Attorney General's Reference (No. 2 of 2001); R v J

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date11 December 2003
Neutral Citation[2003] UKHL 68

[2003] UKHL 68



My Lords,


In exercise of his power under section 36 of the Criminal Justice Act 1972 the Attorney General referred to the Court of Appeal two points of law on which he desired the opinion of that court. The points were these:

"(1) 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.

(2) 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 first of these points raises a specific issue on the interpretation and application of the Human Rights Act 1998 and article 6 of the Convention, but also a more general issue which has given rise to difficulties and differences of opinion not only in the United Kingdom but in other jurisdictions around the world. These are important issues, on which compelling arguments to contrary effect can be, and have been, advanced. The second point raises an issue of less general importance but of practical significance to judges called upon to rule whether the reasonable time requirement has been breached.


The acquittal which entitled and prompted the Attorney General to exercise his power under section 36 came about in the following way. On 26 April 1998 there was a serious disturbance in an English prison. Thirty-two prison inmates barricaded themselves in an association room and caused some considerable damage to property. Prison officers were sent into the room to clear the barricades and regain control of the area. The inmates resisted the officers and there was considerable violence before order was restored. An investigation into the incident began on the following day, 27 April 1998. Potential defendants were interviewed by the police between 9 June and 1 July 1998. The police submitted their paperwork to the Crown Prosecution Service for advice on 27 July 1998. On 11 February 2000 informations were laid against 7 prisoners, one of them the defendant who has in this reference been called "the acquitted person". On 16 June 2000 the defendants were committed for trial in the Crown Court, where they were charged in an indictment containing a single count of violent disorder contrary to section 2(1) of the Public Order Act 1986. Trial in the Crown Court was fixed to begin on 29 January 2001. When the matter came before the court, counsel for the defendants (including the acquitted person) submitted to the trial judge that the delay in bringing the charge against the defendants to trial had been such that to proceed with the trial would be to act in a way incompatible with article 6 of the Convention. The judge accepted this argument and on 31 January 2001 ordered that the proceedings against the defendants should be stayed. On 14 March 2001 the trial judge lifted the stay: the prosecution offered no evidence and the defendants were acquitted.


The Court of Appeal (Lord Woolf CJ, Wright and Grigson JJ) gave judgment on this reference on 2 July 2001: [2001] EWCA Crim 1568; [2001] 1 WLR 1869. It did not approve the trial judge's ruling on either of the points of law on which its opinion had been sought. On the first point, the Court of Appeal accepted (p 1876, para 21) that a stay would have to be imposed if a fair trial were not possible and would be appropriate if it would be unfair to try the accused at all. Such cases apart, however, a stay would not normally be appropriate although there might be circumstances in which, notwithstanding the absence of prejudice, it would (p 1878, para 24). Ordinarily, a remedy for breach of the reasonable time requirement could and should be afforded by some means (a declaration, a reduction of sentence or compensation) falling short of a stay (p 1876, para 20). On the second point raised by the Attorney General the Court of Appeal was of opinion that the relevant time period would ordinarily commence when the defendant was charged or served with a summons as a result of an information being laid before justices (p 1872, para 10). There might however be situations in which an accused might be substantially affected or materially prejudiced by the action of the state at an earlier date, in which case the period might commence before charge or summons (pp 1872-1873, paras 11-12). Following the decision of the Judicial Committee of the Privy Council in Dyer v Watson [2002] UKPC D1, [2002] 3 WLR 1488, the Court of Appeal referred the points raised by the Attorney General to the House, on the application of the acquitted person, under section 36(3) of the 1972 Act.


In argument before the House, Mr David Perry, for the Attorney General, supported the Court of Appeal's ruling on the first point referred by the Attorney General. Mr Ben Emmerson QC, for the acquitted person, did not maintain the argument advanced below, and accepted by the trial judge, that breach of the reasonable time requirement must necessarily lead to a stay of proceedings. Instead, he contended for a more flexible approach. Where the effect of delay or the conduct of the executive is such as to render continuation of the proceedings an abuse of the process of the court, then a stay of the proceedings must be ordered. Otherwise, the court must grant such remedy as is proportionate to the demonstrated breach of the reasonable time requirement. In some cases a stay may be the proportionate remedy, in others it will not. At the request of the House, following the majority decision of the Privy Council in HM Advocate v R [2002] UKPC D3, [2003] 2 WLR 317, an amicus was instructed by the Solicitor General to advance the argument that continuation of a criminal prosecution after the lapse of a reasonable time is unlawful and thus requires a stay of further proceedings.


On the second point referred by the Attorney General, counsel on his behalf broadly supported the Court of Appeal's ruling, while seeking further clarity if such could be achieved consistently with the Strasbourg jurisprudence. For the acquitted person it was argued that the relevant time period would ordinarily commence with an arrest or detention of a suspect for the purposes of interrogation. The amicus was not invited to address this point.

Article 6(1) of the Convention


Article 6 of the Convention is headed "Right to a fair trial". Only the first paragraph is directly relevant to this reference. 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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

The Human Rights Act 1998


Section 6(1) of the 1998 Act lies at the heart of this reference. It provides that

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

The expression "public authority" is defined in subsection (3) to include a court. It also includes a public prosecutor. Under the definition in section 1(1) of the Act, the right guaranteed by article 6(1) is a "Convention right". "Incompatible" is not defined but bears its ordinary meaning of "inconsistent". Subject to immaterial qualifications, an act includes a failure to act (section 6 (6)).


A victim of any unlawful act, or proposed unlawful act, of a public authority may rely on his Convention right in any legal proceedings. Section 8 of the Act is headed "Judicial remedies" and provides, so far as material:

"(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including -

  • (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and

  • (b) the consequences of any decision (of that or any other court) in respect of that act,

the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

(4) In determining -

  • (a) whether to award damages, or

  • (b) the amount of an award,

the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention."

"Damages" is defined in subsection (6) to mean "damages for an unlawful act of a public authority" and "unlawful" to mean "unlawful under section 6(1)". Section 9 governs the right of redress where the unlawful, or allegedly unlawful, act is a judicial act of a court.

The first point of law


The importance of the issues raised by the Attorney General's first point of law calls for a return to first principles and the restatement of some...

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