![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
Scottish High Court of Justiciary Decisons |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Workman v. Her Majesty's Advocate [2002] ScotHC 319 (07 November 2002) URL: https://www.bailii.org/scot/cases/ScotHC/2002/319.html Cite as: [2002] ScotHC 319 |
[New search]
[Context]
[Printable version]
[Help]
APPEAL COURT, HIGH COURT OF JUSTICIARY |
|
Lord Justice General Lord Cameron of Lochbroom Lord Marnoch
|
Appeal No: C188/00 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in NOTE OF APPEAL AGAINST CONVICTION by DONNA WORKMAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: P. Ferguson; Wheatley & Co.
Respondent: S. Di. Rollo, Q.C., A.D.; Crown Agent
7 November 2002
"It is submitted that the presiding judge erred in law in holding that the Crown's explanation (that there was initially insufficient evidence for prosecution and it was necessary first to proceed against other persons in respect of the same charge) was adequate explanation for the delay. Two persons (Margaret Ann Collins and Mark Aitken) were prosecuted in 1998 and on 16th February 1998 the Crown accepted a not guilty plea from Collins and Aitken pled guilty. There was, as at 21st June 1996, sufficient evidence against the appellant (in terms of her detailed admissions to the police while detained (Crown production No. 12), her possession of a significant quantity of heroin when detained, her conduct during the search of 29 Horndean Crescent and the recovery of further quantities of heroin at 34 Horndean Crescent) to render it unreasonable for the Crown to require to prosecute other persons first. Further and in any event, there was no satisfactory explanation for the delay in proceeding against the appellant after 16 February 1998 when Aitken was convicted in terms of his own confession and Collins' plea of not guilty was accepted. In particular, the delay which occurred after Aitken was convicted was explained by the Crown as being due to "normal pressure of business". Said explanation was insufficient to explain the delay. From 23 September 1996 until 31 March 1998 the appellant was in prison serving sentences imposed in respect of separate offences. By letter dated 19 January 1997, in response to the appellant's solicitors' inquiry as to whether there were outstanding charges against the appellant, the procurator fiscal at Glasgow replied that there were no charges outstanding. Said assurance was inconsistent with the Crown's explanation for the delay in bringing proceedings against the appellant. The appellant's conviction was in terms of her plea of guilty. It is submitted that that is no bar to an appeal against conviction where the contention on appeal is that the appellant's right to a trial within a reasonable time has been breached...... In such circumstances the conviction is a fundamental nullity."
"3. Further, there has occurred additional delay since the date of conviction (14 March 2000) prior to the hearing of the appeal. The appeal was put out for hearing on 22 November 2000 but was continued by the court because it was then anticipated that a group of appeal cases, scheduled to be heard together in December 2000, would decide whether the only appropriate remedy for a breach of Article 6.1 in respect of unreasonable delay was dismissal of charges before trial. It is submitted that the delay since the date of charge to final conclusion of the proceedings on appeal is in breach of Article 6.1 and that the only appropriate remedy for said breach is now quashing of the conviction.........."
"The advocate depute informed me that the accused was present on 21 June 1996, when the drugs were found and that Aitken and Collins had incriminated a third person who in turn had incriminated the panel. At that time, the view had been taken that there was insufficient evidence to proceed against the panel and that proceedings should be taken against Aitken and Collins who were householders at the addresses in question and who admitted possession of the drugs."
Lord Coulsfield then went on to set out the sequence of events thereafter. The salient matters were that on 24 June 1996 a police report was submitted to the procurator fiscal, that on 11 December 1996 a forensic report on the drugs found was received by the procurator fiscal, that on 11 February 1997 Collins and Aitken were placed on petition and allowed bail on 28 February, that on 29 August 1997 a report was submitted to Crown Office with a recommendation to proceed against Aitken and Collins and re-report the present case after those proceedings, that on 16 February 1998 Aitken pleaded guilty, sentence being deferred, that on 19 February 1998 Crown Office instructed a further report against the appellant and another but that there was a delay until 30 July 1998 when the procurator fiscal replied to Crown Office after a reminder and that on 7 September 1998 a full precognition against the appellant was submitted and Crown counsel instructed proceedings on 20 September 1998, the appellant being placed on petition on 23 November 1998. On that information the Crown had contended that the delay between 21 June 1996 to November 1998 was accounted for by the decision to proceed in the first instance against Aitken and the view taken that Aitken's evidence should be available against the appellant.
"In my view the question whether there has been a breach of Article 6.1 is one to be considered on the whole circumstances of the case. It seems to me that it is legitimate for the Crown to choose to proceed against one potential accused and postpone proceedings against another, even at the cost of some delay in the proceedings against the second potential accused, provided that there is a proper regard for the rights of the person against whom proceedings are taken in the second place. Looking at the whole history of this case, it seems to me that while there has been a greater delay than would have been ideal in proceeding with the charge against the (appellant), the delay has not been so serious as to amount to a breach of her rights under Article 6.1."
Mr Ferguson contended that it was here that Lord Coulsfield had fallen into error. He referred to what was said by this court about sufficiency of evidence in the case of Robb v. H.M. Advocate 2000 SCCR 354. In the appellant's case the Crown had taken an unreasonable view of the state of the evidence and consequently an unreasonably long time had elapsed before the appellant was brought to trial. It was not enough for the Crown to endeavour to strengthen or bolster the case against the appellant by delaying until the conclusion of proceedings taken against Aitken and Margaret Ann Collins. In these circumstances this court should hold that there had been unreasonable delay and should declare that there had been a breach of the appellant's rights under Article 6.1.
"The threshold of proving a breach of the reasonable time requirement is a high one, and not easily crossed. But if the period which has elapsed is one which, on its face and without more, gives ground for concern, two consequences follow. First, it is necessary for the court to look into the detailed facts and circumstances of the particular case. The Strasbourg case-law show very clearly that the outcome is closely dependent on the facts of each case. Secondly, it is necessary for the contracting state to explain and justify any lapse of time which appears to be excessive."
When we look at Lord Coulsfield's decision, we find that he did consider that the period which had elapsed was one which on the face of it gave ground for concern. Insofar as the advocate depute appeared to challenge this conclusion, it is sufficient to say that we can find no warrant for criticism of Lord Coulsfield's conclusion in this regard. Next, Lord Coulsfield had available to him much of the material which has now been placed before us. It may be said that it was probably going too far on the part of the Crown to suggest that there was insufficient evidence to take any proceedings against the appellant, at least once the laboratory report was available to the Crown. What is important is that at the outset all that the initial charges related to was drug dealing in diamorphine or diazepam restricted to one day only. Moreover the admission of the appellant did not extend to cover all the other material which suggested to the Crown that the appellant had played a far greater role in drug dealing than that to which she admitted, a role which she had played over a substantial period of time prior to 21 June 1996. It might have been possible to proceed with a charge of a contravention of section 4(3)(b) of the 1971 Act related to a single day. But a contravention of section 4(3)(b) of the 1971 Act involving a Class A drug, which encompassed the role which, on the material available to them, the Crown considered the appellant to have played, was a very serious one. In our opinion, that assessment of the appellant's role was one which in the circumstances was a reasonable one for the Crown to make. Plainly the evidence of Aitken and Margaret Ann Collins would be an important component of the whole evidence required to prove such a charge. As Lord Prosser pointed out in Robb v. H.M. Advocate at p. 364D-E, in considering the sufficiency of evidence one may of course be talking in a quite strict sense, of minimal legal sufficiency. But in deciding whether to proceed with charges or prosecution, police and prosecutors must ask themselves whether there is sufficient evidence, in a much wider sense, to make it proper to take these serious steps. He went on to observe that when considering the sufficiency of evidence in its more formal legal sense, even that will be a question for assessment, and that in judging reasonableness in the context of article 6.1 what will matter is not the court's retrospective view of whether there was, on the information available to it, technically sufficient evidence. Rather it is the views and decisions of the authorities at the time which are important and the question must be whether they took unreasonable views or reached unreasonable decisions. This same approach is reflected in the judgment of Lord Justice General Rodger in Valentine v. H.M. Advocate at para. 14, referred to by Lord Hope in Dyer v. Watson at para. 83. Lord Coulsfield was concerned to determine whether it could be said that the Crown had reached a reasonable decision in deciding to proceed against Aitken with a view to securing that Aitken's evidence was available against the appellant, for that was the substantial explanation put forward on the Crown's part to explain the delay. In our opinion, Lord Coulsfield correctly identified the question whether there had been a breach of Article 6.1 as one to be considered on the whole circumstances of the case. That is precisely the approach to which Lord Bingham referred in Dyer v. Watson. On the information put before him Lord Coulsfield was fully entitled to be satisfied that it was legitimate for the Crown to choose to proceed against Aitken and on conclusion of proceedings against him to proceed thereafter against the appellant. We should add that insofar as this information was supplemented before us, it served only to fortify the correctness of the conclusions reached by Lord Coulsfield and of his determination that the delay had not been so serious as to amount to a breach of the appellant's rights under Article 6.1. In reaching that determination Lord Coulsfield was correct to approach that question without looking in too much detail at particular periods of delay by themselves. That again was wholly consistent with what was said in H.M. Advocate v. McGlinchy and Renicks. In our opinion, it has not been demonstrated that Lord Coulsfield failed to apply the proper tests to the facts before him in determining the question before him. Moreover, the essential facts remain the same whether consideration is given to the information which appears to have been put before Lord Coulsfield or as that information is supplemented by the further material derived from Lord Philip's report. In the circumstances of the present case, it cannot be said that Lord Coulsfield exercised the discretion given to him under any error as to law or fact. That being so, there is no basis for interfering with his decision that in the light of the explanations put before him by the Crown the delay between 21 June 1996 and March 2000 was not so excessive as to constitute a breach of the appellant's rights in terms of Article 6.1.