"R" v HM Advocate and Another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Steyn,Lord Hope of Craighead,Lord Clyde,Lord Rodger of Earlsferry,Lord Walker of Gestingthorpe |
| Judgment Date | 28 November 2002 |
| Neutral Citation | [2002] UKPC D3 |
| Court | Privy Council |
| Docket Number | DRA. No. 3 of 2002,No 2 |
| Date | 28 November 2002 |
[2002] UKPC D3
Privy Council
Present at the hearing:-
Lord Steyn
Lord Hope of Craighead
Lord Clyde
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Section 57 of the Scotland Act 1998 contains the following core provisions:
"(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) Subsection (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 subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section."
The Lord Advocate is in charge of prosecutions in Scotland: section 48 of the Scotland Act 1998. He is a member of the Scottish Executive. Convention rights have the same meaning as in the Human Rights Act 1998: section 126(1) of the Scotland Act 1998. Accordingly, in carrying on prosecutions or directing them to be carried on the Lord Advocate may not act incompatibly with article 6.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The material part of this article 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."
The result of this scheme is that an accused person in Scotland who complains about undue delay in criminal proceedings under article 6.1, may raise a devolution issue against the Lord Advocate under section 57(2) or, alternatively, he may make a complaint against the court as a public authority under the Human Rights Act 1998. The former course was adopted in the present case. This is therefore an appeal under paragraph 13(a) of Schedule 6 to the Scotland Act 1998.
An indictment charging the defendant with six offences of indecent behaviour towards four young girls was served for trial at the sitting of the High Court at Edinburgh on 2 October 2001. The defendant had been charged with two of those offences as long ago as 13 August 1995. The other four charges arose later. The defendant raised a devolution issue in terms of section 98 of and Schedule 6, paragraph 1(d), to the Scotland Act 1998. He alleged that there was a breach of article 6.1 of the Convention inasmuch as the two earlier charges were not brought to trial within a reasonable time. He did not allege that a fair trial of those charges could not take place. He did, however, submit that in continuing with the two earlier charges, notwithstanding the lapse of a reasonable time, the Lord Advocate would be acting incompatibly with the defendant's Convention rights.
Lord Reed dismissed the plea in bar: HM Advocate v R 2001 SLT 1366. The Criminal Appeal Court (Lord Coulsfield, Lord Cameron of Lochbroom and Lord Caplan) dismissed the appeal: HM Advocate v R 2002 SLT 834. The defendant appealed to the Privy Council. It is common ground that the appeal must be considered on the assumption that there has been a breach of article 6.1 of the Convention. Taking advantage of the narrative and description of the legislative context provided by my noble and learned friend Lord Hope of Craighead, it is unnecessary for me to say anything more about the background.
The principal question is therefore whether the defendant is entitled to a remedy under section 57(2) declaring that it would be incompatible with the defendant's rights under article 6.1 for the Lord Advocate to continue to prosecute him on the two earlier charges.
A preliminary question of jurisdiction arose, namely whether the decision of the Lord Advocate is capable of constituting "an act" within the meaning of section 57(2). In essence counsel for the Lord Advocate submitted that the context requires the word "act" to be restrictively interpreted to cover only so-called soft laws such as codes, departmental circulars, directives, and statements of practice. Counsel for the Lord Advocate challenged the correctness of the Privy Council decisions in Montgomery v H M Advocate 2001 SC (PC) 1 and Brown v Stott 2001 SC (PC) 43. Counsel for the Lord Advocate was given a full opportunity to develop this argument. It was resisted by the Advocate-General. The Privy Council found it unnecessary to call on counsel for the appellant to reply on this point. I have no hesitation in concluding that the words of section 57(2), read in context, rule out the artificial restriction which the suggested interpretation seeks to impress on the statutory words. I would therefore reject the jurisdictional argument. On this point there is nothing that I can usefully add to the detailed and cogent observations of Lord Hope.
There is, I fear, another diversion from the real issue in this case. There was an argument that, if the continuation of the prosecution on the earlier charges was not incompatible with the defendant's Convention rights within the meaning of section 57(2), nevertheless on the facts of the case the plea in bar should have been upheld. In my view this is not a devolution issue. For the further reasons given by Lord Hope I would also dismiss the reformulated arguments of counsel for the appellant.
That brings me back to the central point in the case, namely whether under section 57(2) a breach of the reasonable time guarantee under article 6.1. of the Convention automatically renders a continuation of the prosecution incompatible with the Convention rights of the defendant. It is not too difficult to assign a sensible meaning to the word "incompatibly" within the meaning of section 57(2): it conveys at least the idea of inconsistency with fundamental legal rights, viz. rights under the Convention or community law. On analysis the critical issue is whether a continuation of the prosecution of the appellant on the two earlier charges would be incompatible with the right of the defendant under the Convention to a trial within a reasonable time. It would be incompatible with a Convention right to continue such a prosecution if the defendant could establish a right flowing from a breach of the reasonable time guarantee precluding continuation of the prosecution. For my part nothing less will do to warrant the relief sought in this case under section 57(2). If he is unable to identify such a right, logically he has failed to establish that the continuation of the prosecution is incompatible with a Convention right. The question is whether the appellant has demonstrated such a right.
Although article 6.1 is well trodden ground, it is necessary to summarise its essential features. Article 6.1 contains three separate, distinct, and independent guarantees: viz. (i) a right to a fair and public hearing, (ii) a right to a hearing by an independent and impartial tribunal and (iii) a right to a hearing within a reasonable time: Porter v Magill [2002] 2 AC 357; Dyer v Watson 2002 SC (PC) 89; [2002] UKPC D1; Mills v H M Advocate (No. 2) [2002] SLT 939; [2002] UKPC D2. Pertinent to the present case is the fact that there are qualitative differences between, on the one hand, the first two rights and, on the other hand, the third right. The position in regard to breaches of the first two rights is clear. The only remedies available in the Strasbourg court are declaratory judgments and awards of damages: Republic of Ireland v United Kingdom (1978) 2 EHRR 25. On the other hand, it is well established in domestic law by decisions of high authority that once it has been established that a defendant has not had a fair hearing at trial the conviction must be quashed: Brown v Stott 2001 SC (PC) 43; R v Forbes [2001] 1 AC 473; Mills v H M Advocate (No 2), 2002 SLT 939. Similarly, it is settled by decisions of the House of Lords and Privy Council that once it has been established that there was a breach of the guarantee of independence and impartiality the conviction must be quashed: Millar v Dickson 2002 SC (PC) 30; Porter v Magill, [2002] 2 AC 357. It is further clear that the court has a power to order a retrial in such cases.
The position under the reasonable time guarantee must now be considered. The background is that in England the common law principle is that the court is not empowered to stay a prosecution unless the defendant can show that unless a stay is granted he would suffer serious prejudice in the sense that no fair trial could be held: Attorney-General's Reference (No 1 of 1990) [1992] QB 630. My understanding is that before the Scotland Act came into force the position in Scotland was similar. Thus in McFadyen v Annan 1992 JC 53 it was held that on a plea in bar on the grounds of delay the question is whether there was significant prejudice to the prospects of a fair trial: if there was, the plea succeeded; if not, it failed. Under both systems a stay of a prosecution, where a fair trial is still possible, is regarded as a draconian remedy.
Under the reasonable time guarantee contained in article 6.1 the position is altogether different. The starting point is that prejudice, although a relevant factor, need not be established. It is not necessary to show that a fair trial is no longer possible. The scope of the guarantee is wider: Mills v H M Advocate (No 2), 2002 SLT 939, 943-944, paras 13-14; Emmerson and Ashworth, Human Rights and Criminal Justice (2001), pp 353-354, para 14-45.
The width of the reasonable time guarantee is relevant to the separate question of the remedies available for a breach....
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