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R v. Her Majesty's Advocate & Anor [2002] ScotHC 67 (31 May 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Coulsfield Lord Cameron of Lochbroom Lord Caplan	Appeal No: 817/01   OPINION OF LORD COULSFIELD in NOTE OF APPEAL in terms of Section 74 of the Criminal Procedure (Scotland) Act 1995 by 'R' Appellant; against HER MAJESTY'S ADVOCATE and THE ADVOCATE-GENERAL FOR SCOTLAND Respondent: _______

 

 

Appellant: Bovey, Q.C., Blair; Balfour & Manson (for Grigor Young, Elgin)

Respondent: Davidson, Q.C., Howlin; Crown Agent:

Advocate General, Mrs S. Wolffe

31 May 2002

1. The central question in this appeal is what remedy should be given to an accused person when there has been such delay in criminal proceedings against him as to give rise to a breach of the requirement of Article 6 of the European Convention on Human Rights that such proceedings should be brought to completion within a reasonable time. The respondent has been charged with six offences of indecent behaviour towards children. An indictment was served upon him and he thereupon lodged a minute giving notice of intention to raise an issue under the Human Rights Act 1998. The minute was later amended and a further minute was lodged raising an issue under the Scotland Act 1998. Submissions were heard before Lord Reed, the appellant contending that there had been a breach of Article 6 and that the consequence was that two of the charges against him could not proceed to trial. In an opinion issued on 10 October 2001, the judge rejected that submission. The appellant now appeals to this court.
2. The history of the investigation of charges against the appellant is fully set out by the judge. In very brief summary, in August 1995 two girls, S and L, made certain allegations about the appellant. The appellant was interviewed by police officers under caution and made certain admissions after which he was cautioned and charged. However, the procurator fiscal took the view that the evidence was insufficient and decided not to proceed. The reason for that decision is not known: in fact it appears that there was sufficient evidence. The decision not to proceed was not formally intimated to the appellant but he did learn, informally, that proceedings were not to be taken. In April 1999, further information came to the attention of the police which led to further investigations and, in due course, to the indictment now served upon the appellant. The two charges in respect of which the challenge under Article 6 is made relate to S and L and are in very similar terms to the charges originally made against the appellant in August 1995. Before the judge, the advocate depute accepted that there had been a period of delay in proceeding with these charges, extending to about five years, for which the Crown had no satisfactory explanation. The judge records that the advocate depute conceded "that this was an unreasonable delay, contrary to Article 6(1)". In the course of the argument before us, it began to appear that there was a risk that the argument would be diverted into a sterile dispute about the exact significance of the wording of that concession and we allowed the concession to be withdrawn. The Crown did not, however, contend that there had not been an unreasonable delay.
3. The question of the appropriate remedy for a breach of the requirement of Article 6(1) that proceedings should be completed within a reasonable time has already been the subject of discussion and decision in a number of cases, including several decided in the Judicial Committee of the Privy Council. Most recently, there was some discussion of the point in Dyer v. Watson & Burrows P.C. D.R.A. 1/2001, (2002) SCCR 220. I do not think it necessary to extend the length of this opinion by extensive quotation either from the earlier decisions or from the speeches in Watson & Burrows itself. It will, in due course, be necessary to consider some of the views which have been expressed in relation to particular parts of the argument. I think, however that it is sufficient to say that I regard the observations of their Lordships in Watson & Burrows as a sufficient warrant for attempting to reconsider the issue of the appropriate remedy from first principles, without being diverted by considering whether there have been expressions of opinion in earlier cases which technically might be regarded as binding on this court. I refer particularly to what was said by Lord Bingham of Cornhill at paragraph 67, Lord Hope of Craighead at paragraph 112 and Lord Rodger of Earlsferry at paragraph 160.
4. We should first have in mind the terms of the relevant provisions of the Convention and of the legislation giving it effect in the United Kingdom. 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."

5. It is relevant also to mention Articles 1 and 41. Article 1 provides:

"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention."

Article 41, which is part of the section of the Convention dealing with the establishment and functioning of the European Court of Human Rights, provides:

"If the court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the court shall, if necessary afford just satisfaction to the injured party."

6. Section 1 of the Human Rights Act 1998 provides that the Convention rights, by which are meant the rights and fundamental freedoms set out in certain Articles of the Convention and protocols, including Article 6, are to have effect for the purposes of the Act, subject to any designated derogation or reservation. Section 6 provides inter alia:

"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right."

(2) Subsection (1) does not apply to an act if -

(a) as a result of one or more provisions of primary legislation, the

authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary

legislation, which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

7. As regards Scotland, section 57 of the Scotland Act 1998 provides inter alia:

"(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with community law.

(3) Sub-section (2) does not apply to an act of the Lord Advocate-

(a) in prosecuting any offence, or

(b) in his capacity as head of the systems of criminal prosecution

and investigation of deaths in Scotland,

which, because of sub-section (2) of section 6 of the Human Rights Act 1998, is not unlawful under sub-section (1) of that section."

8. The right to a trial within a reasonable time figures in many constitutions and declarations of rights. Frequently, as in Article 6, it figures alongside rights to a fair trial and an independent tribunal. However, the right to a trial within a reasonable time is a right of a somewhat different character from the other two rights, for the reasons explained by Justice Powell in his frequently quoted opinion in Barker v Wingo 407 U.S. 514 (1972). Justice Powell observed that the right to a speedy trial is generically different from any other rights enshrined in the United States Constitution for the protection of the accused. He pointed out, firstly, that there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to the interests of the accused: and secondly that deprivation of the right could work to the accused's advantage and did not per se prejudice the accused's ability to defend himself. He continued:

"Finally, and perhaps most importantly, the right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the State can put to the defendant to the choice or either exercising or waiving the right to a speedy trial. ... Thus, as we recognised in Beavers v Hubert, any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case:

'the right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice'

198 U.S. at 87. The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy."

9. The view that discontinuance of the prosecution is the only possible remedy is, as I understand the position, derived from the particular provisions of the United States' Constitution and is not necessarily to be taken as a general observation to be applied in relation to other constitutional instruments or declarations of rights. Justice Powell continued by discussing the appropriate approach to determining whether the right had been infringed. He rejected some suggested rigid rules and favoured a balancing test in which the conduct of both the prosecution and the defendant should be weighed. For the present purpose, I do not think that it is necessary to repeat what was said about the considerations which may be relevant in applying the test.
10. There are thus two features of the right to trial within a reasonable time which may lead to difficulties and sometimes to unsatisfactory results in attempting to apply it, namely (1) that it is impossible to specify precisely what is a reasonable time and (2) that if the only remedy for a breach of the right is discontinuance of the prosecution, that may be unsatisfactorily severe from the public point of view. The difficulties are illustrated by the three, again very well known, decisions of the Judicial Committee of the Privy Council in Bell v Director of Public Prosecutions [1985] AC 937, Darmalingum v The State [2000] 1 W.L.R. 2303 and Flowers v The Queen [2000] 1 W.L.R. 2396. In Darmalingum, it was held that the only possible remedy, on the terms of the particular constitutional instrument involved and all the facts of the case, was discontinuance of the prosecution. In Bell and in Flowers, a different result was reached. I do not think that it would really be helpful for the present purpose to attempt to analyse either the facts or the speeches in these cases in detail. There is, I think, no doubt that if there has been such delay as to cause material prejudice to the fairness of any trial, the prosecution cannot proceed. Similarly, there would, I suppose, be no dispute that there may be cases in which delay has been so prolonged that it would be outrageous to allow criminal charges to proceed and discontinuance is the only remedy which can reasonably be regarded as appropriate, whatever general approach is being applied. Darmalingum might perhaps be regarded as a case of that kind. As regards the other two decisions, it is, in my view, sufficient to note that different results may easily be seen to be appropriate in different circumstances. What Justice Powell described as the "slippery character" of the right is also illustrated by the decision of the New Zealand Court of Appeal in Martin v Tauranga District Council [1995] 2 N.Z.L.R. 419 in which a variety of opinions were expressed about the appropriate remedy, although it can perhaps be said that the majority tended to favour the view that discontinuance was not the only remedy for a breach. Again, however, I do not think that a detailed analysis of the opinions expressed is of much assistance. As will be seen, I think that the principal problem for us is related to the way in which the right is enshrined in United Kingdom legislation.
11. I think that it is also worth observing, at this stage, as part of the general background to the question, that if it is accepted that there is a need to balance the important right conferred on the accused by the requirement of a speedy trial against the interests of the public in securing a conviction in a proper case, there are, in the abstract, two ways in which the balance might be struck. One would be to adjust the threshold at which the right will be held to be breached. If the threshold for the application of the right is set at a high level, so that the severe remedy of discontinuance is brought into play only in cases in which, in one way or another, it can be seen that a fair trial is impossible or that proceeding with a prosecution would be outrageous, the severe remedy might be more acceptable than it would if it were to be applied at a lower threshold. The speeches of their Lordships in Watson v. Burrows, it may be observed, generally favour a high threshold. The other way of protecting the right while maintaining a balance with other public interests is to bring in alternative means of protecting the accused. Any right can be protected by direct enforcement, which would, in this context, mean discontinuance, or by giving a remedy for breach such as compensation or a reduction in sentence. An approach of the latter kind seems to me to underlie the decision in Attourney General's Reference (No 2 of 2001) [2001] EWCA Crim 1568, [2001] 1 W.L.R. 1869. The possibility of alternative remedies is reflected, I think, also in the way in which the issue is expressed in several of the speeches in Watson & Burrows, supra, namely whether the right which emerges on breach of the protection against unreasonable delay is or is not a right not to be prosecuted at all(e.g. Lord Hutton at para. 121; Lord Millett at paras 127-132). It is, however, yet a further example of the slippery character of the right that it is by no means obvious that it is acceptable or in the public interest that a person who has been convicted after what must, ex hypothesi, be regarded as a fair trial, should be entitled to compensation or to some benefit.
12. The appellant submitted that it would be wrong to make too sharp a distinction between the right to trial within a reasonable time and the other rights comprised in Article 6. It was quite possible, it was suggested, to regard a tribunal as "a little lacking in impartiality" or a trial as "a little unfair". In such cases, a judgment had to be made, and if the judgment went in favour of the accused, even by a narrow margin, the proceedings had to be quashed. It was submitted, therefore, that there was really nothing unusual or difficult in requiring the court to decide whether a reasonable time had been exceeded and to discontinue proceedings if it had been. There is, I think, some force in that argument, but it is not, in my view, sufficient to eliminate the distinction between the right to trial in a reasonable time and the other rights in Article 6. It may be added that a finding that a tribunal has not been impartial or a trial not fair will lead to quashing of the relevant decision or finding, but not necessarily to a complete discontinuance of the proceedings.
13. That is, in my view, the general background, to the question whether discontinuance of the prosecution (or annulment of a conviction ex post facto) is the necessary remedy, and the only remedy available, in a case in which the accused's right under Article 6 to a trial within a reasonable time has not been observed. The question depends not only upon the proper interpretation of the ECHR but also upon the legislation by which the Convention is incorporated into United Kingdom law. Obviously, the first place to look for guidance is the jurisprudence of the European Court at Strasbourg. There are, however, as is generally agreed, four cautionary observations to be kept in mind in attempting to understand the significance of the jurisprudence. The first is that, as Lord Millett, in particular, pointed out in Watson & Burrows, (at para. 131) the question of the appropriate remedy is of no practical importance to the European Court which does not require to give a remedy. The second observation is that in order to maintain a complaint before the European Court, the applicant must have the status of a "victim" at the time of doing so, so that if, for one reason or another, he can be said no longer to have that status, the application cannot proceed. The third observation is that in any event the court is restricted in what it can do and cannot declare any action by a State or an organ of a State ultra vires. The fourth observation, which in a sense lies behind all the others, is that the court is primarily concerned with the question whether the member State has complied with its obligations under the Convention. From the court's point of view, therefore, the actions and interactions of particular authorities within the member State are of no particular significance. As a result, as was observed in Mills v HMA, 2001 S.C.C.R. 821 intriguing questions about the inter-relationship of authorities within a State may arise, a subject which was explored further by Lord Hoffmann in Montgomery & Coulter v. H.M.A. 2000 SCCR 1044. Additionally, the European Court is always considering the complaint some time after the offending action has taken place. The court is therefore never asked to determine what is the nature of an individual's right as it emerges when a breach of the Convention occurs and all the factors which I have mentioned tend to direct attention away from that question.
14. Nevertheless, in my opinion, the jurisprudence does show that the European Court will accept that a member State can comply with its Convention obligations by providing a remedy less than discontinuance or annulment of criminal proceedings. The decisions which have a bearing on this question are examined in detail in the opinion of the judge. Many of them have also been examined in the speeches in Watson & Burrows, in particular in the speech of Lord Bingham. It respectfully appears to me that it is not necessary to recite all these authorities again in the present case. There are, it seems to me, four which are critical. The first is X v Germany 16 October 1980 25 D.R. 142, a decision of the Commission. The applicant's complaint, as summarised by the Commission, was that the excessive length of two sets of criminal proceedings taken against him was not adequately reflected in the reduction of the sentences which the competent courts pronounced against him. The Commission considered whether the applicant had exhausted his domestic remedies, but continued by saying that, even if it was assumed that he had, the application would still have to be rejected as manifestly ill-founded. The opinion continues:

"Insofar as the applicant claims a right to discontinuation of the criminal proceedings in view of the long delays which had occurred, the Commission considers that such a right, if it could at all be deduced from the terms of Article 6(1), would only apply in very exceptional circumstances, such circumstances did not exist in the applicant's case."

15. The second case is Eckle v Germany (1982) 5 EHRR 1. The applicants in that case had been subjected to very lengthy and complex proceedings in relation to alleged fraud. It was argued, as appears from paragraph 64 of the judgment, that the German courts had acknowledged the excessive length of the proceedings and afforded redress. On this argument the court said, at paragraph 66:

"The word 'victim', in the context of Article 25, denotes the person directly affected by the act or omission which is in issue, the existence of a violation being conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 50.

Consequently, mitigation of sentence and discontinuance of prosecution granted on account of the excessive length of proceedings do not in principle deprive the individual concerned of his status as a victim within the meaning of Article 25; they are to be taken into consideration solely for the purpose of assessing the extent of the damage he has allegedly suffered.

The court does not exclude the possibility that this general rule might be subject to an exception when the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention. In such circumstances to duplicate the domestic process with proceedings before the Commission and the court would hardly be compatible with the subsidiary character of the machinery of protection established by the Convention. The Convention leaves to each contracting State in the first place the task of securing the enjoyment of the rights and freedoms it enshrines."

16. The court then considered whether enough had been done by the courts in Germany to satisfy the requirement so expressed and held that it had not, principally because, as I read the judgment, there had never been any acknowledgement or finding that a breach of the Convention had occurred. It was argued to us that what was said in Eckle superseded, or at least took away from the force of, what had been said in X v Germany, and that as a result of Eckle the general rule was that redress in the form of a reduction of sentence or other compensation did not deprive the applicant of his status as a victim. It was submitted that that reading of Eckle was supported by Neubeck v. Germany DR 41,13 (1983) and S. v. Germany DR 35,213 (1983). In my view, that reading is not correct, although I acknowledge that the point may not be entirely free from doubt. It seems to me that in Eckle the court did acknowledge that a finding that there had been a breach of the Convention made by a domestic court could satisfy the requirements of the Convention. What was emphasised in these cases, it seems to me, was that any redress given must, if it is to be adequate, be given on the basis of a clear, preferably explicit, recognition that a breach of the Convention right has occurred. If, however, there is any doubt about the effect of Eckle, it is, in my view, resolved by the cases which follow. In any event, there is nothing in the judgment in Eckle to suggest that the court took the view that discontinuance or annulment of the proceedings was appropriate. That view is, I think, supported by what the Court said in a later judgment in the same case, in relation to the application of Article 50 (A65 (1983)). The Court said that the decision that the length of the proceedings was unreasonable did not:

"in any manner hold or imply that [the applicants] prosecution, conviction and imprisonment was also in breach of the Convention".

17. The third case is Bunkate v The Netherlands (1983) 19 E.H.R.R. 477. The relevant part of the judgment in that case begins at paragraph 24 where the court, having found that there had been a violation of Article 6(1), was dealing with a claim for pecuniary damages. The court recorded that the government had pointed out that the fact that a delay arose in hearing the case did not imply that the applicant was wrongly imprisoned and continued:

"25. The applicant's claims are based on the assumption that a finding by the court that a criminal charge was not decided within a reasonable time automatically results in the extinction of the right to execute the sentence and that consequently, if the sentence has already been executed when the court gives judgment, such execution becomes unlawful with retro-active effect. That assumption is, however, incorrect. The court is unable to discern any other basis for the claims and will therefore dismiss them."

That observation, in my view, is entirely consistent with what had been said in X v Germany and indicates that the court does not think that the occurrence of a breach necessarily prevents further proceedings or invalidates a criminal conviction.

18. The last case is Beck v Norway 26 June 2001. In that case, in paragraph 27 of its judgment, the court said:

"The question remains whether the applicant may continue to claim to be a victim of a violation of Article 6(1) of the Convention on the ground of the length of the criminal proceedings against him. In this regard, the court recalls that the mitigation of a sentence on the ground of the excessive length of proceedings does not in principle deprive the individual concerned of his status as a victim within the meaning of Article 34 of the Convention. However this general rule is subject to an exception when the national authorities have acknowledged in a sufficiently clear way the failure to observe the reasonable time requirement and have afforded redress by reducing the sentence in an express and measurable manner (see the Eckle v Germany judgment)."

That passage gives more point and detail to the rule expressed in Eckle by specifying that the redress must be given in an express and measurable manner. It is thus, in my view, clear from this as well as the other cases that annulment is not a necessary consequence of a breach of Article 6(1) in regard to reasonable time for the proceedings.

19. Three further arguments submitted on behalf of the appellant may be briefly noted at this point. Firstly, it was submitted that the reason why the European court did not hold that a trial conducted after the lapse of an excessive period of time was invalid as being per se a breach of the Convention right was that it was not considered appropriate to grant a separate and distinct remedy for such a breach. I am not sure that I understood what the basis for that argument was but, in any event, I do not find any support for it in the judgements in the cases above mentioned. Secondly, it was submitted that where proceedings extended beyond a reasonable time, the victim's convention right was breached on every day during which the proceedings continued and that the obligation of the state was to bring that situation to an end as quickly as possible, that is by discontinuing the proceedings. In that connection, it was submitted that it could never be sufficient for a state or a court to express a mere general intention to provide a remedy for a breach of the right, and reference was made to S. v. Germany DR 35, 213 (1983). It is no doubt true that there is , in a sense, a continuing breach in a case of excessive delay, until the matter is resolved in one way or another: but this argument seems to me to proceed on an assumption that discontinuance is the appropriate remedy, whereas that is the very question to be decided. Thirdly, it was submitted that there was a risk that, if the view taken by the judge were to stand, accused persons might be deterred from appealing against sentence by the fear that the sentence might be increased, and that that would amount to a denial of access to the courts. Again, I had some difficulty in appreciating the basis of this argument. The issue must, I think, be approached on the basis that whatever remedy is given in a particular case will be suitable and sufficient: if it is not, there will be no answer to a complaint of breach of the Convention right, and therefore I find it difficult to see what might deter an accused person from appealing against sentence.
20. Having considered the Convention jurisprudence, the judge, in his opinion, looked at the Scottish system for avoiding delay in criminal proceedings with a view to answering the question whether that system was compliant with the Convention requirements. Once again, it does not seem to me to be necessary to repeat what has been said in a number of the cases already considered in the courts and the Judicial Committee. The position is fully set out by the judge in the present case, as it was in the speeches in Watson v. Burrows. The Scottish system does provide extensive protection for accused persons against delay once criminal proceedings have been instituted. There is no such protection against delay in the formal institution of criminal proceedings but it has always been open to the court to discontinue criminal proceedings if it appeared that the accused could not get a fair trial because of delay. I agree with the judge's conclusion which is, broadly, that it might be necessary for the Scottish courts, in an appropriate case, to be prepared to make a formal acknowledgement that there had been a breach of Article 6(1) and to specify a remedy given for it if a case arose in which there was a violation of Article 6(1) by unreasonable delay but the delay was not such as to require discontinuance of the proceedings according to the established common law and statutory tests, . If that were done, so far as I can see, there would be no reason to doubt that if the system were duly and properly applied, it would be compatible with the Convention. I think further that such a system would come as near as any that can reasonably be devised to providing a fair balance between the different interests involved, as they have been discussed in the cases from Barker v Wingo onwards. It would also be, in broad terms, comparable with the position which has been found by the Court of Appeal to exist in England in Attourney General's Reference (No 2 of 2001), supra. That decision has been criticised, for example in an article by Alistair Webster in 2001 C.L.R. 786, along the lines that the right to a trial within a reasonable time is a "stand-alone" right and that the approach of the Court of Appeal does not give sufficient positive recognition to the Convention right. In the same article, doubts are expressed about what is described as the liking of the courts in the United Kingdom for a balancing approach. A similar argument was presented on behalf of the appellant in this case, it being submitted that the only true and effective protection for accused persons and the only real compulsitor on prosecutors to comply with the Convention requirements was the risk that proceedings would be stopped or annulled. I strongly disagree. It appears to me that for all the reasons already discussed the right to have proceedings concluded within a reasonable time is one which does require balancing of different interests and that the best way that that can be done is that the court should exercise a judgment, when necessary, according to the particular circumstances of the case. The appellant argued that the Convention itself was designed to balance the various interests and claims involved and that there was, therefore, no room for a further balancing exercise in the application of the provisions of the Convention. Again, I disagree, because it seems to me, for the reasons discussed earlier in this opinion, the application of the right to trial within a reasonable time does, because of the intrinsic nature of the right, require the various interests to be balanced according to the particular circumstances of the case. In considering this question, it respectfully appears to me that it makes little difference whether the right under the Convention is described as a separate and independent right or not. That is certainly important in considering whether it is necessary to show prejudice to the accused in order to establish a breach of the reasonable time requirement: and I see no reason to disagree with the view that it is not. The question of the effect of a breach on the future of the proceedings is, in my view, a different question, and depends on the content of the right and of any correlative obligation on the prosecutor and the court.
21. The next question, then, is whether the statutory basis upon which the Convention has been brought into the law of the United Kingdom requires some different result. I consider first the position under section 6(1) of the Human Rights Act, which applies in both jurisdictions. So far as England is concerned, of course, there has already been a decision on the point in Attorney General's Reference (No 2 of 2001), supra. As I have mentioned, however, that judgment has been criticised and one of the criticisms advanced is, I think, that the judgment does not directly discuss the Strasbourg jurisprudence or the terms of section 6. I have already dealt with the Strasbourg jurisprudence and, as I have said, it seems to me that the question can be approached on the basis that the Convention does not require that discontinuance of a prosecution or annulment of it should be the automatic remedy for a breach of the reasonable time requirement. Everyone would, I would think, accept, of course, that there are cases in which the only possible adequate remedy for some particular cases of excessive delay is discontinuance. It is accepted also, for the reasons I have already explained, that there are limits to the assistance derived from the European jurisprudence because the European Court never has to face up to the question whether a prosecution could be allowed to continue in the face of an existing breach of the reasonable time requirement established, for example, as in this case, before trial. It should not, of course, be forgotten that even if the Strasbourg jurisprudence does not require discontinuance as the only remedy for a breach, the legislator may have taken the view that it should be the only remedy as a matter of United Kingdom law. If, however, that view were taken one would not expect that the situation in Scotland would be different from the situation in England.
22. The operative provision of the Human Rights Act is section 6(1) which makes it unlawful for a public authority, including the court, to act in a way which is incompatible with the Convention rights of the accused. The question then is whether the court is acting "incompatibly" by allowing a prosecution to proceed after a reasonable time has expired and there is therefore apparently a breach of the Convention in existence at the time when the question is considered. There appear to be two possible approaches to the construction of the legislation. The first is to say that an action is "incompatible" with a Convention right if it involves any infringement of that right, however minor. The second is to say that an action is incompatible with a Convention right if the right is of such a character as to entitle the holder to require that it should not be taken at all. The position seems to be that in the earlier attempts to apply the Convention right to trial within a reasonable time, it has been assumed that the former is the correct approach. That assumption appears, in my view, in the first case in which the question arose in Scotland, H.M.A. v. Little 1999 S.C.C.R. 625 (see the last two paragraphs of Lord Kingarth's opinion). The second interpretation, which is that mentioned in the speeches of Lord Hutton and Lord Millett in Watson v. Burrows above cited, does not appear to have come to the surface until H.M.A. v. Mills. The assumption that the first interpretation was correct was perhaps natural: but once the assumption is challenged, in my view, it is not difficult to see that it is not necessarily sound. How, then, are we to decide which view is correct? As a pure question of language, I think that either is possible. The consideration which seems to me decisive is that the object of the Human Rights Act is to give effect to the Convention, not to extend it. It seems clear enough that if the first interpretation was preferred, it would give the provisions of Article 6 an effect in the United Kingdom which they do not have, according to the jurisprudence of the European court, elsewhere in the states parties to the Convention. That, combined with the fact that the second interpretation permits questions of delay to be dealt with in a manner which seems to me sensible and practical, is, in my view, sufficient to show that the second interpretation should be preferred.
23. If we then turn to the Scotland Act, it seems to me that section 57(2) poses exactly the same problem of interpretation. If it is possible to interpret section 6(1) of the Human Rights Act in the way indicated above, the same should be true in relation to section 57(2). In both cases, the question is whether what is done is incompatible with Convention rights. For this purpose, the fact that section 57(2) is expressed in terms of vires while section 6(1) uses the term unlawful seems to me to make no significant difference. In the one case, the statute says that action contrary to the convention right should not, or must not, be taken: in the other that it cannot. In regard to both, the question in this case is whether continuing with a prosecution is necessarily incompatible with the Convention right, and in both cases, for the reasons already given, I think that it is not.
24. I think that the view which I have expressed is consistent with the analysis by Lord Hoffmann, in Montgomery & Coulter v. H.M.A. supra, to the effect that it is the process or criminal proceedings as a whole which do or do not contravene Article 6. The Convention jurisprudence does not assist in this respect since the European court is not concerned with making distinctions between the actions of organs of the member State. As a simple matter of language, however, the word "incompatible" means that two things cannot stand together. However a conviction and a breach of the reasonable time requirement can stand together as the passages quoted above from Eckle show, provided certain quite stringent conditions are fulfilled. It is also consistent with the point made by Lord Reed in this case that it is the length of the proceedings, not the proceedings themselves which contravenes Article 6(1). It respectfully appears to me that these are different ways of expressing the same understanding of the effect of the reasonable time requirement.
25. In the course of the argument, it was suggested that the reference to "acts" of the Lord Advocate in section 57(2) might be read as limited to legislative or administrative acts, such as the making of orders or regulations, which might be regarded as comparable to legislation or as having some legal effect of their own force. An example might be the decision of a planning appeal. However, although that approach has some attraction, it will not, in my view, do for the reasons set out by Lord Penrose in HMA v Robb 2000 J.C. 127 and repeated in later cases. Such an interpretation is not compatible in my view with the terms of section 57(3).
26. In the course of the debate, there was also reference to what has been called the constitutional argument. As is explained in an article by Iain Jameson in 2001 S.L.T. (News) 43, the object of section 57 was to ensure that Scottish Ministers were "prevented by a vires control from ever exercising any function incompatibly with E.C.H.R.". In the argument for the Advocate General, it was explained that that approach was considered necessary because the United Kingdom, as the state party to the Convention, bore the international responsibility for its observance, and that it was therefore necessary that the United Kingdom government should be in a position to control the exercise of devolved power to ensure observance of the Convention. The form of the legislation gives rise to a group of problems, including the question what is a devolution issue for the purposes of the Scotland Act and what remedy is available for a breach of a Convention right. These problems have been discussed in previous cases, notably by Lord Hope of Craighead. In my opinion, however, this line of argument is, in my view, of no real assistance when one is attempting to consider what action does give rise to incompatibility with the Convention and what the consequences of, and remedies available are when, as in this case, a breach of the Convention has actually occurred.
27. In my opinion, the judge in the present case approached the question before him correctly and reached the correct result. I also agree that the delay in proceeding with the two material charges, although regrettable and unexplained, was not such as to require that those charges should not proceed. This appeal should, therefore, be refused.
R v. Her Majesty's Advocate & Anor [2002] ScotHC 67 (31 May 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Coulsfield Lord Cameron of Lochbroom Lord Caplan	Appeal No: 817/01 OPINION OF LORD CAPLAN in NOTE OF APPEAL in terms of section 7(4) of the Criminal Procedure (Scotland) Act 1995 by "R" Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Bovey, Q.C., Blair; Balfour & Manson (for Grigor Young, Elgin)

Respondent: Davidson, Q.C., Howlin; Crown Agent:

Advocate General, Mrs S. Wolffe

31 May 2002

28. The underlying facts in this case are set out in the opinion of your Lordship in the Chair. I am in agreement with the conclusions arrived at by your Lordship and by Lord Cameron of Lochbroom. The appellant seeks to have two charges dismissed from the indictment in consequence of what are alleged to be breaches of Article 6(1) of the Convention. The appellant contends that the pending prosecution relating to the two charges in question is unlawful, since the proceedings would violate Article 6 of the Convention as now incorporated into our law by the Human Rights Act 1998. In addition, by raising and pursuing the prosecution, the Lord Advocate is acting in a manner incompatible with the Convention which the said statute prohibits him from doing. Article 6(1) of the Convention provides that

"In the determination of his civil rights and obligations or of any criminal charges against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".

The element of the said right which is significant for the present appeal is a provision that a person is entitled to have any criminal charge against him determined by a hearing "within a reasonable time". As your Lordship in the Chair has set out, as a result of certain delays which have not been explained by the Crown, there was delay in commencing this prosecution. Indeed a period in excess of 5 years passed before the relative petition on the accused was served. It is not disputed by the Crown that this period of delay had the result that the prosecution was not determined within "a reasonable time". There is little doubt that in this case the delay provision in Article 6(1) of the Convention has been violated and the issue in the appeal is what are the practical implications of such violation, particularly in relation to the continuation or discontinuance of the prosecution of the said critical charges.

29. Article 6(1) is in a general sense concerned with ensuring that an accused has a fair hearing and there are four distinct features of his entitlement. Firstly there must be a fair hearing. Secondly the hearing must be in public - that is to say not in secret. Thirdly, the determination of the prosecution must be arrived at within a reasonable time, and fourthly the hearing must be before an independent and impartial tribunal established by law. It is important to regard these rights conferred by the Convention as separate and freestanding. This view is supported by Watson & Burrows v. H.M. Advocate PC DRA 1/2001 (29/1/2001) per Lord Hope of Craighead at paragraph 73 and indeed is consistent with the observations of other judges in that case. Certainly Lord Hope is dealing with the fact that a person is entitled to the protection of each element of the right independently and not merely entitled to benefit from a balance of the rights. However, his approach would be consistent with the view that the court would have to give separate consideration to the implication of the breach of each right violated.
30. Article 6(1) of the Convention confers rights on the persons whom it intends to be protected by it. However, it does not provide specifically for the enforcement of such rights. The contracting parties are obliged by law to take such steps as are necessary to secure the observance of each right and there are certain opportunities for redress available in respect of those who become victims of abuse of Convention rights (see Articles 1 and 41 of the Convention).
31. In relation to the matters covered by Article 6(1), and "fair trial" in particular, our law offered substantial power and protection before the Human Rights legislation. Thus, there were a number of time limitations which in terms of international standards offered notable protection. However, the overriding factor was that a failure to provide a fair trial would justify a plea in bar of trial. The right to advance such a plea was not restrictively defined but generally any matter which was fundamentally antagonistic to a fair and just trial would support a plea in bar of trial. If a trial proceeded and it emerged that the proceedings were not fair the conviction would be quashed. Sometimes the route of a plea in bar of trial was that a fair resolution of the proceedings was impossible as might be the case, for example, where the accused was a young child and could not instruct a defence. On the other hand, there are many situations where it may have been possible to achieve a satisfactory determination of a prosecution but, for example, in accordance with the principle that justice has to be seen to be done it has to be assumed that a conviction would be unsafe or that the accused could not in the circumstances of the situation be confident that his trial was just and fair. In this regard three of the four elements I have been discussing in relation to Article 6(1) would, if they arose, be regarded as requiring the quashing of a sentence or the discontinuance of a trial. The right to a fair trial is illustrative of this and the person tried in circumstances which raised a doubt about the fundamental fairness of a trial would be protected from trial. It is also fundamental justice that a trial should be in public and not in secret so that barring exceptional circumstances a trial where the public had been improperly excluded would have a consequential conviction quashed, or indeed would, if possible, be prevented from taking place. The question of an impartial tribunal would also be regarded as being fundamental to a fair trial. Thus regarding these situations which can be considered as absolutely fundamental to fair trial our courts would, quite apart from the Convention, intervene to secure the discontinuance of a trial.
32. In relation to delay in proceedings the position is different. Apart from the prescribed time limitations mere delay in proceedings has never automatically given right to discontinuance of a trial or quashing of a conviction. That is not to say that certain degrees of delay and certain circumstances will not result in proceedings being discontinued or quashed. In certain circumstances there could be an overlap between the delay factor and the fair trial factor in Article 6(1). Thus, for example, if the availability or quality of the evidence was affected by unjustified delay that may render the continuance of the proceedings contrary to the standards of fair trial; or a period of delay could be so exorbitant that it would be considered unfair to expose a person to trial. The delay, for example, might be such that a person would inevitably have organised his life on the basis that there would be no trial. There are clearly circumstances where it could be said that given the whole background it would be manifestly unfair to submit an accused to trial after the passage of a significant time, particularly if the Crown was culpable in respect of the delay. However, the important conclusion is that before the Convention, if it were possible for an accused to claim that the delay prevented a fair trial he could have applied to the court to prevent the prosecution proceeding. On the other hand, an accused would have no absolute right to prevent further proceedings and there could be circumstances where continuing proceedings would not cause prejudice to the accused on account of delay. In the present case the appellant argued that given the Convention to allow proceedings to continue would be toleration by the court of an unlawful act. I shall deal with that contention but can say at this stage that if independently of Convention Law the court were to allow the present trial to continue it is not failing to respond to an unlawful act given that delay had caused no consequential unfairness or prejudice so that there was nothing to bar the court allowing proceedings to continue.
33. The important question therefore is what effect does Strasbourg Law have on the fact that in the present case there apparently was delay which extended beyond reasonable time. It is clear from the Convention in Strasbourg case law that the appellant has a right to have his case determined within a reasonable time. It is likewise clear that if his right is violated he will be entitled to seek redress. However, nowhere in the Convention or in the existing Strasbourg Law has it been laid down that breaking of the time qualification in the Convention will give rise to an absolute right to have further procedures barred. The point is that the right to a timeous trial is a feature of the Convention itself. The meaning of the Convention rights which emerged from Article 6(1) flow from the Convention and the body of law that has resulted relative to the applicable provisions. The domestic court may look to its own provisions to determine how the Convention rights should in practice be enforced but the jurisprudence governing the interpretation of the Convention provisions will arise from scrutiny of the Strasbourg Law. The Strasbourg Law relevant to the precise issues in this case depends on few enough authorities, but, in my view there are some clearly recognised principles that these authorities have endorsed. Thus reference may be made to X v. Germany, Eckle v. Germany, Bukate v. The Netherlands, and Beck v. Norway. These cases have been analysed by your Lordship in the Chair and I agree with the conclusions. It is clear in my view that discontinuance of the proceedings, while a possible remedy for a violation of the convention right regarding delay, may not be the only remedy available to the victim. Reduction of sentence relative to time loss suffered or pecuniary compensation may in appropriate cases offer significant redress when coupled with acknowledgement that there has been a violation of the Convention. If the Convention as it has been interpreted and applied by the relevant authorities is held to involve automatic discontinuance in the event of it emerging that time has passed before trial which is not reasonable, then of course there would be merit in the argument for the appellant that the court could not countenance the continuation of proceedings once it emerged that an unreasonable delay had been established. However, if an absolute right to discontinuance of further proceedings is not under Strasbourg Law an inevitable consequence of unreasonable delay it is difficult to see from what factor such a right emerges. Certainly, as I have opined, not from the common law.
34. The appellant sought to draw a distinction between remedies that might be available after the determination had been arrived at and the situation where the right to a timeous hearing is shown to have been breached before proceedings were concluded. It was said that the existing Strasbourg Law is related only to cases where the proceedings have already been concluded before a breach of the time guarantee becomes apparent. If the proceedings are still not concluded it is said that it is the duty of the court not to allow the perpetration of an unlawful act while there is still the opportunity to avoid this. However, I find it difficult to differentiate between pre-trial remedies and post-trial remedies. If, after trial, a breach of the time guarantee can be wholly redressed by remedies alternative to discontinuance, why should it be possible to accept the result of a trial after a hearing has been concluded but require to discontinue proceedings if the time-bar issue is raised before determination of the result of the trial. Under our domestic law circumstances exist which would justify a plea in bar of trial on the ground of unfairness and even if proceedings had in fact been concluded the results would not continue to stand if secured on the basis of tainted proceedings. To hold otherwise might possibly provide a neat and convenient distinction but is difficult to justify in terms of our established jurisprudence.
35. In contradistinction to the Strasbourg cases there is the Commonwealth jurisprudence which has been set out, particularly in Watson & Burrows. The judges in Watson & Burrows seem to regard these Commonwealth cases with some reservation in relation to their significance for a case such as this which is covered by Strasbourg jurisprudence and where the cases in respect of their facts each differ considerably from the present case. Like your Lordship in the Chair I do not think that any crucial assistance can be derived from the Commonwealth cases.
36. Consideration must also be given to the appellants constitutional objection to the Crown position and particularly the argument founded on section 57(2) of the Human Rights Act. Questions of course arise as to what constitutes an "act" by the Lord Advocate in relation to criminal proceedings. However, in any event, the central condition in my view is whether or not the court is obliged to discontinue the proceedings because the appellant has been deprived of his right to have his case determined within a reasonable time. If, as I have reasoned above, the court has the option to conclude that the breach of the time guarantee does not deprive the appellant of a fair trial should, proceedings continue, and that there would be no essential unfairness in allowing such a trial subject to alternative redress, then I find it difficult to see why the Lord Advocate's decision to continue the trial would be an act incompatible with the Convention rights of the appellant. If the court concludes that in all the circumstances redress can be conferred without discontinuance of proceedings, then it can hardly be said that a decision by the Lord Advocate to continue the prosecution offends against the Convention. The rights afforded by the Convention in respect of a timeous trial are qualified in that they are to be regarded as only giving rise to a certain range of redress. The mere statement of a Convention right is hollow and it is the practical effect of the existence of the right which is significant. Thus even if the position were that the decision to pursue the prosecution is an "act" it is difficult to conclude that the Lord Advocate acts unlawfully if his actings are perfectly consistent with the substance of the Convention right. The compatibility of the Lord Advocate's acting in relation to the time guarantee must be linked to the method of redress arising from any breach of the Convention. The views I have been expressing on this particular matter get support from Lord Millet in Watson & Burrows (paragraph 132).
37. I consider that the judge in the present case has reached the correct conclusions and I would dismiss the appeal.