Kenneth Anthony Paton Mills v HM Advocate and Another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Nicholls of Birkenhead,Lord Mackay of Clashfern,Lord Steyn,Lord Hope of Craighead,Lord Scott of Foscote |
| Judgment Date | 22 July 2002 |
| Neutral Citation | [2002] UKPC D2 |
| Court | Privy Council |
| Docket Number | No 33,DRA. No. 1 of 2002,No 1 |
| Date | 22 July 2002 |
[2002] UKPC D2
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Mackay of Clashfern
Lord Steyn
Lord Hope of Craighead
Lord Scott of Foscote
Privy Council
For the reasons given in the judgments of Lord Steyn and Lord Hope of Craighead, with which I agree, I would dismiss this appeal.
I have had the advantage of reading the opinion of my noble and learned friend Lord Hope of Craighead. I agree that this appeal should be dismissed for the reasons he has given.
A question arises on the meaning of article 6(1) of the European Convention for the protection of Human Rights and Fundamental Freedoms. The answer to it is of great importance for the sensible and orderly application of the principles of article 6(1). Having already given a judgment on this point I feel diffident about doing so again. There are, however, developments of importance to be taken into account, and threads to be brought together. I fear I must return to the point.
Counsel for the appellant argues that where in appellate proceedings there has been a breach of the guarantee of a hearing within a reasonable time under article 6(1) of the European Convention on Human Rights, the only and inevitable remedy is to quash the conviction. For this proposition he relies on the decision of the Privy Council in Darmalingum v The State [2000] 1 WLR 2303. In that case the Privy Council considered section 10(1) of the Constitution of Mauritius which is modelled on article 6(1) and is to the same effect. In Flowers v The Queen [2000] 1 WLR 2396 the Privy Council considered section 20(1) of the Constitution of Jamaica which is also modelled on article 6(1) and is to the same effect. The Privy Council departed from Darmalingum. Subsequently the Privy Council has taken the view that, although the outcomes of both cases were correct, there were important principled differences between Darmalingum and Flowers: Dyer v Watson [2002] SLT 229, per Lord Bingham of Cornhill, at para 29. Counsel for the appellant has invited the Privy Council to attempt to resolve the problem created by the conflicting dicta. In order to do so it is necessary to attempt to identify the differences in reasoning in Darmalingum and Flowers.
Article 6(1) is of central importance in the scheme of the Convention. The relevant part of article 6(1) reads as follows:
"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 object and purpose of article 6(1) is "to enshrine the fundamental principle of the rule of law": Salabiaku v France (1988) 13 EHRR 379, 388, para. 28. In Darmalingum the Privy Council considered article 6(1) in the light of European jurisprudence. Giving the judgment of the Board I said, at pp 2307H-2308B:
"It will be observed that section 10(1) contains three separate guarantees, namely (1) a right to a fair hearing; (2) within a reasonable time; (3) by an independent and impartial court established by law. Hence, if a defendant is convicted after a fair hearing by a proper court, this is no answer to a complaint that there was a breach of the guarantee of a disposal within a reasonable time. And, even if his guilt is manifest, this factor cannot justify or excuse a breach of the guarantee of a disposal within a reasonable time. Moreover, the independence of the 'reasonable time' guarantee is relevant to its reach. It may, of course, be applicable where by reason of inordinate delay a defendant is prejudiced in the deployment of his defence. But its reach is wider. It may be applicable in any case where the delay has been inordinate and oppressive. Furthermore, the position must be distinguished from cases where there is no such constitutional guarantee but the question arises whether under the ordinary law a prosecution should be stayed on the grounds of inordinate delay. It is a matter of fundamental importance that the rights contained in section 10(1) were considered important enough by the people of Mauritius, through their representatives, to be enshrined in their Constitution. The stamp of constitutionality is an indication of the higher normative force which is attached to the relevant rights: see Mohammed v The State [1999] 2 AC 111, 123H." (Emphasis added)
The reference to the ordinary law was, of course, a reference to the common law rule as stated in Attorney-General's Reference (No 1 of 1990) [1992] QB 630, 643-644, that no stay will be imposed for inordinate delay unless the defendant shows on a balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held. In Darmalingum it was held that the scope of article 6(1) is wider.
In Flowers [2000] 1 WLR 2396 the Privy Council approached the matter differently. The Board followed an earlier decision of the Privy Council in Bell v Director of Public Prosecutions [1985] AC 937, which had not been referred to in Darmalingum. In Bell the Privy Council had relied on Barker v Wingo, (1972) 407 US 514 and enunciated the following proposition, at p 950:
"Their Lordships agree with the respondents that the three elements of section 20, namely a fair hearing within a reasonable time by an independent and impartial court established by law, form part of one embracing form of protection afforded to the individual." (Emphasis added)
In Bell the Privy Council had not been referred to article 6(1) or to any European jurisprudence on it. In Flowers too there was no reference to European case law.
In deciding not to follow Darmalingum on the question whether article 6(1) incorporates three separate guarantees Lord Hutton, who gave the judgment, observed at pp 2414H–2415A:
"The judgment of the Board does not refer to the passage in the judgment of the Board in Bell v Director of Public Prosecutions [1985] AC 937 which recognises that the right given by section 20 of the Constitution of Jamaica must be balanced against the public interest in the attainment of justice or to the passage which states that the right to a trial within a reasonable time is not a separate guarantee but, rather, that the three elements of section 20(1) form part of one embracing form of protection afforded to the individual." (Emphasis added)
Relying on Bell the Privy Council in Flowers rejected the idea that there are three separate guarantees. This ruling enabled the Privy Council in Flowers to consider the question of breach (as opposed to remedy) by weighing against a lengthy period of delay, countervailing matters which were plainly considered to be justifying, excusing or balancing factors. Those factors were the gravity of the crime, its prevalence in Jamaica and the guilt of the appellant: p 2415B. If this approach is correct the interpretation of article 6 in Darmalingum was wrong.
The question whether there are three separate guarantees or not is important. The point was examined by the House of Lords in Porter v Magill [2002] 2 WLR 37. In a speech delivered by Lord Hope of Craighead with the agreement of all the Law Lords he said, at p 78, para 87, that article 6(1):
"creates a number of rights which, although closely related, can and should be considered separately. The rights to a fair hearing, to a public hearing and to a hearing within a reasonable time are separate and distinct rights from the right to a hearing before an independent and impartial tribunal established by law. This means that a complaint that one of these rights was breached cannot be answered by showing that the other rights were not breached. Although the overriding question is whether there was a fair trial, it is no answer to a complaint that the tribunal was not independent or was not impartial to show that it conducted a fair hearing within a reasonable time and that the hearing took place in public: see Millar v Dickson 2001 SLT 988, 994D-E per Lord Bingham of Cornhill and my own observations in that case, at p 1003C-F."
Later in his speech he continued at p 86, paras 108-109:
"108 I would also hold that the right in article 6(1) to a determination within a reasonable time is an independent right, and that it is to be distinguished from the article 6(1) right to a fair trial. As I have already indicated, that seems to me to follow from the wording of the first sentence of the article which creates a number of rights which, although closely related, can and should be considered separately. This means that it is no answer to a complaint that one of these rights was breached that the other rights were not. To take a simple example, the fact that the hearing took place in public does not deprive the applicant of his right to a hearing before an independent and impartial tribunal established by law.
109 I would respectfully follow Lord Steyn's observation in Darmalingum v The State [2000] 1 WLR 2303 about the effect of section 10(1) of the Constitution of Mauritius when he said that the reasonable time requirement is a separate guarantee. It is not to be seen simply as part of the overriding right to a fair trial, nor does it require the person concerned to show that he has been prejudiced by the delay. In Flowers v The Queen [2000] 1 WLR 2396 a differently constituted Board, following Bell v Director of Public Prosecutions [1985] AC 937, held that prejudice was one of four factors to be taken into account in considering the right to a fair hearing within a reasonable time in section 20(1) of the Constitution of Jamaica. In the context of article 6(1) of the...
To continue reading
Request your trial
-
R v Ali (Liaquat)
...by a reduction of sentence. There is ample authority for making such a deduction on those grounds (see, e.g., Mills v HM Advocate & Anr [2002] 3 WLR 1597 and R v Petkar Farquhar [2004] 1 Cr App R 22). We shall grant permission to both applicants and allow their appeals by reducing the sente......
-
Jerome Dixon v R
...of prejudice. Further, it was argued, the guarantee extends to the conduct of appeals. 192 The case of Mills v HM Advocate and another [2002] 3 WLR 1597 was also cited in support of the points made, as well as the Privy Council's disapproval of the reasoning that fair trial guarantees were......
-
Omar Anderson v R
...against a defendant should continue. The cases of Taito v R; Bennett and others v R [2002] UKPC 15, Mills v HM Advocate and another [2002] 3 WLR 1597, Singh v Harrychan [2016] CCJ 12 (AJ); 88 WIR 362 and R v Williams [2009] 5 LRC 693, were also cited in support of this point. Graham and ......
-
Alcedo Tyson v The Queen
...2001 [2003] UKHL 68, Millar v Dickson [2002] 3 All ER 1041, [2001] UKPC D4; Porter v Magill [2002] 2 AC, 357; Millis v HM Advocate [2002] 3 WLR 1597, 1603 at paragraph 74 See paragraph 79 of that judgment. 75 See paragraph 93 of that judgment. 76 San Jose Farmers' Cooperative v The Attor......
-
Regulatory Proceedings and the Right to a Determination Within a Reasonable Time
...but alternatively it could reduce the sanction imposed upon the accused as in the recent criminal case of Mills v HM Advocate & anr [2002] UKPC D2 where the Privy Council confirmed a nine-month reduction in a prison sentence. © Herbert Smith 2002 The content of this article does not con......