Judgments - Attorney General's Reference No 2 of 2001 (On Appeal from the Court of Appeal (Criminal Division))
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Attorney General's Reference No 2 of 2001 (On Appeal from the Court of Appeal (Criminal Division))
 UKHL 68
LORD BINGHAM OF CORNHILL
- In exercise of his power under section 36 of the Criminal Justice Act 1972 the Attorney General referred to the Court of Appeal two points of law on which he desired the opinion of that court. The points were these:
"(1) 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 for the Protection of Fundamental Rights and Freedoms ("the Convention") in circumstances where the accused cannot demonstrate any prejudice arising from the delay.
(2) In the determination of whether, for the purposes of Article 6(1) of the Convention, a criminal charge has been heard within a reasonable time, when does the relevant time period commence?"
The first of these points raises a specific issue on the interpretation and application of the Human Rights Act 1998 and article 6 of the Convention, but also a more general issue which has given rise to difficulties and differences of opinion not only in the United Kingdom but in other jurisdictions around the world. These are important issues, on which compelling arguments to contrary effect can be, and have been, advanced. The second point raises an issue of less general importance but of practical significance to judges called upon to rule whether the reasonable time requirement has been breached.
- The acquittal which entitled and prompted the Attorney General to exercise his power under section 36 came about in the following way. On 26 April 1998 there was a serious disturbance in an English prison. Thirty-two prison inmates barricaded themselves in an association room and caused some considerable damage to property. Prison officers were sent into the room to clear the barricades and regain control of the area. The inmates resisted the officers and there was considerable violence before order was restored. An investigation into the incident began on the following day, 27 April 1998. Potential defendants were interviewed by the police between 9 June and 1 July 1998. The police submitted their paperwork to the Crown Prosecution Service for advice on 27 July 1998. On 11 February 2000 informations were laid against 7 prisoners, one of them the defendant who has in this reference been called "the acquitted person". On 16 June 2000 the defendants were committed for trial in the Crown Court, where they were charged in an indictment containing a single count of violent disorder contrary to section 2(1) of the Public Order Act 1986. Trial in the Crown Court was fixed to begin on 29 January 2001. When the matter came before the court, counsel for the defendants (including the acquitted person) submitted to the trial judge that the delay in bringing the charge against the defendants to trial had been such that to proceed with the trial would be to act in a way incompatible with article 6 of the Convention. The judge accepted this argument and on 31 January 2001 ordered that the proceedings against the defendants should be stayed. On 14 March 2001 the trial judge lifted the stay: the prosecution offered no evidence and the defendants were acquitted.
- The Court of Appeal (Lord Woolf CJ, Wright and Grigson JJ) gave judgment on this reference on 2 July 2001:  EWCA Crim 1568;  1 WLR 1869. It did not approve the trial judge's ruling on either of the points of law on which its opinion had been sought. On the first point, the Court of Appeal accepted (p 1876, para 21) that a stay would have to be imposed if a fair trial were not possible and would be appropriate if it would be unfair to try the accused at all. Such cases apart, however, a stay would not normally be appropriate although there might be circumstances in which, notwithstanding the absence of prejudice, it would (p 1878, para 24). Ordinarily, a remedy for breach of the reasonable time requirement could and should be afforded by some means (a declaration, a reduction of sentence or compensation) falling short of a stay (p 1876, para 20). On the second point raised by the Attorney General the Court of Appeal was of opinion that the relevant time period would ordinarily commence when the defendant was charged or served with a summons as a result of an information being laid before justices (p 1872, para 10). There might however be situations in which an accused might be substantially affected or materially prejudiced by the action of the state at an earlier date, in which case the period might commence before charge or summons (pp 1872-1873, paras 11-12). Following the decision of the Judicial Committee of the Privy Council in Dyer v Watson  UKPC D1,  3 WLR 1488, the Court of Appeal referred the points raised by the Attorney General to the House, on the application of the acquitted person, under section 36(3) of the 1972 Act.
- In argument before the House, Mr David Perry, for the Attorney General, supported the Court of Appeal's ruling on the first point referred by the Attorney General. Mr Ben Emmerson QC, for the acquitted person, did not maintain the argument advanced below, and accepted by the trial judge, that breach of the reasonable time requirement must necessarily lead to a stay of proceedings. Instead, he contended for a more flexible approach. Where the effect of delay or the conduct of the executive is such as to render continuation of the proceedings an abuse of the process of the court, then a stay of the proceedings must be ordered. Otherwise, the court must grant such remedy as is proportionate to the demonstrated breach of the reasonable time requirement. In some cases a stay may be the proportionate remedy, in others it will not. At the request of the House, following the majority decision of the Privy Council in HM Advocate v R  UKPC D3,  2 WLR 317, an amicus was instructed by the Solicitor General to advance the argument that continuation of a criminal prosecution after the lapse of a reasonable time is unlawful and thus requires a stay of further proceedings.
- On the second point referred by the Attorney General, counsel on his behalf broadly supported the Court of Appeal's ruling, while seeking further clarity if such could be achieved consistently with the Strasbourg jurisprudence. For the acquitted person it was argued that the relevant time period would ordinarily commence with an arrest or detention of a suspect for the purposes of interrogation. The amicus was not invited to address this point.
Article 6(1) of the Convention
- Article 6 of the Convention is headed "Right to a fair trial". Only the first paragraph is directly relevant to this reference. It 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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
The Human Rights Act 1998
- Section 6(1) of the 1998 Act lies at the heart of this reference. It provides that
"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
The expression "public authority" is defined in subsection (3) to include a court. It also includes a public prosecutor. Under the definition in section 1(1) of the Act, the right guaranteed by article 6(1) is a "Convention right". "Incompatible" is not defined but bears its ordinary meaning of "inconsistent". Subject to immaterial qualifications, an act includes a failure to act (section 6 (6)).
- A victim of any unlawful act, or proposed unlawful act, of a public authority may rely on his Convention right in any legal proceedings. Section 8 of the Act is headed "Judicial remedies" and provides, so far as material:
"(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including -
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining -
(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention."
"Damages" is defined in subsection (6) to mean "damages for an unlawful act of a public authority" and "unlawful" to mean "unlawful under section 6(1)". Section 9 governs the right of redress where the unlawful, or allegedly unlawful, act is a judicial act of a court.
The first point of law
- The importance of the issues raised by the Attorney General's first point of law calls for a return to first principles and the restatement of some familiar but fundamental propositions. First, the aim of the Convention, declared in its preamble, is to secure the universal and effective recognition and observance of the rights listed in it, which member states bound themselves (in article 1) to secure to everyone within their respective jurisdictions. The listed rights were singled out for protection because they were recognised to be of overriding importance. But the Convention also recognised, implicitly and often explicitly, that "No man is an Island". In the exercise of individual human rights due regard must be paid to the rights of others, and the society of which each individual forms part itself has interests deserving of respect. As pointed out in Brown v Stott  1 AC 681, 704
"The [European] court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191, para 52."
- Secondly, and as the heading of article 6 makes clear, the core right guaranteed by the article is to a fair trial. Most of the specific aspects singled out for mention (including the presumption of innocence protected by paragraph (2) and the minimum rights guaranteed to criminal defendants by paragraph (3)) relate to the fairness and perceived fairness of the trial process. The article takes a broad view of what fairness requires: in ordinary parlance a trial might be regarded as fair even though judgment was not pronounced in public. But the focus of the article is on achieving a result which is, and is seen to be, fair.
- Thirdly, and importantly, article 6 applies not only to the determination of criminal charges, which understandably give rise to most of the decided cases, but also to the determination of civil rights and obligations. In a criminal case the issue usually arises between a prosecutor, who may be taken to represent the public interest, on one side and an individual defendant on the other. In a civil case there may well be individuals, each with rights calling for protection, on both sides. It will only be acts of a public authority incompatible with a Convention right which will give rise to unlawfulness under section 6(1) of the Act. But the Convention cannot, in the civil field, be so interpreted and applied as to protect the Convention right of one party while violating the Convention right of another.
- Fourthly, it is clearly established that article 6(1), in its application to the determination of civil rights and obligations and of criminal charges, creates rights which although related are separate and distinct: see Porter v Magill  2 AC 357, 489, 496, paras 87, 108; Dyer v Watson  3 WLR 1488, 1513, 1526, 1528, paras 73, 125, 138; Mills v HM Advocate  UKPC D2;  3 WLR 1597, 1603, paras 12-13; HM Advocate v R  2 WLR 317, 321, para 8. Thus there is a right to a fair and public hearing; a right to a hearing within a reasonable time; a right to a hearing by an independent and impartial tribunal established by law; and (less often referred to) a right to the public pronouncement of judgment. It does not follow that the consequences of a breach, or a threatened or prospective breach, of each of these rights is necessarily the same.
- It is accepted as "axiomatic"
"that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all": R v Horseferry Road Magistrates' Court, Ex p Bennett  1 AC 42, 68.
In such a case the court must stay the proceedings. But this will not be the appropriate course if the apprehended unfairness can be cured by exercise of the trial judge's discretion within the trial process: Attorney General's Reference (No 1 of 1990)  1 QB 630. Neither of these cases was based on the Convention, but neither is in any way discordant with the Convention jurisprudence. If it is established, after the event, that a trial was unfair, any resulting conviction will be quashed: Mohammed v The State  2 AC 111, 124; R v Togher  3 All ER 463, 472; R v Forbes  1 AC 473, 487, para 24; Mills v HM Advocate  3 WLR 1597, 1603, para 12. This is what domestic law requires, and what the Convention requires.
- If the domestic court appreciates, before an impending trial, that the tribunal by which the case is due to be heard lacks independence or impartiality, it will of course take steps to ensure that the trial tribunal does not lack those essential qualities. If it learns after the event that the trial tribunal lacked either of those qualities, any resulting conviction will be quashed: Millar v Dickson  UKPC D4;  1 WLR 1615; Porter v Magill  2 AC 357; Mills v HM Advocate  3 WLR 1597, 1603, para 12.
- It is clear that lack of a public hearing may render a trial unfair: Guisset v France (2000) 34 EHRR 1100. In Riepan v Austria Application No 35115/97, (unreported) 14 November 2000, the European Court ruled that the lack of a public hearing before the trial court could only be remedied by a complete rehearing before the appeal court.
- In its application to civil proceedings, the rationale of the reasonable time requirement is not in doubt. The state should not subject claimants to prolonged delay in pursuing their claims, whatever the outcome, nor defendants to prolonged uncertainty and anxiety in learning whether their opponents' claims will be established or not. The ill consequences of delay in civil litigation, immortalised in Bleak House, need no elaboration. In domestic law, a battery of statutory limitations, procedural rules and equitable doctrines address the problem. Article 6(1) gives a further remedy to those prejudiced, at the hands of the state, by this pernicious evil. In its application to the determination of criminal charges, the European Court has explained the rationale of the reasonable time required in several cases: Wemhoff v Federal Republic of Germany (1968) 1 EHRR 55, 78, para 18; Stögmüller v Austria (1969) 1 EHRR 155, 191, para 5; H v France (1989) 12 EHRR 74, 90, para 58. It is readily intelligible. A defendant who is not guilty should have the opportunity of clearing his name without excessive delay. A guilty defendant, facing conviction and punishment, should not have to undergo the additional punishment of protracted delay, with all the implications it may have for his health and family life. Again there are provisions of domestic law which seek to ensure the expeditious dispatch of criminal proceedings, but again article 6(1) reinforces these provisions.
- If the court were satisfied, before an impending trial, that the prosecution had been guilty of serious delay such as to cause serious prejudice to the accused, to the point that no fair trial could be held, or if the authorities were shown to have acted in such a way as to render any trial of the defendant unfair in the circumstances, further proceedings would be restrained as an abuse of the court's process by imposition of a stay: Attorney General's Reference (No 1 of 1990)  1 QB 630; R v Horseferry Road Magistrates' Court, Ex p Bennett  1 AC 42. If such abuse were shown after the trial, any resulting conviction would be quashed. Such is the rule in domestic law, and it is uncontroversial. It is consistent with the Convention. But it rests, in Convention terms, on the fair trial guarantee and not on the reasonable time requirement.
- What, then, should the domestic court do if it is shown, before an impending trial, that a reasonable time has already elapsed or will have elapsed before the earliest date at which a trial can be held? One may ignore the case in which the reasonable time requirement can be met by accelerating the trial date, because such a case does not raise the problem. One must also assume, in answering this question, that the trial, if it were to take place, would be fair and compliant with article 6(1) in every respect save in its taking place after the lapse of a reasonable time. One must further assume that responsibility for the lapse of time cannot be laid at the door of the defendant: he is a victim, not a cause, of the delay. In Canada it has been held that in circumstances such as these a stay should be granted: Rahey v The Queen (1987) 39 DLR (4th) 481; R v Askov  2 SCR 1199; R v Morin  1 SCR 771. A similar answer has been given in the United States: Doggett v United States (1992) 505 US 647. In the face of a long and unjustified delay by a prosecutor, the New Zealand Court of Appeal has allowed an appeal against refusal of a stay: Martin v Tauranga District Court  2 NZLR 419.
- In Dyer v Watson  3 WLR 1488 the Privy Council declined to decide on a devolution issue whether a stay should automatically be granted if a breach of the reasonable time requirement were established before trial, since there had been no argument on the point in the Scottish courts, but Lord Millett (pp 1526-1528, paras 123-133) questioned the assumption made up to then that such a stay was necessarily the appropriate remedy. The question arose squarely for decision in HM Advocate v R  2 WLR 317, which also came before the Privy Council as a Scottish devolution issue. The case concerned a defender committed for trial in October 2001 on an indictment charging him with two offences which had been the subject of complaint in 1995 in addition to four offences based on allegations made in 1999-2000. He sought to dismiss the two earlier charges on the ground that there had been unreasonable delay in prosecuting them, that in prosecuting them further the Lord Advocate would be acting incompatibly with the defender's right to a hearing within a reasonable time and that the Lord Advocate accordingly had no power to act in such a way by virtue of section 57(2) of the Scotland Act 1998. It was not in issue that there had, in relation to these two charges, been unreasonable delay but nor was it suggested that a trial on those charges, if it were to occur, would be other than fair. Thus the case turned on the questions of compatibility and vires. Lord Reed at first instance declined to dismiss these charges (2001 SLT 1366) and his decision was upheld by the Criminal Appeal Court (Lord Coulsfield, Lord Cameron of Lochbroom and Lord Caplan): 2002 SLT 834. In the Privy Council opinion was divided. The majority (Lord Hope of Craighead, Lord Clyde and Lord Rodger of Earlsferry), on grounds elaborated in detailed reasoned opinions, held that the appeal should be allowed and the two stale charges dismissed from the indictment. It was held to be a breach of the defender's right to the determination of a criminal charge against him within a reasonable time for him to be tried on the two stale charges, that in continuing to prosecute those charges the Lord Advocate would be acting in a way which was incompatible with the defender's Convention rights and that accordingly the Lord Advocate had no power to prosecute them further. There was no choice of remedy: the charges had to be dismissed. The Court of Appeal decision in the present reference was by then available, but it was known that the matter had been referred to the House, and the majority forbore to comment on its reasoning. It was accepted that the devolution settlement might require a different outcome in Scotland from that in England and Wales. The dissenting minority (Lord Steyn and Lord Walker of Gestingthorpe) did not accept the reasoning or the conclusions of the majority. Lord Steyn (pp 322-323, para 14) cited an observation of Hardie Boys J in Martin v Tauranga District Court  2 NZLR 419, 432, echoed by Lord Millett in Dyer v Watson  3 WLR 1488, 1526-1527, paras 126-130, that "The right is to trial without undue delay; it is not a right not to be tried after undue delay". Lord Walker (p 370, para 157) agreed. The minority saw grave dangers to the administration of criminal justice and the maintenance of public confidence in it if a breach of the reasonable time requirement were automatically to lead to termination of the proceedings, even though a fair trial could still be held (p 325, paras 17-18).
- It is a powerful argument that, if a public authority causes or permits such delay to occur that a criminal charge cannot be heard against a defendant within a reasonable time, so breaching his Convention right guaranteed by article 6(1), any further prosecution or trial of the charge must be unlawful within the meaning of section 6(1) of the 1998 Act. Not surprisingly, that argument has been accepted by highly respected courts around the world. But there are four reasons which, cumulatively, compel its rejection. First, the right of a criminal defendant is to a hearing. The article requires that hearing to have certain characteristics. If the hearing is shown not to have been fair, a conviction can be quashed and a retrial ordered if a fair trial can still be held. If the hearing is shown to have been by a tribunal lacking independence or impartiality or legal authority, a conviction can be quashed and a retrial ordered if a fair trial can still be held. If judgment was not given publicly, judgment can be given publicly. But time, once spent, cannot be recovered. If a breach of the reasonable time requirement is shown to have occurred it cannot be cured. It would however be anomalous if breach of the reasonable time requirement had an effect more far-reaching than breach of the defendant's other article 6(1) rights when (as must be assumed) the breach does not taint the basic fairness of the hearing at all, and even more anomalous that the right to a hearing should be vindicated by ordering that there be no trial at all.
- Secondly, as the Court of Appeal recognised, at p 1875, para 19 of its judgment, a rule of automatic termination of proceedings on breach of the reasonable time requirement cannot sensibly be applied in civil proceedings. An unmeritorious defendant might no doubt be very happy to seize on such a breach to escape his liability, but termination of the proceedings would defeat the claimant's right to a hearing altogether and seeking to make good his loss in compensation from the state could well prove a very unsatisfactory alternative.
- Thirdly, a rule of automatic termination on proof of a breach of the reasonable time requirement has been shown to have the effect in practice of emasculating the right which the guarantee is designed to protect. It must be recognised, as the Privy Council pointed out in Dyer v Watson  3 WLR 1488, 1508, para 52, that the Convention is directed not to departures from the ideal but to infringements of basic human rights, and the threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. Judges should not be vexed with applications based on lapses of time which, even if they should not have occurred, arouse no serious concern. There is, however, a very real risk that if proof of a breach is held to require automatic termination of the proceedings the judicial response will be to set the threshold unacceptably high since, as La Forest J put it in Rahey v The Queen (1987) 39 DLR 481, 516, "Few judges relish the prospect of unleashing dangerous criminals on the public". La Forest J drew attention to the compelling observation of Professor Amsterdam, written with reference to American experience following the Supreme Court's decisions interpreting the Sixth Amendment to the United States Constitution in Barker v Wingo (1972) 407 US 514 and Strunk v United States (1973) 412 US 434:
"[T]he spectre of immunizing, of 'turning loose', persons proved guilty of serious criminal offenses has been thoroughly repugnant to judges, and they have accordingly held that shockingly long delays do not 'violate' the sixth amendment. The amendment has thereby been twisted totally out of shape - distorted from a guarantee that all accuseds will receive a speedy trial into a windfall benefit of criminal immunity for a very few accuseds in whose cases the pandemic failure of our courts to provide speedy trials has attained peculiarly outrageous proportions'": Anthony G Amsterdam, "Speedy Criminal Trial: Rights and Remedies" (1975) 27 Stan L Rev 525, 539.
- Fourthly, the Strasbourg jurisprudence gives no support to the contention that there should be no hearing of a criminal charge once a reasonable time has passed. It is of course true that the European Court examines cases retrospectively and never prospectively, and it cannot quash convictions. But it is significant that in its interpretation and application of the Convention it has never treated the holding of a hearing as a violation or a proper subject of compensation. In X v Federal Republic of Germany (1980) 25 DR 142 a convicted criminal claimed a right to discontinuation of the criminal proceedings in view of the delays which had occurred. The Commission was sceptical (p 144) that such a right could be deduced from the Convention, but if it did it would only be in very exceptional circumstances. Such did not exist, so the application was found to be inadmissible. The Court found a breach of the reasonable time requirement in Eckle v Federal Republic of Germany (1982) 5 EHRR 1, but when considering just satisfaction for the protracted proceedings in Eckle v Germany (1983) 13 EHRR 556, 559, para 20, disavowed any
"implication, that their prosecution, conviction and imprisonment were also in breach of the Convention. The sole matter to be taken into consideration is thus the prejudice possibly entailed by the fact of the two proceedings in question having lasted beyond a 'reasonable time'."
In Neubeck v Federal Republic of Germany (1985) 41 DR 13 the Commission found (p 35, para 138) that there had been no sufficiently clear reduction of the sentence on account of delay, but there was no hint that the applicant was entitled to be compensated for having been imprisoned. The most explicit statement by the Court is to be found in Bunkate v The Netherlands (1993) 19 EHRR 477, 484, para 25:
"The applicant's claims are based on the assumption that a finding by the Court that a criminal charge was not decided within a reasonable time automatically results in the extinction of the right to execute the sentence and that consequently, if the sentence has already been executed when the Court gives judgment, such execution becomes unlawful with retroactive effect.
That assumption is, however, incorrect."
The Court found a violation of article 6(1) but rejected the claim for just satisfaction. In Beck v Norway Application No 26390/95, (unreported) 26 June 2001 the Court found that there had been no violation where the length of the criminal proceedings had earned the applicant a reduction of sentence.
24. If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant's Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant's Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant's Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time.
- The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates' Court, Ex p Bennett  1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State  1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor's breach of professional duty is such (Martin v Tauranga District Court  2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant's Convention right.
The second point of law
- The requirement that a criminal charge be heard within a reasonable time poses the inevitable questions: when, for purposes of article 6(1), does a person become subject to a criminal charge? When, in other words, does the reasonable time begin? In seeking to give an autonomous definition of "criminal charge" for Convention purposes the European Court has had to confront the problem that procedural regimes vary widely in different member states and a specific rule appropriate in one might be quite inappropriate in another. Mindful of this problem, but doubtless seeking some uniformity of outcome in different member states, the Court has drawn on earlier authority to formulate a test in general terms. It is found in paragraph 73 of the Court's judgment in Eckle v Federal Republic of Germany (1982) 5 EHRR 1, 27 (footnotes omitted):
"1. Commencement of the periods to be taken into account
73. In criminal matters, the 'reasonable time' referred to in Article 6(1) begins to run as soon as a person is 'charged'; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened. 'Charge', for the purposes of Article 6(1), may be defined as 'the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence', a definition that also corresponds to the test whether 'the situation of the [suspect] has been substantially affected'. [Deweer v Belgium (1980) 2 EHRR 439 459, para 46]"
- As a general rule, the relevant period will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him. This formulation gives effect to the Strasbourg jurisprudence but may (it is hoped) prove easier to apply in this country. In applying it, regard must be had to the purposes of the reasonable time requirement: to ensure that criminal proceedings, once initiated, are prosecuted without undue delay; and to preserve defendants from the trauma of awaiting trial for inordinate periods. The Court of Appeal correctly held (at p 1872, para 10 of its judgment) that the period will ordinarily begin when a defendant is formally charged or served with a summons, but it wisely forbore (pp 1872-1873, paras 11-13) to lay down any inflexible rule.
- The interviewing of a person for purposes of a regulatory inquiry in England and Wales will not meet the test laid down above: Fayed v United Kingdom (1994) 18 EHRR 393, 427-428, para 61; IJL, GMR and AKP v United Kingdom (2000) 33 EHRR 225, 258-259, para 131. Nor, ordinarily, will time begin to run until after a suspect has been interviewed under caution, since Code C made under section 66 of the Police and Criminal Evidence Act 1984 generally requires the charging process to be set in train once an interviewing officer considers that there is sufficient evidence to prosecute a detained person and that there is sufficient evidence for a prosecution to succeed. In Howarth v United Kingdom (2000) 31 EHRR 861 the European Court held that the period had begun with the first police interview of the defendant, but only 4½ months separated that interview from the charge and attention was largely focused (p 865, para 20) on the passage of time between sentence and final determination of a reference by the Attorney General under section 36 of the Criminal Justice Act 1988. Arrest will not ordinarily mark the beginning of the period. An official indication that a person will be reported with a view to prosecution may, depending on all the circumstances, do so.
- The opinion of the House on the two points referred by the Attorney General is to substantially the same effect as that of the Court of Appeal. The following summary should be read with the paragraphs of this opinion in which the matters are discussed:
"(1) 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.
(2) In the determination of whether, for the purposes of article 6(1) of the Convention, a criminal charge has been heard within a reasonable time, the relevant time period commences at the earliest time at which a defendant is officially alerted to the likelihood of criminal proceedings against him, which in England and Wales will ordinarily be when he is charged or served with a summons.
- Since writing this opinion, I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry, on what I have called the first point of law. Despite the care and comprehensiveness with which they have deployed their reasoning, I am not persuaded of its soundness nor of the unsoundness of my own and I agree with the observations of my noble and learned friends Lord Nicholls of Birkenhead, Lord Hobhouse of Woodborough and Lord Millett. I cannot accept that it can ever be proper for a court, whose purpose is to uphold, vindicate and apply the law, to act in a manner which a statute (here, section 6 of the Human rights Act) declares to be unlawful. Thus a public prosecutor may pursue proceedings against a criminal defendant after the lapse of a reasonable time (in the absence of unfairness) and a court may entertain such proceedings if to do so is compatible with the defendant's Convention rights and so lawful but not if to do so is incompatible with the defendant's Convention rights and so unlawful. I cannot accept that "compatible" bears a different meaning in section 6 of the Human Rights Act and section 57(2) of the Scotland Act, even though the statutory consequence is unlawfulness in the one instance and lack of power in the other. In each case the act is one that may not lawfully be done. I do not think that my opinion in this case can be reconciled with the decision of the majority in HM Advocate v R  2 WLR 317. While, therefore, the House may not overrule that decision of the Privy Council, I should make clear my preference for the opinion there expressed by the dissenting minority, which I take to be consistent with my own opinion in the present case.
LORD NICHOLLS OF BIRKENHEAD
- I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. I agree with it. I add some observations only on the first of the two questions raised by the Attorney General in this reference. This first question raises two separate, although inter-related, issues, one concerning the proper interpretation of article 6(1) of the European Convention on Human Rights, the other concerning the proper interpretation of section 6(1) of the Human Rights Act 1998. The former of these issues of interpretation is one of Convention law, the latter of domestic law. It will be convenient to consider the latter issue first.
Section 6(1) of the Human Rights Act and 'unlawful' conduct
- Sections 6 to 9 of the Human Rights Act 1998 provide domestic remedies for conduct by a public authority which is incompatible, that is, inconsistent, with a Convention right. The starting point from which these remedies derive is the provision in section 6(1) that Convention-incompatible conduct by a public authority is 'unlawful'. The object of this provision in section 6(1) is plain: such conduct should not occur. Public authorities cannot lawfully, that is, properly, conduct themselves in a way which is incompatible with a Convention right.
- Sections 7 to 9 provide for the grant of domestic judicial remedies in respect of past or proposed conduct by a public authority which would be unlawful under section 6(1). The court may grant a victim of the unlawful act such relief as it considers just and appropriate. The width of the discretion thus granted to the court is to be expected. The circumstances where section 6(1) is in point will vary greatly.
- The court itself is a 'public authority' for the purpose of these provisions. What if the conduct of which complaint is made is conduct by a court, as where holding a criminal trial would itself be incompatible with a Convention right? In other words, what is the effect of these provisions when to try a person for an alleged offence and, if he is found guilty, sentence him for that offence, would itself be 'unlawful' by virtue of the express provision of section 6(1)?
- The Human Rights Act 1998 raises a number of difficult issues of interpretation, but to my mind the questions I have just stated are not among them. As I see it, as a matter of statutory interpretation these questions admit of only one answer. In such a case the court cannot hold the trial. When the very holding of the trial by the court would be unlawful, the trial must be stayed. Consistently with its own essential role as a court of law, the court cannot itself knowingly embark on a course of conduct declared by statute to be unlawful, that is, improper. Courts exist to uphold the law. Whatever may be the appropriate remedy in respect of past or proposed conduct by other public authorities, the court cannot treat itself as having a discretion in respect of its own conduct in such a case.
Breach of the reasonable time guarantee in article 6 of the Convention
- The other issue arising on the Attorney General's first question concerns the proper interpretation of the reasonable time guarantee in article 6 of the Convention. The issue here is whether to proceed to hold a trial after the lapse of a reasonable time is itself a breach of the Convention. In other words, does the breach lie in the holding of a trial after the lapse of a reasonable time? or does it lie solely in the state's failure to hold the trial within a reasonable time?
- The distinction between these two formulations, although a little elusive at first sight, is a real one. The scope of the reasonable time guarantee is more extensive under the first formulation than under the second. Under the first alternative, to proceed to hold a trial after the lapse of a reasonable time would itself be a breach of the Convention. That would not be so with the second alternative.
- I pause to note that this distinction in the formulation of the content of the Convention right has important remedial consequences under United Kingdom law. If the first alternative represents the content of the relevant right conferred by article 6 then, for reasons already outlined, there can be no question of a United Kingdom court proceeding to conduct a trial, whether criminal or civil, once a reasonable time has elapsed. By doing so the court would be acting in breach of a Convention right and, as such, it would be acting unlawfully within the meaning of section 6 of the Human Rights Act 1998. If the second alternative is the proper interpretation, then to hold the trial after the lapse of a reasonable time would not in itself be a breach of a Convention right and therefore it would not in itself comprise unlawful conduct under section 6 of the Human Rights Act 1998. Thus the lapse of a reasonable time would not of itself preclude the courts of this country from holding a trial.
- In my view the second interpretation of article 6 (1) is preferable. It provides a better match with the underlying object of the reasonable time guarantee. The object of this guarantee is to provide protection against the adverse consequences of unreasonable pre-trial delay. While proceedings are pending there is bound to be suspense and uncertainty for parties. This cannot be avoided, even though suspense and uncertainty bring with them deleterious consequences for those concerned and their families. The reasonable time guarantee is aimed at protecting citizens against this undesirable, if inevitable, feature of court proceedings by confining the period during which it exists to a reasonable one.
- This undesirable feature of court proceedings, relating to the pre-trial period, is distinct from the actual conduct of the trial. I can detect nothing in the language of article 6, or in the Convention jurisprudence, which suggests that a failure to hold a trial within a reasonable time, itself a breach of article 6, is compounded by the commission of a further breach if a trial then takes place. Rather, the breach of the reasonable time guarantee lies in failure to conduct the trial timeously. When a trial takes place thereafter the breach, which calls for remedy, is not the holding of the trial. The outcome of the trial is in no way impugned. The breach which calls for remedy comprises the state's failure to ensure the trial took place with reasonable despatch. Just recompense is needed in respect of the pre-trial delay, which resulted in the defendant being exposed for longer than he should have been to the undesirable consequences of pending proceedings. Recompense is not needed in respect of the holding of the trial itself.
- Of course if the pre-trial delay became so protracted that a fair trial could no longer be held, then the holding of the trial itself would on that ground be a breach of article 6. But that is a different case.
- For these reasons I respectfully consider that H M Advocate v R  2 WLR 317 was wrongly decided.
- I have studied all the opinions in this matter with care. I cannot accept the analysis contained in the opinions of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry. On the other hand, I agree with the reasons given in the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hobhouse of Woodborough and Lord Millett. I would also make the order which Lord Bingham proposes.
- I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill, with which I am in complete agreement.
LORD HOPE OF CRAIGHEAD
- At the end of the hearing in this case I thought that I would be able to agree with the conclusion which the majority had reached on the first point of law, and that the only difference between us - fundamental though that difference was - was about the route which led to that conclusion. Having now had the benefit of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hobhouse of Woodborough and Lord Millett and seen the way their conclusion has been expressed, I find myself in the uncomfortable position of being unable to agree with them as to the conclusion also. I have nothing to add to what Lord Bingham has said on the second point of law, as I agree with everything that he has said about it. I wish therefore to concentrate on the first point of law, in order to explain why I am unable to agree with the way in which this question has been answered by the majority.
- It respectfully seems to me that their conclusion on the first point empties the reasonable time guarantee almost entirely of content, that it runs counter to the principle that the reasonable time requirement is a separate and independent guarantee which is not to be seen simply as part of the overriding right to a fair trial (see Porter v Magill  2 AC 357, 497A-B, para 109), that it overlooks the fact that it is the act of the prosecutor and not the court which is under scrutiny in this case, that it places an unnecessarily strict construction on the word "unlawful" in section 6(1) of the Human Rights Act 1998 and that it risks creating a divergence of view between two separate and entirely independent criminal jurisdictions in the United Kingdom about the meaning of this guarantee. These are fundamental objections, so I hope that I may be forgiven for setting out my own views on these matters in some detail.
- The first point of law asks whether criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time guarantee in circumstances where the accused cannot demonstrate any prejudice arising from the delay. It is essentially a question about remedy. It seems to have been based upon the assumption that the defendant's Convention right will be breached if the trial is not held within a reasonable time. Paradoxically it is the nature of the Convention right, and not the question of remedy, which has been the focus of attention in this case by the majority. As Lord Hobhouse and Lord Millett have explained, their position is that the holding of the trial after a reasonable time has expired does not itself breach the guarantee. So the state authorities are entitled to hold the trial after a reasonable time has elapsed, and they do not act incompatibly with the defendant's Convention rights by doing so. Lord Bingham follows the same line of reasoning when he says that the breach of the Convention right consists in the delay which has accrued and not in the prospective hearing.
- As I look around at the state of the authorities on this topic, I am struck by how isolated the reasoning of the majority appears to be from the discussion that has been going on around us about the nature of the Convention right. It was not until Lord Millett raised the issue for the first time in Dyer v Watson  3 WLR 1488, 1527, para 127 that it was suggested by anybody that it would not be incompatible with the Convention right for the authorities to proceed with the trial once it had been established that there had been an unreasonable delay. Up until then the discussion had always been about what, in these circumstances, should be the appropriate remedy. I would, as I shall explain later, put Hardie Boys J's statement in Martin v Tauranga District Court  2 NZLR 419, 432 that the right to trial without undue delay is not a right not to be tried at all into that category. That this is still how the guarantee is viewed by those who are much closer to the issue in practice than we are can be seen from the way Dyson LJ approached the issue in R (Lloyd) v Bow Street Magistrates Court  EWHC 2294 (Admin), 8 October 2003 (see paragraph 101 below), from Lady Smith's observation in H M Advocate v Shell UK Ltd 2003 SLT 1296, 1298K that there will rarely be a dispute about the relevant date for the end of the period that the court has to look at since it will be the trial date, which is usually known. and Lord Kirkwood's observation in Haston v H M Advocate 2003 GWD-959, 15 October 2003, para 17 that the question is whether the overall lapse of time to the date of the trial has crossed the threshold of showing that the guarantee has been breached.
- None of the judges in these three cases referred to authority when they were explaining the approach which has to be taken to the guarantee. They were expressing their views in the light of the ordinary and natural meaning of the words used in article 6(1). Each of the guarantees which it contains sets out a test which the determination must satisfy if it is to be compatible with the Convention. It is not difficult to apply the reasonable time guarantee in this way, as the approach which the Privy Council took to it in Dyer v Watson  3 WLR 1488 demonstrates. To assert that there must be a trial even if the guarantee is breached is to read into the article words that are not there. It also breaches the principle that the guarantees in the Convention are to be interpreted so as to ensure the full measure of protection that they are intended to provide: Rojas v Berllaque  UKPC 76, para 9. A generous interpretation is called for to ensure that, in the light of their object and purpose, the safeguards which it provides are practical and effective: Loizidou v Turkey (1995) 20 EHRR 99, 133-134, paras 72-73. A reading of the guarantee which insists upon a rule that the state authorities remain entitled to hold the trial even after a reasonable time has elapsed cannot be said to meet these requirements.
- The advantage which accrues from the way the guarantee is viewed by the majority is that it avoids the problem which has to be confronted when the issue of remedy is viewed through the provisions of the Human Rights Act 1998. But the approach which has always been taken until now is that the flexibility that is needed to avoid abuse was to be found in the meaning which was to be given to the word reasonable in this context, and in the discretion which most systems give the court to choose the appropriate remedy: see Dyer v Watson  3 WLR 1488 as to "reasonable time" and Martin v Tauranga District Court  2 NZLR 419 and Wild v Hoffert NO 1998 (3) SA 695 as to the approach taken in New Zealand and South Africa respectively to the question of remedy. The hearing of this case was, of course, preceded by H M Advocate v R  2 WLR 317 in which it was held by a majority in the Privy Council that the effect of section 57(2) of the Scotland Act 1998 was that the Lord Advocate had no power to act where the holding of the trial would be incompatible with the Convention right, so the court had no alternative but to grant a stay. Lord Steyn, who was searching in that case for a way to permit the court to exercise a discretion in its choice of remedy, said that the approach taken in South Africa was a sensible and just, adding, at p 325, para 16: "Fortunately, the context and wording of section 57(2) permits it to be adopted in Scotland." I do not think, with respect, that anyone now subscribes to this view of the subsection. But the fact that he sought to find the solution in the choice of remedy shows that it was there, and not in the way the guarantee was to be viewed, that the opportunity was seen to lie to avoid results that were undesirable. The effect of the way the guarantee is viewed by the majority is to divert attention from the really interesting question which this case has raised about remedy. This is whether the same result must follow where the complaint is that the holding of the trial would be unlawful within the meaning of section 6(1) of the Human Rights Act 1998.
Unwrapping the problem: taxonomy
- The raw materials for an examination of the question of remedy are to be found in the Human Rights Act 1998. The Act begins, in section 1, by defining the rights to which it gives effect. They are described in the Act as "the Convention rights". They include the rights and fundamental freedoms set out in articles 2 to 12 and 14 of the Convention: section 1(1)(a). They are to have effect for the purposes of the Act subject to any designated derogation or reservation, and they are set out in Schedule 1 to the Act: section 1(2) and (3). They include all the rights guaranteed by those parts of the European Convention on Human Rights which the United Kingdom has signed and ratified.
- If questions arise about the content of these rights the answer which is given must take into account the jurisprudence of the European Court of Human Rights and the Commission: section 2(1). The decisions of those institutions are not binding on the domestic courts, but it is obviously desirable that close attention be paid to the Strasbourg jurisprudence. The right of application to the European Court under article 34 of the Convention by persons claiming to be the victim of a violation of the Convention rights has not been abolished. The Government's purpose was to see "rights brought home": "Rights Brought Home: The Human Rights Bill" (1997) (Cm 3782). That purpose would not be achieved if the domestic courts were to depart in material respects from current thinking about the content of the Convention rights in Strasbourg.
53. The Act deals with the interpretation of legislation in sections 3 to 5. It then turns to the treatment of violations of Convention rights by public authorities and the provision of remedies. It is important to appreciate that the system which it lays down for dealing with these issues is a system which domestic law has devised for itself. The case law of the European Court indicates that the means which are to be employed to protect a person's Convention rights are left to the domestic legal systems of the contracting states: see Vilvarajah v United Kingdom (1991) 14 EHRR 248, 291-292, para 122. It has also been made clear that the machinery of protection established by article 41 of the Convention as amended by Protocol No 11 (formerly article 50) is of a subsidiary character: see Eckle v Federal Republic of Germany (1982) 5 EHRR 1, 24, para 66. One would not expect to find dicta in the decisions of the institutions at Strasbourg which circumscribe or dictate the approach which may be taken in the domestic systems to the provision of remedies. It is only if the internal law of the contracting state proves to be inadequate, because it allows only partial reparation to be made, that the European Court has jurisdiction to afford just satisfaction to the party which has been injured by a violation of his Convention rights.
- The Act goes about the provision of remedies in this way. First, it declares that it is "unlawful" for a public authority to act in a way which is incompatible with a Convention right: section 6(1). Second, it provides that a person who claims that a public authority has acted (or proposes to act) in a way which is made "unlawful" by section 6(1) may bring proceedings against the authority under the Act in the appropriate court of tribunal, but only if he is (or would be) a victim of the unlawful act: section 7(1). Third, it provides that in relation to any act (or proposed act) of a public authority which the court finds is (or would be) "unlawful" the court may grant such relief or remedy within its powers as it considers just and appropriate: section 8(1). This is a simple and coherent structure. I shall have to examine some of the details more closely later on. It is enough for the time being to point out that the essential link between a complaint about incompatibility and the provision of a remedy is a finding that the act (or proposed act) is made "unlawful" by section 6(1). Unless the act (or proposed act) is "unlawful" the court has no jurisdiction under the Act to provide a remedy.
- The first question of law is, as I have already said, a question of remedy. There is an uneasy tension between Lord Bingham's statement in paragraph 24 of his judgment that the prosecutor and the court do not act incompatibly with the defendant's Convention right in continuing to prosecute, as the breach consists in the delay which has accrued and not in the prospective hearing, and his reference in the immediately following sentence to the possible remedies if a breach is established retrospectively after there has been a hearing. There can only be remedy for this breach after there has been a hearing if the determination of the charge after an unreasonable time is held to have been "unlawful". If it is possible to predict before the hearing takes place that the determination cannot be made until after an unreasonable time has elapsed, why should the proposed act not be held to be "unlawful" too? It is to be noted that a finding that the act (or proposed act) is "unlawful" is merely the gateway to the provision of a remedy under the Act. It does not predetermine the question as to what remedy, in terms of section 8(1), is just and appropriate.
- The approach of the majority displays an understandable concern as to the consequences of a rule, if the court were to have jurisdiction to provide a remedy for a breach of the reasonable time requirement before the trial takes place, that the proceedings must automatically be terminated. Indeed, as I understand the reasoning of the majority, particularly with the benefit of Lord Bingham's epilogue, that is precisely what the majority believe would have to be done if the reasonable time guarantee is to be interpreted in that way. But, as I have just said, an examination of the approach which the Human Rights Act 1998 takes to this issue shows that a finding that an act (or proposed act) is "unlawful" does not predetermine the question as to the appropriate remedy. Much of the reasoning of the majority seems to assume that such a finding will inevitably lead to a stay, as does Lord Hobhouse's comment that I would read article 6(1) "as prohibiting" any trial after the lapse of a reasonable time. I believe that this is a mistaken view, as I shall seek to demonstrate.
- In some systems, as Lord Bingham has observed, a stay has been held to be the appropriate or standard remedy where a breach of the reasonable time requirement in criminal proceedings is established. That was what the Court of Appeal of New Zealand decided in Martin v Tauranga District Court  2 NZLR 419, although it is to be noted that the court did not go so far in that case as to say that this was the inevitable remedy. In Darmalingum v The State  1 WLR 2303, 2310D the Board held that the normal remedy for a breach of the reasonable time guarantee was to quash the conviction. That part of the Board's decision was disapproved in Mills v H M Advocate  3 WLR 1597, 1614, para 49 in favour of the proposition that it was one of a variety of possible remedies, the choice of which must depend on the circumstances of each case. One does not find in any of these legal systems the same method of dealing with remedies as that which is to be found in the Human Rights Act. In those jurisdictions the relevant statute is silent on the question of remedy. This is something that the courts have had to work out for themselves. It is relatively easy for us in the United Kingdom to deal with the question as a matter of discretion, rather than something that must be resorted to automatically, because that is what section 8(1) of the Act itself expressly provides.
- An automatic stay was, of course, the result in H M Advocate v R  2 WLR 317. But that was because section 57(2) of the Scotland Act 1998 provides that a member of the Scottish Executive, including the Lord Advocate as the public prosecutor, has "no power" to act in a way that is incompatible with a Convention right. In my opinion in Dyer v Watson  3 WLR 1488, 1523, para 111, I drew attention to the difference between the wording of section 57(2) of the Scotland Act and that of section 8(1) of the Human Rights Act and to observations by Iain Jamieson (formerly a senior civil servant in the Scottish Office), who was closely involved in the drafting of the Scotland Act: "Relationship between the Scotland Act and the Human Rights Act" 2001 SLT (News) 43. At p 44 he points out that the Human Rights Act does not impose a vires control upon UK Ministers, and that where the court finds that a public authority has acted "unlawfully" within the meaning of section 6(1) of that Act, it is merely given a discretion by section 8(1) to make such order as it considers just and appropriate. This is to be contrasted with the way the matter is dealt with in the devolution context.
- In the context of section 8(1) all that is needed is a sensible approach to the way in which the discretion is to be exercised, bearing in mind all the factors that Lord Bingham has identified. The task which has been given to the court is to give effect in domestic law to the rights and freedoms guaranteed by the Convention. Account must, of course, be taken of the way the domestic system for the conduct of criminal proceedings operates. As has often been pointed out, the rule of law lies at the heart of the Convention. It is not its purpose to make it impractical to bring those who are accused of crime to justice, and the public interest has to be considered as well as those of the accused when decisions are being taken about the choice of remedy.
- It was an appreciation of this point that led my noble and learned friend Lord Steyn to say, in his dissenting opinion in H M Advocate v R  2 WLR 317, 325, para 17, that it would be contrary to the public interest and detrimental to a fair and balanced criminal justice system for the rule to be that a permanent stay of the proceedings must be ordered. He said that, if the result of that case were to be adopted in England, the result would be a huge increase in stay applications in the criminal courts at every level, with detriment to the administration of justice.
- The Board was told in that case that since the commencement of the Scotland Act out of 1727 devolution minutes that had been lodged in the Scottish courts 657, or 39 per cent, raised issues of delay. In the present case Mr Perry said that a comparison of the six month periods before and after the decision in H M Advocate v R showed that, while before there had been 153 minutes of which 49 or 32 per cent had raised issues of delay, the position afterwards was that there had been 180 minutes of which 76 or 42 per cent had raised such issues. Some fluctuation in these statistics is to be expected.
- Under the Scottish system statutory time limits ensure that an accused does not remain longer than is strictly necessary in custody and that once an accused has been fully committed for trial, even if he is not in custody, his trial should take place within one year. On the one hand there is the 110 day rule, which requires that the trial in solemn proceedings of a person remanded in custody must start within 110 days of his full committal in custody, failing which he shall be liberated forthwith and shall thereafter be for ever free from all question or process for the offence: section 65(4)(b) of the Criminal Procedure (Scotland) Act 1995. This rule, which was first enacted by the Criminal Procedure Act 1701 (c 6), has existed in more or less the same form for more than three centuries. Changes to the period and to the sanction are at present being considered by the Scottish Parliament under the Criminal Procedure (Amendment) (Scotland) Bill but the principle on which the rule was based is not in question. On the other hand there is the 12 months rule, which requires all trials in solemn proceedings to be commenced within 12 months of the first appearance of the accused on petition in respect of the offence, failing which in this case too he shall be discharged forthwith and thereafter be for ever free from all question or process for the offence: section 65(1) of the 1995 Act. Summary proceedings are also regulated by the imposition of statutory time limits.
- The invariable sanction, until now, for a breach of one or other of the statutory time limits has been that the proceedings are brought to an end. Power is given to extend the time limits in certain carefully defined circumstances, but that power is jealously exercised by the judiciary in the public interest against the executive. Due to the vigilance of the judges, the statutory time limits are carefully observed by the prosecutor. Complaints of delay are unusual in cases which are not covered by the statutory time limits.
- In a case which is typical of those where the article 6(1) right has been invoked in Scotland in a case not covered by the statutory time limits, H M Advocate v H, 2000 JC 552, 553I-554A, Lord Bonomy said that it was perhaps a surprising feature of Scottish criminal procedure that the statutory rules had not in the past been complimented by rules designed to ensure that those who were subject to serious criminal charges but not active criminal proceedings, and are presumed to be innocent, should have their fate determined within a reasonable time. He said that the introduction of such a right under the Convention was to be welcomed. That was a case where no action was taken for 13 months after the appellant had been charged and the case reported to the Crown for proceedings to be brought against him. The judge held, at a preliminary diet, that the delay was unreasonable and he dismissed the indictment. The fact that he decided to dismiss the indictment occasioned no surprise in a system which regards this as the natural consequence of a delay in the bringing of criminal proceedings which is held to be unreasonable. Haggart v Spiers 2003 SLT 991 provides a more recent example of a summary prosecution being stayed by the appeal court in the High Court of Justiciary on the ground that there had been a delay which was unreasonable in breach of the article 6(1) guarantee.
- It appears that in that jurisdiction, where the prosecutor has no power to act in a way that is incompatible with a Convention right, the adverse consequences which my noble and learned friend predicted for England have not materialised. I readily acknowledge that the result in England might well be quite different if a strict view were to be taken of breaches of the reasonable time requirement, and that this is an important factor that must be taken into account. But it would not be surprising if the view were to be taken that the result of this case, which leans so far in the opposite direction, is a lost opportunity.
- It is worth noting the point made for England and Wales in a recent article that compliance with the reasonable time guarantee requires a special case to be made on human rights grounds for youth cases to brought to trial as expeditiously as possible and that, in view of the decision of the Court of Appeal in this case, this should be done by the introduction of statutory time limits which would usually, but not automatically result in the staying of the case: Jackson, Johnstone and Shapland, Delay, Human Rights and the Need for Statutory Time Limits in Youth Cases  Crim L R 510. A footnote to that article records the fact that since the article was written a decision has been taken not to implement time limits in youth courts. The effect of the majority decision is to remove, once and for all, the opportunity of doing something about this problem in this jurisdiction, in contrast to what was done for Scotland in the case of JK: see Dyer v Watson  3 WLR 1488.
- The point which I wish to emphasise is that the Human Rights Act itself confers a discretion on the court as to the choice of remedy in the event of a violation of a Convention right. How that discretion is to be exercised is a matter which must be determined in the first instance under the domestic system (or systems) of each contracting state. There is nothing in either the Strasbourg jurisprudence or what we can learn from other jurisdictions outside Europe where there is a reasonable time guarantee that constrains us in finding a solution which is best suited to our own circumstances. If we fall short of what is required to provide just satisfaction, the victim will be entitled to seek his remedy under article 41 in Strasbourg.
"No right not to be tried": Hardie Boys J's dictum is not about right but about remedy
- In Martin v Tauranga District Court  2 NZLR 419, 432 Hardie Boys J said of the reasonable time requirement: "The right is to trial without undue delay; it is not a right not to be tried after undue delay." In H M Advocate v R  2 WLR 317, 322-323, para 14 Lord Steyn observed that this statement neatly exposed the fallacy in the proposition that a breach of the reasonable time guarantee automatically triggers a right not to be prosecuted. As a comment on the New Zealand system and others like it where the court is free to make its own choice, his observation cannot be faulted. But he then said that Hardie Boys J's reasoning was consistent with the observations of Lord Millett in Dyer v Watson  3 WLR 1488, 1526-1527, paras 126-130. Here, I believe, he went too far.
- In paragraph 127 of his opinion in Dyer v Watson my noble and learned friend Lord Millett said that it had been assumed that the right to trial within a reasonable time carried with it a correlative right not to be tried at all after the lapse of an unreasonable time but that it was not self-evident that that assumption was correct. In paragraph 130, having observed that the European Court has repeatedly held that unreasonable delay does not render the trial or sentence liable to be set aside, he said that the question was whether this was a matter of right because there is no Convention right not to be tried at all or (as I would hold) was a matter simply of remedy. Although he left the question unanswered in that case, the general thrust of his reasoning was that this was a matter of right and that there is no Convention right not to be tried at all. Hence it would not be incompatible with the Convention for the prosecutor to bring the case to trial without further delay. In paragraph 24 of his opinion in the present case Lord Bingham has developed the same point. He says that the prosecutor and the court do not act incompatibly with the defendant's Convention right in continuing to prosecute, as the breach consists in the delay which has accrued and not in the prospective hearing.
- I believe that Hardie Boys J's skilfully crafted dictum has influenced much of this line of reasoning. This can be seen in Lord Bingham's assertion in paragraph 20 of his opinion that the right of a criminal is to a hearing. But that is not what article 6(1) says. What it says is that in the determination of any criminal charge against him the hearing is to have certain characteristics. The idea that the criminal has a right to a hearing which the state can invoke against him, with the result that he is to be subjected to a hearing which does not possess all these characteristics, is a novel one. It appears to have been inspired by Hardie Boys J's description of the reasonable time requirement. It is important that his dictum should be seen in its whole context.
- The respondents in Martin v Tauranga District Court  2 NZLR 419 did not contend for any remedy other than a stay, should the court hold in the appellant's favour that there had been an undue delay. There was a difference of view as to whether this should be the standard remedy. Cooke P said, at p 424, lines 53-54, that a stay should logically be the standard remedy. Hardie Boys J said, at p 432, lines 6-7, that he was far from persuaded that this should be the case. It was in the course of his discussion of the question as to whether a stay was the standard or necessary remedy that he said that the right was not a right not to be tried after undue delay. This was to answer a point made by the Supreme Court of Canada in Rahey v The Queen (1987) 39 DLR (4th) 481 that the court would not have jurisdiction to embark on a trial once there had been undue delay. He said that he doubted the logic, as (if I may shorten his proposition at this point) the right was not "a right not to be tried after undue delay". At line 30 he made the important point that a person should not be entitled to plead undue delay unless he has taken such earlier opportunity as there may have been to protest at the delay up to that point. Realistic anticipatory remedies could then be provided. At lines 36-38 he said that a stay might be acceptable as the ultimate remedy, but not otherwise.
- As a comment on the Supreme Court of Canada's view that there was an absence of jurisdiction to proceed to a trial after there has been an undue delay, the dictum was, if I may say so with respect, entirely in point. There is nothing in the reasonable time guarantee that drives one to the conclusion that there cannot be a trial at all once an undue delay has been identified. But that is a comment on remedy. It does not follow that, to pick up the language of section 6(1) of the Human Rights Act, to proceed with the trial where an undue delay in the determination of the criminal charge has been demonstrated would not be "incompatible" with the Convention right.
What is meant by "unlawful"?
- The absence of a detailed examination of this issue is a significant omission from the discussion of the first question of law by the majority. It is an important issue, because the use of this word might at first sight be thought to affect the vires of the public authority. If so, there would be little, if anything, to choose between it and the words "has no power" in section 57(2) of the Scotland Act. Mr Hugo Keith devoted a substantial part of his written submissions in his capacity as amicus curiae to the argument about vires. This would suggest that one would indeed have to say that to proceed with the trial after an undue delay was not incompatible with the Convention right, if the consequences which might flow from a finding that the reasoning in H M Advocate v R  2 WLR 317 are to be avoided. I detect an inclination to think along these lines in the opening sentences of paragraph 20 of Lord Bingham's judgment.
- This impression has been greatly strengthened by his epilogue in which he says that he cannot accept that it can ever be lawful for a court to act in a manner which a statute declares to be unlawful. There is obvious force in this proposition, as there is in Lord Hobhouse's discussion of the point. But I think that the consequences that flow from it in the present context require one to ask what this statute means when it uses the word "unlawful". The proposition, which Lord Nicholls and Lord Millett too have adopted with impeccable logic, assumes that its meaning is so obvious that it needs no such examination. I do not believe this to be so.
- A careful study of the relevant sections of the Human Rights Act shows that the true meaning of the word "unlawful" in this context is simply that a wrong has been (or is proposed to be) committed which entitles the victim to a remedy under the Act. The fact that a person can bring proceedings only if he is (or would be) a "victim" of the "unlawful" act is an important signpost. This means that the act is unlawful only against the victim. It is not unlawful against all the world. Another signpost is the fact that under section 8(1) the court is given a choice of remedies. There are also important limitations as to what can be done where a judicial act is said to be unlawful: see section 9.
- A finding that an act (or a proposed act) is (or would be) "unlawful" because it is incompatible with a Convention right is therefore simply a vehicle, or a gateway, to the provision under the Human Rights Act of an appropriate remedy. This is a necessary part of the system which has been devised for "bringing rights home". Acts (or proposed acts) which are (or would be) incompatible with Convention rights have to be branded or stamped in some way to provide the necessary link between the act on the one hand and the provision of a remedy on the other. The Convention uses the word "violation": see articles 34 and 41. The word "unlawful" in the Act serves the same purpose. Its use does not in any way prejudge the choice of remedy.
- Three further points are worth mentioning. The first is that a person is a "victim" of an unlawful act for the purposes of section 7 "only if" he would be a victim for the purposes of article 34 of the Convention: section 7(7). This tells one that he requires to do more, if he is to show that he is (or would be) a victim, than simply assert that Convention rights have been (or would be) violated. He needs to show that his interests have been affected in some way by the violation of the relevant Convention right. This is a further limitation on the scope of the word "unlawful". Only a "victim" as so defined can take proceedings in respect of an "unlawful" act (or proposed act). The second point is that, as the words in parenthesis in sections 7(1) and 8(1) indicate, the word "unlawful" is extended to proposed acts as well as to past acts. These words show that an order which prohibits the proposed act is within the contemplation of the statute, where this is just and appropriate: see also section 7(11). The third point is that there are close links between what section 8 has in mind and the jurisprudence at Strasbourg. Section 8(3) refers to the "just satisfaction" principle and section 8(4) requires the court to take Strasbourg jurisprudence into account in determining whether to award damages and the amount of the award. As Mr Emmerson QC pointed out, these references support his proposition that a test which the court should apply when it is selecting the remedy that is just and appropriate is whether, in Strasbourg terms, it is proportionate.
- The meaning to be given to the word "unlawful" has a bearing too on what is to be done about past acts. If the view of the majority is right, and the word in this context means something that cannot lawfully be done, the conclusion to which one would be driven would be that such acts would have to be treated as acts which the public authority had no power to do. That would mean, in the case of a determination by a court or tribunal, that it was a determination that the court or tribunal had no power to make. The logical conclusion would seem to be that a court or tribunal which was aware that it was not possible for it to issue its determination within a reasonable time would have to refrain from issuing the determination.
- But in Gillespie v H M Advocate 2003 SLT 210 following the decision of the Privy Council in Mills v H M Advocate  3 WLR 1597, the appeal court of the High Court of Justiciary held that there had been a delay in the hearing of the appeal which was the responsibility of the court and was unreasonable. Having held that there had been a breach of the reasonable time guarantee because the appellant had been denied the right to a determination of his appeal within a reasonable time, it proceeded to grant him a remedy by way of a reduction in the punishment part of his life sentence. The decision that it was open to the court in that situation, which was of its own making, to grant such a remedy is consistent with what I take to be the meaning of the word "unlawful" in this context. I do not understand how it would have been either possible or appropriate if the word is to be given the meaning which is favoured by the majority.
Some points on practice
- The concept of a proposed act may be relevant in many contexts. There is no reason to think that it may not be relevant also in the context of a complaint about unreasonable delay. In Dyer v Watson  3 WLR 1488, for example, the question whether the reasonable time guarantee had been violated was raised as a devolution issue before the cases of Watson and Burrows, the police officers, and of JK, the minor aged 13 when he was charged, respectively were due to come to trial. In the case of the police officers notice of the devolution issue was given before the pleading diet in May 2000. The trial would probably have taken place in August or September of that year. Lord Bingham noted, at p 1509, para 56, of his judgment that a period of 20 months elapsed (or would have elapsed) between the date when the officers were charged and the date of their trial. In JK's case the devolution minute was lodged about four days before the start of his trial, the original date of which had been postponed to allow the defence to obtain a medical report. Lord Bingham said, at p 1510, para 60, that in his case a period of 28 months would have elapsed between the date when he was charged and the original trial date.
- Notice of the devolution issues was given before the trial in those cases because this is what the rules of procedure that are in force in that jurisdiction require. It will be recalled that in Martin v Tauranga District Court  2 NZLR 419,432 Hardie Boys J said that a person should not be entitled to plead undue delay unless he has taken such earlier opportunity as there may have been to protest at the delay up to that point. That is the approach which the procedure in Scotland has adopted. It enables the prosecutor's proposed act in taking the case to trial to be scrutinised at that stage. Rule 40.2 of the Act of Adjournal (Criminal Procedure) Rules 1996 (SI 1996/513), which was inserted by the Act of Adjournal (Devolution Issues Rules) (SI 1999/1346), provides that where a party to proceedings on indictment proposes to raise a devolution issue, he shall give written notice of his intention to the clerk of court within seven days of service of the indictment. Rule 40.5(1) provides that no party to proceedings shall raise a devolution issue except in accordance with rule 40.2 unless the court, on cause shown, so determines.
- It was suggested in the course of the argument, on the view that a reduction in sentence would be the ordinary remedy, that the question of an unreasonable delay need not be considered until after conviction and before sentence. That does not seem to me, with respect, to be a satisfactory solution. The prosecutor ought to be given notice of this complaint so that he can reply to it. There is no foregone conclusion in these cases. The public interest requires that an appropriate sentence ought not to be reduced unless a good reason for this has been demonstrated. It may become clear, when the reason for the passage of time is explained, that the delay was not after all unreasonable. Adjournment of the proceedings between conviction and sentence so that this matter, of which the prosecutor had no previous notice, can be investigated and then debated is not an attractive prospect. It would be a matter for regret if it were to be assumed from the result of this case that the complaint of an unreasonable delay in the determination of the charge, however obvious it was before the trial that there were good grounds for saying that the delay between the charge and its determination was unreasonable, need not be made until the trial is over.
- The calculations that were done in Dyer v Watson  3 WLR 1488 show that where the point is taken in advance of the trial, as the rules which are in force in Scotland require, attention is likely to concentrate in most, if not all cases, on the period between the date when the defendant was charged and the date when he can expect to be brought to trial: see also H M Advocate v Shell UK Ltd 2003 SLT 1296, 1298K. The date of the charge lies in the past. The date of the trial, when the charge will be determined, lies in the future. The act of bringing the defendant to trial where there is undue delay is clearly a proposed act. The Human Rights Act enables one to say that the proposed act of bringing the defendant to trial after an unreasonable time has elapsed is "unlawful", and then to provide a just and appropriate remedy.
Does the Convention right have to be emasculated?
- In paragraph 22 of his judgment Lord Bingham observes that a rule of automatic termination on proof of a breach of the reasonable time requirement has been shown to have the effect in practice of emasculating the right which the guarantee is designed to protect. I am not persuaded that this is a point of real concern, given that the right of individual application to the European Court under article 34 has not been taken away by the Human Rights Act. If the domestic courts are tempted to set the threshold unacceptably high, the victim will have his remedy in Strasbourg. The aim of bringing rights home will have fallen short of fulfilment, but that is all.
- Nor am I convinced that the concerns expressed by Professor Amsterdam in "Speedy Criminal Trial: Rights and Remedies" (1975) 27 Stan L Rev 525 about the American experience are an accurate reflection of the result which would be likely to follow if a stay were to be regarded in this country as, if not the rule, the normal or standard remedy. One ought not to overlook the benefits of taking a firm line on the elimination of delays in the criminal justice system. Of course, the prospect of releasing dangerous criminals on the public is unattractive. But so too is the prospect of long delays in bringing those who are accused of crimes to trial, bearing in mind the presumption of innocence which is guaranteed by article 6(2) of the Convention. The decision of the Court of Appeal in New Zealand in Martin v Tauranga District Court  2 NZLR 419 that a stay of proceedings was the appropriate remedy in the event of undue delay is thought to have had a salutary effect on the criminal justice system in that country. The benefits of a strict approach to the prevention of delay in bringing accused persons to trial have for a long time been recognised in Scotland. For an example of how strict this approach is in cases where the accused has been detained in custody reference may be made to Beattie (WJ) v H M Advocate 1995 JC 186 where the court refused to extend the 110 day period. As already noted, some changes to the present system are now being considered by the Scottish Parliament in the Criminal Procedure (Amendment) (Scotland) Bill following a report by Lord Bonomy: The 2002 Review of the Practices and Procedures of the High Court of Justiciary (2002) (see recommendations 11(a) - (g), pp 119-120). But the fundamental principles are to remain unchanged, and there is to be no change at all to the 12 months rule.
- That all having been said, the problem to which this part of the majority's opinion is directed disappears once it is recognised that section 8(1) of the Human Rights Act gives the court a discretion to choose the remedy for an unlawful act by the prosecutor which it considers just and appropriate. So long as the court recognises that there has been, or will be, an act which is incompatible with a Convention right and is performing its function of providing a remedy for the incompatibility it will, for its own part, be complying with or giving effect to the Convention. The court itself will therefore be acting lawfully. This problem does not provide a sound reason for rejecting the proposition that any further prosecution of the charge must be held to be unlawful within the meaning of section 6(1) of the Act.
The remedy in civil proceedings
- As Lord Bingham has pointed out in paragraph 21 of his judgment, a rule of automatic termination of proceedings in the event of a breach of the reasonable time requirement cannot sensibly be applied in civil proceedings. He gives this as another reason for rejecting the proposition that any further prosecution or trial of a criminal charge must be unlawful within the meaning of section 6(1) of the Human Rights Act: see paragraph 20.
- Of course, the prospect of an automatic termination for breach of the reasonable time requirement cannot sensibly be applied in civil proceedings. Newman Shopfitters Ltd v M J Gleeson Group Plc 2003 SLT (Sh Ct) 83, provides an example of a case where a termination of the proceedings was thought to be appropriate. That was a case where the pursuer had delayed unreasonably in the conduct of proceedings for the giving of effect to an arbitration clause. But it has never been part of the argument in favour of the approach which I would adopt to the analysis of this Convention right that this must happen. In H M Advocate v R  2 WLR 317, 337, para 57 I said that it was important to start with domestic law when one is considering the question of remedy. I suggested that the proper approach would be first to identify the remedy which would ordinarily be thought to be appropriate in domestic law for a breach of the kind that has taken place, and then to consider whether the remedy which has thus been selected would achieve just satisfaction for the breach as indicated by the jurisprudence of the European Court.
- If that approach is adopted, the problem that has been suggested disappears. It would hardly ever be thought appropriate for civil proceedings to be terminated under our domestic system because of an unreasonable delay on the part of a public authority in the determination of the parties' civil rights and obligations. In practice an attempt by one party to have the proceedings terminated on this ground would almost always be rejected. The appropriate time to seek a remedy for the delay would be at the end, when the proceedings were all over: see, for example, Porter v Magill  2 AC 357.
- But there is no reason why the issue of delay should not be raised prior to the determination of the issue between the parties in a civil case. If that were to be done, the appropriate remedy under section 8(1) would be to take steps to accelerate its determination. Sound practice suggests that this point should be taken as soon as it was apparent that the determination was being delayed unreasonably. But if a remedy by way of acceleration is to be given under section 8(1) it would be necessary first to find that the proposed act of the public authority in continuing to delay the proceedings was "unlawful" within the meaning of section 6(1) of the Act. It is not obvious how a finding to that effect could be made on the approach favoured by the majority.
- It is worth bearing in mind too that in the context of civil proceedings acts which are incompatible with the reasonable time guarantee may be committed by a public authority other than the court or tribunal which is to try the case. In H v France (1989) 12 EHRR 74 at least part of the delay in the resolution of the applicant's civil action of damages was due to a failure in the provision of a medical report by the state authorities. It is not beyond the stretch of imagination that a case could arise where delay had not yet occurred but the complaint was that a public authority, other than the court, was proposing to act in a way that was incompatible with the reasonable time guarantee. It ought not to be assumed that the cases in which this issue is raised before the determination in a civil case will always be cases where a breach has already taken place. The great advantage of making the Convention rights part of domestic law is that these matters can now be dealt with prospectively within the domestic legal system. The approach taken by the majority, which seems to assume that breaches of the reasonable time guarantee can only be dealt with retrospectively, risks impeding the flexibility that the court needs to deal with breaches of this guarantee which may lie in the future.
- Here again the problem to which this part of the majority's opinion is directed disappears once it is recognised that section 8(1) of the Human Rights Act gives the court a discretion to choose the remedy for the unlawful act which it considers just and appropriate. This too is not a sound reason for rejecting the proposition that any further prosecution or trial of a criminal charge must be unlawful within the meaning of section 6(1) of the Act.
The reasonable time requirement: can there be a continuing violation?
- Lord Bingham states in paragraph 20 of his judgment that the right of a criminal defendant is to a hearing, and that article 6(1) requires that hearing to have certain characteristics. It would, I think, be more accurate to say that the right of a criminal defendant is to a determination of the charge against him at a hearing which has all the characteristics which are set out in the article. One of these characteristics is that the hearing is within a reasonable time. The article does not say that the defendant has a right to a hearing which can be asserted against him, come what may and however long it takes. The whole point of the argument in Montgomery v H M Advocate  1 AC 641, was that the risk that there could not ever be a fair trial, due to the adverse publicity, was so serious that the trial should not go ahead. There is nothing in article 6(1) that drives one to the conclusion that it would be anomalous for the right to a hearing within a reasonable time to be vindicated by ordering that there be no trial at all.
- The jurisprudence of the European Court tells us that this part of the article seeks to ensure that the fate of those who are accused of crime is determined within a reasonable time. They should not be held too long in a state of uncertainty, with all the consequences for themselves and their families that this involves. They should certainly not be held in that state indefinitely. It would be entirely consistent with this rationale to hold that the stage may indeed ultimately be reached where the defendant, who is entitled under article 6(2) to be presumed innocent until proved guilty, should be released from the charge altogether. Indeed one of the great evils which the framers of the Convention may be thought to have had in mind is the holding of the threat of criminal proceedings over the head of the victim indefinitely to his severe prejudice without ever bringing him to trial. Let us hope that this evil, familiar in totalitarian regimes, never raises its ugly head in our country. But its absence from our culture should not blind us to the effect of the decision of the majority. It is to deprive the victim of the protection of being able to establish that the time has come for him to be released from the charge, irrespective of whether or not he can show that he cannot have a fair trial.
- It is true that the various characteristics which the hearing must have are separate and distinct, and that the reasonable time guarantee differs from other rights which are guaranteed by this part of article 6(1), in that once it is clear that there will be an undue delay in the determination of the criminal charge this is something that cannot be cured. As I said in Porter v Magill  2 AC 357, 489, 496, paras 87 and 108, the fact that these rights are separate and distinct means that a complaint that one of these rights has been breached cannot be cured by showing that the other rights have not been breached. So it is no answer to a complaint that the tribunal is not independent and impartial that the hearing took place in public and within a reasonable time. So too it is no answer to a complaint that the hearing took place after an undue delay that it was in public and before an independent and impartial tribunal established by law.
- What then is one to make of the proposition that, unlike other rights guaranteed by this part of the article, a breach which is identified before the hearing takes place cannot be cured? I do not think that it would be right to say that a cure will always be possible if there is a breach of the other rights. The facts in Montgomery v H M Advocate  1 AC 641 suggest that it would be unwise to lay down an absolute rule on this point. But it is true, as Lord Bingham has said in paragraph 20 of his judgment, that time once spent cannot be recovered. In the case of the other rights, a breach which is identified before the hearing takes place may be capable of being cured by ordering that the hearing must be in public, that the composition of the tribunal must be changed or that the perceived unfairness in the hearing must be eliminated in the way the trial is conducted or before it takes place. In each of these cases, it is the proposed act in proceeding to a hearing which has the prohibited characteristics that is in issue. In terms of section 7(1) of the Human Rights Act, the claim made in the proceedings against the authority is that it is proposing to act in a way which is made unlawful by section 6(1) and that the person making the claim would be a victim of that proposed act.
- The position where the complaint is that there will be a breach of the reasonable time guarantee is different only in the respect that the proposed breach cannot be cured. Here too the breach can be identified before the hearing takes place, and it is the proposed act in proceeding to a hearing after an unreasonable time has elapsed that is in issue. In H M Advocate v R  2 WLR 317, 359, para 125 as Lord Rodger of Earlsferry pointed out what the appellant was attacking was the Lord Advocate's positive act in continuing with the prosecution of the charges in a situation where it was clear that they could not be determined within a reasonable time. That, in practice, is how under the devolution rules the argument in these cases is always formulated.
- As for the position under the Human Rights Act, Lord Bingham says in paragraph 24, and I agree, that if a criminal charge is not determined at a hearing within a reasonable time there is necessarily a breach of article 6(1). As there is necessarily an incompatibility, this means that the act of the prosecutor in proceeding with the trial after the lapse of a reasonable time was "unlawful" within the meaning of section 6(1) of the Act. It is that conclusion that, in the domestic system, opens the door under section 8(1) of the Act to a just and appropriate remedy.
- But I do not follow his assertion that the prosecutor does not act incompatibly with the Convention right in continuing to prosecute if, as he puts it, "a breach is established" before the hearing. His point is that the breach consists in the delay which has occurred and not in the prospective hearing. That seems to me, with respect, to ignore the fact that article 6(1) attaches the reasonable time guarantee, along with all the other guarantees that are set out in that part of the article, to the hearing at which the criminal charge is to be determined. A breach of this guarantee cannot be detached from the hearing in the way that is being suggested. The period of time that has to be considered in terms of the article is the period between the charge and its determination. Incidental delays are not relevant unless they will result in the determination of the charge after a reasonable time. The question is whether the overall lapse of time has crossed the threshold of showing that the guarantee has been breached: see Haston v H M Advocate, 2003 GWD-959, 15 October 2003, para 17.
- In paragraph 25 of his judgment Lord Bingham accepts, as I do too, that there may be exceptional cases where it can be asserted before the trial takes place that it would be unfair for the proceedings to continue. That is not, it must be emphasised, because there cannot be a fair trial. It is because the guarantee of a trial within a reasonable time will be breached in a way that is seen to be unfair. But in that event the court will only be able to proceed to give a remedy under section 8(1) of the Act by making a finding that the prosecutor's proposed act in proceeding to the trial is "unlawful" within the meaning of section 6(1). I consider that it would be open to the court to make such a finding, because the determination of the charge must have all the article 6(1) characteristics if it is to be compatible with that article.
- The approach which I would take is illustrated by a decision of the Divisional Court, in which judgment was given after the hearing of this appeal. In R (Lloyd) v Bow Street Magistrates Court  EWHC 2294 (Admin), 8 October 2003, the Divisional Court addressed the question whether the reasonable time guarantee was capable of being violated where delay occurs in the initiation or prosecution of proceedings to commit a defendant to prison in default of payment of a sum due under a compensation order. Having answered that question in the affirmative, the court then turned to the question of remedy. Taking what I would respectfully regard as the correct approach to this issue, Dyson LJ said that the only proper remedy in that case was to order that the proceedings to commit the defendant to prison be stayed: paragraph 34. It was not suggested that a fair hearing was no longer possible or that the basic fairness of the hearing itself was tainted in any way. The critical factor was the length of delay and its consequences for the defendant, as five years had elapsed since he was released from custody. He had resumed work and his family life. It would have been inhuman to subject him to a further term of imprisonment for the original offence.
The effect of the decision on H M Advocate v R
- As I said as the outset, and Lord Bingham has noted in his speech, the House is not in a position to overrule H M Advocate v R  2 WLR 317: see section 103 of the Scotland Act 1998. A provision in the same terms is set out in section 82 of the Northern Ireland Act 1998 and Schedule 8, para 32(b) of the Government of Wales Act 1998. These provisions are an essential part of the system of devolved government. Among the wide range of questions which may come before the Judicial Committee are questions as to whether legislative measures are within the competence of the devolved legislatures and as to whether acts or proposed acts of ministers, including the Lord Advocate, are within their devolved competence. The final decision on all these questions has been entrusted to the Judicial Committee of the Privy Council.
- It would, of course, be open to the Judicial Committee, appropriately constituted, to overrule its own decision. But there are reasons for thinking that it ought to be cautious before doing so. Lord Bonomy has drawn attention to this problem in his Report: see The 2002 Review of the Practices and Procedures of the High Court of Justiciary, pp 107-109, paras 17.3-17.9. In paragraph 17.9 he states:
"It is ironic that pre-devolution the High Court was the final arbiter in all matters of criminal procedure and evidence, and was entrusted with the responsibility of ensuring that our criminal practice was in keeping with our obligations in international law, but in post-devolution Scotland the High Court has had to cede that role to the Judicial Committee of the Privy Council when, but only when, an act of the Lord Advocate is involved. Should a similar point arise in relation to the conduct of the court itself or any other public authority, the final say reverts to the High Court."
- The fact that finality in all matters other than acts or failures to act of the prosecutor rests with the High Court of Justiciary indicates that, where the conduct of the court itself is in issue, it is in a position to make up its own mind as to how the reasonable time guarantee should be interpreted and given effect in the criminal courts in Scotland. It will be for the judges of that court to decide whether they can accept the decision of the majority in this case or whether they would prefer to follow the views of the majority in H M Advocate v R  2 WLR 317, as amplified by the views which I and my noble and learned friend Lord Rodger of Earlsferry have expressed in this case. They are, of course, bound by decisions of the Judicial Committee as to how devolution issues are to be disposed of. But the definition of the expression "devolution issue" in paragraph 1 of Schedule 6 to the Scotland Act 1998 does not extend to acts of the court itself or those of other public authorities other than members of the Scottish Executive.
- A declaration by your Lordships that H M Advocate v R should not be followed in this jurisdiction may be thought to be inevitable in view of the conclusion reached by the majority. But a declaration that that case was wrongly decided, as Lord Nicholls would have it, is undesirable. Section 103 of the Scotland Act 1998 provides that any decision of the Judicial Committee shall be binding in all legal proceedings (other than proceedings before the Committee). And there is no appeal to this House from decisions of the High Court of Justiciary in cases decided by that court under the Human Rights Act 1998. So it is open to the Scottish courts to go their own way on this issue.
- The rule that the jurisdiction of the Scottish courts is separate from that in England and Wales has always been regarded in Scotland as an important part of the constitution of the United Kingdom. The provisions of the Scotland Act 1998 were designed to protect this rule. The Judicial Committee of the Privy Council forms part of the Scottish legal system when it is exercising its jurisdiction in a Scottish case under Schedule 6 to the Scotland Act: Montgomery v H M Advocate  1 AC 641,654G. The jurisdiction which it was exercising in R's case was as much part of the Scottish system as it would have been had the case been a Scottish appeal brought to this House under section 40 of the Court of Session Act 1988. In Glasgow Corpn v Central Land Board, 1956 SC (HL) 1, which was heard before the Practice Statement (Judicial Precedent)  1 WLR 1234 made it possible for it to depart from its previous decisions, the House was faced with the question whether it was obliged to follow its own decision in Duncan v Cammell, Laird & Co Ltd  AC 624 when it was considering the question whether the Scottish courts had power to override a public interest objection by the Secretary of State where documents in the possession of a government department were sought to be recovered by a litigant. Viscount Simonds said at pp 9-10:
"At once it must be said that that decision was given upon an English appeal, in which the law of Scotland was not directly under review, that the common law of Scotland differs from that of England in regard to the liability of the Crown to be sued and has developed independently in regard to the right of discovery or recovery of documents in possession of the Crown, and that, desirable though it may be that in matters of constitutional importance the law of the two countries should not differ, yet it would be clearly improper for this House to treat the law of Scotland as finally determined by a decision upon an English appeal unless the case arose upon the interpretation of a statute common to both countries."
- The law of Scotland is not directly under review in this case. Moreover, questions arose in H M Advocate v R  2 WLR 317 about the interpretation of the Scotland Act and aspects of Scottish criminal practice which are not common to the two countries. I would have much preferred it if your Lordships had felt able to arrive at a decision in this English appeal which could be reconciled with that of the Judicial Committee in R's case. But it does not follow from the fact that this has not been possible that R should not be followed in Scotland.
- A divergence of view between the two jurisdictions about the meaning of the reasonable time guarantee, as there is at present, is unfortunate but it may have to be accepted as inevitable. The last word as to its meaning must, of course, lie with Strasbourg. The doors of that court remain open to those who believe that, as a result of the decision in this case, they have not been provided in this jurisdiction with an effective domestic remedy.
109. I must respectfully dissent from the view of the majority that criminal proceedings may be stayed on the ground that there has been such a violation only (a) if a fair hearing is no longer possible or (b) if it is for any compelling reason unfair to try the defendant. The holding of a trial in such circumstances would, of course, be incompatible with the article 6(1) guarantee that in the determination of any criminal charge against him everyone is entitled to a hearing that is fair. I agree that, if those are the circumstances, the proceedings should be stayed. But I consider that the situation which is described in branch (a) of that finding refers to a different situation from that which we have been asked to consider in this case, which relates to the guarantee that the determination of the criminal charge will take place within a reasonable time. In my opinion that is a separate and independent guarantee which does not require the victim to show that a fair hearing is no longer possible. Branch (b) is open to the same criticism. It uses language which suggests that the test which has to be applied is whether a trial would be unfair. It concentrates, as does branch (a), on a breach of the fair trial guarantee as the test of whether or not a stay should be ordered.
- I would answer the first point of law referred by the Attorney General in the affirmative. In my opinion 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 in circumstances where the accused cannot demonstrate that he will suffer any prejudice arising from the delay at his trial. It is arguable that a stay of the proceedings is the ordinary and appropriate remedy where this guarantee has been breached. That is the position which the Court of Appeal in New Zealand has adopted, it is consistent with what the Judicial Committee has held to be right for Mauritius and it is the position which has been adopted also by the High Court of Justiciary. But, as it is open to the court under section 8(1) of the Human Rights Act 1998 to make such order within its powers as it considers just and appropriate, I would not go so far as to say that it was the inevitable remedy. I would hold that the proceedings may be stayed if, in all the circumstances, the court considers this to be the appropriate remedy.
LORD HOBHOUSE OF WOODBOROUGH
- I would dismiss the appeal for the reasons given by my noble and learned friend Lord Bingham of Cornhill. But, having since read and considered the Opinions of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry, I realise that to confine myself to such a response would not do full justice to the opinions they express.
- The first question raised by the appeal has two elements: the first, the correct understanding of Article 6 (1) of the European Convention on Human Rights; and, the second, the question of remedy (s.6(1) and s.8 of the Human Rights Act 1998). Both Lord Hope and Lord Rodger take a different view of the first element but, because of the view they take of the second element, are able to agree with your Lordships that the appeal should be dismissed. It may be thought that this does not matter as, for England, the outcome is the same. But this would be wrong. The difference on the first element is of general importance and on the second element, by distinguishing HM Advocate v R  UKPC D3,  2 WLR 317, they have raised a question of the English law of judicial review which, if they are correct, could have far reaching consequences.
- The directly relevant wording of the Article is:
" 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 phrase under consideration on this appeal is "within a reasonable time".
- The view of Lord Hope and Lord Rodger is that this phrase is correctly understood as expressing one of the necessary characteristics of the hearing to which everyone is entitled. Thus, Lord Rodger says in paragraph 147 of his Opinion that one of the characteristics of the hearing is that "it must take place within a reasonable time"; and refers to "holding a hearing that lacked this characteristic". Lord Hope at paragraph 70 expressly adopts the same analysis: "What it says [is] that in the determination of any criminal charge against him the hearing is to have certain characteristics." (See also paragraph 93). They appear to find support from the language used (in a slightly different context) by Lord Bingham at paragraphs 20 and 24 where he refers to the Article 6(1) right as requiring the hearing "to have certain characteristics", one of which is that the "criminal charge be determined at a hearing within a reasonable time".
- The same reasoning is implicit in the majority Opinions in 'R' and is probably most explicitly stated in that of Lord Rodger at paragraphs 148-150 from which it also appears that the point may have been conceded by the Crown. The inevitable result was that the holding of a hearing outside the limits of a reasonable time was a breach of Article 6(1) and further, as soon as such a breach had become unavoidable, the inevitable breach involved in holding a hearing must be restrained under the Scotland Act 1998. (See also Lord Hope at paragraphs 76-8.)
- This reasoning depends, as I have said, on categorising the within a reasonable time obligation as referring to a characteristic of the hearing or determination just as are the fair, "public", "independent", "impartial" and "tribunal established by law" requirements. It is this categorisation which I suggest is fundamentally wrong. A within a reasonable time obligation relates to a quality of the performance, not to the attributes of the service or article - here the hearing or determination - to be provided by the person under the obligation. This may all sound over-sophisticated but it can be simply demonstrated both as a matter of the ordinary use of language and by reference to basic principles of the law of obligations.
- As a matter of the ordinary use of language, one can sensibly talk about a fair hearing or a public hearing or an impartial hearing or about an independent or impartial determination or a determination by a tribunal established by law. All this use is just the use of adjectives or an adjectival phrase to describe the characteristics of the hearing or tribunal itself. But one cannot sensibly or grammatically talk about a within a reasonable time hearing or determination. It is not adjectival; it is adverbial. But it does make sense when it is used in relation to the delivery of the hearing or determination - the performance of the obligation by the person under the obligation. Thus, 'When must I have done this by?' - 'You must do it within a reasonable time'. This is different from 'what sort of hearing must there be?' - 'A fair hearing'. The Opinions of my noble and learned friends recognise and stress the difference between breaches of a time obligation and breaches of other obligations: the expiry of a reasonable time can never be reversed; the clock can only move in one direction; a situation can be arrived at when one can accurately say it is impossible that there can ever be a determination within a reasonable time. But they do not otherwise recognise that the character of the time obligation is different from that of the other obligations under Article 6(1).
- Turning to the law of obligations, the main answers to the problems raised were worked out in the 19th century and completed in the 20th. Where opportunities for codification arose, they were incorporated in legislation, most notably the Sale of Goods Act 1893. There have been landmark judgments such as that of Devlin J in Universal Cargo Carriers v Pedro Citati  2 QB 401,  1 Lloyds 174. It suffices to quote from the summary of the law provided by Lord Diplock in United Scientific v Burnley Council  AC 904 at 928:
" I will not take up time in repeating here what I myself said in [Hongkong Fir v KKK,  2 QB 26] except to point out that by 1873:
(1) Stipulations as to the time at which a party was to perform a promise on his part were among the contractual stipulations which were not regarded as "conditions precedent" if his failure to perform that promise punctually did not deprive the other party of substantially the whole benefit which it was intended that he should obtain from the contract;
(2) When the delay by one party .... had become so prolonged as to deprive the other party of substantially the whole benefit ....... it did discharge that other party from the obligation to continue to perform any of his own promises ..... ;
(3) Similar principles were applicable to determine whether the parties' duties to one another to continue to perform their mutual obligations were discharged by frustration ....... ."
Lord Diplock stated these rules as of general application in the law of obligations. It will be noted that the breach of the punctual performance obligation does not necessarily nor automatically put an end to the obligations of either party to continue to perform. There has been a breach which may call for a remedy in damages for the consequences of that breach; but there still is an obligation to perform the substantive obligation. By a parity of reasoning, the failure to perform within a reasonable time does not relieve the provider from his obligation to provide a fair trial nor the party not in breach from being required to undergo a fair trial, unless the delay has made a fair trial impossible or has very seriously prejudiced the relevant party. This is effectively the test, mutatis mutandis, which the Court of Appeal applied in the present case and the majority of your Lordships would adopt.
- But, it will be said, this is an argument based on domestic law not upon the construction of an international convention. There would be force in this objection if the Convention pointed in a different direction. It does not. Article 5 deals with the right to liberty. One of the categories dealt with is persons arrested on reasonable suspicion of having committed a criminal offence: paragraph (1)(c). Paragraph (3) then provides that such persons shall be promptly brought before a judge "and shall be entitled to trial within a reasonable time or to release pending trial" subject to "guarantees to appear for trial". This Article therefore expressly contemplates, and implicitly permits, a trial after a reasonable time has elapsed. The same inference is to be drawn from Article 6 (1) itself since it covers civil as well as criminal proceedings: "In the determination of his civil rights and obligations". Is a civil claimant, or cross-claimant, to be deprived of the upholding of his rights merely because a more than reasonable time has elapsed? He may have a right to a remedy for the delay, say by the award of interest or by an assessment of whether his damages have been increased by the delay, but the parties cannot be denied a determination of the claim unless the delay and the role of the parties comes into the exceptional category of having made a fair determination impossible or the action abusive.
- Further, a basic principle of human rights law is the principle of proportionality. The appellants' argument flies in the face of this principle. They would read Article 6 (1) as prohibiting any trial after the lapse of a reasonable time. This is essentially a mechanical approach. Suppose that the reasonable time is held to have been 't'; an elapsed time of 't' + 1 is a breach and, on the appellants' argument, would involve holding the trial to be a breach. This is an exorbitant construction to place upon Article 6 (1). Again, it might be a plausible, though heterodox, argument if there was any support for it in the Strasbourg jurisprudence. But again, there is not. I will not repeat the citation of the relevant decisions. The judgments proceed logically from first making a finding of an identified breach and then to the consideration of the remedy for that breach. None of the judgments contain a finding that the holding of the trial was a breach as opposed to the occurrence of the delay.
- For these reasons as well as those given by Lord Bingham and to be given by my noble and learned friend Lord Millett, and in disagreement with Lord Hope and Lord Rodger, I do not accept the appellants' argument on the construction and effect of Article 6 (1).
The section 6 and 8 point:
- This is a question of English law. It proceeds from the premise that holding the trial was a breach of the defendant's Convention rights and therefore "unlawful". The difference of opinion derives from attaching different meanings to the use of this word. It touches upon a familiar difficulty of the law of judicial review which too combines the finding that an act or omission is unlawful and/or ultra vires with discretionary remedies. What is the legal status of an act which is unlawful or ultra vires? Does its legal status change if a court refuses an applicant a remedy on judicial review? There is a paradox, the illegal act which the court nevertheless does not restrain, the ultra vires act which is nevertheless effective.
- I discussed this paradox in my judgment in Credit Suisse v Allerdale BC  QB 306, CA, pp. 350 et seq, and reviewed the authorities as they stood at that date. The starting point is Anisminic v Foreign Compensation Commission  2 QB 862 where Diplock LJ held that the illegality of administrative decisions and actions arose from exceeding the powers given, ie, ultra vires. (See also Council of Civil Service Unions v Minister for the Civil Service  AC 374 at 410 per Lord Diplock). The combination of this analysis with the discretionary or limited remedy of judicial review gives rise to the paradox. The applicant may be out of time or there may be other reasons for refusing the applicant a remedy by way of judicial review. A striking example of the paradox can be found in an employment case where it was held that there was an unlawful dismissal in breach of the obligation of natural justice (and, therefore, the relevant act was ultra vires and unlawful) but there was no order that the employee (a chief constable) be reinstated as if he had never been dismissed: Ridge v Baldwin  AC 40.
- The authoritative statement of the law, particularly in relation to criminal proceedings is now provided by Boddington v British Transport Police  2 AC 143. Lord Browne-Wilkinson again drew attention to the paradox: p.164. But all members of the House were at one in emphasising that ultra vires acts by a public authority are unlawful. Thus Lord Slynn said, at p.164: "For magistrates to be required to convict when they are satisfied that an administrative act is unlawful is unacceptable." The main discussion was in the judgment of Lord Steyn at pp.170-2. Thus, Lord Steyn said: "The rule of law requires a clear distinction to be made between what is lawful and what is unlawful." He quoted the observation of Lord Browne-Wilkinson in ex parte Page  AC 682 at 701:
" The fundamental principle [of judicial review] is that the courts will intervene to ensure that the powers of public decision-making bodies are exercised lawfully."
and from Dr Forsyth in "'The Metaphysics of Nullity' - Invalidity, Conceptual Reasoning and the Rule of Law", Forsyth and Hare, The Golden Metwand and the Crooked Cord (1998) at p. 159, referring to the fact that someone may find that he has relied upon the void and unlawful administrative act of another:
" The crucial issue to be determined is whether that second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determined by an analysis of the law against the background of the familiar proposition that an unlawful act is void."
Their Lordships accordingly held that a person charged with an offence under an ultra vires bye-law prohibiting smoking on trains could defend himself by contending that the bye-law was unlawful.
- Three points of particular relevance emerge -
(a) An ultra vires act by a public authority is unlawful. There is no room for distinguishing between the law of Scotland and the law of England in this regard.
(b) A person charged with a criminal offence can defend himself by challenging the lawfulness of any matter essential to his prosecution on that charge.
(c) The challenge can be made at the trial and on appeal. That it has not been made by way of judicial review is irrelevant as is the fact that, on judicial review, a remedy might have been refused.
- It follows that if, contrary to my view, delay in bringing the case to trial amounting to a breach of the "within a reasonable time" obligation in Article 6(1) renders it unlawful to hold the trial, the person charged can have the indictment quashed and/or the proceedings stayed. It is a fortiori from the decision and reasoning in Boddington that an unlawful trial cannot be held and that any conviction resulting from such a trial must as of right be quashed on appeal. The trial court lacked jurisdiction to try the accused. The flexibility of the remedies afforded on judicial review and the remedial position in Strasbourg cannot survive the hypothesis that the trial and conviction are unlawful under s.6(1).
- The appellants fail on the first element in the main question. The construction of Article 6(1) for which they contend and which my noble and learned friends Lord Hope and Lord Rodger support and HM Lord Advocate v R upheld is in my respectful opinion clearly wrong. Further the distinction it is sought to make between the law of Scotland and English law regarding the second element is in my respectful opinion clearly unsustainable as a matter of English law.
The Second Question: When does a person become a person charged with a criminal offence?
- There is no division of opinion on this question. It depends upon the structure of the law and practice of the relevant individual member country. In England it must be decided in accordance with English law. The problem is when does the investigation of a suspected commission of a criminal offence become the prosecution of a person charged with a criminal offence. So far as English law is concerned the answer is provided by Parts III and IV of the Police and Criminal Evidence Act 1984 which draw a clear line between the investigating/arresting stage by the investigating police officers and the decision by a different independent police officer, the custody officer, whether a particular person should be charged and, if so, charging him: s.37 and Code C.16 (since amended).
- I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Nicholls of Birkenhead. I am in complete agreement with them, and add a very few words of my own to explain why I find it impossible to accept the reasoning of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry.
- Section 57(2) of the Scotland Act provides that the members of the Scottish Executive have no power to act incompatibly with a Convention right. Section 6(1) of the Human Rights Act 1998 makes it unlawful for a public authority to act incompatibly with a Convention right. When Parliament wishes to proscribe an act it traditionally adopts the formula: "it shall be unlawful" to commit the prohibited act. Whatever the position in relation to past acts, in relation to proposed future acts there is no difference between the position in Scotland and that in England. In Scotland the Scottish Executive has no power to act incompatibly with the defendant's Convention rights; in England the authorities are expressly prohibited from doing so. If (i) it is proposed to hold a trial after the expiry of a reasonable time and (ii) the holding of such a trial is incompatible with the defendant's right to a trial within a reasonable time, then in Scotland there is no power to hold the trial and in England the trial cannot lawfully be held. In either case the proceedings cannot be allowed to proceed to trial. But the second condition must be satisfied as well as the first.
- My difficulty with Lord Hope's reasoning is that it proceeds from the assumption that the question is one of domestic law and is "essentially a question of remedy". This begs the question, for it assumes that the second condition is satisfied, that is to say that it is a breach of the defendant's Convention right to hold a trial after the expiry of a reasonable time. This is the very question to be decided, and it is not a question of domestic law at all.
- Before remedial questions can be considered, the breach must be identified. The essential question in the present case is whether breach of the reasonable time requirement consists only of the failure to hold the trial within a reasonable time (a sin of omission) or consists also of the holding of the trial itself after a reasonable time has expired (a sin of commission). This is the question to which I now turn.
- Article 6(1) of the Convention confers four distinct and independent rights (i) to a fair and (ii) public hearing (iii) within a reasonable time (iv) by an independent and impartial tribunal established by law. Several of your Lordships have commented upon the differences between the right to a hearing within a reasonable time and the other Article 6 rights. As Lord Rodger has observed, if the hearing is not fair or public or is not by an independent and impartial tribunal established by law, it will usually be possible for the authorities to hold another hearing which satisfies the requirements of the Convention. But where the hearing is not held within a reasonable time, the violation is irreversible.
- But this is not, with respect, the only or the most important distinction between the reasonable time requirement and the other requirements of Article 6. The fundamental distinction and the one which is directly relevant to the present issue is that a failure to comply with the other requirements of Article 6 puts the verdict itself in doubt. If the hearing is not fair, or is before a tribunal which is not independent and impartial or does not sit in public, then the correctness of the tribunal's decision is brought into question. The object of these rights is to secure to the individual a just determination of the dispute or criminal charge which is as far beyond challenge as human justice can make it.
- But the object of the reasonable time guarantee is different. The failure to hold the hearing within a reasonable time does not in itself ("automatically") cast doubt on the verdict. There is nothing wrong with the trial and the verdict is not suspect. The defendant cannot and does not challenge the propriety of the verdict on this ground. He can only say in effect: "you were right to convict me, but you should have done so sooner." The vice lies in the delay itself, with all its harmful consequences to the defendant. This is what Article 6 prohibits and for which a remedy must be found. The vice does not lie in the holding of the trial itself; and it is a misreading of Article 6 to think that it prohibits it.
- Thus I agree with Lord Rodger's statement, in paragraph 148, that "everyone has a right to have his case heard fairly, publicly and in a reasonable time. If his case is not heard fairly, there is a breach; if his case is not heard publicly, there is a breach; and if his case is not heard within a reasonable time, there is a breach". Where I part company with him is in his conclusion that the three rights and the three breaches are parallel. In my opinion the third right is very different. In that case, and that case alone, the conduct of the hearing itself may be beyond reproach. This difference ought to be, and in my opinion is, reflected by an Article which confers a positive right to a hearing (being a hearing which is fair and held in public within a reasonable time), and a right not to be subjected to a hearing which is unfair or held in private; but no right not to be subjected to a late (but otherwise irreproachable) hearing.
- This is a matter of right, not remedy. It marks the scope of the reasonable time requirement; it is not concerned with the nature of the remedy for breach. This is amply demonstrated by the jurisprudence of the Strasbourg court, which habitually accepts a reduction of sentence as sufficient reparation for breach of the reasonable time requirement. A mere reduction of sentence could not sensibly be regarded as sufficient reparation for conviction and sentence after a hearing which should never have taken place. The Strasbourg court cannot, of course, quash the conviction; but if the national court has failed to do so one would expect it to require reparation to be made for the wrongful conviction and sentence. The only rational conclusion from its failure to do so is that the hearing and sentence themselves are not incompatible with Article 6, and that the only violation consists of the delay.
- My Lords, it is essential to keep in mind the difference between what the state authorities ought to do and what they are entitled to do. They ought to hold the trial within a reasonable time, and if they fail to do so they commit a breach of the defendant's Convention rights. But they remain entitled to hold the trial after the reasonable time has expired, though they must make adequate reparation for their failure to hold it sooner; and they do not act incompatibly with the defendant's Convention rights by doing so.
- It follows that it is not unlawful (in England) or ultra vires (in Scotland) to proceed to trial despite the unreasonable delay.
LORD SCOTT OF FOSCOTE
- I am in complete and respectful agreement with the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hobhouse of Woodborough and Lord Millett and would answer the two questions put by the Attorney General in the manner Lord Bingham has proposed.
LORD RODGER OF EARLSFERRY
- In this appeal your Lordships must deal with two issues. One concerns the starting point of the period to be considered for the purposes of the reasonable time guarantee in article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). On that matter I respectfully agree with what my noble and learned friend Lord Bingham of Cornhill has said and I have nothing to add.
142. The other issue, which is fundamental, raises two questions that must be kept separate: one relates to the possible violation of article 6(1) of the Convention and the other to the remedy which the domestic law of England and Wales provides for such a violation.
- First, if the responsible authorities delay for so long after charging a defendant that they cannot try him within a reasonable time, do they infringe his rights under article 6(1) of the Convention by bringing him to trial after the expiry of that reasonable time? This question raises the same point on the construction of the reasonable time guarantee in article 6(1) as the Privy Council decided in HM Advocate v R  2 WLR 317. The submissions of counsel were to much the same effect in both cases. I have carefully reconsidered the arguments and even more carefully studied the speeches of the majority of your Lordships. While appreciating the arguments to the contrary, I remain of the view that bringing a defendant to trial after the expiry of a reasonable time does indeed infringe his article 6(1) rights.
- Secondly, if holding a trial would infringe the defendant's article 6(1) rights, what is the appropriate remedy? In answering this question, your Lordships have first to consider what remedy or remedies the Convention requires states to provide for a violation of the guarantee. But your Lordships must then go further and consider what remedy or remedies the domestic law of England and Wales provides for such a violation. This raises an issue about the interpretation of our domestic legislation that has not arisen before. In HM Advocate v R the Privy Council had to interpret and apply section 57(2) of the Scotland Act 1998. Here the House has to interpret and apply sections 6(1) and 8 of the Human Rights Act 1998 ("the 1998 Act"). I would answer this question in the same way as your Lordships but, unfortunately, on an entirely different basis.
- I have had the privilege of reading the speech of my noble and learned friend, Lord Hope of Craighead, in draft. I agree with his analysis. Since the matter is of such importance, however, I consider it proper to set out my reasons in my own words. In doing so, I shall refer to the "the defendant" even though, of course, in these proceedings the former defendant is now an acquitted person.
Right to a hearing within a reasonable time under article 6(1)
- Where a defendant is in custody awaiting trial, delay in bringing him to trial affects his liberty. For that reason civilised legal systems have long been vigilant to minimise such delays. The Convention deals with them in article 5(3), which provides that a defendant in custody awaiting trial has a right to "trial within a reasonable time or to release pending trial". Where the defendant is not in custody, delay in bringing him to trial does not affect his liberty but may have other potentially pernicious effects which were identified by Lord Steyn in Mills v HM Advocate  3 WLR 1597, 1604, para 14. In particular, whether or not he committed the offence, the defendant will be in suspense as to his fate, with possible ill effects on his health and general well-being. Legal systems have been slower to recognise and combat this potential abuse. For instance, in Scotland more than 275 years separated the Criminal Procedure Act 1701 (c 6), requiring those kept in custody to be tried within 110 days, and section 14 of the Criminal Justice (Scotland) Act 1980, requiring the trial of those charged with serious offences and released on bail to begin within twelve months. Even under the Criminal Procedure (Scotland) Act 1995, which regulates such matters today, there is still no specific timetable for minor cases where the accused is at liberty. This time-lag in regulating the position can seem surprising to those working in a jurisdiction where custody time-limits are taken seriously: HM Advocate v H 2000 JC 552, 553F-I per Lord Bonomy. The explanation is probably historical. In the past there was less call for a specific timetable for the trial of defendants who were at liberty: with relatively few offences and prosecutions, in practice legal systems were able to deal with such cases fairly promptly. Nowadays, with new offences and crowded court calendars, there is more need to recognise explicitly that, if the state charges someone with an offence, the charge should not be left hanging over him: he is entitled to have it determined by a hearing within a reasonable time. That is the important right which article 6(1) of the Convention gives him. States must organise their legal systems so as to give effect to it. Similarly, they must ensure a hearing within a reasonable time for the parties to civil proceedings. I return to that point in paragraph 166 below.
- The defendant's entitlement under article 6(1) is not confined to the reasonable time guarantee. He is entitled to a hearing with three characteristics: it must be fair and public; it must be by an independent and impartial tribunal established by law; and it must take place within a reasonable time. These are three separate guarantees: Porter v Magill  2 AC 357, 488-489, para 87 per Lord Hope of Craighead; Mills v HM Advocate  3 WLR 1597, 1603-1604, paras 12 and 13 per Lord Steyn. In the present case the prosecution delayed so long that, it is conceded, any hearing would not have taken place within a reasonable time. Therefore, if the relevant authorities had gone ahead with the hearing, it would have lacked one of the three characteristics guaranteed by article 6(1). So, by continuing with the prosecution and holding a hearing that lacked this characteristic, the relevant authorities would have violated the defendant's rights under article 6(1) just as surely as they would have violated his rights by holding a hearing that lacked one of the other two characteristics - which was not fair and public or which was not by an independent and impartial tribunal established by law. In my view the matter is as simple as that.
- My noble and learned friend, Lord Hobhouse of Woodborough, criticises this reasoning for failing to pay proper attention to the language of article 6(1). He contrasts the adjectives "fair" and "reasonable", which describe the "hearing", with the phrase "within a reasonable" time, which is adverbial in character: one cannot, he says, sensibly talk about a within a reasonable time hearing or determination. This phrase only makes sense when it is used in relation to the delivery of the hearing or determination - the performance by the person under the obligation. That grammatical argument for distinguishing the reasonable time guarantee from the others cannot withstand reference to the French text of article 6(1), which is equally authentic (article 59). Article 6(1) begins:
"Toute personne a droit à ce que sa cause soit entendue équitablement, publiquement et dans un délai raisonnable…."
Everyone has the right to have his case heard "fairly", "publicly" and "in a reasonable time". If his case is not heard fairly, there is a breach; if his case is not heard publicly, there is a breach; and if his case is not heard within a reasonable time, there is a breach. The three rights and the three breaches are parallel.
- The majority seek to interpret and apply article 6(1) in what I consider to be an unduly subtle and restrictive manner. I shall have to examine their reasoning further a little later. For the moment, I recall that the Privy Council has held that a broad purposive approach to the interpretation of article 6(1) is necessary: Mills v HM Advocate  3 WLR 1597, 1602 - 1603, para 10. In his speech my noble and learned friend, Lord Steyn emphasised that article 6(1) is "a classic case" calling for what Lord Wilberforce described in Minister of Home Affairs v Fisher  AC 319, 328 as "a generous interpretation … suitable to give to individuals the full measure of the fundamental rights and freedoms referred to." Lord Wilberforce's guidance is designed for home consumption just as much as for export.
- As I suggested in HM Advocate v R  2 WLR 317, 362, para 135, the attitude of the typical defendant who properly invokes this fundamental right in article 6(1) may be characterised in this way. He says to the prosecuting and judicial authorities: "Of course, I do not actually wish you to go on with the proceedings so as to have the charge against me determined at a hearing but, if you do, I insist that the hearing be held within a reasonable time in accordance with article 6(1) of the Convention." The reply of the prosecuting and judicial authorities in a case such as the present is: "We insist on going on with the proceedings so as to have the charge determined at a hearing even though, admittedly, due to a failure on our part, that hearing cannot be held within a reasonable time in accordance with article 6(1)." There can be no clearer indication of the authorities' intention to take steps that necessarily involve violating the defendant's article 6(1) right. The only question is what his remedy for that violation should be. In the context of a prosecution the respective rights and duties of the authorities and the defendant are not based on agreement. That being so, I do not find the analogy that Lord Hobhouse draws with the law of obligations helpful.
- There is, of course, a difference, as Lord Bingham points out, between the right to a hearing within a reasonable time and the other rights guaranteed by article 6(1). If the hearing, whether past or future, is not fair and public or is not by an independent and impartial tribunal established by law, then it will usually be possible for the authorities to hold another hearing that has the missing characteristic and so complies with the Convention guarantee. In that way the defendant is given his entitlement under article 6(1). Where any hearing is not held within a reasonable time, however, the violation is irretrievable. By definition, the undue delay with its harmful effects occurs by the time the hearing comes to an end. The relevant authorities cannot remedy the situation and give the defendant his due by holding a fresh hearing - this could only involve still greater delay, prolonging the disruption to the defendant's life and so exacerbating the violation of his Convention right. But the fact that this particular breach of article 6(1) cannot be cured by holding a fresh hearing is not just some quirk of the Convention that happens to put the relevant authorities in a particularly awkward position. On the contrary, it stems from the very nature of the wrong which the guarantee is designed to counteract. If the responsible authorities cannot go back and start again, neither can the defendant. For both sides time marches on. When the authorities delay unreasonably, months or years of the defendant's life are blighted. He cannot have them over again; they are gone forever. By signing up to article 6(1) states undertake to avoid inflicting this kind of harm. Since the harm is irretrievable, the European Court of Human Rights ("the European Court") is correct to regard this right as being of "extreme importance" for the proper administration of justice (Guincho v Portugal (1984) 7 EHRR 223, 233, para 38).
- Obviously, the right is open to abuse by those defendants who would in reality prefer to do almost anything rather than face trial. That is well recognised. I need not refer again to the passages from the Canadian and other cases that I discussed in Dyer v Watson  3 WLR 1488, 1537 - 1538, paras 156 - 160. The fact that a right is open to abuse is not, however, a reason for watering it down beyond all recognition. Rather, a court should apply the right in full measure but with due regard to the underlying realities of the case. If a violation is established, the court should then select the appropriate remedy in the circumstances. The decision of the European Court in Corigliano v Italy (1982) 5 EHRR 334, 346, para 53 is an example of that approach in action.
- Despite the difference to which Lord Bingham draws attention, the three guarantees in article 6(1) are all essentially similar. In effect they impose positive duties that the state authorities must fulfil. If in any given case they do not do so, the authorities violate the relevant aspect of the defendant's article 6(1) right. So, for instance, if the state provides a tribunal that is not impartial, it fails to respect the defendant's right to be tried by an impartial tribunal. That is the breach. We do not rewrite the Convention and say that the state infringes a negative right of the defendant not to be tried by a partial tribunal. The same goes here. If the relevant authorities can only arrange a hearing to determine the charge after the expiry of a reasonable time and intend to proceed to such a hearing, the state is failing to respect the defendant's positive article 6(1) right to have the charge against him determined by a hearing within a reasonable time - his right "à ce que sa cause soit entendue ... dans un délai raisonnable…". That is a clear violation of his article 6(1) right - and no less clear just because the Convention does not contain another, quite different, negative right not to be subjected to a hearing after the lapse of a reasonable time.
- In Dyer v Watson  3 WLR 1488, 1526 - 1527, paras 126 - 130, however, Lord Millett suggested that, if there were no Convention right not to be tried at all after unreasonable delay, holding a trial after an unreasonable time would entail no breach of article 6(1). In his submissions on behalf of the Attorney General in this case Mr Perry adopted Lord Millett's reasoning, even though the majority of the Privy Council had rejected it in HM Advocate v R  2 WLR 317. I adopt, without repeating, what I said on that occasion by way of respectful criticism of Lord Millett's suggested approach:  2 WLR 317, 362 - 364, paras 136 - 138. I do, however, wish to develop one particular point.
- Although he did not mention it, Lord Millett had in mind a passage that counsel had cited to the Board from the opinion of Hardie Boys J in Martin v Tauranga District Court  2 NZLR 419, 432. In that passage Hardie Boys J was dealing with section 25(b) of the New Zealand Bill of Rights Act 1990 which affords defendants "the right to be tried without undue delay". He said:
"The right is to trial without undue delay; it is not a right not to be tried after undue delay."
Lord Millett was seeking to build on this aphorism. When properly understood, however, it does not support his reasoning.
- This becomes clear the moment it is realised that, before making this comment, Hardie Boys J had already finished discussing the scope of the right to a trial without undue delay in New Zealand law. He had also decided that, since the prosecutor had acted unjustifiably in having the original trial fixture vacated, the delay of 15 months between depositions and the proposed trial date in May 1994 constituted a breach of section 25(b):  2 NZLR 419, 431, lines 52 - 54. Hardie Boys J then turned to consider what the remedy for such a breach should be. Commenting that counsel for the Crown had not contended for any remedy other than a stay, he went on to say that he was far from persuaded that a stay should be the usual remedy for undue delay:  2 NZLR 419, 432, line 4. The defendant's argument that the usual remedy should indeed be a stay had been based in large measure on the reasoning of the majority of the Supreme Court of Canada in Rahey v The Queen (1987) 39 DLR (4th) 481, 498-499 to the effect that a stay should be the minimum remedy. Lamer J said:
"If an accused has the constitutional right to be tried within a reasonable time, he has the right not to be tried beyond that point in time, and no court has jurisdiction to try him or order that he be tried in violation of that right."
- Hardie Boys J noted that Lamer J and those who concurred with him had gone so far as to put the proposition in terms of jurisdiction. In an obiter passage at paragraph 126 of his speech Lord Hobhouse adopts a somewhat similar position. Hardie Boys J's comment, which is designed to refute that argument, is a comment on remedy: he is saying that a breach of the right to trial without undue delay does not carry with it a right on the defendant's part to the specific remedy of not being tried at all after undue delay. That is indeed one possible remedy for a breach, but it is to be reserved for cases where the vindication of the personal right can be achieved in no other satisfactory way. An alternative remedy is damages:  2 NZLR 419, 432, lines 16 - 18. Pursuing a line of reasoning that has been rejected by the European Court, Hardie Boys J goes on to suggest that the court should not vindicate the right of a defendant who allows the process to run its course and only asserts his right at its culmination. If the court is alerted to the problem in time, realistic anticipatory remedies can be provided but if, despite them, "the delay continues and becomes undue, a stay of the proceedings may be acceptable as an appropriate ultimate remedy; but not otherwise":  2 NZLR 419, 432, lines 36 - 38.
- Clearly, Hardie Boys J considered that a stay was one possible competent remedy for a breach of a defendant's right to trial without undue delay. His concern was to counter any argument, based on the Canadian decisions, that the Bill of Rights Act gave a defendant a right to that remedy in all cases where such a breach occurred. In his view there was no such right and the remedy of a stay should be reserved for exceptional cases. What matters for present purposes, however, is that in this passage Hardie Boys J was dealing with the remedy for a breach of section 25(b); he was not considering how section 25(b) might be breached in the first place. The passage therefore provides no support for Lord Millett's analysis of the reasonable time guarantee in article 6(1). More particularly, it does not support the view that the state authorities can mount a trial after the expiry of an unreasonable time without violating that guarantee.
- Lord Bingham accepts that, if through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant's article 6(1) right: paragraph 24. He goes on to hold, however, that the prosecutor and the court do not act incompatibly with the defendant's Convention right in continuing to prosecute or entertain proceedings "after a breach is established … since the breach consists in the delay which has accrued and not in the prospective hearing". But, as the Privy Council held in Dyer v Watson  3 WLR 1488, the violation of the Convention does not lie in the failure of the responsible authorities which occurs at some particular point in the course of the proceedings and produces delay. The violation occurs when, because of that failure, the total length of the proceedings, from the charge to the conclusion of the hearing, is so great that the charge against the defendant cannot be determined within a reasonable time. Contrary to what the majority say, therefore, prosecutors or court authorities who take steps to hold such a hearing after the expiry of a reasonable time are taking steps that involve violating the Convention - just as they would be taking such steps if they were arranging for a hearing before a partial tribunal. Indeed, all the time the authorities are taking those steps to hold a hearing, they are - however unwillingly - keeping the defendant longer and longer in suspense. Where, as here, the trial should already have taken place, they are, inevitably, exacerbating the violation of the Convention. I refer to what I said in HM Advocate v R  2 WLR 317, 368 - 369, para 150. In other words the authorities are insisting on holding a trial at some future date, even though, in order to do so, they must act unlawfully by continuing to keep the defendant in suspense in breach of his article 6(1) right. It is difficult to see how holding a trial can be regarded as being compatible with the Convention, and hence lawful under our domestic legislation, if, in order to hold it, the authorities must act incompatibly with the Convention and hence unlawfully.
- The view of the majority that, in a case such as the present, the prosecutor and court do not act incompatibly with the defendant's article 6(1) right by continuing with the prosecution or entertaining the proceedings is also impossible to square with their view that, even if only in exceptional cases of unfairness, the appropriate remedy for a prospective violation of the reasonable time guarantee may be a stay of the proceedings: Lord Bingham, in paragraph 24. If, as the majority hold, going on with the prosecution or entertaining the proceedings is not incompatible with the Convention, then there could never be any question of staying the proceedings on the basis of the Convention. The stay would have to be based on some other principle of law unconnected with the Convention. Yet in the recent decision of the Privy Council in Mills v HM Advocate  3 WLR 1597, 1604, para 15, after a careful review of the previous authorities, Lord Steyn, with whom the other members of the Board agreed, referred to the "question of the remedies available in respect of a breach" of this guarantee and continued, at p 1604, para 16:
"The remedies available could include an order for discontinuance of a prosecution, quashing of the conviction, reduction of the sentence, monetary compensation or a declaration."
The only possible basis upon which the Board can have envisaged that an order for discontinuance of the prosecution could be an appropriate remedy for a breach is that continuing with the prosecution would indeed involve a breach of the reasonable time guarantee in article 6(1). Rightly, the majority do not question what Lord Steyn said. It is plainly correct. But, equally, it is fatal to the reasoning they have chosen to adopt in the present case.
Violations of the Convention and remedies under the Convention
- In Mills v HM Advocate the Privy Council were careful to keep the issues of breach and remedy separate. The European Court does the same. Rightly so. A court can no more determine whether a right has been violated by contemplating the remedy for such a violation than a physician can determine whether a patient is suffering from an illness by contemplating what cures, if any, are available for that illness or what the patient's prospects of survival might be. Lord Millett's analysis in Dyer v Watson  3 WLR 1488, 1526-1527 blurs this distinction. If the Convention had conferred a right on defendants not to be tried after the state had delayed for more than a reasonable time, this would have been a right to a specific - and, from one perspective, very effective - remedy for this particular breach of article 6(1). But that right would have come into play only where there was an established violation of article 6(1). The existence of that remedial right could not have been a basis for deciding the, logically prior, question of whether the article had been violated. The non-existence of such a remedial right is equally irrelevant to that question.
- Unfortunately, part of Lord Bingham's reasoning in the present case is open to a similar but more profound objection. He uses the effects of a stay - which he sees, I would say wrongly, as the inevitable but unacceptable consequence in English domestic law of deciding that holding a trial after a reasonable time violates article 6(1) - as a basis for concluding that there can be no violation in a case like the present. Whether or not there is a violation depends, however, on how article 6(1) should be interpreted and applied to the particular situation. The meaning of an article of the Convention is autonomous. It cannot vary, depending on the nature of the remedies that any individual legal system, such as English law, has chosen to provide for a violation. Parliament's purpose in enacting the 1998 Act so as to "bring rights home" was to provide remedies in the British courts for the violations of people's Convention rights which could have been dealt with previously only by the Strasbourg authorities. The Convention rights themselves were not to be altered as they passed through customs at Dover and entered our domestic law with its particular system of remedies.
- As the contrast with article 5(3) and (5) emphasises, the Convention provides no specific remedy for violations of article 6(1). In this respect they are like violations of other articles of the Convention. The Convention requires states to comply with the duties that give effect to the rights which it guarantees. Where they fail to do so and someone's rights are violated, as a rule the Convention does not prescribe the nature of the remedy that the states must provide. Article 13 simply says that "[e]veryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority". It is primarily up to the national authorities, including the courts, to see that victims obtain an effective remedy. The European Court only gets involved if the national authorities fail to provide such a remedy. Article 6(1) fits into that scheme.
- Of course, Parliament did not incorporate article 13 into our domestic law: it assumed that under the 1998 Act courts would have at their disposal all the necessary remedies for dealing with violations of the Convention. Experience suggests that this is indeed so. If, for example, a defendant's case is heard by a tribunal that is not impartial, in violation of article 6(1), the courts have decided that the appropriate remedy is to quash the conviction and hold a new hearing. Similarly, if a prospective hearing is not going to be fair, the courts will stop it and try, if possible, to arrange a hearing that will be fair. If, unusually, that is not possible, the proceedings will be stayed. In fashioning these remedies, the courts are not enforcing a right of the defendant under the Convention not to undergo an unfair hearing by a partial tribunal. They are simply giving what they consider to be the appropriate, effective, remedies in the circumstances for violations of the defendant's positive Convention right to a fair and impartial hearing. Similarly, if a hearing to determine the charge is not held, or is not going to be held, within a reasonable time, under the Convention the courts must select what they consider to be the appropriate, effective, remedy to deal with that violation of the defendant's positive right to such a hearing within a reasonable time under article 6(1). When doing so, they need waste no time pondering a non-existent negative right of the defendant not to be tried after an unreasonable time.
- Not surprisingly therefore, the jurisprudence of the European Court confirms that under the Convention a violation of the reasonable time guarantee in article 6(1) does not carry with it a right for the defendant not to be tried. Lord Bingham has referred to the relevant judgments. In its most explicit statement in Bunkate v The Netherlands (1993) 19 EHRR 477, 484, para 25 the court observed:
"The applicant's claims are based on the assumption that a finding by the Court that a criminal charge was not decided within a reasonable time automatically results in the extinction of the right to execute the sentence and that consequently, if the sentence has already been executed when the Court gives judgment, such execution becomes unlawful with retroactive effect.
That assumption is, however, incorrect." (emphasis added)
Just like Hardie Boys J in Martin v Tauranga District Court  2 NZLR 419, the court is concerned to reject any argument that a breach of the reasonable time guarantee automatically means that the trial proceedings have to be set aside if they have already taken place. There is no right under the Convention to have them set aside in all such cases. Article 13 of the Convention would give a right to have the proceedings set aside only in those (rare) cases where, in the circumstances, it would be an essential element of "an effective remedy" for the violation. In other cases a less drastic remedy, for example, by way of declaration, reduction in sentence or damages, will do; a defendant cannot demand more. The same must apply to a similar, but prospective, violation of the guarantee. Consistently with saying that past trial proceedings need not be set aside, the European Court has never held that, to comply with the Convention, prospective trial proceedings must automatically be stopped. It accepts that other remedies for the violation, whether by declaration, reduction in sentence or damages, may be effective and so fulfil the requirements of article 13.
166. In deciding that holding a trial would not have involved any violation of the defendant's article 6(1) rights, the Court of Appeal attached importance to the fact that the reasonable time guarantee in article 6(1) applies to civil as well as to criminal proceedings: Attorney General's Reference (No 2 of 2001)  1 WLR 1869, 1875, para 19. Lord Bingham has noted, in paragraph 21 of his speech, that the Court of Appeal were right to recognise that a rule of automatic termination of proceedings on breach of the reasonable time requirement cannot sensibly be applied in civil proceedings. I agree. Where the Court of Appeal were in error, however, was in ever supposing that under the Convention a breach of article 6(1) would have triggered an automatic termination of such civil proceedings. It should scarcely be necessary to repeat that the Convention contains no rule requiring the proceedings to be stopped where article 6(1) is violated. All it requires is for the national authorities to provide an effective remedy for the violation - perhaps, for example, by awarding damages for the delay in holding the hearing. The supposed illogicality and nonsense to which the Court of Appeal referred are not to be found in the Convention. The argument resting on them is accordingly unsound.
- So far as criminal proceedings are concerned, Lord Steyn put his finger on the point in HM Advocate v R  2 WLR 317, 322H, para 14 when he said that Hardie Boys J's comment in Martin v Tauranga District Court  2 NZLR 419, 432 neatly exposed "[t]he fallacy in the proposition that a breach of the reasonable time guarantee automatically triggers a right not to be prosecuted" (emphasis added). In the words of Lord Bingham, at paragraph 24 of his speech in the present case, in Convention terms, for such a breach the courts must simply afford such remedy as may be "effective, just and proportionate". I respectfully agree with those views as to what the Convention requires. Moreover, I regard them as fundamental to any consideration of the scheme of remedies which the 1998 Act introduced into the domestic law of the United Kingdom.
Remedies for violations of the Convention under the 1998 Act
- Section 57(2) of the Scotland Act 1998 provides that a member of the Scottish Executive:
"has no power … to do any … act, so far as the … act is incompatible with any of the Convention rights or with Community law."
The Lord Advocate is a member of the Scottish Executive. He is also the head of the prosecution system in Scotland and prosecutions for serious crimes run in his name. So, in HM Advocate v R  2 WLR 317 the accused argued that, since the trial of certain of the charges against him could not take place within a reasonable time due to a failure on the part of the prosecution, the Lord Advocate "had no power" to continue with the prosecution on those charges. By a majority, the Privy Council held that continuing with the prosecution would indeed involve a violation of the reasonable time guarantee. In those circumstances, they upheld the defence submission that by virtue of section 57(2) of the Scotland Act it was ultra vires for the Lord Advocate to continue with the prosecution on the charges in question and they accordingly dismissed them. For better or for worse, there was no room for any other remedy, given the terms of section 57(2) of the Scotland Act. No issue arose under section 6(1) of the Human Rights Act and the majority were therefore careful to base their decision squarely on section 57(2) of the Scotland Act and not to express any view on what the position would have been under the (different) terms of section 6(1) of the 1998 Act. That is, of course, the question which your Lordships' House has to confront in this case. Your Lordships can do so, however, without having to look back to what the majority in HM Advocate v R said about matters of remedy.
- Section 6(1) of the 1998 Act provides:
"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
If going on with a prosecution and holding a trial would violate, ie, be incompatible with, the Convention, then section 6(1) makes them unlawful. That much is clear. Although this is not spelled out in Lord Bingham's speech, he proceeds on the basis that, if these actings were indeed unlawful, then a court would have no option but to stay the proceedings since it could not itself do, nor could it permit the prosecutor to do, anything that was unlawful. Lord Hobhouse makes the point explicitly in paragraphs 122-124. This is "the direful spring of woes unnumbered": to avoid that conclusion the majority are forced to adopt an interpretation of article 6(1) which allows them to say that going on with the prosecution and holding a trial do not involve any violation of article 6(1).
- I acknowledge the force of the majority's view as to the interpretation and application of section 6(1). After all, it is the business of courts to act lawfully themselves and, where appropriate, to stop others from acting unlawfully. Applying that straightforward approach but adopting my view of the breach of article 6(1), one would then simply hold that, since any trial would be unlawful, none could be held after the expiry of an unreasonable time. That would certainly encourage the relevant authorities to comply with the article 6(1) guarantee. Moreover, it should cause few problems in practice if - as is surely to be expected - the authorities do normally comply. Nor would it be unprecedented for Parliament to provide such a spur. In section 65(4)(b) of the Criminal Procedure (Scotland) Act 1995 Parliament enacted that failure to meet the statutory time-limits would result in the accused being "for ever free from all question or process for that offence". The majority's interpretation and application of section 6(1) of the 1998 Act would therefore produce a result of a kind that would be quite familiar to judges and practitioners in Scotland.
- I am not satisfied, however, that section 6(1) should be interpreted in this way. It is not designed to deal specifically with breaches of article 6(1) but is of general application. It therefore requires to be considered in the context of the overall scheme of the 1998 Act. In that scheme, making acts of public authorities that are incompatible with the Convention unlawful is not an end in itself. They are made unlawful so that the courts should be able to provide victims of Convention violations with a just and appropriate remedy. Section 6(1) is there to act as the key to unlock these remedies. This can be seen both from the pre-legislative material and from the terms of the 1998 Act.
- In the White Paper "Rights Brought Home: The Human Rights Bill" (1997) (Cm 3782) the Government set out proposals for the legislation which eventually passed into law as the 1998 Act. The relevant aspects of the Act do not differ significantly from those of the original Bill that followed the White Paper. In paragraph 1.18 the Government expressed the view that the time had come "to enable people to enforce their Convention rights against the State in the British courts". In other words people were going to be given remedies in our domestic courts for the breach of their Convention rights. The Government went on to say, in paragraph 2.6:
"A public authority which is found to have acted unlawfully by failing to comply with the Convention will not be exposed to criminal penalties. But the court or tribunal will be able to grant the injured person any remedy which is within its normal powers to grant and which it considers appropriate and just in the circumstances. What remedy is appropriate will of course depend both on the facts of the case and on a proper balance between the rights of the individual and the public interest. In some cases, the right course may be for the decision of the public authority in the particular case to be quashed. In other cases, the only appropriate remedy may be an award of damages."
This passage contains a number of signposts. First, it confirms that, when commending the Bill to Parliament, the Government's intention was that, if a public authority acted unlawfully in terms of section 6(1), the court or tribunal should be able to grant the injured person any remedy which was within its normal powers and which it considered appropriate and just in the circumstances. Secondly, what was appropriate by way of remedy was to depend on the facts of the case and on a proper balance between the rights of the individual and the public interest. Therefore, finally, even though an act of a public authority that was incompatible with the Convention would always be unlawful, this did not mean that it would always have to be quashed. In some cases the appropriate remedy would be an award of damages and nothing more. In short, the Bill was to mirror the Convention and, as a general rule, it would not prescribe any specific remedy for a violation. Like the Convention, the Bill would leave it to the courts to choose the appropriate remedy in the circumstances. Moreover, nothing suggests that, exceptionally, the Government envisaged that the courts would always have to grant a stay or equivalent administrative law remedy to prevent a future act in violation of the Convention, even though the courts would not have had to quash the self-same act if it had once occurred.
- According to the long title, the 1998 Act was enacted "to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights". Section 1(2) provides that the articles set out in Schedule 1 to the Act are to have effect "for the purposes of this Act" subject to any designated derogation or reservation. These provisions indicate that Parliament's intention was that the measures in the Act were to give (further) effect to the rights and freedoms guaranteed under the Convention. As the White Paper had foreshadowed, these rights were to have effect in a way that had not previously been possible in our domestic law, viz the national courts were to have power to grant victims remedies in terms of the Act for violations of their rights.
- Parliament achieved this by first making it unlawful, under section 6(1), for public authorities to act incompatibly with the Convention rights and by then providing in section 8(1):
"In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate."
Section 6(1) makes acts which are incompatible with the Convention unlawful simply so that the courts can grant a remedy in terms of section 8(1). In other words, taken together, these provisions make up the mechanism by which our courts are to grant remedies for breaches of people's Convention rights. Indeed, as I emphasised in HM Advocate v R  2 WLR 317, 365C - D, para 142, unless an act or proposed act is incompatible and hence unlawful, no remedy is available under the Act. The very particular, Convention, focus of this unlawfulness created by section 6(1) is shown by the fact that no-one can bring proceedings for judicial review of a public authority's unlawful act unless he is, or would be, a victim of that act for the purposes of article 34 of the Convention in proceedings before the European Court: section 7(3) and (7).
- Section 8(1) confers on the courts a discretionary power to grant a remedy. In this respect the court is in the same position as a court entertaining an application for judicial review. Furthermore, the court's power is to grant the relief or remedy that it considers just and appropriate in the circumstances. Since the aim of the Act is that the domestic courts, rather than the Strasbourg court, should be able to remedy violations of the Convention, it can readily be inferred that a remedy will be just and appropriate if it constitutes the kind of effective remedy required by article 13 of the Convention. That inference is confirmed by other provisions of the Act. In section 8(3) Parliament is careful to say that no award of damages is to be made unless, taking certain matters into account, the court is satisfied that the award is necessary "to afford just satisfaction to the person in whose favour it is made". This language is a deliberate echo of the wording of article 41 of the Convention, empowering the European Court, where necessary, to "afford just satisfaction to the injured party." Moreover, in section 8(4) Parliament further directs that, in determining whether to award damages and, if so, for how much, the court must take into account the principles applied by the European Court in fixing compensation under article 41. These provisions indicate that the courts are meant to mould their remedies for unlawful acts to fit in with the requirements of the Convention. By contrast, there is nothing to suggest that Parliament ever intended that under the 1998 Act the British courts should be obliged to grant a specific remedy for a particular kind of violation where that remedy was not specified by the Convention or where that remedy would not be just and appropriate in the circumstances.
- Thus interpreted, the scheme of the 1998 Act allows our domestic courts to give full and faithful effect to the Convention rights. In effect they enjoy the same wide powers to choose the appropriate remedy for any violation as the South African courts enjoyed under section 7(4)(a) of the interim Constitution of the Republic of South Africa: Sanderson v Attorney General, Eastern Cape 1997 (12) BCLR 1675, 1691-1693, paras 38-42, per Kriegler J; Wild v Hoffert NO 1998 (3) SA 695, 708-711, paras 26-7, per Kriegler J. On that approach the supposed problems which Lord Bingham envisages (in paragraphs 20-22) as resulting from an automatic stay simply do not arise. By contrast, on their interpretation, the majority assume that, by making future violations of article 6(1) unlawful, Parliament intended that our courts should not have power to choose the appropriate remedy for such violations. They were always to grant a stay in such cases, even though there is nothing in the Convention or in the jurisprudence of the European Court to require this and even though it would be unjust and inappropriate for the court to grant the stay. Neither the mischief prompting the 1998 Act, nor its legislative history, nor its wording, nor any comparative material suggests, far less compels, that perverse conclusion.
- I would therefore hold that, when a court is faced with a situation where going on with a prosecution and holding a trial would lead to a hearing after the lapse of a reasonable time, it should not hesitate to say that these steps would violate article 6(1) and, hence, would be unlawful in terms of section 6(1) of the 1998 Act. Then, in terms of section 8(1), the court should go on to consider what relief or remedy would be "just and appropriate" for this unlawful act of violating the reasonable time guarantee. For the reasons given by Lord Bingham, in most cases the court would conclude that a declaration or a reduction in sentence or an award of damages, as the case might be, would be the just and appropriate remedy for this unlawful act. Unless the court had assessed the position incorrectly, that remedy would also constitute an effective remedy for the violation of article 6(1) in terms of article 13 and, by granting it, the court would fulfil the United Kingdom's international obligation under the Convention. In these circumstances nothing in the Convention or elsewhere compels the court to go further and grant a stay. Indeed it would be contrary to section 8(1) for the court to grant a stay where a stay would not be the just and appropriate remedy. And, as Lord Bingham suggests, it will only be in rare cases that the just and appropriate remedy for an unreasonable delay will be a stay. Only in those rare cases need, or indeed should, the court grant such a stay under section 8(1). In other cases the trial can proceed and the defendant will get the appropriate remedy at the proper time.
- For these reasons I would respectfully dissent from the majority's interpretation and application of both article 6(1) of the Convention and section 6(1) of the 1998 Act. Despite this, on the basis that I have set out, I agree with what Lord Bingham says in paragraph 25 of his speech about the approach that courts should adopt when a trial cannot be held within a reasonable time.
- Having set out my reasons for taking a different view, I acknowledge, of course, that the view of the majority of your Lordships now settles the question in the law of England and Wales. As is obvious, the reasoning behind that decision is inconsistent with the reasoning of the majority on the equivalent point in HM Advocate v R  2 WLR 317. While that is unfortunate, it causes no problems for the courts in England and Wales. In Scotland the decision has no formal effect on the position in criminal cases but its impact will undoubtedly be felt there. If the point is reopened before the Scottish courts in the context of a devolution issue, the Privy Council will doubtless be called upon to determine it. At this stage I do not consider that it would be helpful to say more.