APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice General Lord Philip Lord Sutherland

[2006] HCJAC 75 Appeal No: XC186/03   OPINION OF THE COURT   delivered by THE LORD JUSTICE GENERAL   in   NOTE OF APPEAL AGAINST CONVICTION and SENTENCE   by   STUART MALCOLM BAILLIE Appellant;   against   HER MAJESTY'S ADVOCATE Respondent:   _______

 

 

Act: Shead; John Pryde & Co., Edinburgh

Alt: A. Dewar, Q.C., A.D.; Crown Agent

 

24 October 2006

 

[1] On 17 June 1999 the appellant, after a trial in the High Court which had commenced on 19 November 1998, was convicted on five charges of fraud. The amount of which he stood convicted was about £7.8m. On 18 July 1999 he was sentenced to five years imprisonment.

[2] On 25 October 1999 he lodged a Note of Appeal against conviction and sentence. The Note set out ten grounds of appeal against conviction, some involving detailed subparagraphs. The Note ran to 28 pages. On 26 October 1999 he lodged supplementary grounds of appeal, running to 7 pages and comprising fourteen further grounds of appeal against conviction. On 26 May 2000 unrestricted leave to appeal against conviction and sentence was granted by a single judge in respect of both the original and the supplementary grounds. On 21 July 1999 the appellant had been granted interim liberation. He has been at liberty since then.

[3] Grounds 1 to 3 inclusive of the original grounds of appeal were directed, in various ways, to the proposition that the appellant did not receive a fair trial within a reasonable time. They stated that the appellant had left the employment of Lees Group (Scotland) Limited (the company at the centre of the fraud) in August 1991 and that the police had commenced their investigation into the affairs of that company in March 1992. In addition to the passage of time which had elapsed between critical events and the trial the appellant asserted that he had been prejudiced in that his own recollection and the recollection of witnesses had been diminished by the delay in bringing the case to trial. On these and on other grounds he alleged that his trial had neither been fair nor had taken place within a reasonable time.

[4] On 15 February 2002 the court, at a procedural hearing, continued the appeal for the purposes of a substantive hearing on grounds of appeal 1, 2 and 3. On 26 September 2002 the court was advised by counsel for the appellant that consideration was being given to the lodging of a devolution minute and the marking of an additional ground of appeal against sentence. It was further advised that consultation was continuing with regard to the funding of transcription of the trial proceedings or part of them.

[5] On 19 November 2002 the appellant lodged a devolution minute under reference to proposed grounds of appeal which were also lodged. These proposed grounds involved subdividing ground of appeal 3 into a subparagraph (a), comprising the original ground, and a subparagraph (b), comprising further or reformulated grounds. These asserted that the time between the appellant being charged and the first hearing of his appeal was a violation of his right to a hearing within a reasonable time. Reference was made to the earlier stated prejudice alleged to have been suffered. The conduct of the prosecuting authority was said to represent an abuse of process. The prosecution was alleged to have been ultra vires (under reference to section 57(2) of the Scotland Act 1998) and unlawful (under reference to section 6 of the Human Rights Act 1998). The conduct of the proceedings earlier referred to was alleged to have been oppressive and, separately, a violation of the appellant's right to a fair trial at common law. The time which had elapsed was additionally formulated as a further ground of appeal against sentence.

[6] Under reference to a proposed hearing of the substantive appeal in January and February 2003 the court was advised by senior counsel for the appellant that the appeal was not ready to proceed as the appellant's agents were awaiting legal aid to have the evidence led at the trial transcribed. At a procedural hearing on 19 December 2002 a single judge, having been advised by counsel for the appellant that legal aid sanction had only recently been granted for the employment of junior counsel and for extension in typed format of the evidence in the case, directed that the appeal be put out for a further procedural hearing in the week commencing Monday 3 February 2003 before a bench of three judges to consider amendment of the grounds of appeal. The Crown was requested by the court to take certain steps in advance of that hearing. Counsel for the appellant advised the court that a transcript of the evidence were essential to the presentation of the appeal in respect of grounds 1, 2 and 3. At a procedural hearing on 6 February 2003 the court allowed the grounds of appeal to be amended in terms of the proposed grounds lodged on 19 November 2002. At a continued procedural hearing on 13 March 2003 the court, on the motion of counsel for the appellant, continued the appeal for a substantive hearing to a date to be afterwards fixed as the transcript of evidence would not be available until August 2003; the court further directed those representing the appellant to advise Justiciary Office of the anticipated length of the substantive appeal (in respect of grounds 1, 2 and 3) before the beginning of September 2003. In advance of a procedural hearing fixed for 11 December 2003, and with respect to a proposed appeal sitting between 19 and 30 January 2004, the appellant's senior counsel estimated that a full day would be required for the hearing of Stage One of the appeal i.e. with respect to grounds 1, 2 and 3. On 11 December 2003 a single judge directed that a diet be assigned to deal with the appellant's devolution minute (lodged on 19 November 2002) and gave further directions in respect of a substantive hearing. It was recorded that, subject to these matters being dealt with, the appeal was ready to proceed. In anticipation of the procedural hearing on 28 April 2004 junior counsel stated that senior counsel was no longer available, he having retired from practice. He advised that the Legal Aid Board had granted sanction only for senior counsel to read the transcript of evidence (which was by then available) and that a fresh application would now be required to allow junior counsel to read the relevant parts of the transcript. At the procedural hearing on 28 April 2004 a single judge, having been advised that for the foregoing reason the appeal was not now ready to proceed, directed that a further procedural hearing be assigned in June 2004. In July 2004 counsel advised, in writing, that a decision on sanction was still awaited from the Scottish Legal Aid Board. The court directed that a further procedural hearing be assigned in August 2004. In anticipation of a procedural hearing on 21 September 2004 counsel for the appellant advised that the appeal was now ready to proceed. He further stated that he would be available to conduct the appeal on 2 and 3 November 2004. One and a half - two days were now estimated as the duration of the appeal. The court directed that a diet be assigned for the hearing of the appeal. In the event the appeal did not proceed in November 2004. In anticipation of a further procedural hearing in December 2004 counsel intimated that the appeal (in relation to the first stage only) was ready to proceed but observed "as I understand the position the advocate depute is not available during the appeal sitting". The duration of the appeal was re-estimated at one day. The court, having regard to that intimation, directed that a full hearing be assigned to deal with the matters outlined in the interlocutor of 11 December 2003. That direction was made subject to the availability, for that hearing, of a named advocate depute (who had been prosecuting counsel at the trial) and of counsel for the appellant.

[7] In the event the appeal on grounds 1, 2 and 3 came on for hearing on 26 September 2006. The appeal was heard over that and the following day. Although it had been represented to the court during the procedural stages of the appeal that a transcript of the whole trial proceedings was necessary for presentation of the appeal on those grounds, in the event the only part of the transcript which was laid before the court by counsel for the appellant was a few pages of the evidence of a police officer (D.S. Mackenzie), one of two officers who had seen the appellant (as narrated below) when he had, accompanied by a solicitor, voluntarily attended on 28 March 2002 at a police station. No material was presented to the court to support the assertion in the grounds of appeal that the appellant had suffered actual prejudice in any form by reason of the lapse of time. Nor was any oral submission made that there had been any abuse of process. No basis was laid for setting aside the conviction on any common law basis. Nor were any submissions made that the trial (including the appeal process to date) had been unfair and in that respect had been a violation of the appellant's rights under article 6. The appeal was presented solely on the basis that, regard being had to the period which had elapsed between the appellant being charged and his being brought to trial and separately between his being charged and the hearing of this appeal, his right under Article 6 to a trial within a reasonable time had been violated.

[8] As is evident, the "trial" (in the European sense of the whole proceedings) has not ended. Accordingly, unless the court is satisfied that the appellant's right has been violated because an unreasonable time elapsed between his being "charged" and the date of the commencement of his trial - and the Lord Advocate was accordingly precluded from insisting in his trial (R v H.M. Advocate 2003 SC (PC) 21, 2003 SCCR 19) - or, regard being had to the whole period from when he was "charged" until the disposal of the present stage of this appeal, that the appellant's right has been violated and on some basis he is entitled to have his conviction quashed, the court cannot at this stage afford him a remedy. In relation to both issues it is necessary first to identify when the appellant was "charged" with the offences of which he was subsequently convicted.

[9] The appellant and his father, Malcolm Leonard Baillie, were directors and secretaries of Marine Structures Limited, of Lees Group (Scotland) Limited and of the latter's subsidiaries. The appellant was managing director of Lees Group (Scotland) Limited. Leasing transactions were entered into between those companies and leasing companies. Lees Group (Scotland) Limited and its subsidiaries ("the Group") went into receivership in 1992. On 10 March 1992 the police commenced enquiries into the activities of the Group, apparently as a result of representations made by certain of the leasing companies. On 11 March 1992 police officers attended at the offices of Lees Group (Scotland) Limited where, with the consent of the receivers, they took possession of various files, comprising virtually the whole company documentation there. Several days later they obtained search warrants for several premises, including what were then believed to be the home addresses of the appellant and his father respectively. On attendance at the Inverness address on the warrant for the appellant's home, they learned that he was no longer living there. No search was carried out at these premises. On 20 March 1992 police officers attended at the home of the appellant's father. Extensive documentation was recovered at that address. The appellant's father insisted on making a statement to the police. Although the police enquiries were at a very early stage, the appellant's father, in view of his insistence on making a statement, did so under caution and under tape-recorded conditions. Shortly thereafter the police received a telephone call from the appellant who then made arrangements to come in to see them. On 28 March 1992 he attended the local police station with his solicitor. The reporting officer explained to the appellant and his solicitor that the police were in the very early stages of their enquiries and were not in a position to put questions to the appellant. They were, however, happy, he explained, to take any account or any comment the appellant wished to make on tape under caution. After conferring with his solicitor, the appellant declined that opportunity but stated that he was prepared to co-operate fully with the police when they were in a position to interview him fully and to put questions to him. Matters were left on the basis that there might, depending on the police enquiries, be or not be such an interview of the appellant. In the event no such interview ever took place. The next stage involving the appellant directly was the granting, on 27 January 1997, of a petition warrant for his arrest, that warrant being executed on 29 January 1997 following his arrival in the United Kingdom by air from the Republic of Ireland, where some time earlier he had gone to live. On 30 January 1997 the appellant appeared before the sheriff on that petition, was fully committed and was judicially examined.

[10] Mr. Shead for the appellant submitted that, for the purposes of Article 6, the appellant had been "charged" on 28 March 1992. He cited Eckle v Germany (1982) 5 EHRR 1 at paras. 73 and 74 and in particular the reference in para. 73 to "the date when preliminary investigations were opened" and the application of that test in para. 74. He acknowledged that the mere commencement of police investigations was not sufficient; the person in question would require to have knowledge of such commencement. He contended, however, that the appellant had such knowledge when he was seen by police officers on 28 March 1992. On that date the appellant's solicitor, it was said, had asked the reporting officer whether he regarded the appellant as a suspect; the officer had responded by saying that the appellant was one of a number of suspects in relation to the affairs of the company or Group. Later that year there had been broadcast on television a documentary about the Group. Accordingly, by 1992 the appellant was aware that there was a criminal investigation under way and that he was suspected of having an involvement; there had been relative publicity. Any rational person would in such circumstances be apprehensive that more substantial measures were being taken against him, as had in fact occurred. The test in Eckle had been satisfied. Reference was also made to Foti v Italy (1982) 5 E.H.R.R. 313, in particular at para. 52, to Nemeth v Hungary (Application No. 60037/00, determined on 13 April 2004) and to Re Mlambo (a Zimbabwean case reported at [1993] 2 LR.C. 28). The distinction drawn in Reilly v H.M. Advocate 2000 S.C.C.R. 879 between investigation and official notification by a competent authority was an unduly narrow one; it involved a misunderstanding of the European jurisprudence. H.M. Advocate v Shell U.K. Limited 2003 S.C.C.R. 598 presented no problem for the appellant's submission, it was said; in so far as any observation made in para. 10 might be so, it was simply wrong.

[11] In our view the appropriate starting point for consideration of when, according to European jurisprudence, a person is "charged" for the purposes of Article 6 is Derveer v Belgium (1980) 2 EHRR 439. There, in para. 46, the court stated that:

"[T]he 'charge' could, for the purposes of Article 6 par. 1 ... be defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence. In several decisions and opinions the Commission has adopted a test that appears to be fairly closely related, namely whether 'the situation of the [suspect] has been substantially affected'".

That definition was adopted by the court in the final sentence of para. 73 of Eckle. The circumstances referred to in the first sentence of that paragraph (including "the date when preliminary investigations were opened") are given simply as examples of where a person may be "charged" prior to the case coming before the trial court. The concept of the opening of preliminary investigations must be viewed in the context of the system in question. In Unterschutz v H.M. Advocate 2003 S.C.C.R. 287 (a case cited only by the advocate depute in response) this court carried out a detailed analysis of the then existing European jurisprudence on the meaning of a "criminal charge" for the purposes of Article 6. The ratio of that decision is binding on this court as presently constituted. Mr. Shead neither cited nor distinguished it. Although in the end there was no dispute in Unterschutz as to the proper approach, we, after consideration, agree with the reasoning of the court there. It is plain that "charge" is to be treated as an autonomous concept for the purposes of the Convention and may be defined as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence". That definition also corresponds, as said in Eckle, to the test whether "the situation of the [suspect] has been substantially affected". We would add that we are not persuaded that there was any substance in the criticisms made by Mr. Shead of the reasoning in Reilly and in Shell (U.K.) Limited.

[12] Applying the relevant test to the circumstances of the present case it is plain that the appellant was not, on 28 March 1992, "charged" for the purposes of Article 6. Although, at least in certain circumstances, the police can, for these purposes, be regarded as a "competent authority", there was no question of the accused being "charged" by them on that date. He was neither questioned by them nor was any accusation, express or implied, of criminal conduct directed by them against him. Their enquiries were at a very early stage and they made it quite plain to the appellant and to his solicitor that they were at that stage in no position to address specific questions to the appellant. The appellant declined, as he was entitled to, to make any statement at that time. While no doubt the circumstance that the police were investigating the affairs of the companies of which he was an officer might cause, as they might cause to anyone in that position, a measure of concern to the appellant, he was not then "charged" by them; nor was his situation "substantially affected" in the sense indicated in Eckle. Although, on a superficial examination, there might appear to be some parallel between the present circumstances and those in Nemeth v Hungary, it is to be noted that, in that case, there was no dispute as to when the "criminal investigation" had opened against the applicant, and accordingly no

detailed examination was made by the court of what the opening of such an investigation entailed. Foti v Italy does not add to the jurisprudence established by Derveer and Eckle. We do not find Mlambo (which was concerned with the interpretation and application of a provision in the Zimbabwean Constitution) to be of assistance to us.

[13] In our view the appellant was not "charged" in the relevant sense until he appeared on petition on 30 January 1997 (or possibly on the previous day when he was arrested on the petition warrant).

[14] In these circumstances the question whether a reasonable time had expired prior to the commencement of the appellant's trial on 19 November 1998 (or has since expired) must be assessed on the basis that the appellant was "charged" in January 1997. Although that month is when he was "charged", it is proper in judging the reasonableness of the time since then to take into account the prior lapse of time and the reasons for it; but the provision contained in Article 6(1) is concerned not with that prior period but with the lapse of time following upon official notification (Reilly v H.M. Advocate, at para. [6]).

[15] In Dyer v Watson 2002 SC (PC) 89, 2002 SCCR 220 at para. 52 Lord Bingham of Cornhill observed that:

"The first step is to consider the time which has elapsed. Unless that period is one which, on its face and without more, gives grounds for real concern it is almost certainly unnecessary to go further, since the Convention is directed not to departures from the ideal but to infringements of basic human rights".

He further observed that "[t]he threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed".

[16] In our view it is, in addressing the time which elapsed up to the commencement of the trial, unnecessary to go further than to consider the period of time between January 1997 and November 1998 (that period itself being seen against the time which had elapsed since the appellant had learned that the police had begun to make enquiries into the affairs of the Group). In considering that period it is legitimate, in our view, to take note of the terms of the indictment. It, on a cursory glance, discloses that both accused were charged with having, in exercise of their management and control of the relevant companies, participated in five fraudulent schemes, the details of the terms and execution of which ran to 10 pages, supported by eight schedules, themselves running to a further 25 pages. Appended to the indictment were 227 documentary productions, many of these individual items comprising files or bundles of documents. The witness list ran to 182 names; the addresses of these witnesses extended widely over the United Kingdom, some also being in the Republic of Ireland.

[17] The passage of 211/2 months in these circumstances does not, in our view, give grounds for real concern. Given the manifest width of the enquiries which the accuseds' representatives would have to undertake to prepare the defence, the lapse of such a period was almost inevitable. It is unsurprising that, as early as August 1997, an extension of the 12-month period stipulated by section 65(1) of the Criminal Procedure (Scotland) Act 1995 was agreed and granted. Throughout the relevant period the appellant was at liberty. In Dyer v Watson a period of 20 months, in respect of a much less complex case, was, on its face and without more, held not to be such as to cause real concern. The taking of due note, in so far as material, of such time as had elapsed prior to January 1997 does not alter our view that there are no grounds for real concern. Throughout that period also the appellant had been at liberty. Even if special priority had been given to bringing the case on to trial after January 1997, it is highly doubtful whether the defence could have been adequately prepared or the appellant have received a fair trial had the case been called for trial earlier than it was. In August 1997 the agents for each of the accused indicated that it was unlikely that they would be ready to go to trial at the then prospective date of 1 December 1997. In February 1998 another prospective trial date did not proceed because the defence was not yet ready. The case was indicted for trial in May 1998 and the trial adjourned on defence motion. A further extension of the 12-month period was granted. The case was re-indicted for trial in October 1998 but continued on defence motion to 16 November of that year. These disposals appear on the face of the proceedings.

[18] In these circumstances we find it unnecessary, for the purposes of the disposal of this aspect of the case, to enter upon such extra-procedural explanations as were put before us for the passage of time between 1992 and the commencement of the trial in November 1998 or to consider whether the Crown is precluded from now advancing explanations for delay which were not advanced earlier.

[19] On the other hand, the period from when the appellant was charged (in January 1997) to the hearing of the first stage of this appeal (9 years and 8 months) does on its face give real cause for concern. However, on the basis of the argument presented to us, the court is unable to accept that it can afford at this stage to the appellant the disposal which it was, somewhat half heartedly, suggested by his counsel he was entitled to. In Mills v H.M. Advocate 2002 SCCR 860 Lord Hope of Craighead at para. 62 observed:

"There is no precedent in domestic law for the setting aside of a conviction which has been upheld on appeal as a sound conviction on the ground that there was an unreasonable delay between the date of the conviction and the hearing of the appeal".

Nor was any precedent cited to us for setting aside a conviction on the ground that there was unreasonable delay between the time when a person was "charged" and the hearing of his appeal.

[20] Mr. Shead, having quoted the above passage in his outline written submission, sought there to distinguish it on the ground that Lord Hope had been there referring to cases of "pure" delay. But no attempt was made in argument before us to justify that distinction nor to make out the proposition that, on the material laid before the court, the present was a case otherwise than one of "pure" delay.

[21] In these circumstances we have no alternative but to reject also the contention that, by reason of unreasonable delay between conviction or "charge" and the hearing of this stage of the appeal, the appellant is entitled to have his conviction quashed.

[22] Accordingly, we reject grounds of appeal 1, 2 and 3 (as amended). The case is continued for consideration of the remaining grounds of appeal and will be put out in early course for a procedural hearing to discuss the expeditious disposal of these grounds.