Attorney General's Reference (No. 2 of 2001); R v J
| Jurisdiction | England & Wales |
| Judge | the Criminal Justice Act 1972 |
| Judgment Date | 02 July 2001 |
| Neutral Citation | [2001] EWCA Crim 1568 |
| Date | 02 July 2001 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2001/02780/S4 |
[2001] EWCA Crim 1568
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
The Lord Chief Justice of England and Wales
(The Lord Woolf of Barnes)
Mr Justice Wright and
Mr Justice Grigson
Attorney General's Under Section 36 of
No. 2001/02780/S4
REFERENCE No. 2 of 2001
MR DAVID PERRY and MR ROBIN McCOUBREY appeared on behalf of THE ATTORNEY GENERAL
MR T WATSON appeared on behalf of THE ACQUITTED OFFENDER
Monday 2 July 2001
THE LORD CHIEF JUSTICE: The Attorney General applies under section 36 of the Criminal Justice Act 1972Criminal Justice Act 1972 to refer two points of law for the opinion of this court. The application arises out of a decision of His Honour Judge Hewitt sitting in the Crown Court at Newcastle on 31 January 2001 when he decided that an indictment against the seven defendants should be stayed on the ground that there had been a breach of Article 6(1) of the European Convention for the Protection of Fundamental Rights and Freedoms due to the delay which had taken place in the proposed trial of the defendants.
The two points on which the Attorney General seeks the opinion of the court are identified in these terms:
"(i) Whether criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in Article 6(1) of the European Convention for the Protection of Fundamental Rights and Freedoms ('the Convention') in circumstances where the accused cannot demonstrate any prejudice arising from the delay.
(ii) In the determination of whether, for the purposes of Article 6(1) of the Convention, a criminal charge has been heard within a reasonable time, when does the relevant time period commence?"
The facts giving rise to the references can be summarised very shortly and are not contentious. A serious disturbance took place in a prison on 26 April 1998. As a result, a large number of the inmates were interviewed in connection with the disturbance on 9 June and 1 July 1998. Subsequently paperwork was submitted to the Crown Prosecution Service on 27 July 1998.
Informations were laid against the seven prisoners on 11 February 2000. Of those who were interviewed on the dates to which we have referred, some were the subject of no action of any sort. Others were subject to disciplinary proceedings within the prison. The seven defendants to whom we have referred were singled out as being appropriate persons to be prosecuted.
The matter came before the trial judge on 31 January 2001. He came to the conclusion that the delay, which he calculated from the time that the defendants were interviewed in July 1998 until 11 February 2000 when they were summonsed, was a period of unreasonable delay. He concluded that it was appropriate to stay the charges against the seven defendants.
The Attorney General has been influenced in referring the matter to this court under section 36 by the fact that there have been a number of cases where courts up and down the country are having difficulties as to the appropriate steps to take when they come to the conclusion that there has been unreasonable delay.
The terms of Article 6 are well-known. Article 6(1) deals with the right to a fair trial. It 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…."
The two points of law are set out as two questions. The first question deals with the remedy where there has been a violation, and the second question deals with the commencement date for the computation of the time which has lapsed so as to ascertain whether or not a reasonable time has passed. It is convenient, as was pointed out by Wright J in the course of argument, to take the second question which was fundamental to the judge's decision in this particular case first.
The meaning of the word "charge" is well-known within this jurisdiction. However, for the purpose of considering what amounts to "charging" someone for the purpose of the reasonable time requirement in Article 6(1) it is necessary to bear in mind that as the Convention applies to a number of jurisdictions and the meaning of "charge" in Article 6(1) may not necessarily correspond with our domestic approach to the charging of a criminal offence. For that reason Mr Perry, who has appeared on behalf of the Attorney General, has referred us to a number of authorities. He did so with great skill and rapidity, but for the purposes of this judgment it is unnecessary to subject those authorities to a detailed and critical analysis. It appears to us that the message which the jurisprudence in Strasbourg gives is clear and accords with what would be expected.
The jurisprudence does not confine a charge for the purpose of Article 6 to precisely the circumstances which we would regard in this jurisdiction as amounting to a charge. However, in the great majority of situations the date that a defendant is charged (in the sense we use that term in our domestic jurisprudence) will provide the answer. Ordinarily therefore the commencement of the computation in determining whether a reasonable time has elapsed will start with either a defendant being charged or being served with a summons as a result of an information being laid before the magistrates.
There will, however, be situations where a broader approach is required to be adopted in order to give full effect to the rights preserved by Article 6(1) of the Convention. Mr Perry put the matter as follows. For the purposes of that Article there could be a period prior to a person formally being charged under English law if the situation was one where the accused has been substantially affected by the actions of a state so as a matter of substance to be in no different position from a person who has been charged. The importance of the approach that Mr Perry concedes the court has to adopt is that it takes account of the fact that there may be some stage prior to an accused being formally charged in accordance with our domestic law where, as a result of the actions of a state linked to an investigation, when he has been materially prejudiced in his position. In support of that approach we were referred to Deweer v Belgium (1980) 2 EHRR 439, in which a Belgian butcher was alleged to have committed an offence of selling meat at an illegal profit. The public prosecutor ordered the provisional closure of the applicant's shop either until judgment was given in the intended prosecution of the applicant or until he paid an agreed fine by way of settlement. At page 440 of the report the court decided:
"(a) "Criminal charge' is an "autonomous' concept which must be understood within the meaning of the Convention.
(b) The term has a "substantive' rather than a "formal' meaning.
(c) On the facts, the Court held the proceedings against the applicant had constituted a "criminal charge' which could be defined as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence'."
The Court's approach is reflected by paragraph 46 of their judgment where they said this:
"There accordingly exists a combination of concordant factors conclusively demonstrating that the case has a criminal character under the Convention. The "charge' could, for the purposes of Article 6(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'."
The approach that we have indicated to the question of when a person is charged is important in relation to what was contended before the judge in this case. It was contended before the judge that there had taken place an interrogation of the defendant and it was said that this constituted the charge. We disagree with that view. In the ordinary way an interrogation or an interview of a suspect by itself does not amount to a charging of that suspect for the purpose of the reasonable time requirement in Article 6(1) . We do not consider it would be helpful to seek to try and identify all the circumstances where it would be possible to say that a charging has taken place for the purpose of Article 6(1), although there has been no formal charge. We feel that the approach indicated by the authority that we have cited clearly expresses the position and we are content to leave the matter in that way. However, if greater assistance is needed there is authority to which we could turn, although we do not think it necessary to lengthen this judgment by doing so. We have in mind the cases of Corigliano v Italy (1982) 5 EHRR 334, Eckle v Germany (1982) 5 EHRR 1 and Foti v Italy (1982) 5 EHRR 313.
On the facts of this case, because the defendants were already inmates serving a sentence, there may be sufficient circumstances because of what happened to them in prison for saying that they were in a position where the consequences of the interrogation which took place singled them out for special treatment which would lay a foundation for an argument that the charging followed upon the interrogation without the necessity for them to have been given notice of the fact that they were summonsed to the appropriate magistrates' court. However, whether that is so or not we cannot say as the judge did not have any evidence as to this. If there were sufficient facts,...
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