Burns v HM Advocate
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead,Lord Rodger of Earlsferry,Lord Walker of Gestingthorpe,Lord Neuberger of Abbostbury,Lady Cosgrove |
| Judgment Date | 15 December 2008 |
| Neutral Citation | [2008] UKPC 63 |
| Court | Privy Council |
| Date | 15 December 2008 |
| Docket Number | Appeal No 13 of 2008,No 2 |
[2008] UKPC 63
Privy Council
Present at the hearing:-
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Neuberger of Abbotsbury
Lady Cosgrove
I have had the advantage of reading in draft the opinions of Lord Rodger of Earlsferry and Lady Cosgrove. I entirely agree with them. For the reasons they give I would allow the appeal, recall the sheriff's order and remit to the sheriff to proceed as accords.
This appeal concerns the application of the article 6(1) guarantee of a fair trial within a reasonable time to the situation where an accused, who was originally arrested, interviewed and released on bail in England in February 2003, appeared on petition in relation to the same matter in Scotland in December 2004 and has been indicted to stand trial in Scotland. Does the time run from February 2003, as the appellant argues, or from December 2004, as the Crown argues and the courts below have held?
In January 2003 the United States authorities arrested an American male and charged him with crossing a State boundary with the intention of engaging in sexual activity with a 13 year old girl. They recovered and examined certain computer equipment belonging to the man. This suggested that he was a member of an online paedophile group with a significant worldwide membership. Another member of the group appeared to be an individual who used the name "Kuna" and had given a Glasgow telephone number on the website. As part of the investigation of the group, the United States authorities contacted the National Hi-Tech Crime Unit ("the Hi Tech Unit") based in London. The unit specialised in crimes involving the use of computers. Two officers from the unit travelled to Denver and there carried out a further analysis of the information. On their return to London, they continued their investigation of various matters, including the identity of "Kuna". Since the telephone number on the website related to the appellant's home in Glasgow, the officers of the Hi Tech Unit suspected that "Kuna" was the appellant. Enquiries revealed that from time to time he stayed with his sister in Luton.
Officers of the Hi Tech Unit contacted officers of Strathclyde Police, whose area includes Glasgow. The Advocate Depute accepted that there was a considerable degree of co-operation between the English and Scottish officers. By 10 February 2003 DC Stephen Adams, of the Hi Tech Unit, had obtained, from a magistrate in Carlisle, a warrant under the Protection of Children Act 1978 to search the appellant's house in Glasgow. On 14 February 2003 the warrant was backed by a sheriff at Glasgow, who authorised DC Adams and all constables of Strathclyde Police to serve and execute the warrant. The assumption is that a representative of the Procurator Fiscal's Office in Glasgow would have been involved in the application to the sheriff to back the warrant.
At about 12.25 pm on 18 February 2003 the appellant was arrested at a service station in Luton. The stated basis for his arrest was "conspiracy to distribute child pornography". He was cautioned and made no reply. His sister's house in Luton was searched. Simultaneously, the warrant for the search of the appellant's home in Glasgow was executed. DC Adams and other officers seized and examined a computer, with an internet connection, which they found there. By 19 February information about the results of the examination of the computer had been passed to officers of the Hi Tech Unit who were to interview the appellant in Luton Police Station. The appellant was interviewed, in the presence of a solicitor, on four separate occasions, starting at 2.47 pm on 19 February and ending at 8.21 pm the same day.
Towards the end of the last of these interviews DS Paul Wright of the Hi Tech Unit said this to the appellant:
"Now once this interview finishes a final decision will be made as to what happens. I don't see it changing from what I've already mentioned to your legal representative. And what I'm going to recommend to the Custody Sergeant is that you be bailed from here, because I don't know which jurisdiction to charge you in. Yeah. I will be recommending that you are charged with offences in the future and they will either be in England and Wales or in Scotland. And, unless circumstances change drastically, I don't see you having another opportunity in relation to these offences, which is conspiracy to distribute, yeah, being made available to you. You fully understand the consequences?"
The appellant had, of course, been cautioned - in accordance with the proper English procedure - that it might harm his defence if he relied in court on something which he had not mentioned when questioned. As can be seen from the transcript of the interviews, the appellant said relatively little in reply to questions. So in this passage DS Wright was, in effect, warning him that he was not going to have a further opportunity to give any explanation in reply to the allegations.
DC Shaun Reardon, the other officer present at this interview, then warned the appellant against interfering with witnesses. In the course of doing so, he said to the appellant that "the two that I've just mentioned, certainly there's sufficient evidence in my mind ready to charge and remand in custody." After that, the appellant agreed to authorise the police to access his bank accounts and his credit card details. He was told that enquiries would continue to see whether he had done anything for financial gain.
The appellant was released on police bail that same evening. It is common ground that, at that date, the Lord Advocate was unaware both of the appellant's arrest and of the interviews.
The officers of the Hi Tech Unit subsequently consulted the Crown Prosecution Service, which advised that the Scottish courts had jurisdiction. The papers were passed to Strathclyde Police who made an initial report to the procurator fiscal in October 2003. A full report was made a year later, in October 2004. On 3 November 2004 a warrant for the appellant's arrest was granted by a sheriff at Glasgow, on a petition at the instance of the procurator fiscal. By invitation, the appellant appeared in answer to the warrant on 17 December 2004. He was committed for further examination and released on bail.
An indictment was subsequently prepared and served on the appellant, but it was deserted pro loco et tempore for reasons associated with the preparation of the defence. The same happened with two further indictments. With the agreement of the defence, extensions of the twelve-month period for bringing the case to trial were granted. Eventually, the appellant was served with the present (fourth) indictment, with a first diet on 21 May 2007 and a trial diet in Glasgow Sheriff Court on 4 June 2007. The trial diet was subsequently adjourned.
In terms of that indictment the appellant is to stand trial at Glasgow Sheriff Court on five charges under the Civic Government (Scotland) Act 1982 and one common law charge, all relating to photographs or pseudo-photographs of children. In each case the locus is the appellant's home in Glasgow. Charge 1 relates to the simple possession of this material on 18 February 2003. Charge 4 relates to possession with a view to the material being distributed or shown to others, also on 18 February 2003. The three remaining statutory charges cover the period from 1 January 2000 to 18 February 2003. Charge 2 relates to the taking or making of indecent photographs or pseudo-photographs of children; charge 3 to distributing or showing such material. Charge 5 relates to publishing an advertisement likely to be understood as conveying that the advertiser distributes or shows, or intends to distribute or show, such material. Charge 6 is a common law charge of breach of the peace. More specifically, the allegation is that the appellant did "by means of communications over the internet, encourage others to commit indecent acts with children and distribute images depicting said indecent acts by means of the internet…."
The appellant lodged a devolution minute to the effect that, because of delays on their part, by bringing the appellant to trial the Crown would be acting incompatibly with his article 6(1) Convention right to a fair and public hearing within a reasonable time. At the hearing before Sheriff Mitchell counsel for the appellant contended that, for purposes of article 6(1), time had begun to run when the appellant was "charged" on 18 February 2003, while the procurator fiscal submitted that the starting point was 17 December 2004 when the appellant first appeared in answer to the charges brought by the competent authority in Scotland.
In a judgment dated 22 June 2007 Sheriff Mitchell upheld the argument for the Crown and refused the minute. He granted leave to appeal to the High Court. On 22 November 2007 the High Court (the Lord Justice General (Lord Hamilton), Lord Nimmo Smith and Lord Wheatley) dismissed the appellant's appeal on substantially the same basis. On 18 April 2008 the Board granted the appellant special leave to appeal.
So far as relevant for present purposes, article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 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…."
In Eckle v Federal Republic of Germany (1982) 5 EHRR 1, 27, para 73, the European Court of Human Rights observed:
"In criminal matters, the...
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