Dyer v Watson and Another; HM Advocate v K
 UKPC D1
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
DRA. No. 1 of 2001
DRA. No. 2 of 2001
THE HIGH COURT OF JUSTICIARY SCOTLAND
Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides:
"In the determination … 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 …"
These appeals turn on the four words which I have emphasised, to which I shall refer (in the context of article 6(1)) as "the reasonable time requirement". In both cases under appeal the Appeal Court of the High Court of Justiciary held that the prosecuting authorities had failed to comply with the reasonable time requirement. The question for determination by the Board in each case is whether the Appeal Court was right so to hold. It is common ground that by virtue of section 57(2) of and paragraph 1(d) of Part I of Schedule 6 to the Scotland Act 1998 an appeal lies to the Board under paragraph 13 of that schedule.
Mr Watson and Mr Burrows
Mr Watson and Mr Burrows are police officers. On 3 and 14 April 1998 they gave evidence at a trial in the sheriff court at Linlithgow. At that trial the accused was charged with offences against public order in April 1996, including an act of vandalism said to have been committed at a food takeaway. The officers testified that they had not taken the accused and another to the takeaway for purposes of identification. When the trial ended on 22 April 1998 the sheriff in open court expressed the opinion that the officers had committed perjury. This statement received wide publicity in the press at the time.
The procedure for investigating complaints against the police in Scotland is laid down in the Book of Regulations, a procedural code issued on the authority of the Lord Advocate for the guidance of crown counsel and procurators fiscal, which was followed in this case. On seeing press coverage of the sheriff's observations, the deputy chief constable of Lothian and the Borders wrote to the procurator fiscal at Linlithgow. The procurator fiscal obtained a report from the depute fiscal who had conducted the trial and thereafter referred the report to the regional procurator fiscal who, on 26 June 1998, instructed the deputy chief constable to inquire into the sheriff's allegations.
Police investigations began in July 1998, in which month the officers were told of the allegations against them and their notebooks were seized. The police interviewed 8 witnesses between August and November 1998. On 28 January 1999 the officers were detained and interviewed by police officers. The sheriff's allegations were put to the officers in tape-recorded interviews and they were cautioned.
On 9 April 1999 the police reported the case to the regional procurator fiscal, who instructed that precognitions be taken from four of the eight witnesses whom the police had already interviewed. A precognition is not the exact equivalent of the signed witness statement familiar to English practitioners: it is an unsigned précis made by the taker of the statement ("the precognoscer") of the evidence the witness is able to give. By December 1999 the precognoscer had written to all four potential witnesses. One of them was interviewed in that month, and two more in January 2000. During January 2000 it was decided not to interview the fourth witness. By the end of March 2000 completed precognitions were submitted to the regional prosecutor fiscal and then to crown counsel. In April 2000 crown counsel authorised the prosecution of the officers on charges of perjury, and proceedings against them were commenced by way of summary complaint.
The case was set down for a pleading diet to be held on 23 May 2000, and the trial would probably have taken place in about August or September 2000. But before the date of the pleading diet each of the officers gave notice of a devolution issue within the meaning of Schedule 6 to the Scotland Act 1998. It was claimed that there had been such delay in bringing proceedings against them as to breach the reasonable time requirement. When the pleading diet was called on 23 May the case was continued on the prosecutor's motion for a debate on the officers' devolution minutes.
This debate took place before the sheriff on 25 August 2000. He reserved judgment and on 8 September 2000 upheld the officers' pleas in bar of trial, holding that there had been a breach of the reasonable time requirement. Before the sheriff it was agreed that the delay in proceedings against the officers would be unreasonable if it resulted in their remaining too long in a state of uncertainty about their fate, that prejudice to them need not be established, that his assessment of a reasonable time should be made on the basis of an assessment of the whole circumstances of the individual case and also that, if a breach of the reasonable time provision were established, the prosecutor could not proceed further with the complaint and the proceedings should be dismissed. There was argument before the sheriff about the date from which, for purposes of the reasonable time requirement, delay should be measured, and he held that the officers' state of uncertainty had begun in July 1998 when they had been formally notified of the proceedings and their notebooks had been seized. But he went on to hold that at whatever stage he took the crown's conduct into account there had been unreasonable delay. It was not a complex case. The precognitions would be short and simple. The overall period between the commencement of the investigation and the raising of the complaint seemed to him to be far beyond a reasonable time taking into account all the relevant factors. He accordingly found that even if the period of delay had commenced on 28 January 1999 there had been a breach of the reasonable time requirement. He therefore granted the pleas in bar and dismissed the complaint.
The procurator fiscal appealed to the Appeal Court of the High Court of Justiciary (Lord Milligan, Lord Hamilton and Sir Gerald Gordon QC sitting as a temporary judge). In a written opinion dated 27 April 2001 Lord Milligan (with whom Sir Gerald Gordon agreed) refused the appeal: . In doing so he accepted the prosecutor's contention that for purposes of article 6(1) the officers had been charged on 28 January 1999 and not in July 1998. But he accepted the submissions of counsel for the officers that in all the circumstances of this particular case there had been a breach of the reasonable time requirement. He acknowledged (at p 755, para 13) that a prosecution of police officers had special features, and that discretion must be accorded to the prosecuting authority in prioritising cases. But he was concerned by
"the combination of the sharp raising of the prospect of proceedings by the trial sheriff's comments in April 1998 combined with the apparent extreme simplicity of the case so far as investigation and preparation and decision-making is concerned."
Bearing in mind the passage of time between April 1998 and January 1999, he regarded the passage of time after January 1999 up to the date of prospective trial as "not only inexplicable but unreasonable". He accordingly held that the sheriff had been justified in finding a breach of the reasonable time requirement.
Lord Hamilton agreed that the officers had been charged in January 1999, but was otherwise of a different opinion. The case was not one calling for special expedition, as where a child or vulnerable person is involved or an accused is in custody. Measured against other cases, the period between the date of charge and the likely date of trial was not unusual. It did not follow that this case, because of its simplicity, should have been given priority over other more complex cases, the hearing of which would have been retarded. Because the case involved a very serious accusation against serving police officers, the Book of Regulations required the case to be precognosced, even though proceedings on indictment were not contemplated and the police had already investigated. The independence of that procedure, adopted whatever the nature of the allegation against serving police officers, was in the interest of the accused. That procedure had lasted some eight months, during the first seven of which there had been little progress, but that was not an unusual or unreasonable time to elapse, and the responsible precognoscer had during the period been diverted to other cases of higher priority. Lord Hamilton did not accept that proceeding with the complaint would have infringed the reasonable time provision and he would have allowed the appeal.
In argument before the Board, counsel for the crown essentially founded his submission on the dissenting opinion of Lord Hamilton. He submitted that the period of about 20 months between the date of charge in January 1999 and the projected date of trial in August or September 2000 was not such as to breach the reasonable time requirement, and of that 20 month period there was only one period of relative inactivity, from April or May until December 1999.
Counsel for the officers founded their argument on the findings and opinions of the sheriff and the majority of the Appeal Court. While 28 January 1999 was accepted as the date of charge, the prejudicial and much publicised observations of the trial sheriff in April 1998 increased the need for expedition once proceedings against the officers were commenced. The Book of Regulations repeatedly emphasised the need for...
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