Spiers (Procurator Fiscal) v Ruddy
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill,Lord Hope of Craighead,Lord Rodger of Earlsferry,Lord Mance,Lord Neuberger of Abbotsbury |
| Judgment Date | 12 December 2007 |
| Neutral Citation | [2007] UKPC D2 |
| Court | Privy Council |
| Docket Number | No 1,Appeal No 64 of 2006 |
| Date | 12 December 2007 |
[2007] UKPC D2
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Mance
Lord Neuberger of Abbotsbury
This devolution issue comes before the Board on the requirement of the Lord Advocate under paragraph 33 of Schedule 6 to the Scotland Act 1998.
The facts may be very briefly summarised. On 8 September 1999 Mr Ruddy was convicted at Perth Sheriff Court of driving while disqualified. On 20 October 1999 he was ordered to be disqualified from driving for 3 years. Two and a half years later, on 4 March 2002, he lodged a Bill of Suspension, seeking to challenge this disqualification on the ground that it had been imposed by a temporary sheriff. On 31 May 2002 he was arrested for driving while disqualified, having no insurance and giving a false name. He appeared at Airdrie Sheriff Court on 4 June 2002 on a summary complaint, pled not guilty to all three charges and was remanded in custody. Trial dates were fixed and adjourned, and on 9 August 2002 he was released on bail. On that date he also withdrew his plea of not guilty to the first (driving while disqualified) charge, and entered a plea to the competency of that charge on the ground that the original disqualification had been imposed by a temporary sheriff. This was the issue raised by the Bill of Suspension and the sheriff felt unable to proceed until there had been a ruling on the Bill. On 18 January 2005 the High Court of Justiciary refused the Bill, and Mr Ruddy's appeal to this Board was dismissed on 6 February 2006. Mr Ruddy lodged a devolution issue on 20 February 2006, contending that his right under article 6(1) of the European Convention to be tried within a reasonable time had been breached, and that the Lord Advocate accordingly had no power to continue the proceedings against him. The Lord Advocate required the sheriff to refer two issues to the Board, and the reference was lodged with the Board on 27 June 2006. There was difficulty in fixing a date for this hearing (partly attributable to Mr Ruddy's need for legal aid), and on 16 April 2007 the Registrar fixed 5 November 2007 as the hearing date. Depending on the outcome, the proceedings are due to resume before the sheriff at Airdrie on 16 January 2008.
The first question formulated for consideration by the Board is whether there has been unreasonable delay in determining the charges against Mr Ruddy, in breach of his rights under article 6(1) to determination of the charges within a reasonable time. The judgment on this question is primarily one for the Scottish courts, and only where the facts have been found (as they were in Dyer v Watson [2002] UKPC D1 2002 SC (PC) 89 [2004] 1 AC 379), can the Board properly entertain a devolution issue relating to the question. In the present case, however, unlike Dyer v Watson, there has been no decision by the Scottish courts whether a reasonable time for bringing the proceedings to trial has been exceeded or not. The relevant facts have not been explored and no decision has been made. That being so, I would think it wholly inappropriate for the Board to make the initial decision. It was not pressed in argument to do so.
It is the second referred issue on which argument has been focused. The issue is whether it would be incompatible with Mr Ruddy's right to a determination of the criminal charges against him within a reasonable time for the Lord Advocate to continue to prosecute him on those charges following the lapse of a reasonable time, in circumstances where a fair trial remains possible and there is no other compelling reason why it would be unfair to try Mr Ruddy, and whether the Lord Advocate has power to do so. The Lord Advocate, with the support of the Advocate General for Scotland as intervener, contends that it would not be incompatible and that the Lord Advocate does have power. Counsel for Mr Ruddy makes a contrary submission.
This issue as formulated makes implicit reference to article 6(1) of the European Convention, which provides that "In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing within a reasonable time". The issue assumes that the charges against Mr Ruddy may not be, or may not have been, determined within a reasonable time, an assumption which may or may not be found to be correct but which, as I have noted, the Board cannot decide. The reference to the power of the Lord Advocate as a member of the Scottish Executive is made in the context of section 57(2) of the Scotland Act, which provides:
"A member of the Scottish Executive has no power to … do any other act, so far as the … act is incompatible with any of the Convention rights …"
Mr Ruddy points to the role of the Lord Advocate as the nominal prosecutor in the criminal proceedings pending against him and submits that if, as he contends, the charges have not been or will not be determined within a reasonable time, then the Lord Advocate will act incompatibly with his (Mr Ruddy's) Convention right under article 6(1) if he continues to prosecute him, and the Lord Advocate has no power to act incompatibly.
The real problem underlying the second issue derives from a conflict between two authorities, both of high standing: one a decision of the Board on a Scottish devolution issue, the other a decision of the House of Lords on a point of law referred to the Court of Appeal (and by it to the House) by the Attorney General of England and Wales. I do not think these two decisions can be reconciled, and it is therefore necessary to choose between them. Happily, there is a body of Strasbourg authority, mostly decided after both of these cases and not referred to in either of them, which eases our choice.
Judgment in R v HM Advocate [2002] UKPC D3 2003 SC (PC) 21 [2004] AC 462 was given on 28 November 2002. It was a case in which an accused complained that criminal charges against him had not been determined within a reasonable time, that the Lord Advocate would act incompatibly with his article 6(1) rights if he continued to prosecute him and that therefore the proceedings should be brought to an end. The opinions of the Board do not lend themselves to succinct summary. The members were divided. A majority (my noble and learned friends Lord Hope of Craighead, Lord Clyde and Lord Rodger of Earlsferry) accepted the broad thrust of the accused's submissions. As Lord Rodger put it (para 150),
"Once the proceedings have already gone on so long that they cannot be completed within a reasonable time, not only is the Lord Advocate infringing the accused's Convention right, but he will continue to do so all the time until the charges are determined. His is a continuing infringement. Every day that the prosecution continues is an additional day during which the accused is kept in a state of uncertainty about his fate for longer than is reasonable …"
A minority (Lord Steyn and Lord Walker of Gestingthorpe) disagreed. They did not accept that there was any continuing breach in a case where, although there had been excessive delay, a fair trial was still possible.
Lord Steyn based his dissent in R, in part, on the judgment of Lord Woolf CJ sitting in the Court of Appeal (Criminal Division) in Attorney General's Reference (No 2 of 2001) [2001] EWCA Crim 1568, [2001] 1 WLR 1869. Following the Board's decision in Dyer v Watson, above, the Court of Appeal referred the issues raised to the House. Relevant for present purposes is the first point of law on which the Attorney General desired the opinion of the court. It was whether criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in article 6(1) of the European Convention in circumstances where the accused cannot demonstrate any prejudice arising from the delay. Having reviewed most of the domestic, Strasbourg and other authority then cited to the House, I summarised my conclusion in paragraph 29 of my opinion by ruling that "Criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in article 6(1) of the Convention only if (a) a fair hearing is no longer possible, or (b) it is for any compelling reason unfair to try the defendant": Attorney General's Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72. This was a conclusion in which Lord Nicholls of Birkenhead (para 31), Lord Steyn (para 43), Lord Hoffmann (para 44), Lord Hobhouse of Woodborough (para 111), Lord Millett (para 129) and Lord Scott of Foscote (para 140) concurred. All of them declined to follow the majority decision in R. For detailed reasons given in their own opinions, my noble and learned friends Lord Hope and Lord Rodger adhered to the decision of the majority in R.
In opening his argument for the Lord Advocate, the Advocate Depute did not seek to address the Board on the respective merits and demerits of the various opinions in R and Attorney General's Reference (No 2 of 2001), but instead relied on a body of Strasbourg jurisprudence of which neither the Board nor the House had had the benefit in the earlier cases but which, he submitted, supported the decision of the House.
The first of these authorities was Kudla v Poland (2000) 35 EHRR 198. This was a criminal case. The applicant complained of delay in determining the charges against him, and the Strasbourg court upheld his complaint (para 130) in respect of a period of about one year and eight months between the quashing of his first instance conviction on appeal in February 1996 and his retrial in October 1997. At his retrial the applicant was...
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