R V. Her Majesty's Advocate And The Advocate General For Scotland
| Jurisdiction | Scotland |
| Judge | Lord Cameron of Lochbroom,Lord Coulsfield,Lord Caplan |
| Court | High Court of Justiciary |
| Date | 31 May 2002 |
| Docket Number | 817/01 |
| Published date | 13 June 2002 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Coulsfield Lord Cameron of Lochbroom Lord Caplan
| Appeal No: 817/01 OPINION OF LORD COULSFIELD in NOTE OF APPEAL in terms of Section 74 of the Criminal Procedure (Scotland) Act 1995 by 'R' Appellant; against HER MAJESTY'S ADVOCATE and THE ADVOCATE-GENERAL FOR SCOTLAND Respondent: _______ |
Appellant: Bovey, Q.C., Blair; Balfour & Manson (for Grigor Young, Elgin)
Respondent: Davidson, Q.C., Howlin; Crown Agent:
Advocate General, Mrs S. Wolffe
31 May 2002
[1]The central question in this appeal is what remedy should be given to an accused person when there has been such delay in criminal proceedings against him as to give rise to a breach of the requirement of Article 6 of the European Convention on Human Rights that such proceedings should be brought to completion within a reasonable time. The respondent has been charged with six offences of indecent behaviour towards children. An indictment was served upon him and he thereupon lodged a minute giving notice of intention to raise an issue under the Human Rights Act 1998. The minute was later amended and a further minute was lodged raising an issue under the Scotland Act 1998. Submissions were heard before Lord Reed, the appellant contending that there had been a breach of Article 6 and that the consequence was that two of the charges against him could not proceed to trial. In an opinion issued on 10 October 2001, the judge rejected that submission. The appellant now appeals to this court.
[2]The history of the investigation of charges against the appellant is fully set out by the judge. In very brief summary, in August 1995 two girls, S and L, made certain allegations about the appellant. The appellant was interviewed by police officers under caution and made certain admissions after which he was cautioned and charged. However, the procurator fiscal took the view that the evidence was insufficient and decided not to proceed. The reason for that decision is not known: in fact it appears that there was sufficient evidence. The decision not to proceed was not formally intimated to the appellant but he did learn, informally, that proceedings were not to be taken. In April 1999, further information came to the attention of the police which led to further investigations and, in due course, to the indictment now served upon the appellant. The two charges in respect of which the challenge under Article 6 is made relate to S and L and are in very similar terms to the charges originally made against the appellant in August 1995. Before the judge, the advocate depute accepted that there had been a period of delay in proceeding with these charges, extending to about five years, for which the Crown had no satisfactory explanation. The judge records that the advocate depute conceded "that this was an unreasonable delay, contrary to Article 6(1)". In the course of the argument before us, it began to appear that there was a risk that the argument would be diverted into a sterile dispute about the exact significance of the wording of that concession and we allowed the concession to be withdrawn. The Crown did not, however, contend that there had not been an unreasonable delay.
[3]The question of the appropriate remedy for a breach of the requirement of Article 6(1) that proceedings should be completed within a reasonable time has already been the subject of discussion and decision in a number of cases, including several decided in the Judicial Committee of the Privy Council. Most recently, there was some discussion of the point in Dyer v. Watson & Burrows P.C. D.R.A. 1/2001, (2002) S.C.C.R. 220. I do not think it necessary to extend the length of this opinion by extensive quotation either from the earlier decisions or from the speeches in Watson & Burrows itself. It will, in due course, be necessary to consider some of the views which have been expressed in relation to particular parts of the argument. I think, however that it is sufficient to say that I regard the observations of their Lordships in Watson & Burrows as a sufficient warrant for attempting to reconsider the issue of the appropriate remedy from first principles, without being diverted by considering whether there have been expressions of opinion in earlier cases which technically might be regarded as binding on this court. I refer particularly to what was said by Lord Bingham of Cornhill at paragraph 67, Lord Hope of Craighead at paragraph 112 and Lord Rodger of Earlsferry at paragraph 160.
[4]We should first have in mind the terms of the relevant provisions of the Convention and of the legislation giving it effect in the United Kingdom. Article 6(1) of the Convention 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."
[5]It is relevant also to mention Articles 1 and 41. Article 1 provides:
"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention."
Article 41, which is part of the section of the Convention dealing with the establishment and functioning of the European Court of Human Rights, provides:
"If the court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the court shall, if necessary afford just satisfaction to the injured party."
[6]Section 1 of the Human Rights Act 1998 provides that the Convention rights, by which are meant the rights and fundamental freedoms set out in certain Articles of the Convention and protocols, including Article 6, are to have effect for the purposes of the Act, subject to any designated derogation or reservation. Section 6 provides inter alia:
"(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
(2)Subsection (1) does not apply to an act if -
(a)as a result of one or more provisions of primary legislation, the
authority could not have acted differently; or
(b)in the case of one or more provisions of, or made under, primary
legislation, which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."
[7]As regards Scotland, section 57 of the Scotland Act 1998 provides inter alia:
"(2)A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with community law.
(3)Sub-section (2) does not apply to an act of the Lord Advocate-
(a)in prosecuting any offence, or
(b)in his capacity as head of the systems of criminal prosecution
and investigation of deaths in Scotland,
which, because of sub-section (2) of section 6 of the Human Rights Act 1998, is not unlawful under sub-section (1) of that section."
[8]The right to a trial within a reasonable time figures in many constitutions and declarations of rights. Frequently, as in Article 6, it figures alongside rights to a fair trial and an independent tribunal. However, the right to a trial within a reasonable time is a right of a somewhat different character from the other two rights, for the reasons explained by Justice Powell in his frequently quoted opinion in Barker v Wingo 407 U.S. 514 (1972). Justice Powell observed that the right to a speedy trial is generically different from any other rights enshrined in the United States Constitution for the protection of the accused. He pointed out, firstly, that there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to the interests of the accused: and secondly that deprivation of the right could work to the accused's advantage and did not per se prejudice the accused's ability to defend himself. He continued:
"Finally, and perhaps most importantly, the right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the State can put to the defendant to the choice or either exercising or waiving the right to a speedy trial. ... Thus, as we recognised in Beavers v Hubert, any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case:
'the right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice'
198 U.S. at 87. The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy."
[9]The view that discontinuance of the prosecution is the only possible remedy is, as I understand the position, derived from the particular provisions of the United States' Constitution and is not necessarily to be taken as a general observation to be applied in relation to other constitutional instruments or declarations of rights. Justice Powell continued by discussing the appropriate approach to determining whether the right had been infringed. He rejected some suggested rigid rules and favoured a balancing test in which the conduct of both the prosecution...
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