relevant:

“(1) The decision whether to grant leave to appeal for the purposes of section 106 (1) of this Act shall be made by a judge of the High Court who shall-

(a) if he considers that the documents mentioned in subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing has he considers appropriate; and

(b) in any other case-

(i) refuse leave to appeal and give reasons in writing for the refusal ...

(2) The documents referred to in subsection (1) above are-

(a) the note of appeal ...

...

(c) where the judge who presided at the trial furnishes a report under section 113 of this Act, that report; and

(d) where, by virtue of section 94(1) of this Act, a transcript of the charge to the jury of the judge who presided at the trial is delivered to the Clerk of Justiciary, that transcript.

...

(4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days ..., apply to the High Court for leave to appeal.

(4A) The High Court may, on cause shown, extend the period of 14 days mentioned in subsection (4) above, or that period as extended under this subsection, whether or not the period to be extended has expired ...

(5) In deciding an application under subsection (4) above the High Court shall-

(a) if, after considering the documents mentioned in subsection (2) above

and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and

(b) in any other case-

(i) refuse leave to appeal and give reasons in writing for the refusal ...

(6) Consideration whether to grant leave to appeal under subsection (1) or (5) above shall take place in chambers without the parties being present.

(7) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.

(8) Where the arguable grounds of appeal are specified by virtue of subsection (7) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.

(9) Any application by the appellant for the leave of the High Court under subsection (8) above Act-

(a) shall be made not less than seven days before the date fixed for the hearing of the appeal; and

(b) shall, not less than seven days before that date, be intimated by the appellant to the Crown Agent.

...”

d.  Time-bars on trials on indictment

Section 65 of the 1995 Act is intended to prevent delay in trials. Subsection (1) provides that a preliminary hearing, following service of an indictment, must take place within eleven months and in any event a trial must take place within twelve months of the first appearance of the accused on petition in respect of the offence. Subsection (3) allows that period to be extended retroactively.

2.  Devolution issues

Section 57(2) of the Scotland Act 1998 provides that the Scottish Executive (of which the Lord Advocate is a member) has no power to act in a manner incompatible with the Convention.

A devolution issue is an issue raised under Schedule 6 to the Scotland Act concerning whether a legislative provision or an administrative act passed or taken under the Scotland Act 1998 is within the powers of the Scottish Parliament or the Scottish Executive.

In Russell v. Thomson [2010] HCJAC 138, the Appeal Court observed:

“15. A Devolution Minute in an appeal process, which complains of the actions of the lower court, does not have a life of its own. It requires to be linked to the grounds of appeal raised. In this case, these grounds are expressed in the appellant’s Note of Appeal and are simply that the appellant’s conduct, as spoken to by the witnesses, did not amount to a breach of the peace. The Note defines the scope of the appeal. If the appellant had wished to pursue any of the many matters contained in his Devolution Minute, he should have included them in his Note of Appeal. If he had failed to do that, he should have applied to the court to allow that Note to be amended to include them ...”

3.  Remedies for delay in legal proceedings in Scotland

As a consequence of section 57(2) of the Scotland Act 1998, in carrying on prosecutions or directing them to be carried on the Lord Advocate, may not act incompatibly with Article 6 § 1 of the Convention. Thus an accused person in Scotland who complains about undue delay in criminal proceedings under Article 6 § 1 may raise a devolution issue against the Lord Advocate under section 57(2) of the Scotland Act 1998 or, alternatively, he may make a complaint against the court as a public authority under the Human Rights Act 1998 (see R v. HM Advocate [2002] PC D3, per Lord Steyn at paragraph 1). He may also raise civil proceedings in the High Court alleging a violation of section 6 of the Human Rights Act 1998 in the event that he is dissatisfied with the remedy granted by the High Court.

In Mills v. HM Advocate [2002] UKPC D1, the court was required to examine whether, following an unreasonable delay in the hearing of an appeal, the reduction in sentence awarded by the High Court provided adequate redress. The Privy Council considered that in light of the express acknowledgement of a violation of the Convention and the extent of the reduction in sentence, there had been adequate redress and the applicant was no longer a victim of any violation.

Lord Steyn noted the available remedies for delay in criminal proceedings (at paragraphs15-16):

“The separate question of the remedies available in respect of a breach of the guarantee of a hearing within a reasonable time must now be considered. The court is entitled to be informed of all factors logically relevant to the appropriateness of the remedy. In a post conviction case, for example, the fact that the accused’s guilt was established at trial and that an unmeritorious appeal was dismissed, is undoubtedly a relevant factor in considering what remedy, if any, to grant.

The remedies available could include an order for discontinuance of a prosecution, quashing of the conviction, reduction of the sentence, monetary compensation or a declaration. A finding of a violation of a guarantee may itself sometimes be a sufficient vindication of the right: Eckle v Germany (Just Satisfaction) (1983) 13 EHRR 556, 560, para 24 ...”

Similarly in R v. HM Advocate [2002] UKPC D3, the applicant complained of a breach of the reasonable time requirement. Lord Steyn, setting out domestic law, noted (at paragraph 1):

“The result of this scheme is that an accused person in Scotland who complains about undue delay in criminal proceedings under article 6.1, may raise a devolution issue against the Lord Advocate under section 57(2) or, alternatively, he may make a complaint against the court as a public authority under the Human Rights Act 1998.”

On the question of remedies, he explained (at paragraph 11):

“The width of the reasonable time guarantee is relevant to the separate question of the remedies available for a breach. There is no automatic remedy. In this case too the role of the Strasbourg Court is a residuary one. In the Strasbourg Court the only remedies available are therefore declaratory judgments and award of damages. But domestic courts have available a range of remedies for breach of the reasonable time guarantee. In a post conviction case the remedies may be a declaration, an order for compensation, reduction of sentence, or a quashing of the conviction: see Mills v H M Advocate (No 2), 2002 SLT 939, 944, para 16. In a preconviction case the remedies may include a declaration, an order for a speedy trial, compensation to be assessed after the conclusion of the criminal proceedings, or a stay of the proceedings. Where there has been a breach of the reasonable time guarantee, but a fair trial is still possible, the granting of a stay would be an exceptional remedy.”

The majority of the Privy Council held that in light of the acceptance by the prosecution that there had been unreasonable delay in the case, it would be incompatible with the appellant’s right to a determination of a criminal charge against him within a reasonable time for the Lord Advocate to continue to prosecute him on two of the charges of the indictment and, as section 57(2) of the Scotland Act 1998 provided that the Lord Advocate had no power to do an act which was incompatible with the Convention right, the plea in bar of trial should be sustained and the relevant charges dismissed from the indictment.

In Gillespie v. HM Advocate, 2003 SLT 210 the appellate court found a breach of Article 6 on length and granted, by way of remedy, a reduction of six months in the punishment part previously imposed by the High Court.

In Spiers v. Ruddy [2008] UKPC D2, the Privy Council once again considered the range of remedies available for breach of the reasonable time requirement. Lord Bingham concluded (at paragraph 16):

“...The European Court does not prescribe what remedy will be effective in any given case, regarding this as, in the first instance, a matter for the national court. The Board, given its restricted role in deciding devolution issues, should be similarly reticent. It is for the Scottish courts, if and when they find a breach of the reasonable time provision, to award such redress as they consider appropriate in the light of the Strasbourg jurisprudence.”

5.  Ambrose v. Harris [2011] UKSC 43

The Ambrose judgment of the Supreme Court provides the most recent guidance on the interpretation of what it means to be “charged” within the United Kingdom. Lord Hope, giving the leading judgment of the court, considered that the appellant in that case was “charged” following his caution by the police in connection with an alleged offence. In reaching his conclusions his Lordship recalled the relevant case-law of the Court, in particular the question of whether the suspect had been “substantially affected”:

“His position will have been substantially affected as soon as the suspicion against him is being seriously investigated and the prosecution case compiled: Shabelnik v Ukraine (application no 16404/03) (unreported) given on 19 February 2009, para 57. In Corigliano v Italy (1982) 5 EHRR 334, para 34 the court said that, whilst ‘charge’ for the purposes of article 6(1) might in general be defined as the official notification given to the individual by the competent authority of an allegation that he has committed an criminal offence, as it was put in Eckle, para 73, it may in some instances take the form of other measures which carry the implication of such an allegation... the words ‘official notification’ should not be taken literally, and ... events that happened after the moment when the test is to be taken to have been satisfied may inform the answer to the question whether the position of the individual has been substantially affected.

63. It is obvious that the test will have been satisfied when the individual has been detained and taken into custody. It must be taken to have been satisfied too where he is subjected to what Salduz, para 52 refers to as the initial stages of police interrogation. This is because an initial failure to comply with the provisions of article 6 at that stage may seriously prejudice his right to a fair trial.”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the charges against him have not been determined within a reasonable time. The applicant alleges that the passage of some thirteen years plainly indicated a violation of the reasonable time guarantee.

The applicant further complains under Article 6 § 1 of the Convention that by reason of the delay in commencing his trial the applicant could not have a fair trial.

 

 




 

QUESTION TO THE PARTIES

Did the length of the proceedings in this case violate the “reasonable time” guarantee contained within Article 6 § 1?