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HIGH COURT OF JUSTICIARY
[2007] HCJ 12A
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OPINION BY LORD
HODGE
in the cause
HER MAJESTY'S
ADVOCATE
against
J H
________________
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AD: McSporran
Defence: Prais QC and Miss
Forrest, Advocate
27 September 2007
[1] The
accused has been indicted to face trial on six charges. Four of the charges
involve allegations of lewd and libidinous behaviour towards and the rape of a
girl under the age of 16 in the period between September 1993 and March
1998 and two are allegations of lewd and libidinous behaviour towards and the
attempted rape of another girl who was then aged under twelve years in the
period between November 1994 and September 2000.
[2] The
matter came before me by minute in which the accused sought to raise a
devolution issue in terms of Schedule 6 to the Scotland Act 1998, arguing that
the Lord Advocate had contravened his rights under Article 6(1) of the European
Convention for the Protection of Human Rights and Fundamental Freedoms ("the
Convention"). In the minute the accused
argued that the one year and eight months which had passed between 2 December
2005, when he was interviewed under caution and charged by the police, and 21
August 2007, which was the date of the first preliminary hearing, had denied
him his entitlement to a fair and public hearing within a reasonable time in
terms of Article 6(1) of the Convention.
[3] At a
continued preliminary hearing on 25 September 2007, Mr Prais QC for the
accused and the Advocate Depute presented a chronology of the progress of the
case containing the dates which they considered relevant. This disclosed that police officers in England took a statement from the
first complainer in February 2005 and police officers in Scotland took four statements from
the second complainer between February and August 2005. On 2 December 2005 police officers detained the accused, interviewed him
in relation to the allegations and charged him.
Thereafter the accused was released.
[4] On 16 March 2006 Strathclyde Police submitted a report to the
procurator fiscal. On 30 June 2006 the procurator fiscal marked the case to proceed by
petition warrant and on 20 July 2006 a sheriff granted the
warrant. On 12 August
2006
the accused was arrested and he appeared to answer the warrant at Hamilton Sheriff Court on 14 August 2006 when he was released on bail. Mr Prais took no issue with the passage of
time until 12 August 2006. He confined his submission to what he argued
was the unreasonable delay by the Crown between 12 August 2006 and 25 February
2007 when the procurator fiscal instructed pre-precognition work and the case
was allocated to a precognition officer to obtain the precognitions which the
procurator fiscal had instructed. Mr
Prais took no issue with the speed of proceedings thereafter.
[5] On 24
May 2007 the procurator fiscal reported the case to the Crown Office and on the
following day an advocate depute instructed that proceedings be taken in the
High Court of Justiciary. An indictment
was served on the accused on 5 June 2007 and a preliminary hearing
was scheduled for 5 July 2007. That diet was adjourned to 21 August 2007 on joint motion in terms of section 75A of the
Criminal Procedure (Scotland) Act 1995. That date was the end point of the one year
and eight month period to which the accused referred in his minute.
[6] In
support of his submission Mr Prais produced twelve authorities but invited me
to concentrate on what he described as "the hardy perennials" of Dyer v Watson 2002 SCCR (PC) 220 and Gibson
v Lord Advocate 2001 JC 125. He submitted that the Crown had delayed
unnecessarily and the inactivity of the prosecution authorities between August
2006 and February 2007 amounted to a contravention of the accused's right to a
trial within a reasonable time under Article 6(1) of the Convention.
[7] The
Advocate Depute submitted that, when forming a preliminary view as to whether
there might have been unreasonable delay, the court should look at the whole
period from December 2005 to August 2007 rather than concentrate exclusively on
the period of inactivity on which Mr Prais had focused. He nevertheless undertook to enquire into the
period to which Mr Prais had referred and I continued the hearing to allow him
to obtain an account from the procurator fiscal of events in the challenged
six-month period.
[8] At the
continued preliminary hearing two days later, the Advocate Depute presented an
account of events in this period. He
explained that the practice in the procurator fiscal's office at Hamilton was for a senior procurator
fiscal depute to analyse the case papers and prepare a report on the case to
guide precognition officers when gathering evidence for a trial. The report would normally involve an analysis
of the law by reference to case-law to give a context to the proposed inquiries
as well as instructions on whom the precognoscers should interview. He submitted that, in normal circumstances, a
senior procurator fiscal depute would have prepared a pre-precognition report
in this case during November 2006.
[9] On
this occasion, however, the procurator fiscal's office at Hamilton had encountered two
unforeseen difficulties which delayed work for several months. First, the senior precognoscer in the office
had been absent from work as a result of long-term illness and another official replaced him only in January 2007. As a result precognition work had to be
re-allocated and pre-precognition work on many cases had to be deferred. The senior procurator fiscal depute who was
responsible for this case had also been absent from work in February 2007 as a
result of illness. Secondly, in about
November 2006 the office had had to undertake an urgent and burdensome review
of disclosures which it had made after a High Court case had brought to light
flaws in the procedures by which the prosecution authorities had identified
documents for disclosure. Officials had
been heavily involved in the review of prior disclosures until some time in
February 2007.
[10] These
events had significantly delayed the processing of cases in the Hamilton office. Faced with this difficulty, officials had
properly given priority to custody cases but had also identified other
non-custody cases which needed to be given priority. Officials had carried out a review of solemn
cases at risk of delay in February 2007 and this case had been identified
as one which needed to be given priority then.
It had been given priority and had been one of the relatively few bail
cases which the office allocated for precognition during this very busy period. As a result, notwithstanding the unusual
demands on the resources of the Hamilton office at this time, the
indictment was served within the Crown Office's target of service within ten
months of the initial appearance of an accused person on petition.
The Law
[11] Article
6(1) of the Convention provides:
"In the determination of his
civil rights and obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
[12] From
the judgments of the Privy Council in Dyer
v Watson and the Strasbourg case law, including those
cases to which their Lordships referred, the relevant law can be shortly
stated. First, the right to a hearing within
a reasonable time under Article 6(1) is a separate and independent right
from the right to a fair hearing; thus the reasonable time requirement can be
violated where there is no prejudice to the fairness of the criminal
trial. Secondly, in a criminal case the
purpose of the right to a hearing within a reasonable time is twofold: to
prevent an accused person remaining too long in a state of uncertainty about
his fate and to avoid delays which might jeopardise the effectiveness and the
credibility of the administration of justice: Stögmüller v Austria (1979) 1 EHRR 155, at paragraph 5 and H v France (1989) 12 EHRR 74, at
paragraph 58. Thirdly, the rights
guaranteed by the Convention were and are minimum rights rather than a
blueprint for an ideal society; thus the threshold for proving a breach of the
reasonable time requirement is a high one.
Avoidable delays may occur without the reasonable time requirement being
breached. The Strasbourg court and British courts
have used epithets such as "inordinate", "excessive" and "unacceptable" to
describe delay which has become unreasonable.
[13] Fourthly, the court
in assessing the reasonable time requirement in a particular case has to
balance the protection of the individual's rights against the countervailing
public interest in the bringing to trial of people who are reasonably suspected
of committing crimes, and, if they are convicted, their being appropriately
sentenced. The reasonable time
requirement should not be allowed to impede the prosecuting authorities in
maintaining high standards in the investigation and preparation of criminal
cases: Montgomery v H M Advocate 2001 SC (PC) 1, at p.29H and Valentine v H M Advocate 2001 SCCR 727, at
paragraph 14. Hence there is a high
threshold. But, fifthly, the reasonable
time requirement confers an important right on the individual which should not
be watered down or weakened.
[14] It is
clear from the wording of Article 6(1) that, in this context, the starting
point in the consideration of the reasonable time requirement is the time when
there is a criminal charge against the individual. In Strasbourg jurisprudence the concept
of "charge" has an autonomous meaning for the purposes of Article 6(1); it is
the official notification given to an individual by the competent authority of
an allegation that he has committed a criminal offence: Eckle v Federal Republic of
Germany (1983) 5 EHRR 1, paragraph 73.
In the present case parties were in agreement that the relevant time was
2 December 2005 when the accused was
detained, interviewed and then charged.
The end point to be considered when addressing the reasonable time
requirement is the time of the hearing which finally determines the criminal
charge. Where, as in this case, the
challenge is taken earlier, the court has to assess at the date when the
challenge was made whether the proceedings can be completed within a reasonable
time.
[15] As
enjoined by Strasbourg case law and by the Privy
Council in Dyer v Watson, a court must first have regard to the whole period which
has elapsed since the accused person was charged. If that period prima facie gives ground for real concern, the court must look into
the detailed facts and circumstances of the particular case and the prosecuting
authorities must explain and justify any lapse of time which appears to be
excessive. See Dyer v Watson, Lord Bingham of Cornhill at
paragraph 52. In addressing the detailed
facts and circumstances, the Strasbourg case-law directs the court
to have regard to, among other things, the complexity of the case, the conduct
of the accused person and the conduct of the prosecuting authorities and
judicial authorities. See, for example, Eckle v Federal Republic of Germany (above) at paragraph 80 and (in the
context of civil proceedings) König v Federal Republic of Germany (1978) 2 EHRR 170,
paragraph 99.
[16] It is
significant that the European Court of Human Rights, while treating the
complexity of the case, the conduct of the accused person and the conduct of
the authorities as the principal areas of enquiry, has made it clear (with the
use of the expression "among others") that those are not the only
considerations to be taken into account when looking at the circumstances of a
specific case. It is, for example,
relevant in this jurisdiction to look at normal Scottish practice and
experience. This in my opinion includes
consideration of the statutory time limits which are designed to protect
accused persons once court proceedings have begun. Where a challenge is made before a trial has
taken place, such time limits may help the court to form a view as to when the
trial is likely to start. Where because
of limited resources the Crown has prioritise particular cases, the risk of
prejudice to an accused person may require the prosecutor to give priority to a
case to avoid unreasonable delay. When
an accused person is detained in custody, undue delay is obviously prejudicial
and may also bring into play an individual's rights under Article 5(3) of the Convention. Equally absence of prejudice is very relevant
to the issue of reasonableness: Gibson v H M Advocate 2001 JC 125, paragraph
15. The youth of an accused person or
complainer may be an important consideration requiring expedition by the
prosecutor: JK v H M Advocate which the Privy Council heard at the same time and
decided in the same judgment as Dyer v Watson.
[17] The
result in any case depends on the court's assessment of the position as a
whole; the question is whether the proceedings have been, or can be, completed
within a reasonable time: Dyer v Watson (above), Lord Rodger of
Earlsferry at paragraph 152.
Periods of inactivity on the part of the prosecuting authorities or the
judiciary may occur after a person is charged without there necessarily being a
breach of the reasonable time requirement.
The issue remains whether the length of the proceedings as a whole has
been excessive. In ascertaining the
reasonable time requirement from the starting point of the date of the charge,
what happened before the charge is not irrelevant. Where there have been delays in a case before
an accused person is charged, the prosecuting authorities may have to show
greater than normal expedition thereafter.
[18] The
appropriate remedy for a breach of the reasonable time requirement is a matter
of controversy at the highest level of the judiciary in Britain. See R v H M Advocate 2003 SC (PC) 21 and Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72. But it is not necessary for me
in this case to consider that issue.
Decision
[19] I am
satisfied that there has not been a breach of the accused's Convention right to
a trial within a reasonable time under Article 6(1). While it is clear that each case must be
decided on its own circumstances and not by a comparison with other decided cases
(H M Advocate v Little 1999 SLT 1145), it is nevertheless important to consider a
particular case in the light of normal Scottish practice and experience: Gibson v H M Advocate (above) at paragraph 11. That practice includes the statutory time
limits which were enacted to protect the interests of accused persons. I observe that the Crown in their written
record of preparation, which was lodged for a preliminary hearing initially
scheduled for 5 July 2007, stated that they were
ready to proceed to trial. Any extension
of the twelve-month time limit under section 65(1) of the Criminal Procedure (Scotland) Act 1995 would require an
order from the court. There was at that
time a realistic prospect of the trial proceeding to its conclusion before the
end of 2007. Necessary defence
investigations have postponed the fixing of a trial diet but a trial should be
completed early in 2008 at the latest.
[20] The
period of twenty months between the charge and the preliminary hearing in
August 2007 does not of itself give me cause for concern when considering the
accused's fundamental rights. I consider
that it is likely that the trial will be completed within a reasonable
time. On that basis alone it might have
been sufficient to determine the application having regard to the high
threshold which I have mentioned.
Nevertheless as it appeared that there was a period of six months of
inactivity which was initially unexplained, the Crown very properly undertook
to provide an explanation of what had occurred in that period.
[21] Looking
at the case in more detail, it was not suggested that it involved unusually
complex matters, although the sensitive nature of the charges and the youth of
one of the complainers may have required special care. The accused had not delayed the progress of
the case in the twenty-month period. It is clear that there was a delay of
about three months beyond the norm between November 2006 and February 2007 as a
result of the unforeseen difficulties which the officials in the Hamilton office faced and which are
described in paragraph 9 above. Faced
with those problems, officials had to prioritise cases. They enjoyed a wide discretion in doing so: Gibson v H M Advocate (above) at paragraph 15. They sought to identify and prioritise those
cases where the passage of time might prejudice an accused person or otherwise
risk unreasonable delay. They selected
this case for priority and achieved the service of the indictment within the
ten-month target. In view of this
explanation Mr Prais candidly accepted that there was nothing to be said in
support of his application.
[22] I
therefore refuse the minute.
