BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

The Judicial Committee of the Privy Council Decisions


You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Procurator Fiscal, Linlithgow v. Watson & Anor (The High Court of Justiciary) [2002] UKPC D1 (29 January 2002)
URL: http://www.bailii.org/uk/cases/UKPC/2002/D1.html
Cite as: [2002] UKPC D1, 2002 SLT 229, 2002 SCCR 220, [2004] 1 AC 379, [2002] 4 All ER 1, [2004] AC 379, 2002 SC (PC) 89, [2002] UKHRR 542, [2002] UKPC D 1, [2002] HRLR 21, 2002 GWD 5-153, [2002] 3 WLR 1488

[New search] [Context] [View without highlighting] [Printable RTF version] [Buy ICLR report: [2002] 3 WLR 1488] [Buy ICLR report: [2004] 1 AC 379] [Help]


    Procurator Fiscal, Linlithgow v. Watson & Anor (The High Court of Justiciary) [2002] UKPC D1 (29 January 2002)
    Privy Council DRA. No. 1 of 2001
    Procurator Fiscal, Linlithgow Appellant
    v.
    (1) John Watson and (2) Paul Burrows Respondents
    and
    Privy Council DRA. No. 2 of 2001
    Her Majesty’s Advocate Appellants
    v.
    JK Respondent
    FROM
    THE HIGH COURT OF JUSTICIARY
    SCOTLAND
    ---------------
    JUDGMENT OF THE LORDS OF THE JUDICIAL
    COMMITTEE OF THE PRIVY COUNCIL,
    Delivered the 29th January 2002
    ------------------
    Present at the hearing:-
    Lord Bingham of Cornhill
    Lord Hope of Craighead
    Lord Hutton
    Lord Millett
    Lord Rodger of Earlsferry
    ------------------
    Lord Bingham of Cornhill
  1. Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides:
  2. “In the determination ... 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 ...”
    These appeals turn on the four words which I have emphasised, to which I shall refer (in the context of article 6(1)) as “the reasonable time requirement”. In both cases under appeal the Appeal Court of the High Court of Justiciary held that the prosecuting authorities had failed to comply with the reasonable time requirement. The question for determination by the Board in each case is whether the Appeal Court was right so to hold. It is common ground that by virtue of section 57(2) of and paragraph 1(d) of Part I of Schedule 6 to the Scotland Act 1998 an appeal lies to the Board under paragraph 13 of that schedule.
    Mr Watson and Mr Burrows
  3. Mr Watson and Mr Burrows are police officers. On 3 and 14 April 1998 they gave evidence at a trial in the sheriff court at Linlithgow. At that trial the accused was charged with offences against public order in April 1996, including an act of vandalism said to have been committed at a food takeaway. The officers testified that they had not taken the accused and another to the takeaway for purposes of identification. When the trial ended on 22 April 1998 the sheriff in open court expressed the opinion that the officers had committed perjury. This statement received wide publicity in the press at the time.
  4. The procedure for investigating complaints against the police in Scotland is laid down in the Book of Regulations, a procedural code issued on the authority of the Lord Advocate for the guidance of crown counsel and procurators fiscal, which was followed in this case. On seeing press coverage of the sheriff’s observations, the deputy chief constable of Lothian and the Borders wrote to the procurator fiscal at Linlithgow. The procurator fiscal obtained a report from the depute fiscal who had conducted the trial and thereafter referred the report to the regional procurator fiscal who, on 26 June 1998, instructed the deputy chief constable to inquire into the sheriff’s allegations.
  5. Police investigations began in July 1998, in which month the officers were told of the allegations against them and their notebooks were seized. The police interviewed 8 witnesses between August and November 1998. On 28 January 1999 the officers were detained and interviewed by police officers. The sheriff’s allegations were put to the officers in tape-recorded interviews and they were cautioned.
  6. On 9 April 1999 the police reported the case to the regional procurator fiscal, who instructed that precognitions be taken from four of the eight witnesses whom the police had already interviewed. A precognition is not the exact equivalent of the signed witness statement familiar to English practitioners: it is an unsigned précis made by the taker of the statement (“the precognoscer”) of the evidence the witness is able to give. By December 1999 the precognoscer had written to all four potential witnesses. One of them was interviewed in that month, and two more in January 2000. During January 2000 it was decided not to interview the fourth witness. By the end of March 2000 completed precognitions were submitted to the regional prosecutor fiscal and then to crown counsel. In April 2000 crown counsel authorised the prosecution of the officers on charges of perjury, and proceedings against them were commenced by way of summary complaint.
  7. The case was set down for a pleading diet to be held on 23 May 2000, and the trial would probably have taken place in about August or September 2000. But before the date of the pleading diet each of the officers gave notice of a devolution issue within the meaning of Schedule 6 to the Scotland Act 1998. It was claimed that there had been such delay in bringing proceedings against them as to breach the reasonable time requirement. When the pleading diet was called on 23 May the case was continued on the prosecutor’s motion for a debate on the officers’ devolution minutes.
  8. This debate took place before the sheriff on 25 August 2000. He reserved judgment and on 8 September 2000 upheld the officers’ pleas in bar of trial, holding that there had been a breach of the reasonable time requirement. Before the sheriff it was agreed that the delay in proceedings against the officers would be unreasonable if it resulted in their remaining too long in a state of uncertainty about their fate, that prejudice to them need not be established, that his assessment of a reasonable time should be made on the basis of an assessment of the whole circumstances of the individual case and also that, if a breach of the reasonable time provision were established, the prosecutor could not proceed further with the complaint and the proceedings should be dismissed. There was argument before the sheriff about the date from which, for purposes of the reasonable time requirement, delay should be measured, and he held that the officers’ state of uncertainty had begun in July 1998 when they had been formally notified of the proceedings and their notebooks had been seized. But he went on to hold that at whatever stage he took the crown’s conduct into account there had been unreasonable delay. It was not a complex case. The precognitions would be short and simple. The overall period between the commencement of the investigation and the raising of the complaint seemed to him to be far beyond a reasonable time taking into account all the relevant factors. He accordingly found that even if the period of delay had commenced on 28 January 1999 there had been a breach of the reasonable time requirement. He therefore granted the pleas in bar and dismissed the complaint.
  9. The procurator fiscal appealed to the Appeal Court of the High Court of Justiciary (Lord Milligan, Lord Hamilton and Sir Gerald Gordon QC sitting as a temporary judge). In a written opinion dated 27 April 2001 Lord Milligan (with whom Sir Gerald Gordon agreed) refused the appeal: 2001 SLT 751. In doing so he accepted the prosecutor’s contention that for purposes of article 6(1) the officers had been charged on 28 January 1999 and not in July 1998. But he accepted the submissions of counsel for the officers that in all the circumstances of this particular case there had been a breach of the reasonable time requirement. He acknowledged (at p 755, para 13) that a prosecution of police officers had special features, and that discretion must be accorded to the prosecuting authority in prioritising cases. But he was concerned by
  10. “the combination of the sharp raising of the prospect of proceedings by the trial sheriff’s comments in April 1998 combined with the apparent extreme simplicity of the case so far as investigation and preparation and decision-making is concerned.”
    Bearing in mind the passage of time between April 1998 and January 1999, he regarded the passage of time after January 1999 up to the date of prospective trial as “not only inexplicable but unreasonable”. He accordingly held that the sheriff had been justified in finding a breach of the reasonable time requirement.
  11. Lord Hamilton agreed that the officers had been charged in January 1999, but was otherwise of a different opinion. The case was not one calling for special expedition, as where a child or vulnerable person is involved or an accused is in custody. Measured against other cases, the period between the date of charge and the likely date of trial was not unusual. It did not follow that this case, because of its simplicity, should have been given priority over other more complex cases, the hearing of which would have been retarded. Because the case involved a very serious accusation against serving police officers, the Book of Regulations required the case to be precognosced, even though proceedings on indictment were not contemplated and the police had already investigated. The independence of that procedure, adopted whatever the nature of the allegation against serving police officers, was in the interest of the accused. That procedure had lasted some eight months, during the first seven of which there had been little progress, but that was not an unusual or unreasonable time to elapse, and the responsible precognoscer had during the period been diverted to other cases of higher priority. Lord Hamilton did not accept that proceeding with the complaint would have infringed the reasonable time provision and he would have allowed the appeal.
  12. In argument before the Board, counsel for the crown essentially founded his submission on the dissenting opinion of Lord Hamilton. He submitted that the period of about 20 months between the date of charge in January 1999 and the projected date of trial in August or September 2000 was not such as to breach the reasonable time requirement, and of that 20 month period there was only one period of relative inactivity, from April or May until December 1999.
  13. Counsel for the officers founded their argument on the findings and opinions of the sheriff and the majority of the Appeal Court. While 28 January 1999 was accepted as the date of charge, the prejudicial and much publicised observations of the trial sheriff in April 1998 increased the need for expedition once proceedings against the officers were commenced. The Book of Regulations repeatedly emphasised the need for expedition in investigating complaints against the police. In a case of the utmost simplicity the delay of 20 months had been such as to breach the reasonable time requirement and the Board should be very slow to disturb the decision of Scottish judges who, with an intimate knowledge of conditions and procedures in Scotland, had so held.
  14. JK
  15. JK was born on 13 December 1984. The police became aware of complaints concerning his sexual conduct on 19 October 1998. On 30 October 1998 they interviewed him and on the following day they cautioned and charged him. Thus for purposes of the reasonable time requirement time started to run on 31 October 1998.
  16. The complaints made against JK were of rape, sodomy and various forms of serious indecency said to have been committed between 14 February 1997 and 18 October 1998. At the time of the alleged offences JK had been aged 12-13. At that stage the offences were said to have been committed against three of his cousins, one of them a girl aged 7-8 at the time of the alleged offences, the other two being boys aged between 3 and 7 at the relevant times.
  17. As recorded in the opinion of Lord Wheatley, to which further reference is made below, cases involving child witnesses are dealt with by a specialist procurator fiscal depute whose aptitude and training are specifically directed at dealing with young people. There were at the time a number of serious cases involving child witnesses, and a specialist depute was not immediately able to take up this case. Between April and August 1999 the case was subject to a prioritisation process involving all cases concerning children within the relevant office. When in due course the case was allocated to a procurator fiscal depute, that officer was unexpectedly transferred overseas and the case had to be re-allocated.
  18. Between September and November 1999 attempts were made to obtain access to the children named in the charges as the victims. On the first day arranged for precognition the children did not appear, because the family had moved and it took some time to trace them. An appointment for a second precognition had to be cancelled because of the procurator fiscal depute’s other commitments. There was further delay because the children’s mother wished the precognition to take place during a planned visit to Edinburgh.
  19. On 28 January 2000 the precognoscer learned for the first time of a fourth possible complainer. Precognition of this new witness was instructed on 10 February 2000. He was a boy, unrelated to JK, who complained that JK had behaved indecently towards him on 18 and 19 January 1997 when he (the complainer) had been aged 5. A further charge was added on 14 February 2000, and re-precognition of the whole case was required. This lasted until August 2000, there being another change of specialist procurator fiscal depute during the period and another handover. There was difficulty tracing the new complainer, and difficulty persuading his mother that he should be precognosced: this was not achieved until early July 2000. But that precognition revealed the possibility of yet another potential complainer. It then took a further month, until August 2000, to conclude that this further possible complaint should not be the subject of a further charge.
  20. Meanwhile, and very importantly, JK had on 16 March 2000 appeared on petition. By virtue of section 65(1) of the Criminal Procedure (Scotland) Act 1995 it was then necessary that he be brought to trial within a year of that date.
  21. Between 22 September 2000 and 8 January 20001 the three original complainers were re-precognosced. There was again some difficulty in arranging this, because of the mother’s wish that the re-precognition should take place during a planned visit to Edinburgh. While the Board has been given no detail, it appears that there was some consultation with the reporter to the children’s panel. The Appeal Court was told that the reporter had initially taken the view that he might be able to deal with this case, and that he had only accepted it was a case for trial on the emergence of the fourth complainer.
  22. The indictment against JK was served on him on 29 January 2001. It included seven charges, the first of them relating to the fourth complainer mentioned in paragraph 16 above. The indictment called in the High Court of Justiciary in Edinburgh on 2 March 2001, two weeks before expiry of the 12 month time limit, but was adjourned on JK’s motion to 2 April 2001 to allow the defence to obtain a medical report.
  23. On 29 March 2001 JK, now aged 16, lodged a minute of his intention to raise a devolution issue under the Scotland Act 1998. He contended that because of the passage of time between 31 October 1998 and the date of trial, and considering in particular his age at the time of charge, he could not receive a fair trial. On 5 April 2001 Lord Wheatley heard a debate on the devolution minute and dismissed it. In his judgment he reviewed the history of the case paying attention in particular to four periods of delay, being those referred to in paragraphs 14, 15, 16 and 18 above. The crown accepting that the period of delay cited was “unnaturally long”, Lord Wheatley thought it appropriate to examine the circumstances and consider the explanations tendered. Having done so it was evident to him that the explanations tendered by the crown were satisfactory. On that factual basis, while accepting what Lord Reed had said about the handling of cases involving children in HM Advocate v DP and SM 2001 SCCR 210, he reached a different conclusion from Lord Reed.
  24. JK appealed against this decision to the Appeal Court (Lord Coulsfield, Lord Nimmo Smith and Sir Gerald Gordon QC sitting as a temporary judge) which, in a unanimous opinion delivered by Lord Coulsfield on 4 May 2001, allowed the appeal, sustained the minute and dismissed the indictment: 2001 SLT 1261. The period of delay was considered to be 27 months, from 31 October 1998 when JK was charged to 29 January 2001 when the indictment was served upon him. Paragraph 12 of Lord Reed’s opinion in HM Advocate v DP and SM 2001 SCCR 210 at 215 was cited, and in the light of those observations the court thought it clear that the period of 27 months from charge to service of the indictment was “manifestly substantially too long”. It was accepted that the crown had given explanations of greater or lesser cogency for parts of the period of delay. What was missing was any indication that the lapse of time had ever led the authorities, as it should have done, to treat the case with increasing urgency as time went by. When, by the spring of 2000, 18 months had passed since the date of charge, delay could not be adequately explained by changes of personnel in the procurator fiscal’s office. Undue deference had been shown to the wishes of the mother of the first three complainers, when weighed against the importance of ensuring the rapid progress of the case. The judge had erred in adopting the piecemeal approach canvassed by the crown instead of giving proper attention to the overall period of delay and the repeated and cumulative failure to progress the case. The overall period of delay was unreasonable.
  25. In advancing the crown’s argument against this ruling, counsel contended that complaints of a sexual nature against children, particularly when involving young child victims, require very careful, very sensitive and very expert handling. There are a number of stages to be accomplished, as summarised in the chapter of the Book of Regulations dealing with children, and this process inevitably takes time. The Appeal Court, it was submitted, had failed to give due weight to the difficulties faced by the prosecution caused by unforeseen and repeated changes of personnel in the procurator fiscal’s office, the understandable desire of the mother of the first three complainers to minimise the trauma to her children of the precognition procedure and the late and unexpected emergence of the fourth complainer. The court had purported to lay down a rule without taking adequate account of the facts of the particular case. It had moreover failed to take any account of the interests of the public at large or of the victims in seeing that those charged with very serious crimes are brought to trial and (if convicted) appropriately sentenced. Even if the period of delay (as accepted before the judge) was not usual, there had on the facts here been no breach of the reasonable time requirement.
  26. In a persuasive address on behalf of JK, Mr Prentice supported the Appeal Court’s holding that there had in this case been a breach of the reasonable time requirement. In interpreting and applying that requirement to proceedings against child accused, regard should be paid to other international instruments affecting children, among them the United Nations Convention on the Rights of the Child and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”). Article 40(2)(b)(iii) of the UN Convention entitles every child accused of crime to trial “without delay”. Rule 20.1 of the Beijing Rules requires that any criminal case against a child shall from the outset be handled expeditiously, without any unnecessary delay. These internationally-agreed statements of good practice should colour the courts’ approach to the reasonable time requirement when applied to child accused. In the present case the Appeal Court’s criticism of Lord Wheatley’s approach was justified and its unanimous conclusion should be upheld.
  27. The pre-convention law of Scotland
  28. The procedural law of Scotland is distinctive in its inclusion of stringent rules intended to avoid delay in the dispatch of criminal proceedings. Some of these effectively preclude a breach of the reasonable time requirement: for example, the rules that an accused in custody in summary proceedings must be brought to trial within a maximum of 40 days (Criminal Procedure (Scotland) Act 1995, section 147(1)) and that an accused in custody in solemn proceedings must be brought to trial within a maximum of 110 days (1995 Act, section 65(4)). If these time limits are not met, the accused is not merely released; the proceedings come to an end. Other provisions make a breach of the reasonable time requirement unlikely: for example, the rule already mentioned that an accused appearing in court on petition must be brought to trial within 12 months of that appearance (1995 Act, section 65(1)). But the statutory rules do not apply to summary proceedings where an accused is not in custody nor to solemn proceedings where an accused is not in custody and does not appear on petition. In such cases an accused is not without protection under the common law. He may raise a plea in bar of trial. The grounds on which such a plea on grounds of delay will be upheld were authoritatively laid down by the High Court in McFadyen v Annan 1992 JC 53, a case involving summary proceedings against a police officer in which seven months passed between the first complaint against the officer and his being charged, but a plea to the competency of the proceedings was then raised by him on grounds of delay and repelled by the sheriff within six weeks thereafter. In his opinion the Lord Justice-Clerk (Ross) said (at page 60):
  29. “However the real question which the court has to consider in all cases where delay is alleged is whether the delay has prejudiced the prospects of a fair trial. This involves the court asking itself whether the risk of prejudice from the delay is so grave that no direction by the trial judge could be expected to remove it. In the case of summary procedure the question must be whether the risk of prejudice from the delay is so grave that the sheriff or justice could not be expected to put the prejudice out of his mind and reach a fair verdict. I would again stress that cases where such a plea in bar of trial will be upheld will be rare and exceptional cases.”
  30. A very similar test applicable to England and Wales was laid down with equal authority in Attorney-General's Reference (No 1 of 1990) [1992] QB 630, in which McFadyen v Annan (not then fully reported) was referred to in argument although not expressly relied upon in the judgment. In both jurisdictions (in the absence of malpractice or misbehaviour by the prosecutor) the attention of the court is directed to the single issue whether, because of the delay which has occurred, a fair trial of the accused or defendant will or may be prejudiced. While the risk of prejudice, particularly in some classes of case, may doubtless increase with the passage of time, delay in the absence of prejudice will not support a plea in bar in Scotland or an application for a stay on grounds of abuse of process in England and Wales.
  31. The approach of the Judicial Committee of the Privy Council
  32. We were referred to three cases in which the Board has considered the effect of Commonwealth constitutions containing provisions similar in terms to the reasonable time requirement. In Bell v Director of Public Prosecutions [1985] AC 937 crimes were said to have been committed in April 1977. The appellant was arrested and charged in May 1977 and tried and convicted in October 1977. His appeal against conviction was allowed and a retrial ordered in March 1979 but notice of that decision did not reach the trial court until December 1979. The case was mentioned on several occasions, but no progress was made and the appellant was released on bail in March 1980. The case was again mentioned in the trial court but without progress and in November 1981, on the crown offering no evidence, the appellant was discharged. Then, in February 1982, he was rearrested and a trial ordered for May 1982. He unsuccessfully applied for relief under section 20(1) of the Jamaican constitution which entitles those charged with criminal offences to “a fair hearing within a reasonable time by an independent and impartial court established by law”. In giving the advice of the Board, Lord Templeman (at pp 950-951) described the words I have quoted as forming
  33. “part of one embracing form of protection afforded to the individual. The longer the delay in any particular case the less likely it is that the accused can still be afforded a fair trial. But the court may nevertheless be satisfied that the rights of the accused provided by section 20(1) have been infringed although he is unable to point to any specific prejudice.”
    Heavy reliance was placed on Barker v Wingo (1972) 407 US 514, a decision of the Supreme Court of the United States, and the Board concluded (at p 952) that
    “in considering whether in all the circumstances the constitutional right of an accused to a fair hearing within a reasonable time has been infringed, the prejudice inevitable in a lapse of seven [sic] years between the date of the alleged offence and the eventual date of retrial cannot be left out of account. The fact that the applicant in the present case did not lead evidence of specific prejudice does not mean that the possibility of prejudice should be wholly discounted.”
    The Board went on (at p 953) to
    “acknowledge the desirability of applying the same or similar criteria to any constitution, written or unwritten, which protects an accused from oppression by delay in criminal proceedings.”
    The Board accepted the submission of the crown that in giving effect to the right granted by section 20 of the constitution the courts of Jamaica had to balance the fundamental right of the individual to a fair trial within a reasonable time against the public interest in the attainment of justice in the conditions prevailing in Jamaica, a balance which the legislature and courts of Jamaica were best fitted to strike (p 953). While the Board expressly discounted the need for a defendant complaining of delay in criminal proceedings to prove prejudice, it appears that delay was seen as relevant, at any rate primarily, for any bearing it might have in a particular case on the defendant’s right to a fair trial. The appellant succeeded because the court below had not given adequate weight to the delay of over three years between the order for retrial and the retrial, nor to the discharge of the appellant in November 1981. It does not appear that any European authority was cited to the Board in that case.
  34. In Darmalingum v The State [2000] 1 WLR 2303 three Strasbourg authorities mentioned below were relied on but Bell itself was not cited. The case arose from alleged irregularities in a bank which employed the appellant as a cashier between January and October 1985. He was arrested in December 1985 and detained for 17 days during which he made several statements before being released on bail. Unknown to him, a decision was made in September 1988 to prosecute him on 90 charges, but those charges were struck out and it was not until January 1992 that he was served with an information containing 20 counts, among them counts of embezzlement and forgery. He sought a stay of the information on grounds of delay, but this was dismissed in June 1992. The constitution of Mauritius, in section 10(1), guarantees to any person charged with a criminal offence “a fair hearing within a reasonable time by an independent and impartial court established by law”. The appellant was convicted on a number of counts in May 1993 and appealed on grounds (among others) of delay. The delay issue first came before two appellate judges in March 1994, but they disagreed and the issue was not reargued before a bench of three judges until March 1997. In September 1997 a majority rejected the appellant’s argument on that ground, but final judgment dismissing the appellant’s appeal was not given until July 1998, 12½ years after his arrest. The Board allowed the appeal and in giving its reasons Lord Steyn said (at pp 2307-2308):
  35. “It will be observed that section 10(1) contains three separate guarantees, namely (1) a right to a fair hearing; (2) within a reasonable time; (3) by an independent and impartial court established by law. Hence, if a defendant is convicted after a fair hearing by a proper court, this is no answer to a complaint that there was a breach of the guarantee of a disposal within a reasonable time. And, even if his guilt is manifest, this factor cannot justify or excuse a breach of the guarantee of a disposal within a reasonable time. Moreover, the independence of the ‘reasonable time’ guarantee is relevant to its reach. It may, of course, be applicable where by reason of inordinate delay a defendant is prejudiced in the deployment of his defence. But its reach is wider. It may be applicable in any case where the delay has been inordinate and oppressive. Furthermore, the position must be distinguished from cases where there is no such constitutional guarantee but the question arises whether under the ordinary law a prosecution should be stayed on the grounds of inordinate delay. It is a matter of fundamental importance that the rights contained in section 10(1) were considered important enough by the people of Mauritius, through their representatives, to be enshrined in their Constitution. The stamp of constitutionality is an indication of the higher normative force which is attached to the relevant rights: see Mohammed v The State [1999] 2 AC 111, 123H.”
    In this decision, it seems clear, delay was seen as affording an independent ground of relief, whether or not there was prejudice or any threat to the fairness of the trial, if the delay was of such length as to be inordinate and oppressive.
  36. Darmalingum was distinguished by the Board, differently constituted, in Flowers v The Queen [2000] 1 WLR 2396 which was (like Bell) an appeal from Jamaica. In that case a murder had been committed in the course of a robbery in February 1991. In April 1991 the appellant was charged with capital murder. At his trial in December 1992 the jury disagreed and a retrial was ordered. At his retrial in September-October 1994 the jury again disagreed and a further retrial was ordered. No complaint of delay was raised at the further retrial in January 1997, when the appellant was convicted and sentenced to death. In his application for leave to appeal, dismissed in July 1998, no complaint of delay was made and no reliance placed on section 20(1) of the Jamaican constitution, the relevant part of which is quoted above. Much of the argument on appeal to the Board was devoted to criticism of the summing-up, and the appellant succeeded in part; his conviction of capital murder was quashed and a conviction of non-capital murder substituted. But before the Board an argument based on section 20(1) was raised for the first time. The Board was understandably concerned that the point had not been raised in the Jamaican courts (pp 2408, 2410), but reviewed the merits of the argument, following the guidance given in Bell v Director of Public Prosecutions [1985] AC 937 and Barker v Wingo 407 US 514. It was pointed out by Lord Hutton, giving the advice of the Board, that the crime involved, murder in the course of a robbery, was one very prevalent in Jamaica, and the public interest required that persons who committed such crimes and whose guilt could be proved should be convicted and punished. In deciding whether the appellant’s conviction should be quashed because of the lengthy period of delay the Board was of opinion that it should take into account that the appellant had been proved on strong evidence to be guilty of murder in the course of an armed robbery, that this type of offence was very prevalent in Jamaica and that it posed a serious threat to the lives of innocent persons (p 2415). Darmalingum v The State [2000] 1 WLR 2303 was distinguished on the ground that the defendant’s activity in that case had not threatened the safety of the citizens of Mauritius, and also on the ground that reference had not been made by the Board in that case to the passages in Bell which recognised the need for balance between the right of the individual and the public interest in the attainment of justice and stated that the right to trial within a reasonable time is not a separate guarantee (pp 2414-2415).
  37. Each of these decisions, in my respectful view, contains valuable insights, and I do not doubt that the outcome in each case was correct. But I question whether the reasoning leading to the three decisions on the delay issue can be fully reconciled, although Darmalingum more closely reflects the European authority discussed below. Resolution of that question must await a case in which it falls for authoritative decision.
  38. The Strasbourg case law
  39. It is the general duty of the courts to give effect to convention rights, and in doing so to take into account any judgment of the European Court of Human Rights (“the court”) and any opinion or decision of the Commission (Human Rights Act 1998, section 2(1)). It is accordingly necessary to consider how the court and the commission have interpreted and applied the reasonable time requirement. In doing so it is pertinent to note that the reasonable time requirement in article 6(1) has its counterpart in article 5(3) which, dealing with the right to liberty and security of the person, entitles every person arrested or detained in accordance with article 5(1)(c) to “trial within a reasonable time or to release pending trial”. I shall refer to the words I have emphasised in article 5(3) as “the reasonable detention provision”. There is a considerable body of Strasbourg case law on both the reasonable time requirement and the reasonable detention provision, which have often been invoked in the same cases, and I shall confine my attention to what appear to be the leading authorities.
  40. In Wemhoff v Federal Republic of Germany (1968) 1 EHRR 55 there was held to be no breach of either the reasonable time requirement or the reasonable detention provision. The applicant was arrested on 9 November 1961, brought to trial on 9 November 1964 and convicted on 7 April 1965. He was in custody throughout. In paragraph 10 of its judgment (at p 76) the court said, with reference to the article 5 complaint:
  41. “The reasonableness of an accused person’s continued detention must be assessed in each case according to its special features. The factors which may be taken into consideration are extremely diverse. Hence, the possibility of wide differences in opinion in the assessment of the reasonableness of a given detention.”
    In that case the exceptional length of the detention was held to be justified by the exceptional complexity of the case and further unavoidable reasons for delay, and the rights of the accused (it was said) should not stand in the way of a full trial and a considered decision (p 78, para 17). The precise aim of the reasonable time requirement was “to ensure that accused persons do not have to lie under a charge for too long and that the charge is determined” (p 78, para 18). In a vigorous dissenting opinion Judge Zekia alluded to the procedure in England, where it would be regarded as “shocking” to hold an unconvicted person in custody for three years or more awaiting trial (p 87, para [13]). He went on to suggest (pp 88-89, paras [18] and [20]) that the aim of the convention was to set a common standard of right to liberty among member states, a standard which should not vary greatly from one country to another.
  42. The applicant in Neumeister v Austria (No 1) (1968) 1 EHRR 91 established a breach of the reasonable detention provision but not of the reasonable time requirement. He faced various charges of fraud and was detained before trial for periods amounting in total to 2 years and 2 months. He was released before his trial began; after the trial had begun it was discontinued and then resumed. When judgment was given by the European Court seven years had passed since the charges had been laid. The court observed (p 130, para 20):
  43. “That more than seven years have already elapsed since the laying of charges, without any determination of them having yet been made in a judgment convicting or acquitting the accused, certainly indicates an exceptionally long period which in most cases should be considered as exceeding the reasonable time laid down in Article 6(1).”
    But a majority of the court (Judge Zekia again dissenting) did not conclude that the reasonable time requirement had been breached, largely because of the complexity of the case (p 139, para 21). The reasonable detention provision was however found to have been violated (p 129, para 15). In due course the applicant was convicted and sentenced to imprisonment. He claimed compensation for breach of the reasonable detention provision. But the period he had spent in detention was counted against his sentence, and the balance of the sentence had been remitted. In that situation the court found it not necessary to afford satisfaction to the applicant for material damage, and he was awarded only a sum on account of costs: Neumeister v Austria (No 2) (1974) 1 EHRR 136.
  44. The judgment in Stögmüller v Austria (1969) 1 EHRR 155 was largely directed to the reasonable detention provision. The applicant had been arrested on fraud charges and detained for 2 years 7 weeks. The court found the period of detention excessive (p 195, para 15) and in doing so considered the interrelationship between the reasonable time requirement and the reasonable detention provision (p 191, para 5):
  45. “On the other hand, there is no confusion between the stipulation in Article 5(3) and that contained in Article 6(1). The latter provision applies to all parties to court proceedings and its aim is to protect them against excessive procedural delays; in criminal matters, especially, it is designed to avoid that a person charged should remain too long in a state of uncertainty about his fate.
    Article 5(3) for its part, refers only to persons charged and detained. It implies that there must be special diligence in the conduct of the prosecution of the cases concerning such persons. Already in this respect the reasonable time mentioned in this provision may be distinguished from that provided for in Article 6.”
  46. There was held to be no breach of the reasonable detention provision in Matznetter v Austria (1969) 1 EHRR 198, where the applicant had been detained for 2 years and 2 months before release, his trial following a year after that, nearly 4 years after his initial arrest. His period in detention counted against his sentence. He made no complaint that the reasonable time requirement had been breached.
  47. In Ringeisen v Austria (No 1) (1971) 1 EHRR 455 the applicant had faced charges of fraud and fraudulent bankruptcy. He was detained for periods amounting in total to about 2 years 4½ months (extending over his trial and pending appeal). A breach of the reasonable detention provision was found in the fraudulent bankruptcy proceedings (p 494, para 107). A period of over 5 years to resolve the fraud charges was held not to breach the reasonable time requirement because of the complexity of the proceedings and the conduct of the applicant; it had been reasonable to allow the fraudulent bankruptcy proceedings to stagnate until the fraud proceedings were resolved (p 496, para 110). The period spent by the applicant in detention, which counted against his sentence, was later found to “go some way to compensate the damage of which he complains”, but he was awarded monetary compensation: Ringeisen v Austria (No 2) (1972) 1 EHRR 504, p 511, para 26.
  48. X v Austria (Application No 5575/72, 8 July 1974, 1 DR 44) did not concern either the reasonable time requirement or the reasonable detention provision. The applicant complained that he had been denied the opportunity to examine witnesses, contrary to article 6(3)(d) of the convention. The proceedings ended in his acquittal, and the commission ruled that this acquittal had rectified the alleged violation, which “would similarly have been rectified by the quashing of the applicant’s possible conviction”. In Preikhzas v Federal Republic of Germany (Application No 6507/74, 13 December 1978, 16 DR 5) the commission similarly ruled that any complaint the applicant might have had about the length of protracted civil proceedings had been fully cured by a generous settlement of his claims.
  49. König v Federal Republic of Germany (1978) 2 EHRR 170 arose from withdrawal of the applicant’s authorisation to run a clinic and to practise medicine. He brought proceedings to challenge both decisions. The proceedings concerning his right to practise lasted 5 years and a further 2 years on appeal, and the court held that the investigation had not been conducted with the necessary expedition (p 203, para 111). The proceedings concerning his authorisation to run a clinic had lasted 10 years at first instance, and an appeal was undecided after a further year; the court found a breach of the reasonable time requirement. The case is of significance as containing the first statement of a principle which has been repeated and applied in many later cases. In paragraph 99 of its judgment (p 197) the court said:
  50. “The reasonableness of the duration of proceedings covered by Article 6(1) of the Convention must be assessed in each case according to its circumstances. When enquiring into the reasonableness of the duration of criminal proceedings, the Court has had regard, inter alia, to the complexity of the case, to the applicant’s conduct and to the manner in which the matter was dealt with by the administrative and judicial authorities. The Court, like those appearing before it, considers that the same criteria must serve in the present case as the basis for its examination of the question whether the duration of the proceedings before the administrative courts exceeded the reasonable time stipulated by Article 6(1).”
    In due course Dr König recovered compensation: König v Federal Republic of Germany (No 2) (1980) 2 EHRR 469.
  51. The applicant in X v United Kingdom (1979) 3 EHRR 271 faced three sets of criminal charges. The least serious, and earliest, of the charges were left in abeyance in order that trial on the more serious charges should proceed, and had not been finally determined after 4 years and 8 months. The Commission found that the delay had been adequately explained and found no appearance that the reasonable time requirement had been violated. A similar period of delay in civil proceedings was held to be justified in Buchholz v Federal Republic of Germany (1981) 3 EHRR 597 by the applicant’s own conduct and a significant increase in the workload of the court (judgment, p 614, para 63).
  52. As a result of frauds committed between 1963 and 1971 the applicant in X v Federal Republic of Germany (Application No 8182/78, 16 October 1980, 25 DR 142) was convicted and sentenced on several occasions between 1972 and 1978. The excessive length of the proceedings was acknowledged by the German courts and his sentence reduced, but not (in the applicant’s contention) sufficiently. The question for the commission was whether the admitted violation of the reasonable time requirement persisted. The commission observed in paragraph 5 of its decision:
  53. “Insofar as the applicant claims a right to discontinuation of the criminal proceedings in view of the long delays which had occurred, the Commission considers that such a right, if it could at all be deduced from the terms of Article 6(1) would only apply in very exceptional circumstances. Such circumstances did not exist in the applicant’s case.”
    The commission considered the reduction in the applicant’s sentence to be “appropriate and sufficient” redress for breach of the reasonable time requirement.
  54. In the course of proceedings against him Mr Eckle spent 5 years in detention on remand: Eckle v Federal Republic of Germany (1982) 5 EHRR 1. But he made no complaint that the reasonable detention provision had been violated, and no decision was given on that provision. He and his wife did complain of the length of criminal proceedings against them in Trier, which lasted over 17 years, and also of proceedings against them in Cologne, which lasted for 10 years and 4 months before being discontinued on the ground that any sentence imposed would be negligible having regard to a sentence already imposed or to be expected. The court found that the reasonable time requirement had been violated in relation to both the Trier proceedings (p 32, para 88) and the Cologne proceedings (p 33, para 95). The court observed in paragraph 66 (p 24) of its judgment:
  55. “The word ‘victim’, in the context of Article 25, denotes the person directly affected by the act or omission which is in issue, the existence of a violation being conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 50.
    Consequently, mitigation of sentence and discontinuance of prosecution granted on account of the excessive length of proceedings do not in principle deprive the individual concerned of his status as a victim within the meaning of Article 25; they are to be taken into consideration solely for the purpose of assessing the extent of the damage he has allegedly suffered.”
    But the court did not exclude the possibility that this general rule might be subject to an exception when the national authorities had acknowledged either expressly or in substance a breach of the convention and had then afforded redress for the breach. In due course modest compensation was awarded to Mr Eckle and his wife: Eckle v Germany (1983) 13 EHRR 556.
  56. Zimmerman and Steiner v Switzerland (1983) 6 EHRR 17 concerned an administrative law appeal which the Swiss Federal Court had taken 3½ years to determine. The court held that the Federal Court’s excessive workload and its chronic backlog provided no more than a partial excuse for the delay which had occurred.
  57. In Neubeck v Federal Republic of Germany (Application No. 9132/80, 12 December 1983, 41 DR 13) the applicant had been the subject of criminal charges: of some, after 10½ years, he had been acquitted; of others, after 13 years 10 months, he had been convicted. The commission accepted that measures taken by domestic authorities, including in particular a reduction of sentence, could in principle compensate for a breach of the reasonable time requirement (p 34, para 131), but found there had been no sufficient, or at least no sufficiently clear and express, reduction in that case (p 35, paras 137, 138). A different result was reached in S v Federal Republic of Germany (Application No 10232/83, 16 December 1983, 35 DR 213) where the proceedings lasted nearly 10 years (although the applicant may not have been officially notified of their existence at the outset). The German court had acknowledged breach of the reasonable time requirement, and had made what the commission regarded as a measurable reduction of sentence, so the applicant could no longer claim to be a victim. This was also the outcome in H v Federal Republic of Germany (Application No 10884/84, 13 December 1984, 41 DR 252), where the proceedings (from indictment to rejection of final appeal) had lasted over 7 years: the domestic court had acknowledged the violation of the reasonable time requirement and reduced the applicant’s sentence, so he was no longer a victim.
  58. A claim for damages by the applicant in H v France (1989) 12 EHRR 74 took over 7½ years to resolve, a little over 3 years being spent in the Conseil d’État. The court found that there had been a breach of the reasonable time requirement in the lower court, but not in the Conseil d’État (p 90, paras 57, 59). In paragraph 58 of its judgment the court said:
  59. “The Court is not unaware of the difficulties which sometimes delay the hearing of cases by national courts and which are due to a variety of factors. Nevertheless Article 6(1) requires that cases be heard ‘within a reasonable time’; in so providing, the Convention underlines the importance of rendering justice without delays which might jeopardise its effectiveness and credibility.”
  60. In Abdoella v The Netherlands (1992) 20 EHRR 585 the applicant had been arrested in January 1983, and convicted and sentenced in May 1983. A series of appeals had followed, culminating in the dismissal of his final appeal by the Supreme Court in May 1987. The proceedings therefore lasted 4 years and 4 months (p 597, para 19). The court pointed out (p 598, para 24) that
  61. “Article 6(1) imposes on the Contracting States the duty to organise their legal systems in such a way that their courts can meet each of its requirements”.
    The court held that the reasonable time requirement had been breached during the appellate stage of the proceedings (paras 24, 25), but held that since the time spent in custody had counted towards his sentence he was entitled to no more by way of satisfaction than the finding of a violation and reimbursement of his legal costs. It was delay during the appellate stage which also founded the claim made in Bunkate v The Netherlands (1993) 19 EHRR 477. The applicant had been arrested in September 1983, tried in December 1983 and sentenced in January 1984. He had then absconded and attempted to fake his death, but an intermediate appeal had been heard in his presence in May 1985. His appeal to the Supreme Court had been dismissed in May 1987. There had apparently been a delay of 15½ months between the filing by the applicant of his appeal to the Supreme Court and the receipt by that court of the case file from the court below, and the court found that a period of total inactivity of that length violated the reasonable time requirement (p 483, para 23). But the court rejected the claim for just satisfaction, observing (p 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 is unable to discern any other basis for the claims and will therefore dismiss them.”
  62. The wording of the declaration made by Turkey under article 46 of the convention was held by the court to preclude it from entertaining complaints about events which had occurred before 22 January 1990. However, in Yagci and Sargin v Turkey (1995) 20 EHRR 505 the court held that a 3-month period of detention after that date violated the reasonable detention provision because the applicants had been in custody for over 2 years before it, (paras 49, 55), and that the period of 2 years 5 months for which the proceedings lasted after that date violated the reasonable time requirement because they had already lasted over 2 years before (pp 525, 527, paras 58, 70). Non-pecuniary damages and costs were awarded to the applicants, who had been acquitted. Again, in Mansur v Turkey (1995) 20 EHRR 535 the applicant had been detained for 1 year and 28 days after 22 January 1990, but had already by that date been detained for 5 years 3 months. The proceedings against him lasted for 1 year 3 months after that date but had lasted for more than 7 years before it. The court took account of the earlier delay in finding breaches of the reasonable detention provision and the reasonable time requirement (pp 552, 555, paras 57, 70). The applicant was awarded non-pecuniary damages and costs, but the court accepted that the applicant had suffered no pecuniary damage as the whole length of his detention pending trial had been set off against his sentence.
  63. The applicant in Howarth v United Kingdom (2000) 31 EHRR 861 had been interviewed by the Serious Fraud Office in March 1993 and charged in July 1993. Following conviction in February 1995 he had been sentenced in March to community service. He had appealed against conviction and the Attorney General had applied for leave to refer the sentence to the Court of Appeal as unduly lenient. The appeal and the reference had each been determined adversely to Mr Howarth in March 1997. The court held that the reasonable time requirement had been violated since no convincing reason had been given to justify the period of two years it had taken to deal with the appeal (p 867, paras 29, 30). Judge Barreto dissented, on the ground that the length of the proceedings must be regarded as a whole and that the overall period of 4 years was not sufficiently long to breach the reasonable time requirement. The non-pecuniary damage awarded to the applicant was very modest.
  64. Fraud proceedings against the applicant in Beck v Norway (Application No. 26390/95, 26 September 2001, unreported) lasted 7 years and 7 months. He complained that the reasonable time requirement had been violated. But the domestic court had upheld that complaint when made to it, and had on that ground mitigated in a measurable way the sentence imposed on the applicant. The court held that he had been afforded adequate redress for the alleged violation and did not find a violation of the reasonable time requirement.
  65. The European Convention
  66. Before the second world war there were no international agreements governing the protection of human rights, which was indeed an expression rarely used. Gradually and erratically, as very well described by Professor Brian Simpson in Human Rights and the End of Empire (2001), chapters 4 and 5, such protection emerged as an allied war aim. The Universal Declaration of Human Rights 1948 (which contained nothing equivalent to the reasonable time requirement) was one product of that movement; the European Convention on Human Rights and Fundamental Freedoms was a later and much more potent product. Those who negotiated and first signed the convention were not seeking to provide a blueprint for the ideal society. They were formulating a statement of very basic rights and freedoms which, it was believed, were very largely observed by the contracting states and which it was desired to preserve and protect both in the light of recent experience and in view of developments in Eastern Europe. The convention was seen more as a statement of good existing practice than as an instrument setting targets or standards which contracting states were to strive to achieve.
  67. Thus the rights guaranteed by the convention were minimum rights. It was, and of course remains, open to any contracting state to provide better protection than the convention requires and, since the convention is a living instrument, the standards guaranteed by the convention are to be reinterpreted in accordance with changing perceptions of individual right. But the standard of protection guaranteed, if a minimum, was to be common. It could not be thought that suspects could be maltreated in country A because such maltreatment was known to be endemic in that country although unacceptable in other contracting states, or that state censorship of the media was acceptable in country B where it had always existed although unacceptable among other contracting states. So to hold would be repugnant to and subversive of the whole notion of an international convention to protect human rights and fundamental freedoms. If there were any room for doubt on this point, it would be resolved by the language of the convention itself, which refers in article 7(2) to “the general principles of law recognised by civilised nations” and in articles 8, 9, 10 and 11 to limitations and restrictions “necessary in a democratic society”. The convention looks to an objective, common measure of protection.
  68. In Stögmüller v Austria (1969) 1 EHRR 155 (p 191, para 5) the court highlighted the need for special diligence in the prosecution of defendants detained in custody: see paragraph 33 above. The reason is obvious. Until convicted a defendant is presumed to be innocent. Such a person should not be deprived of his liberty save when and for so long as good grounds for his detention are reasonably thought to exist (article 5(1)(c)) and he should be brought to trial as soon as reasonably practicable. The Strasbourg case law makes plain the object of the reasonable time requirement: to ensure that accused persons do not lie under a charge for too long and that the charge is determined (Wemhoff v Federal Republic of Germany (1968) 1 EHRR 55, 78, para 18: see para 31 above); to protect a defendant against excessive procedural delays and prevent him remaining too long in a state of uncertainty about his fate (Stögmüller v Austria, above, para 5); to avoid delays which might jeopardise the effectiveness and credibility of the administration of justice (H v France (1989) 12 EHRR 74, 90, para 58: see para 43 above). Both the reasonable detention provision and the reasonable time requirement confer independent, free-standing, rights. A violation of either right may be found in the absence of any prejudice to the fairness of the defendant’s trial. This was made explicit in Eckle v Federal Republic of Germany (1982) 5 EHRR 1, 24, para 66: see paragraph 40 above. It is implicit in the Strasbourg judgments, which consider alleged violations of the reasonable detention provision and the reasonable time requirement without reference to the fairness ingredient of article 6(1) and, where there is a challenge to the fairness of the trial, consider that aspect quite separately.
  69. The reasonable detention provision and the reasonable time requirement confer important rights on the individual, and they should not be watered down or weakened. But the individual does not enjoy these rights in a vacuum. He is a member of society and other members of society also have interests deserving of respect. This was recognised by the court in Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, 52 when, in paragraph 69 of its judgment, it referred to the striking of a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights, the search for which balance was said to be inherent in the whole of the convention. See also Soering v United Kingdom (1989) 11 EHRR 439 at p 465, para 89; B v France (1992) 16 EHRR 1 at p 34, para 63. It was again recognised in Doorson v The Netherlands (1996) 22 EHRR 330, 358 when, in paragraph 70 of its judgment, the court spoke of the need in appropriate cases to balance the interests of the defence against those of witnesses or victims called upon to testify. While, for the reasons already given, it is important that suspects awaiting trial should not be detained longer than reasonably necessary, and proceedings (including any appeal) should be determined with reasonable expedition, there is also an important countervailing public interest in the bringing to trial of those reasonably suspected of committing crimes and, if they are convicted, in their being appropriately sentenced. If the effectiveness and credibility of the administration of justice are jeopardised by excessive delay in bringing defendants to trial, they are liable to be jeopardised also where those thought to be guilty of crime are seen to escape what appear to be their just deserts.
  70. In any case in which it is said that the reasonable time requirement (to which I will henceforward confine myself) has been or will be violated, the first step is to consider the period of time which has elapsed. Unless that period is one which, on its face and without more, gives grounds for real concern it is almost certainly unnecessary to go further, since the convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. But if the period which has elapsed is one which, on its face and without more, gives ground for real concern, two consequences follow. First, it is necessary for the court to look into the detailed facts and circumstances of the particular case. The Strasbourg case law shows very clearly that the outcome is closely dependent on the facts of each case. Secondly, it is necessary for the contracting state to explain and justify any lapse of time which appears to be excessive.
  71. The court has identified three areas as calling for particular inquiry. The first of these is the complexity of the case. It is recognised, realistically enough, that the more complex a case, the greater the number of witnesses, the heavier the burden of documentation, the longer the time which must necessarily be taken to prepare it adequately for trial and for any appellate hearing. But with any case, however complex, there comes a time when the passage of time becomes excessive and unacceptable.
  72. The second matter to which the court has routinely paid regard is the conduct of the defendant. In almost any fair and developed legal system it is possible for a recalcitrant defendant to cause delay by making spurious applications and challenges, changing legal advisers, absenting himself, exploiting procedural technicalities, and so on. A defendant cannot properly complain of delay of which he is the author. But procedural time-wasting on his part does not entitle the prosecuting authorities themselves to waste time unnecessarily and excessively.
  73. The third matter routinely and carefully considered by the court is the manner in which the case has been dealt with by the administrative and judicial authorities. It is plain that contracting states cannot blame unacceptable delays on a general want of prosecutors or judges or courthouses or on chronic under-funding of the legal system. It is, generally speaking, incumbent on contracting states so to organise their legal systems as to ensure that the reasonable time requirement is honoured. But nothing in the convention jurisprudence requires courts to shut their eyes to the practical realities of litigious life even in a reasonably well-organised legal system. Thus it is not objectionable for a prosecutor to deal with cases according to what he reasonably regards as their priority, so as to achieve an orderly dispatch of business. It must be accepted that a prosecutor cannot ordinarily devote his whole time and attention to a single case. Courts are entitled to draw up their lists of cases for trial some time in advance. It may be necessary to await the availability of a judge possessing a special expertise, or the availability of a courthouse with special facilities or security. Plans may be disrupted by unexpected illness. The pressure on a court may be increased by a sudden and unforeseen surge of business. There is no general obligation on a prosecutor, such as that imposed on a prosecutor seeking to extend a custody time limit under section 22(3)(b) of the Prosecution of Offences Act 1985, to show that he has acted “with all due diligence and expedition.” But a marked lack of expedition, if unjustified, will point towards a breach of the reasonable time requirement, and the authorities make clear that while, for purposes of the reasonable time requirement, time runs from the date when the defendant is charged, the passage of any considerable period of time before charge may call for greater than normal expedition thereafter.
  74. The application of the law: the officers
  75. A period of 20 months elapsed (or would have elapsed) between the charging of the officers at the end of January 1999 and their trial in August or September 2000. They were not in custody. While a shorter interval between charge and trial would obviously be desirable, this is not a period which, on its face and without more, causes me real concern, such as to suggest that a basic human right of the officers may have been infringed. I am aware of no case in which the court has found so short a period to violate the reasonable time requirement, save in Mansur v Turkey (1995) 20 EHRR 535, where special considerations were present (see paragraph 45 above). I would not for my part think it necessary to embark on the more detailed inquiry required by the court, but in deference to the Scottish judges who reached a contrary view I shall do so.
  76. Police officers are, by reason of their occupation, peculiarly susceptible to accusations of misconduct, many or most of which are found upon examination to be malicious, fabricated or self-serving. The credibility of the accusers is often very suspect. The strong public interest in the integrity of the police, and the interest of individual officers in vindicating their reputations, require that accusations of misconduct against officers, when made, should be carefully and independently investigated by a body other than the police themselves. Even when, as here, strong criticisms of a police officer are voiced from the bench, the need for careful and independent investigation remains before any proceedings, whether criminal or disciplinary, are initiated. This inevitably takes time.
  77. This was not, as was rightly accepted, a complex case, although it may be (we do not know) that the quality of the evidence against the officers gave rise to concern. The conduct of the officers themselves did not contribute to any delay. So the inquiry must focus on the way in which the case was dealt with by the administrative and judicial authorities, here the prosecuting authorities. It was not, as I understood, contended, and in my opinion could not be plausibly contended, that there was any undue delay between April 1998, when the trial before the sheriff ended, and April 1999 when the regional procurator fiscal instructed that precognitions be taken from 4 of the 8 witnesses whom the police had already interviewed. This process was not accomplished until the end of that year and the beginning of the next, and the officers’ complaint is essentially directed to that 7-8 month period. Plainly the process could have been accomplished more quickly. In an ideal world it would have been. But the officers were adults, they fell in no vulnerable category, they were not in custody, there is no indication that they intended to plead guilty and they had no special claim to priority. The period of uncertainty about their fate which they had to endure was not unduly prolonged. The delay here was not such as to jeopardise the effectiveness or credibility of the criminal justice system in Scotland, although there might indeed be such jeopardy, in my opinion, if the officers were not to stand trial. On the facts of this case it cannot be said that the reasonable time requirement, reflecting a common minimum standard among contracting states, has been violated.
  78. I would accordingly allow the crown’s appeal, quash the order made by the Appeal Court and the sheriff and make the order which Lord Hope of Craighead proposes.
  79. The application of the law: JK
  80. A period of 27 months elapsed between the charging of JK on 31 October 1998 and service of the indictment upon him on 29 January 2001. Had his trial proceeded as planned on 2 March 2001, 28 months would have elapsed.
  81. During this period JK was not in custody. But at the time of the alleged offences he was a child in domestic law, and he is still a young person. I would unreservedly accept the need for cases such as his to be carefully, expertly and sensitively handled, both in interviewing witnesses and in deciding on the best course of action to follow. But the reasonable time requirement in the convention must, when dealing with children, be read in the light of the UN Convention on the Rights of the Child and the Beijing Rules, both of which apply to JK and both of which highlight the need for criminal proceedings, if brought at all, to be prosecuted with all due expedition.
  82. In HM Advocate v DP and SM 2001 SCCR 210 at 215-216, para 12, Lord Reed very helpfully outlined some of the reasons why delay is particularly undesirable in the case of child accused and child victims. Sometimes such delay may prejudice the fairness of the trial: a better developed, more mature, accused may make a different impression on the mind of the tribunal of fact than a more obviously childish accused might have done. But prejudice to the fairness of the trial altogether apart, delay has the highly undesirable result of prolonging the stress to which a vulnerable accused is inevitably subject and retarding the date at which his problems (if he has such) can be addressed and full counselling given to young victims without the risk of tainting their evidence.
  83. The overall period of 27-28 months which elapsed (or would have elapsed) in this case is in my view one which, on its face and without more, gives ground for real concern. It is necessary to inquire into the facts and consider the explanation and justification offered for the passage of time.
  84. It was not in any ordinary sense a complex case, although it was one calling for very careful handling and preparation. It is not suggested that JK himself was responsible for any part of the delay. So the focus must again be on the conduct of the prosecuting and administrative authorities. They had difficult judgments to make, not only in assessing the likely strength of testimony given by very young victims but also in deciding whether to prosecute. So long as the case appeared to involve 3 members of a single family it may have appeared preferable not to prosecute, particularly if the mother of the victims wanted to avoid further involvement of her children. It may well be that the emergence of the fourth complainer was felt to put a different complexion on the case. Be that as it may, the fact is that very little was done to progress the case in the first 10 or so months after JK was charged. When the new complainer did emerge at the end of January 2000, JK was put on petition in March. But more than 16 months had by then elapsed since the date of the charge, and steps should then have been taken to bring the case to trial very promptly. Instead, it was allowed to take its ordinary course, being scheduled to come to trial just before the end of the 12-month time limit. There was, as the Appeal Court rightly held, no attempt to treat the case with the urgency which, by the early months of 2000, it undoubtedly deserved. I agree that no satisfactory explanation has been given for a lapse of time which was in this case so long as to breach the reasonable time requirement.
  85. JK: remedy
  86. Before the Appeal Court it appears to have been accepted by both sides and by the court, without argument, that if the reasonable time requirement was found to have been breached the indictment against JK should be dismissed. This is readily understandable. Both the devolution minute and the note of appeal contended that JK could not receive a fair trial, and the right to a fair trial has been understood to embrace a correlative right not to be subjected to an unfair trial, just as the right to trial before an independent and impartial tribunal has been understood to embrace a right not to be subjected to trial before a tribunal which is not independent and impartial. It may well have been assumed that the right to trial within a reasonable time embraced a correlative right not to be tried at all after a reasonable time had elapsed, as appears to have been assumed (again without argument) in HM Advocate v DP and SM 2001 SCCR 210 (see para [17] at p 217).
  87. Before the Board counsel for the crown sought to challenge this assumption, relying on Strasbourg jurisprudence (some of it briefly mentioned above) to contend that a breach of the reasonable time requirement need not necessarily, or even usually, lead to dismissal of the proceedings. For JK it was submitted that the Board could not, or should not, entertain an issue never argued in the Appeal Court; in any event, the unambiguous effect of section 57(2) was to deny the Lord Advocate power to act incompatibly with the Convention, so any proceeding in breach of the reasonable time requirement had to be dismissed as incompetent.
  88. Although, de bene esse, the Board heard considerable argument on this question, I am of opinion that we should not decide it in this case. First, I would be very reluctant to decide a point of such obvious importance without the benefit of the considered judgment of the Appeal Court. Secondly, the question has recently been considered by Lord Reed in HM Advocate v R 2001 SLT 1366 in a very full judgment which is itself, as I understand, to be reviewed by the Appeal Court and which may culminate in an appeal to the Board. In that case Lord Reed concluded that breach of the reasonable time requirement need not lead to the discontinuance of proceedings, a conclusion shared by the Court of Appeal (Criminal Division) in England: Attorney General's Reference (No 2 of 2001) [2001] 1 WLR 1869. But the latter court did not of course have to consider the effect of section 57(2) of the Scotland Act 1998, a question on which the Advocate General for Scotland might well wish to be heard. If a breach of the reasonable time requirement were held to have a different effect in Scotland from that in England and Wales and other convention countries, that would clearly be a ruling of some constitutional importance.
  89. I would accordingly defer consideration of this issue until it is properly raised for authoritative decision following full argument. On the facts of this case the considerations which point towards a breach of the reasonable time requirement also point towards discontinuance of the proceedings as the only appropriate remedy. A trial of this case some 3½ years or more after the date of charge would not be acceptable. I would therefore dismiss the appeal.
  90. I have had the opportunity of reading in draft the opinions of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry. I agree with the reasons which they give, and gratefully adopt what they say on the retrospectivity point which was not raised at the hearing before the Board.
  91. ____________________
    Lord Hope of Craighead
  92. These are two appeals under paragraph 13(a) of Schedule 6 to the Scotland Act 1998. The respondents’ complaint is that the act of the prosecutor in bringing their cases to trial after a period of delay is incompatible with their right to a trial within a reasonable time under article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. They maintain that the prosecutor has no power to prosecute the cases against them in these circumstances, having regard to the provisions of section 57(2) of the 1998 Act.
  93. The first sentence of article 6(1) of the Convention states:
  94. “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 structure of the Convention right
  95. In a recent article, Criminal Proceedings After The Human Rights Act: The First Year [2001] Crim L R 855, 871-872, Professor Andrew Ashworth acknowledged that in some areas the jurisprudence of the Strasbourg court was vague, unpersuasive and lacking in consistency. But he included among those areas where the Strasbourg decisions pursue a clear and principled course the decisions of that court on delay. These two cases are the first to come before the Judicial Committee on the question whether the bringing of a case to trial after a period of delay is incompatible with the right to a hearing within a reasonable time guaranteed by article 6(1) of the Convention. It may be helpful therefore if I were to begin by attempting to identify the clear and principled course which the Strasbourg decisions have been pursuing on this subject before I seek to apply the principles to the facts of these two cases.
  96. I take as my starting point three fundamental principles which underpin the article 6(1) Convention rights.
  97. (a) The first sentence of the article creates a number of rights which are closely related. But these four rights can and should be considered separately. The rights to a fair hearing, to a public hearing and to a hearing before an independent and impartial tribunal established by law are separate and distinct rights from the right to a hearing within a reasonable time. This means that a complaint that one of these rights was breached cannot be answered by showing that the other rights were not breached: see, eg, Millar v Dickson, 2002 SC (PC) 30, 39E-G, 53F, 54F, paras 16, 63, 66; Magill v Porter [2001] UKHL 67, paras 87, 108. It is no answer to a complaint that the right to a hearing within a reasonable time has been violated for the Crown to say that the accused can nevertheless expect to receive, or has received, a fair hearing in public before an independent tribunal established by law.
    (b) A distinction must be made between those rights which are said by the Convention to be absolute and unqualified, such as those in articles 2 and 3, and those which are `expressly qualified by provisions which permit them to be interfered with in certain circumstances: see articles 8 to 11. The separate and distinct rights in the first sentence of article 6(1) are not among those declared by article 15 to be incapable of derogation under whatever circumstances, nor are they expressly qualified. Nevertheless, it can be taken to be a fundamental principle that, where rights are provided for expressly by the Convention, there is no room for implied restrictions on those rights: see Brown v Stott, 2001 SC (PC) 43, 74C-E.
    (c) The overriding right which is guaranteed by article 6(1) is the right to a fair trial. It has been described by the Strasbourg court as a fundamental principle of the rule of law: Salabiaku v France (1988) 13 EHRR 379, 388, para 28. I infer from this that it is an absolute right which does not permit the application of any balancing exercise, and that the public interest can never be invoked to deny that right to anybody under any circumstances: see Montgomery v HM Advocate, 2001 SC (PC) 1, 27E, 29F-G; Brown v Stott, p 74B.
  98. Although there is no room for any implied restriction on the right guaranteed by article 6(1) to a hearing within a reasonable time, the terms in which it is expressed are not absolute or inflexible. As Lord Bingham of Cornhill has shown in his review of the Strasbourg case law, the Strasbourg court has never, when applying the reasonable time guarantee to the facts of particular cases, attempted to lay down minimum periods. In Stögmüller v Austria (1969) 1 EHRR 155, 191, para 4 the court acknowledged, in regard to the reasonable time guarantee in article 5(3), that it was not feasible to translate that concept into a fixed number of days, weeks, months or years, or into various periods depending on the seriousness of the offence. It is not possible to identify from its judgments a tariff by reference to which decisions may be taken as to whether a given period of delay is or is not compatible with the Convention right. Nor does the Convention itself encourage this approach, as the article 6(1) right is qualified by the word “reasonable”. The use of this word indicates that each case must be judged according to its own facts and circumstances: Obermeier v Austria (1990) 13 EHRR 290, 306-307, para 72.
  99. What the court has consistently sought to do instead is to provide general guidance, by laying down the factors with reference to which the reasonableness of the time is to be judged and by requiring the state to provide explanations with reference to these factors in cases where the period of the delay is inordinate: see, eg, Neumeister v Austria (No 1) (1968) 1 EHHR 91, pp 130-131, paras 20-21; König v Federal Republic of Germany (1978) 2 EHRR 170, 197, paras 98-99; H v France (1989) 12 EHRR 74, 88, para 50; Mansur v Turkey (1995) 20 EHRR 535, 553, para 61; Löffler v Austria, Application No 30546/96, 3 October 2000, para 20.
  100. The factors
  101. In Eckle v Federal Republic of Germany (1982) 5 EHRR 1, two separate criminal proceedings for fraud against the applicants had lasted for 20 years and 15 years respectively from the date of the initial complaint to the disposal of the final appeals. The court held that the “reasonable time” begins to run as soon as a person is “charged” within the meaning which is to be given to that expression for the purposes of article 6(1), and that the word “time” covers the whole of the proceedings in issue, including appeal proceedings: pp 27-28, paras 73, 76. It gave the following guidance as to the meaning of the word “reasonable” at p 29, para 80:
  102. “The reasonableness of the length of the proceedings must be assessed in each instance according to the particular circumstances. In this exercise, the court has regard to, among other things, the complexity of the case, the conduct of the applicants and the conduct of the judicial authorities.
    The present case concerns sets of proceedings that endured 17 years and 10 years respectively. Such a delay is undoubtedly inordinate and is, as a general rule, to be regarded as exceeding the ‘reasonable time’ referred to in article 6(1). In such circumstances, it falls to the respondent state to come forward with explanations.”
  103. In König v Federal Republic of Germany (1978) 2 EHHR 170, 197, para 99 the same factors on the question of delay were applied by the court in civil proceedings:
  104. “The reasonableness of the duration of proceedings covered by article 6(1) of the Convention must be assessed in each case according to the circumstances. When enquiring into the reasonableness of the duration of criminal proceedings, the court has had regard, inter alia, to the complexity of the case, to the applicant’s conduct and to the manner in which the matter was dealt with by the administrative and judicial authorities. The court, like those appearing before it, considers that the same criteria must serve in the present case as the basis for its examination of the question whether the duration of the proceedings before the administrative courts exceeded the reasonable time stipulated by article 6(1).”
    Prejudice
  105. Prejudice has not been identified by the court as a specific factor to which regard must be had when considering whether the period of time was reasonable. But this does not mean that the question of prejudice has been ignored by the guarantees in article 6(1). On the contrary, the risk of prejudice if the guarantees are breached lies at the very heart of the article. The reason why the guarantee of a hearing within a reasonable time appears in article 6(1) is because prejudice is presumed to arise if the guarantee is violated. In Stögmüller v Austria (1969) 1 EHRR 155, 191, para 5 the court said that the aim of article 6(1) is to protect all parties to proceedings against excessive procedural delays, and that in criminal proceedings especially it is designed “to avoid that a person charged should remain too long in a state of uncertainty about his fate”.
  106. Where significant prejudice due to a period of delay can be demonstrated, it can be taken into account when making the assessment: Obermeier v Austria (1990) 13 EHRR 290, 307, para 72; X v France (1991) 14 EHRR 483, 503, para 32. It may, for example, have a bearing on the conduct to be expected of the prosecuting authorities where they failed to give the proceedings the priority which they plainly ought to have been given in the circumstances. But it is not necessary for a person charged who claims that his article 6(1) Convention right has been violated to show that he has suffered, or will suffer, any actual prejudice. The mere fact of inordinate or excessive delay is sufficient to raise a presumption in his favour that he will be prejudiced. The burden of coming forward with explanations for inordinate delay is on the prosecuting authorities: Eckle v Federal Republic of Germany (1982) 5 EHRR 1, 29, para 80.
  107. The threshold
  108. Although the Strasbourg court does not lay down any minimum periods of delay, it is possible to find guidance in its decisions to support the proposition that the concept of reasonableness implies that a relatively high threshold must be crossed before it can be said in any particular case that a period of delay is unreasonable.
  109. In Stögmüller v Austria (1969) 1 EHRR 155, 191, para 5 the court said that the aim of article 6(1) was to protect parties against “excessive” procedural delays. In Eckle v Federal Republic of Germany (1982) 5 EHRR 1, 29, para 80 the court said that delay which was “inordinate” was, as a general rule, to be regarded as exceeding the “reasonable time” referred to in article 6(1). In Mansur v Turkey (1995) 20 EHRR 535, 554, para 68 the court rejected the government’s argument that it was not possible to adopt an expeditious procedure in cases of drug trafficking on the ground that it was for the contracting states to organise their legal systems in such a way that their courts can meet article 6(1) which “guarantees” to everyone against whom criminal proceedings are brought the right to a final decision within a reasonable time. In Löffler v Austria, Application No 30546/96, 3 October 2000, para 21, where the complexity of the proceedings was held to be insufficient to explain their length, the court recalled that it is for the contracting states to organise their legal systems in such a way that their courts can “guarantee” the right of everyone to obtain a final decision with a reasonable time.
  110. It is to be inferred from the decisions in Mansur and Löffler that the question whether the legal systems of the contracting states are organised in a way that is compatible with the article 6(1) Convention right must be approached by applying international standards to the reasonable time guarantee. This points to a relatively high threshold in comparison with those which we are accustomed to applying to criminal proceedings in our domestic law.
  111. The court has also repeatedly acknowledged the part which respect for the fundamental principle of the rule of law has to play in this exercise: Salabiaku v France (1988) 13 EHRR 379, 388, para 28; Pullar v United Kingdom (1996) 22 EHRR 391, 403, para 32. In H v France (1989) 12 EHRR 24, 90, para 58 the court said that, by requiring in article 6(1) that cases be heard within a reasonable time, the Convention underlined the importance of rendering justice without delays which might jeopardise its effectiveness and credibility. But, as I observed in Montgomery v HM Advocate, 2001 SC (PC) 1, 29G-H, it is not the purpose of article 6 to make it impracticable to bring those who are accused of crime to justice. The rule of law serves to protect the public interest as well as the interests of the individual. The reasonable time guarantee should not be seen as an impediment to maintaining high standards in our system of public prosecution. In Valentine v HM Advocate, 2001 SCCR 727, 732E, para 14 Lord Justice General Rodger drew attention to the chilling effect that that might have on the work of conscientious procurators fiscal. On these grounds too the setting of a relatively high threshold is indicated.
  112. Our own domestic law already makes ample provision by means of statutory rules to avoid delay in the conduct of criminal proceedings up to the date of the trial: Criminal Procedure (Scotland) Act 1995, sections 65(1) and (4) and section 147(1). There is also the protection which is afforded by the common law in cases where it can be shown that prejudice has been caused by delay, if the harm or injury is so grave that no direction of the trial judge could be expected to remove it or no sheriff or justice could be expected to reach a fair verdict in the circumstances: McFadyen v Annan, 1992 JC 53; Normand v Rooney, 1992 JC 93. The effectiveness of these protections in the international context can be demonstrated by the fact that no complaint of pre-trial delay in a Scottish criminal case has been upheld by the Strasbourg court.
  113. The protection afforded by the article 6(1) right may be regarded as demanding a standard of performance by the prosecutor which is more exacting than that set by the common law, as it does not require the person charged to demonstrate prejudice. This feature of the Convention right provides a further indication that a relatively high threshold should be set in comparison with that indicated by the common law before the onus passes to the prosecutor to come forward with reasons for the delay. I agree with Lord Bingham that this will be so only if the period which has elapsed is one which, on its face and without more, gives grounds for real concern that the Convention right has been violated.
  114. Commonwealth jurisprudence
  115. The approach taken by the Strasbourg court to article 6(1) is to be contrasted with that which the Board adopted in Bell v Director of Public Prosecutions [1985] AC 937 when it was considering the reasonable time guarantee in the Constitution of Jamaica. More recently the Judicial Committee appears not to have been consistent in its approach to these issues. In Darmalingum v The State [2000] 1 WLR 2303 the Board followed the jurisprudence of the Strasbourg court when it was considering the same question under the Constitution of Mauritius. But in Flowers v The Queen [2000] 1 WLR 2396, which was another case on the same point from Jamaica, a differently constituted Board decided not to follow Darmalingum and preferred the approach which was adopted in Bell.
  116. The fact that there is an apparent conflict between the decisions in Darmalingum and Bell has not escaped the notice of the commentators: see for example Professor Ashworth’s article [2001] Crim L R 855, 860, where he observed that conflicting decisions were reached in these cases on whether a finding of unconstitutional delay should lead to the quashing of the conviction; Clayton and Tomlinson, The Law of Human Rights, First Annual Updating Supplement (2001), p 96, para 11-344. There are a number of other quite fundamental points on which the two decisions may be thought to be in conflict with each other. I suggest that the opportunity should now be taken to remove any doubts that may exist as to which of these two decisions offers the better guidance in the context of the article 6(1) Convention right.
  117. As Lord Templeman explained in Bell v Director of Public Prosecutions [1985] AC 937, the question in that case was whether in the circumstances of that case the applicant’s right under section 20(1) of the Constitution of Jamaica to “a fair hearing within a reasonable time” had been infringed. The Board was not referred to any of the decisions of the Strasbourg court on this issue. What it did instead was to follow the guidance which was provided by the judgments of the Supreme Court of the United States in Barker v Wingo (1972) 407 US 514 with reference to the sixth amendment to the Constitution of the United States which provides:
  118. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”
  119. Powell J identified, at pp 528-532, four factors which in his view the court should assess in determining whether a particular defendant has been deprived of this right. These were: (1) the length of the delay, (2) the reasons given by the prosecution to justify the delay, (3) the responsibility of the accused for asserting his rights and (4) prejudice to the accused. Lord Templeman said, at p 953A, that their Lordships acknowledged the desirability of applying the same or similar criteria to any constitution, written or unwritten, which protects an accused from oppression by delay in criminal proceedings, although the weight to be attached to each factor must vary from jurisdiction and from case to case.
  120. The second and third factors listed in Powell J’s judgment are to be found, with only slight variations, in the jurisprudence of the Strasbourg court. The first factor is not mentioned, but it is clear from the Strasbourg court’s jurisprudence that it too takes the view that until there is some delay which is presumptively prejudicial there is no need for an inquiry into the question whether the delay was “unreasonable”. The fourth factor also is not mentioned. This is the factor which Powell J described as prejudice to the accused. Here there is a clear difference between the two approaches. The prejudice to which Powell J refers in regard to the “speedy trial” right in the sixth amendment is prejudice to the defendant’s interests at trial. The article 6(1) reasonable time guarantee in criminal matters covers the whole of the period of the proceedings in issue, including appeal proceedings: Eckle v Federal Republic of Germany (1982) 5 EHRR 1, 28, para 76. Also, there is no requirement in the context of the article 6(1) guarantee for the defendant to demonstrate prejudice. Prejudice at the stage of an appeal is likely to be confined to the anxiety and concern which flows inevitably from delay.
  121. In Bell v Director of Public Prosecutions [1985] AC 937, 950-951, Lord Templeman said that the three elements of section 20 of the Constitution of Jamaica, namely a fair hearing within a reasonable time by an independent and impartial court established by law, formed part of one embracing form of protection afforded to the individual:
  122. “The longer the delay in any particular case the less likely it is that the accused can still be afforded a fair trial. But the court may nevertheless be satisfied that the rights of the accused provided by section 20(1) have been infringed although he is unable to point to any specific prejudice.”
    Here too there is a difference in approach from that which is taken to the article 6(1) guarantees. They are seen as separate and independent guarantees, although they are all designed to achieve the same object which is that the person charged receives a fair trial.
  123. In Darmalingum v The State [2000] 1 WLR 2303 the Board was concerned with the constitutional right to a trial within a reasonable time under section 10(1) of the Constitution of Mauritius. In his judgment in that case, at p 2309F-G, Lord Steyn said that the decisions of the Strasbourg court in Wemhoff v Federal Republic of Germany (1968) 1 EHRR 55 and Eckle v Federal Republic of Germany (1982) 5 EHRR 1 were directly in point, as the difference between the relevant provisions in the Constitution of Mauritius and the European Convention was not material. Applying those decisions, the Board held, at p 2310A, that the guarantee of a hearing within a reasonable time in section 10(1) must be construed like article 6(1), and that it extended to appellate proceedings
  124. In Flowers v The Queen [2000] 1 WLR 2396 the factors which were applied were those identified by Powell J in Barker v Wingo 407 US 514, the importance and relevance of which, as Lord Hutton said, at p2410F-G, had been acknowledged in Bell. The Board decided not to follow Darmalingum on the following grounds: pp2414H-2415A:
  125. “The judgment of the Board [in Darmalingum] does not refer to the passage in the judgment of the Board in Bell v Director of Public Prosecutions [1985] AC 937 which recognises that the right given by section 20 of the Constitution of Jamaica must be balanced against the public interest in the attainment of justice or to the passage which states that the right to a trial within a reasonable time is not a separate guarantee but, rather, that the three elements of section 20(1) form part of one embracing form of protection afforded to the individual.”
  126. Like Lord Bingham, I do not doubt that the outcome in each of these cases was correct. But I consider that, in the context of an alleged violation of the article 6(1) Convention rights, the Board’s decision in Darmalingum, based as it is on a consideration of decisions by the Strasbourg court, is the preferable authority: see Magill v Porter [2001] UKHL 67, para 109. A court or tribunal determining a question which has arisen in connection with a Convention right must take account of its decisions, whenever made or given: Human Rights Act 1998, section 2(1)(a). I think that in this particular context we should follow the decisions of that court as to the factors to be considered, rather than the judgments in the United States Supreme Court or the guidance which was obtained from them in Bell v Director of Public Prosecutions [1985] AC 937. I would also follow Lord Steyn’s observations in Darmalingum about the effect of section 10(1) of the Constitution of Mauritius, when he said, at p 2307G-H, that it contained three separate guarantees, namely (1) a right to a fair hearing; (2) within a reasonable time; (3) by an independent and impartial court established by law. So the fact that a defendant was convicted after a fair hearing by a proper court could not justify or excuse a breach of his guarantee of a disposal within a reasonable time.
  127. I turn now to the facts of these two cases. I can do so briefly as I am in full agreement with what Lord Bingham and Lord Rodger of Earlsferry have said about them.
  128. Watson and Burrows
  129. In this case it is accepted that the respondents were “charged” within the meaning of article 6(1) on 28 January 1999 when they were detained and interviewed, the sheriff’s allegations that they had committed perjury were put to them and they were cautioned: see Howarth v United Kingdom (2000) 31 EHRR 861. It is also accepted that, but for the pleas in bar which they advanced at the pleading diet on 23 May 2000 and the appeals which then followed, they would have been brought to trial in August or September 2000. The complaint is of a pre-trial delay amounting to about 20 months. There was a period of about seven months between April 1999 and December 1999 when nothing much appears to have happened. According to the agreed statement of facts and issues, the case was reported to the regional procurator fiscal by the police on 9 April 1999 and it was not until December 1999 that any of the witnesses were interviewed. But before and after these dates reasonable progress appears to have been made to bring the case to trial.
  130. The case was described by Lord Milligan in the High Court of Justiciary as one of apparent extreme simplicity so far as investigation and preparation and decision making was concerned: Dyer v Watson 2001 SLT 751, 755D-E, para 13. He also had regard to the sheriff’s comments in April 1988 which raised the prospect of proceedings against the respondents, to which wide publicity was given at the time. But, as Lord Hamilton pointed out in his dissenting opinion at p 756F, para 6, the case involved a very serious accusation against serving police officers which, in compliance with the Book of Regulations issued to regional procurators fiscal by the Crown Office, required the carrying through of the precognition procedure notwithstanding that proceedings on indictment may never have been contemplated and an investigation had already been carried out by the police. The independence of the precognition procedure was in the interests of, among others, those who had been the accused in the proceedings in which the respondents are alleged to have committed perjury. Resort to this procedure involved a member of the procurator fiscal’s staff who had, during the period in question, responsibilities in relation to other cases of higher priority. As for the sheriff’s comments in April 1998, Lord Hamilton said at p 756K, para 7 that no complaint was made or could reasonably be made about the time taken between the sheriff’s pronouncement in April 1998 and the “charge” being put to the respondents in January 1999.
  131. I would hold that the period of time that was involved in this case fell far short of the relatively high threshold that had to be crossed before the respondents’ right to a hearing within a reasonable time under article 6(1) was engaged. Looked at overall, the most that can be said on the respondent’s behalf is that the case should have been brought to trial about seven months earlier than it would have been. In the context of other summary cases where the accused are not in custody, and taking account of the fact that the period overall amounts to 20 months, the delay in this case cannot be described as “excessive” or “inordinate”. Any complaint that the respondents may have had on the ground that the delay was such as to cause them grave prejudice at their trial could have been dealt with by advancing a plea in bar of trial at common law. But they chose not to pursue that remedy, and it has not been suggested that a delay of that kind has occurred in this case.
  132. As for their article 6(1) Convention right, the only factor among those identified in the Strasbourg jurisprudence that needs to be considered is the conduct of the prosecuting authorities. It is not suggested that the case is complex or that the respondents have contributed in any way to the delay. The relevant period is that from 28 January 1999 when the respondents were “charged”. The critical question is whether the prosecuting authorities were at fault in following the precognition procedure during this period, as its use provides the explanation for the delay.
  133. As the preamble to Appendix A to Chapter 2 of the Book of Regulations indicates, the purpose of the procedure is to provide a completely impartial and thorough system of investigation where the complaint alleges that a crime may have been committed in the course of their duty by police officers. The use of the procedure in the case of complaints against the police was approved by the High Court in McLeod v Tiffney, 1994 JC 77. It was not suggested that its use was inappropriate in this case, where the complaint was made as a result of the sheriff’s comments and not by the accused at the trial at which the respondents gave evidence.
  134. Bearing in mind the grave nature of the charges in this case, and the difficulties which are inherent in a complaint of perjury which is wholly dependent on the evidence of lay witnesses, I agree with Lord Hamilton that it was in the respondents’ own best interests that the case against them should be investigated in this way. It seems to me that the majority in the High Court underestimated both the importance and the consequences of adopting this procedure. I would hold that its use provides a sufficient explanation for the delay in this case.
  135. K's case
  136. In this case the relevant period is that between 31 October 1998 when the respondent was cautioned and charged and 5 April 2001 when his case called for trial in the High Court of Justiciary. During this period there appear to have been several significant periods of inactivity. It was not until September 1999 that attempts were made to obtain a first set of precognitions from the complainers. Between January 2000 and August 2000 there was further period of delay while consideration was being given to interviewing another potential complainer. The respondent was not placed on petition until 16 March 2000. The indictment called in the High Court on 2 March 2001, which was just before the expiry of the twelve month period that then became applicable in terms of section 65(1) of the Criminal Procedure (Scotland) Act 1995. It was adjourned for one month to allow the defence to obtain a medical report, and it called again on 5 April 2001. But by then a period of about 27 months had elapsed from the date when the respondent was charged, for only 17 months of which explanations have been offered.
  137. The question whether this period of delay was “excessive” or “inordinate” has to be judged in the light of the respondent’s age, which is a factor of great importance in this case. He was born on 13 December 1984. He was aged only 13 years and 10 months when he was charged on 31 October 1998. By 5 April 2001, when his case called for trial, he was 16 years and 3 months old. The offences with which he was charged are said to have occurred between January 1997 and October 1998, when he was aged 12 and 13.
  138. As Lord Reed pointed out in HM Advocate v DP and SM 2001 SCCR 210, 215B, para 11, the Strasbourg court has taken into account the provisions of the following international instruments when considering the requirements imposed by the Convention in relation to proceedings involving juvenile offenders: V v United Kingdom (1999) 30 EHRR 121, 176, para 76. Article 1 of the United Nations Convention on the Rights of the Child 1989 defines a child as a human being under the age of 18 years. Article 40 (2) (b) provides:
  139. “Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
    (iii) To have the matter determined without delay …”
    Rule 20 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (“the Beijing Rules”) provides:
    “Each case shall from the outset be handled expeditiously, without any unnecessary delay.”
  140. The United Nations Convention was ratified by the United Kingdom and came into effect on 15 January 1992. Chapter 16 of the Book of Regulations deals with the subject of children in the light of what it acknowledges in para 16.01 as the fundamental rights of the child which are recognised and guaranteed by the Convention. Para 16.18 states that procurators fiscal are required to liaise with the Children’s Reporter in cases against children who are reported for consideration of proceedings and that such liaison should take place as a matter of urgency so as to avoid any unnecessary delay in dealing with these cases. I would endorse the recognition which is given by this paragraph to the fact that the passage of time is likely to be particularly prejudicial where criminal charges are brought against children. In Gibson v HM Advocate, 2001 JC 125, 129F-G, para 15 Lord Prosser said:
  141. “While prejudice is not an essential element in breach of article 6(1), it is in our opinion obvious that if the passage of time is likely to be prejudicial to the accused in a given case, that will weigh heavily in favour of giving that case priority over others where such prejudice is not regarded as likely.”
  142. Against this background, I would hold that the delay in bringing this case to trial was so excessive as to give rise to a real concern that the respondent’s Convention right has been violated and, for this reason, demand an explanation by the prosecuting authorities. I would also hold that the explanations that were offered were insufficient to avoid the conclusion that the delay was inordinate and excessive, and that the guarantee of a trial within a reasonable time has indeed been breached.
  143. The most striking feature of this case is that the proceedings against the respondent were characterised throughout by the lack of a sense of urgency. The trial judge, who refused the respondent’s devolution minute, distinguished the present case from HM Advocate v DP and SM on the ground that in that case Lord Reed found the explanations tendered to him for the lack of progress in that case to be wholly unsatisfactory whereas that was not true in this case. But, as Lord Coulsfield said in the High Court, 2001 SLT 1261, 1264I, para 11 the explanations which the Crown have provided for the various periods of delay lack any indication that the lapse of time ever led the authorities to treat the case with increasing urgency as time went by. There was an initial delay from 31 October 1998 to April 1999 which is wholly unexplained. It was not unreasonable for the respondent not to be put on petition until it was clear that the charges against him were sufficiently serious to warrant his prosecution on indictment. But his case should then have been given priority as one which had to be dealt with urgently in view of his age. The fact that section 65(1) of the Criminal Procedure (Scotland) Act 1995 allows a period of twelve months to bring cases to trial where the accused is on petition and not in custody may have been taken as an indication that there was no urgency. But in this case it was no guide as to the period that was appropriate, in view of the respondent’s right under the United Nations Convention to have his case dealt with without any unnecessary delay. I would hold that in his case the explanations offered do not meet the requirements of article 6(1) and that a violation of the guarantee of a hearing within a reasonable time has been established.
  144. The remedy
  145. In the courts below it was assumed that the only remedy if an incompatibility with article 6(1) was established was to uphold the pleas in bar of trial. Before your Lordships’ Board the appellants raised for the first time the question whether the breach of the article 6(1) might be remedied in some other way. Mr Davidson QC said that it was clear from the jurisprudence of the Strasbourg court that discontinuance of the proceedings was to be resorted to only in exceptional circumstances. Reference was made to the just satisfaction proceedings in Eckle v Germany (1983) 13 EHRR 556, to the decisions on admissibility in X v Federal Republic of Germany, Application No 8182/78, 16 October 1980, 25 DR 142, and S v Federal Republic of Germany, Application No 10232/83, 16 December 1983, 35 DR 213 and to the court’s decision in Beck v Norway, Application no. 26390/95, 26 June 2001.
  146. The respondents said that these submissions did not raise a devolution issue and that, even if they did, they could not competently be considered by the Judicial Committee as it was not a devolution issue that had been considered by the High Court of Justiciary. Reference was made to Follen v HM Advocate, 2001 SLT 774. I am not persuaded that there is any force in these arguments. The devolution issue that the respondents raised under paragraph 1(d) of Schedule 6 to the Scotland Act 1998 was whether the proposed exercise of his functions by the Lord Advocate in bringing these cases to trial was incompatible with their article 6(1) Convention right to a hearing within a reasonable time. The remedy which they sought was the upholding of their pleas in bar of trial. The question whether this was the appropriate remedy is intimately bound up with question whether the Lord Advocate has power under section 57(2) to act in a way that is incompatible with the Convention right. I would hold that it forms part of the devolution issue, and that it would not be incompetent for your Lordships to deal with it in K’s case where the point remains a live issue.
  147. On the other hand your Lordships have not had the benefit of the views of the High Court of Justiciary on what is plainly a difficult and important point. The decision of the Court of Appeal in Attorney-General's Reference (No 2 of 2001) [2001] 1 WLR 1869, in which is was held that a finding of unreasonable delay does not necessarily mean that the trial will be unfair, is thought to be controversial: A Webster, Delay and Article 6(1) [2001] Crim L R 786; Ashworth, Criminal Proceedings After The Human Rights Act: The First Year [2001] Crim L R 855, 860. Lord Reed’s decision in HM Advocate v R, 2001 SLT 1366 in which he reached a similar conclusion is under appeal in the High Court of Justiciary.
  148. There may also be room for the view that there is a fundamental difference of approach between the Scotland Act and the Human Rights Act as to this issue, as Iain Jamieson (formerly a senior civil servant in the Scottish Office) who was closely involved in the drafting of the Bill which became the Scotland Act 1998 has suggested: Relationship between the Scotland Act and the Human Rights Act, 2001 SLT (News) 43. He points out at p 44, that the Human Rights Act 1998 does not impose a vires control upon UK Ministers, and that where a 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 to be “just and appropriate”. This is to be contrasted with section 57(2) which provides that a member of the Scottish Executive “has no power” to do any act so far as it is incompatible with any of the Convention rights: as to the significance of this provision in the context of article 13 of the Convention, see Brown v Stott, 2001 SC (PC) 43, 70C-E. It is also to be contrasted with article 41 (formerly article 50) of the Convention, which informs much of the jurisprudence of the Strasbourg court on this issue. It provides that the court shall, if necessary, “afford just satisfaction to the injured party” if the internal law of the contracting state allows only partial reparation to be made for the consequences of the incompatibility.
  149. These various considerations suggest that it would be preferable for a decision by the Board on this point to be deferred until it has received full consideration on appeal in the High Court of Justiciary. I do not think that to do so will create problems in K’s case. In view of his age his case can readily be distinguished from HM Advocate v R, 2001 SLT 1366, where the accused is an adult. There are strong reason for regarding the High Court’s decision to dismiss the indictment against him as the only appropriate course in the circumstances.
  150. Retrospectivity
  151. This was not an issue which was raised at any stage during the hearing of these appeals. But Peter Ferguson, Advocate has pointed out in a subsequent article that the date when the relevant period began in K’s case, which was 31 October 1998, was just under two years before the Human Rights Act 1998 came into force on 2 October 2000 and several months before section 57(2) of the Scotland Act 1998 came into force on 20 May 1999: Human Rights and their Retrospective Effect 2002 SLT (News) 11, 16. He has raised the question whether a portion of the offending period arising before Convention rights were enforceable can be a legitimate concern of the court if it is the length of the proceedings which violated the guarantee in article 6(1) to trial within a reasonable time, and not the prosecutor’s act in insisting in trial.
  152. The short answer to this question is to be found in the first paragraph of my judgment. The respondents’ argument was that the prosecutor has no power to prosecute these cases against them, having regard to the provisions of section 57(2) of the Scotland Act 1998 which are now in force. It was his act in insisting in trial that was under challenge in these proceedings. Although the length of the proceedings in each case was also under scrutiny, it was not suggested that any portion of the period which occurred before the date of the coming into force of section 57(2) of that Act should be ignored in the context of a proposed exercise of his powers by the prosecutor after that date. Nor was it suggested that any issue of retrospectivity arose in this case of the kind provided for by section 22(4) of the Human Rights Act 1998. The effect of that provision is that, where proceedings are brought by or at the instigation of a public authority, a person who claims that a public authority has acted in a way which is made unlawful by section 6(1) of the Human Rights Act may rely on the Convention right in any legal proceedings under section 7(1)(b) of that Act whenever the act took place. There is no equivalent provision in the Scotland Act 1998, and it is only the purported or proposed exercise of functions under that Act that can given rise to a devolution issue on the ground of an incompatibility with a Convention right. But it was not suggested that the absence of such a provision had any bearing on the question whether the prosecutor’s proposed act in these cases was incompatible with the respondents’ article 6(1) Convention right.
  153. Conclusion
  154. I would allow the appeal in the case of Watson and Burrows. I would leave it to the High Court of Justiciary to make such further orders as may be appropriate under rule 40.11 of the Act of Adjournal (Criminal Procedure) Rules 1996. In K’s case I would dismiss the appeal.
  155. ____________________
    Lord Hutton
  156. I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Rodger of Earlsferry. For the reasons which they give I agree that the appeal in the case of Watson and Burrows should be allowed and that the appeal in the case of K should be dismissed.
  157. I also agree with my noble and learned friends that it would not be right for the Board in these appeals to decide the important issue whether a breach of the reasonable time requirement set out in Article 6(1) must necessarily lead to the dismissal of the criminal proceedings.
  158. However my noble and learned friends, and in particular Lord Hope, have made some observations on the decisions of the Board in Bell v Director of Public Prosecution [1985] AC 937, Darmalingum v The State [2000] 1 WLR 2303 and Flowers v The Queen [2000] 1 WLR 2396. Whilst Lord Hope accepts that the outcome in each of the three cases was correct, he also states that in the context of an alleged violation of the Article 6(1) Convention rights the decision in Darmalingum, based as it was on a consideration of decisions by the Strasbourg Court, is the preferable authority, so that the fact that a defendant was convicted after a fair hearing by a proper court could not justify or excuse a breach of his guarantee of a disposal within a reasonable time.
  159. As the observations of the Board in the present appeals on those three cases will be of some importance when the issue whether a prosecution must be stayed when there has been a breach of the reasonable time requirement comes to be considered on appeal in Her Majesty's Advocate v R 2001 SLT 1366 or in some similar case, I wish to make some limited observations on Darmalingum and Flowers and on the effect of a breach of the reasonable time requirement contained in Article 6(1).
  160. At first sight there is a conflict between the decisions in Darmalingum and Flowers on the question whether a finding of unconstitutional delay should lead to the quashing of a conviction arrived at after that delay. However the jurisprudence of Strasbourg makes it clear that the European Court pays particular attention to the facts of the particular case. The facts in Darmalingum and Flowers were very different. In the former case the appellant had been convicted of offences of embezzlement and forgery as a bank cashier. In the latter case the appellant had been convicted of the brutal murder of a man in his own home in the course of an armed robbery - a type of crime which was very prevalent in Jamaica and which constituted a breach of the right to life guaranteed by the Constitution of Jamaica and by Article 2 of the European Convention.
  161. The judgments of the European Court, as I read them, suggest that where there has been unreasonable delay in breach of Article 6(1) the Court does not take the view that a conviction after such delay must automatically be quashed. In Bunkate v The Netherlands (1993) 19 EHRR 477 the Court found that there had been unreasonable delay in violation of Article 6(1) and then stated (p 484, para 25):
  162. “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 is unable to discern any other basis for the claims and will therefore dismiss them.”
    And in X v Federal Republic of Germany (Application No 8182/78, 16th October 1980, 25 DR 142) the Commission stated at page 144 in respect of a claim to stay the proceedings:
    “Insofar as the applicant claims a right to discontinuance of the criminal proceedings in view of the long delays which had occurred, the Commission considers that such a right, if it could at all be deduced from the terms of Article 6(1) would only apply in very exceptional circumstances. Such circumstances did not exist in the applicant's case.”
  163. In conclusion I would observe, as have my noble and learned friends, that the issue whether a breach of the reasonable time requirement contained in Article 6(1) must lead to the dismissal of a prosecution in Scotland will have to be considered in the light of section 57(2) of the Scotland Act 1998 which provides:
  164. “A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law.”
    __________________________
    Lord Millett
  165. I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Rodger of Earlsferry. I agree with them and with the orders which they propose. I wish to add a few words of my own only because, as appears from the opinion of Lord Bingham (at paras. 65-67), we are reserving for future consideration an issue which hitherto has gone by default. I should like to describe this issue in my own words, partly because of its importance and partly in the hope of forestalling the over-ready assumption that it is concerned with remedies and not rights, which is the very question to be decided.
  166. Article 6(1) of the European Convention provides that
  167. “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.”
  168. The Article applies to both civil and criminal trials and in each case 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. Under the Convention the right to a hearing within a reasonable time is independent of the right to a fair hearing. This is a departure from the position at common law, but it is now settled by the jurisprudence of the European Court: (see, too, Darmalingum v The State [2000] 1 WLR 2303, where the same effect was given to similar language in the constitution of Mauritius).
  169. Little attention, however, has been given to the content of these rights. The rights to a fair and public hearing clearly carry with them a correlative right not to be subjected to an unfair or secret hearing. If this latter right is infringed, the parties' primary rights to a fair and public hearing remain. This is obvious in the case of a civil suit; and the language of Article 6(1) makes it difficult to admit a distinction between civil and criminal proceedings. So, too, the right to a hearing before an independent and impartial tribunal carries with it a correlative right not to be subjected to a hearing by a tribunal which does not possess these characteristics. If this latter right is infringed, the parties' right to a fresh hearing before a proper tribunal is unimpaired.
  170. It has been assumed at all stages below in the present cases, and for a large part of the argument before us, that the right to a trial within a reasonable time similarly carries with it a correlative right not to be tried at all after the lapse of an unreasonable time. But it is not at all self-evident that this assumption is correct, and there are signs in the jurisprudence of the European Court that it may not be.
  171. The right to a hearing within a reasonable time clearly differs from the other rights in some respects. Once there has been unreasonable delay, it is no longer possible to bring the case to trial within a reasonable time from its inception. The most that can be achieved is to bring it to trial without further delay. On the other hand, a right not to be tried once there has been unreasonable delay prevents the case being heard at all. In this case alone the correlative right is destructive of the primary right, of fundamental importance in a society governed by the rule of law, that civil and criminal disputes should be determined by judicial process.
  172. The European Court has repeatedly held that unreasonable delay does not automatically render the trial or sentence liable to be set aside because of the delay (assuming that there is no other breach of the accused's Convention rights), provided that the breach is acknowledged and the accused is provided with an adequate remedy for the delay in bringing him to trial (though not for the fact that he was brought to trial), for example by a reduction in the sentence.
  173. The question is whether this is a matter of right or of remedy. Does the European Court refrain from declaring the trial a breach of the accused’s Convention rights because, although the holding of the trial constitutes a further and distinct breach of Article 6(1), it is a breach for which it is not appropriate to grant a remedy; or is it because there is no Convention right not to be tried at all after unreasonable delay?
  174. This question is of little practical importance in the European Court, which is not obliged to grant a remedy once a breach of a Convention right has been established; or in England, where the Court has a discretion to make such order as it "considers to be just and appropriate". But it is critical in Scotland, because it is determinative of the question whether the Lord Advocate would be acting incompatibly with the accused's Convention rights by continuing with the prosecution. Section 57(2) of the Scotland Act 1998 imposes a vires control by providing that the Lord Advocate has no power to act in a way which is incompatible with an accused's Convention rights. If the Lord Advocate threatens to exceed his powers, there is no discretion to withhold a remedy.
  175. If the accused does indeed have a Convention right not to be tried at all after there has been unreasonable delay, then the Lord Advocate has no power to continue the proceedings and the Court has no discretion to allow him to do so. If, however, the accused has no such Convention right, then the Lord Advocate would not be acting incompatibly with his Convention rights by bringing the case to trial without further delay. While the accused remains entitled to an appropriate remedy for any past breach of his Convention rights, there is no threat to commit a further breach so as to ground a plea in bar.
  176. I was initially reluctant to reserve this question for future consideration, because it is logically anterior to the questions which we have decided. But for the reasons given by Lord Bingham of Cornhill, I am persuaded that we should do so, on the footing that argument is not precluded by our disposal of the present appeals.
  177. ________________________
    Lord Rodger of Earlsferry
  178. I have had the advantage of reading in draft the opinions of Lord Bingham of Cornhill and Lord Hope of Craighead. I agree with them, but in view of the importance of the matter I add some observations of my own on both the general and the more particular issues that arise.
  179. The cases of K and of Mr John Watson and Mr Paul Burrows have certain elements in common which it is useful to identify.
  180. First, in neither case has a trial yet taken place and none of the respondents has been detained in custody pending any trial. For that reason no issue arises as to the right of an accused person who is in custody to “trial within a reasonable time or to release pending trial” under article 5(3) of the European Convention. Indeed that particular provision has not featured significantly in cases coming before the courts in Scotland, presumably because Scots law imposes strict time-limits in cases where the accused is remanded in custody. Any trial on indictment must begin within 110 days of the accused being committed to prison for trial (section 65(4)(b) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”)). Similarly, where the accused is in custody, any summary trial must begin within 40 days after the bringing of the complaint in court (section 147(1)), unless the period is extended for a sufficient cause which is not attributable to any fault on the part of the prosecutor. These time-limits mean that an infringement of article 5(3) is very unlikely to occur or even to be alleged.
  181. The Scottish cases on delay have therefore centred on article 6(1) which applies even where the accused is not in custody pending his trial. So far as relevant, it provides:
  182. “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.”
    In criminal cases the article applies to the determination of a “criminal charge” against the person concerned. The obligation of the contracting states under the Convention is to ensure that, where someone has been charged with a crime, the proceedings, including any appeal, are completed within a reasonable time.
  183. Articles 5(3) and 6(1) show that the draftsmen of the Convention chose to introduce separate guarantees as to the length of pre-trial custody and the length of the criminal process from charge to determination. By contrast, section 11 of the Canadian Charter of Rights and Freedoms 1992, for example, contains only a single guarantee that “Any person charged with an offence has the right … (b) to be tried within a reasonable time”. Having regard to the way in which the Convention is drafted, the European Court has emphasised the distinct roles of the two guarantees. In Stögmüller v Austria (1969) 1 EHRR 155, 191, para 5 the Court said:
  184. “On the other hand, there is no confusion between the stipulation in Article 5(3) and that contained in Article 6(1). The latter provision applies to all parties to court proceedings and its aim is to protect them against excessive procedural delays; in criminal matters, especially, it is designed to avoid that a person charged should remain too long in a state of uncertainty about his fate.
    Article 5(3), for its part, refers only to persons charged and detained. It implies that there must be special diligence in the conduct of the prosecution of the cases concerning such persons. Already in this respect the reasonable time mentioned in this provision may be distinguished from that provided for in Article 6.
    On the other hand, even if the duration of the preliminary investigation is not open to criticism, that of the detention must not exceed a reasonable time.”
  185. As its terms make clear, article 6(1) comes into play only where the person has been charged. Therefore it does not trench upon the principle adopted by the legal systems of the United Kingdom that, except where statute provides otherwise, criminal liability is not subject to prescription or limitation. In recent years, for instance, adults have frequently come forward to complain of sexual and other abuse committed many years before when they were children, and the perpetrators have been successfully prosecuted. The purpose of the reasonable time requirement brought into our domestic law by the incorporation of article 6 is not to require contracting states to have a system of prescription or limitation of liability in civil or criminal cases and so to introduce a cut-off point after which such men or women can never be prosecuted. Provided always that the accused can get a fair trial, decisions on these delicate matters are left to the legal systems and legislatures of the individual states. The scope of the right in article 6(1) of the Convention is more limited. In criminal cases the guarantee is confined to the length of the proceedings after the person has been charged, the aim being to prevent him being left for too long in a state of uncertainty about his fate.
  186. In Scots law, where someone is charged with a serious offence and is detained in custody, the usual position is that he must be brought promptly before the sheriff court (section 135(3) and (4) of the 1995 Act) on a petition by the procurator fiscal asking the sheriff to commit him to prison. Under section 65(1) his trial on that matter must be commenced within twelve months from his appearance before the sheriff, unless the period is extended under subsection (3). Where the accused is remanded in custody, that time-limit is of secondary importance since his trial will in fact have to begin within 110 days (section 65(4)(b)). While that period can be extended, only very rarely would the extensions take the start of the trial beyond 12 months from his committal for trial. In cases where the accused is released on bail, however, the requirement that the trial should begin within twelve months, which was introduced into Scots law as recently as 1980, confers on the accused “a very important right” (HM Advocate v Swift 1984 JC 83, 88). Since extensions of the period can be granted only by a court and only “on cause shown”, where section 65(1) applies, it will go a long way towards ensuring that any first instance proceedings are completed within a reasonable time in terms of article 6(1). Indeed in Martin v Tauranga District Court [1995] 2 NZLR 419, 429 and 434 Casey J and McKay J commended both the 110-day rule and the twelve-month rule as indications of what should be attainable by way of trial without undue delay in terms of section 25(b) of the New Zealand Bill of Rights Act 1990.
  187. The second element which the cases before the Board have in common, however, is that, for different reasons, section 65(1) of the 1995 Act did not apply so as to regulate the overall length of the pre-trial proceedings in either of them.
  188. Section 65(1) does not apply at all to the case of Watson and Burrows. This is because the proceedings against them are not solemn proceedings on indictment but summary proceedings on a complaint at the instance of the procurator fiscal. Although urged to do so, Parliament did not see fit in 1980 to include an equivalent to the twelve-month rule for starting a summary trial and the position has not changed since then. As originally conceived, summary trials took place very quickly. With rare and precious exceptions, that is not the position today. Indeed it is by no means unusual to find that, for a variety of reasons, the trial does not begin until well over a year after the accused first appeared before the court. There is no specific statutory time-limit to discourage this in summary cases.
  189. The case of K is different: before the decision of the appeal court he was indeed being prosecuted on indictment for serious offences. Had he been an adult, after the police had charged him he would undoubtedly have been detained in custody and brought before the sheriff court on a petition at the instance of the procurator fiscal, in accordance with the Lord Advocate’s guidelines to chief constables (1996 SLT (News) 121). The twelve-month period under section 65(1) would then have come into play immediately and would have controlled the length of the proceedings. But at the time when he was charged on 31 October 1998 K was only 13 years of age and he was therefore dealt with in a different way, involving the reporter to the children’s panel under the Children (Scotland) Act 1995 (“the Children Act”). This way of dealing with such cases is designed to help children like him by ensuring that, wherever possible, they are not prosecuted but are dealt with instead by a children’s hearing whose proceedings are not criminal in nature and are designed to promote the child’s welfare. So, in cases involving children, the police must report to both the procurator fiscal and the reporter (Children Act, section 53(3)). The declared policy of the Lord Advocate on the prosecution of children under 16 is to be found in the Crown Office Book of Regulations, containing advice and directions to procurators fiscal throughout Scotland. Paragraph 16.17 states:
  190. “The presumption is in favour of such cases being dealt with by the reporter and criminal proceedings should only be taken where there are compelling reasons in the public interest to do so …”
  191. Among the situations where it is envisaged that such compelling reasons to prosecute may exist is where, as here, the child is charged with rape (para 16.13, referring to category 1 in the Lord Advocate’s Direction to Chief Constables set out in annex 2 to chapter 16). In all such cases the Crown authorities and the reporter have to consider what should be done and the Crown have ultimately to decide whether, exceptionally, the child should be prosecuted. To give scope for these deliberations, the procurator fiscal does not follow the usual path of immediately bringing the accused before the sheriff court on petition. That step will be taken only when the Crown decide to continue with the prosecution rather than to place the matter in the hands of the reporter and the children’s panel. So in the case of K he was released after being charged in October 1998 and he was not brought before the sheriff court on petition until 16 March 2000, over sixteen months later. Only then did section 65(1) of the 1995 Act come into play, with the result that K’s trial had to begin within 12 months of that date. In compliance with the statute the Crown served the indictment on 29 January 2001 for trial in the sitting of the High Court at Edinburgh beginning on 5 March 2001. On 2 March, on defence motion, the trial was adjourned to the sitting of 2 April, the twelve-month period being extended at the instance of the Crown to 12 April to accommodate this. In fact, once the minute raising the present issue was lodged, the court granted the Crown a further extension until 25 May. But for this defence motion, the trial would have begun some 28 months after K was charged by the police.
  192. The cases have a further important element in common: they were both dealt with under special procedures which the Crown have developed over the years for these kinds of cases. As I have just explained, K’s case was handled in accordance with procedures which are designed to promote the welfare of children who offend and to keep to a minimum the number of cases where they are prosecuted. John Watson and Paul Burrows are police officers. As such, their prosecution is subject to a particular set of regulations authorised by the Lord Advocate and set out in appendix A to chapter 2 of the Book of Regulations. The aim of the elaborate system under those regulations is to avoid any public disquiet about the police investigating the police while at the same time minimising the risk of police officers being subjected to prosecutions based on frivolous or trumped-up allegations, a danger to which they are, obviously, particularly exposed. The special systems for dealing with children and with police officers both involve steps which are not taken routinely in ordinary prosecutions. Though designed for praiseworthy purposes, these steps can undoubtedly prolong the period between charge and trial.
  193. The cases before the Board are therefore examples of situations where section 65(1) does not regulate or fully regulate the time for trial and where, for particular reasons, the prosecution authorities adopt a more elaborate and potentially lengthier form of investigation. These are factors which, in part, explain why the challenges under article 6(1) have arisen in these cases. In fact, however, such challenges are by no means unusual. Despite the existence of the twelve-month time-limit in section 65(1) of the 1995 Act, many challenges to the length of proceedings have been brought before the Scottish courts since HM Advocate v Little 1999 SCCR 625 in June 1999. This reflects a wider pattern. In 1992 more than half the cases decided by the European Court of Human Rights concerned alleged violations of the guarantee of a hearing within a reasonable time under article 6(1) (J A Frowein, W Peukert, Europäische MenschenRechtsKonvention, 2nd ed (1996), 262 n 576). Similarly, on the day after the hearing of this appeal to your Lordships’ Board, the European Court notified 16 chamber judgments, of which 10 involved the length of various kinds of proceedings. The vast number of cases which come before the Court does not mean, unfortunately, that there is a correspondingly large body of increasingly refined guidance on this aspect of article 6. Lord Bingham of Cornhill has surveyed many of the leading decisions. That survey, to which I respectfully refer, assists greatly in understanding how the Court actually applies the Convention in practice. In effect, however, the Court and, formerly, the Commission have confined themselves to isolating and repeatedly applying a limited number of principles. Despite this, certain key points do emerge from a study of the decisions of the Court and of the Commission.
  194. First, the Court regards the right to trial within a reasonable time as being of “extreme importance” for the proper administration of justice: Guincho v Portugal (1984) 7 EHRR 223, 233, para 38. In requiring cases to be heard within a reasonable time, the Court said in H v France (1989) 12 EHRR 74, 90, para 58,
  195. “the Convention underlines the importance of rendering justice without delays which might jeopardise its effectiveness and credibility.”
    Although wrapped up with other guarantees in article 6(1), the guarantee that the charge should be determined “within a reasonable time” is distinct and is violated whenever the proceedings take longer than that. In such circumstances there is a breach even although the accused has suffered no actual prejudice from the delay. Among many passages establishing this proposition it is sufficient to cite the Court’s judgment in Eckle v Federal Republic of Germany (1982) 5 EHRR 1, 24, para 66:
    “The word ‘victim’, in the context of article 25, denotes the person directly affected by the act or omission which is in issue, the existence of a violation being conceivable even in the absence of prejudice; prejudice is relevant only in the context of article 50.”
    The courts in Scotland have accordingly held that an accused’s article 6(1) right to a fair trial within a reasonable time may be infringed even where he can point to no specific prejudice. Simply as examples, I refer to HM Advocate v Little 1999 SCCR 625, 637A–638B, McNab v HM Advocate 2000 JC 80, 84A–B, HM Advocate v McGlinchey 2000 JC 564, 569A–E and Crummock (Scotland) Ltd v HM Advocate 2000 SLT 677, 679A–B. The House of Lords has recently adopted the same approach for England and Wales in Magill v Porter [2001] UKHL 67. I refer to paragraph 109 in the speech of Lord Hope of Craighead, with whom the other members of the House concurred. The English and Scottish courts have clearly been right to follow the decisions of the European Court on this point since they are critical in defining the scope of the protection afforded by the Convention.
  196. In their opinions Lord Bingham of Cornhill and Lord Hope of Craighead have referred to the decisions of your Lordships’ Board when applying similar rights in the constitutions of various Commonwealth countries. As they point out, there are divergences in some of them from the construction of article 6(1) which has been adopted in United Kingdom cases. However that may be, the approach adopted by the Board in Darmalingum v The State [2000] 1 WLR 2303, 2307H–2308B is expressly based on the European Convention jurisprudence and is therefore in line with the approach adopted by the Scottish courts. I express no view on how the equivalent rights in Commonwealth constitutions should be interpreted.
  197. While there may be an infringement of the reasonable time requirement even in the absence of specific prejudice, this does not mean that, where it exists, prejudice is irrelevant when considering whether the charge has been determined within a reasonable time. As Lord Prosser observed when giving the opinion of the court in Gibson v HM Advocate 2001 JC 125, 129F–G, para 15:
  198. “While prejudice is not an essential element in breach of article 6(1), it is in our opinion obvious that if the passage of time is likely to be prejudicial to the accused in a given case, that will weigh heavily in favour of giving that case priority over others where such prejudice is not regarded as likely. In this respect absence of prejudice is very relevant to the issue of reasonableness.”
    Prejudice affecting the fairness of any trial is more readily seen, perhaps, as falling within the scope of the guarantee of a fair hearing. Under Scots law issues of prejudice of that kind would be raised by means of a plea in bar of trial based on oppression: McFadyen v Annan 1992 JC 53; Normand v Rooney 1992 JC 93. But other kinds of potential prejudice, related, for instance, to the accused’s health, may mean that proceedings require to be completed with particular expedition. I refer, for instance, to the decisions in relation to the civil proceedings in X v France (1991) 14 EHRR 483, 502–503, para 30 and Janssen v Germany 20 December 2001 unreported, para 47.
  199. In applying the reasonable time requirement in article 6(1) the European Court has adopted its normal approach of being concerned with whether the facts of the particular case disclose a concrete infringement of the applicant’s rights. As the Commission put it in X v Belgium Application No 1103/61 (1962) 5 YB 168, “the reasonableness or otherwise of the length of time between arrest and verdict must be judged not in abstracto but in the light of such practical factors as the complexity of the case”. The Court has gone on, however, to elaborate this approach. At least since Eckle v Germany 5 EHRR 1, 29, para 80, it has been settled that
  200. “The reasonableness of the length of the proceedings must be assessed in each instance according to the particular circumstances. In this exercise, the court has regard to, among other things, the complexity of the case, the conduct of the applicants and the conduct of the judicial authorities.”
    The three elements of complexity, the applicant’s conduct and the conduct of the competent authorities appear consistently in the judgments of the Court. In civil cases the importance of what is at stake in the proceedings is a factor which is mentioned as affecting the degree of diligence to be required of the competent authorities. In addition to the cases to which I have just referred in the previous paragraph, I would cite, for example, H v United Kingdom (1987) 10 EHRR 95, 107 and 111, paras 71 and 85. In the present cases the only points raised concern the conduct of the prosecuting authorities.
  201. Having settled on these factors, the Court has applied them in deciding case after case, sometimes finding a violation and sometimes finding that there has been no violation. Those decisions are based upon the Court’s examination of the relevant factors as they present themselves in the individual cases. By contrast, they do not give any indication of a period which the Court considers reasonable for proceedings in general or for particular kinds of proceedings. This is no accident. Those who drafted the Convention did not insert any period or periods to serve as a norm. And, indeed, given the many different systems of criminal and civil procedure to be found in the member states of the Council of Europe, it would be difficult to establish any such norm. In any event, the Court has rejected that approach on principle. In Stögmüller 1 EHRR 155, 191, para 4, dealing with the reasonable time requirement in article 5(3), the Court pointed out that the guarantee could not be translated into a fixed number of days, weeks, months or years. In Martins Moreira v Portugal (1988) 13 EHRR 517, 530, para 54, the Court recorded the government’s argument that a comparison with the duration of similar proceedings in other member states would undoubtedly be favourable to Portugal and commented:
  202. “An argument of this nature, which is moreover not supported by precise statistics, is unconvincing. It could lead to the acceptance of unsatisfactory practices if they are sufficiently general, whereas, according to the case-law of the Court, the circumstances of each case must be taken into account and, in any event, compliance with article 6(1) of the Convention must be ensured.”
    In short, the European case law provides domestic courts with no indication of any specific international norm against which they can judge the reasonableness of the length of any proceedings. Rather, it indicates that the courts must look at the particular circumstances of the case in question and reach a view on whether the length of the proceedings is unreasonable, having regard to the factors mentioned by the European Court.
  203. So the only norm applied by the Court is its conception of what is reasonable under article 6(1) in the circumstances of the particular case. What that conception is can be gleaned only from the Court’s decisions. As Lord Bingham of Cornhill has demonstrated, not a few of the decisions of the Court, such as Neumeister v Austria (No 1) (1968) 1 EHRR 91, hold that even very long proceedings have not infringed article 6(1), and therefore suggest that the standard to be applied is not unduly severe. In Stögmüller 1 EHRR 155, 191, para 5, the Court said that the purpose of the guarantee was to protect parties against “excessive” procedural delays. A further indication of the standard applied by the European Court is to be found in the leading case of Eckle. Just after stating the general approach which should be adopted, the Court held (5 EHRR 1, 29, para 80) that
  204. “The present case concerns sets of proceedings that endured 17 years and 10 years respectively. Such a delay is undoubtedly inordinate and is, as a general rule, to be regarded as exceeding the ‘reasonable time’ referred to in article 6(1). In such circumstances it falls to the respondent state to come forward with explanations.”
    The Court held that, “as a general rule”, a period that was “inordinate” (“exorbitant” in the French version) should be regarded as exceeding a “reasonable time” in terms of article 6(1). The test is whether the proceedings have been, or can be, completed within a reasonable time, not whether they could or should have been completed sooner. So the fact that there may have been some slackness on the part of the prosecuting or judicial authorities does not necessarily mean that the guarantee has been breached. Although the fact that a case may not have been conducted according to the timetable prescribed by the relevant domestic legislation may be a relevant factor, as the Commission held in Bunkate v Netherlands (1993) 19 EHRR 477, 481, para 33, it is no more than that: the question still remains whether the time taken has been unreasonable when all the circumstances are considered. The same applies to failures to comply with any administrative and other targets that may apply to the work of the prosecuting and judicial authorities. Therefore, while in cases such as Bunkate the European Court has found that periods of inactivity on the part of the competent authorities give rise to an infringement of the reasonable time requirement, the result in any given case depends on the Court’s assessment of the position as a whole. Similarly, even where periods of inactivity can be identified, domestic courts should assess the position in the light of all the circumstances of the case. In McGlinchey, for instance, the trial judge had delayed for roughly six months in producing his report for the appeal court and this had made the appeal proceedings, which resulted in an order for a retrial, longer than necessary. But for the article 6(1) challenge, the retrial would have taken place about 3 years 4 months after the accused were charged. The appeal court concluded that, having regard to all the circumstances, the retrial would still have taken place within a reasonable time in terms of article 6(1) (2000 JC 564, 573F, 578B–C and 579A–B). Periods of inactivity do not per se show that the proceedings have taken an unreasonable time. But where the length of the proceedings appears to be excessive, periods of inactivity may lead to the conclusion that the reasonable time requirement has indeed been infringed.
  205. The reasonableness of the length of criminal proceedings in Scotland must be judged in the light of the form which those proceedings take in the Scottish system. While no contracting state can adopt a procedure which does not deliver a determination within a reasonable time, the particular form of any valid procedure adopted will have a bearing on what time is to be considered as reasonable. The Court recognised this in one of its earliest decisions, Neumeister v Austria (No 1) (1 EHRR 91, 131, para 21), where it said:
  206. “It should moreover be pointed out that a concern for speed cannot dispense those judges who, in the system of criminal procedure in force on the continent of Europe, are responsible for the investigation or the conduct of the trial from taking every measure likely to throw light on the truth or falsehood of the charges (Grundsatz der amtswegigen Wahrheitserforschung).”
    This is one aspect of the wider point made by Lord Hope of Craighead in Montgomery v HM Advocate 2000 SC (PC) 1, 29G– H, that it is not the purpose of article 6 to make it impracticable to bring those who are accused of crime to justice. In Scotland, of course, in serious cases the settled practice is not simply to rely on police statements but for procurators fiscal and their staff to interview at least the most important witnesses. Their evidence is noted in Crown statements in the form of a precognition which is submitted to Crown counsel who decide whether the accused should be indicted and, if so, on what charges. In an important passage in the opinion of the court in Gibson v HM Advocate 2001 JC 125, 128C–E, para 12 Lord Prosser observed:
    “The normal and familiar is not, of course, necessarily reasonable; and scrutiny of our practices, in the light of provisions such as article 6(1), can of course be illuminating. But Scottish practice requires careful investigation and thought both before a matter is reported to the procurator fiscal, and thereafter, by him and where appropriate by Crown counsel, before any charge is brought by way of complaint or indictment. These careful procedures inevitably take some time. And in general it appears to us that it is in the interests of accused persons, and a matter of public duty as well as public interest, that the appropriate time be taken at these stages. We are not aware of any case in which it has been suggested by those representing an accused person that that approach itself is unreasonable. But it has been suggested in certain cases that the only reasonable course for either the police or the procurator fiscal would have been to depart from normal practice, and to pass matters on without the usual kind of investigation, on the basis perhaps of a mere sufficiency of evidence. We find it hard to picture a situation in which that would be a reasonable course, far less the only reasonable course.”
    In Valentine v HM Advocate 2001 SCCR 727, 732D–E, when giving the opinion of the court, I endorsed those observations. I take the opportunity of doing so again since they form the backdrop against which all issues of alleged delay on the part of the Crown leading to unreasonably long proceedings have to be considered in Scottish cases. Both the present cases are of a kind for which the prosecution authorities have devised special, and specially elaborate, forms of investigation. They have done so in the interests of justice, broadly conceived. Although such investigations take longer than the normal Crown investigation, in my view the same principle applies to them. They must not, of course, be so lengthy that the determination of any charge takes an unreasonable time. But the particular form of such investigations and the reasons for adopting it are matters that a court is entitled to take into account when deciding whether the proceedings have taken or will take more than a reasonable time.
  207. When all the relevant circumstances have been considered, what a domestic court has in the end to decide is whether the charge has been determined within a reasonable time. If, therefore, on an initial consideration of the facts, the court can say straightaway that the proceedings have not taken more than a reasonable time, there is no need for the court to inquire into the course of those proceedings. The challenge can be rejected without more ado. The need to examine the various factors identified by the European Court arises only where prima facie the proceedings have taken more than a reasonable time. In that situation it will be necessary to see what exactly the reasons for this may have been and to examine, in particular, the three factors mentioned by the Court in Eckle. This mirrors the approach which the European Court itself adopts, as can be seen from the passage from its judgment in Eckle which I have quoted above in para 152. There the Court held that, where the facts disclosed an apparently inordinate delay, it fell to the respondent state to come forward with explanations. In a similar situation in a criminal case before the Scottish courts, it will in practice be for the Crown to come forward with explanations to show that, despite appearances, the proceedings have not taken longer than is reasonable in the circumstances.
  208. The general approach described by the European Court in Eckle calls for an evaluation of the particular circumstances of the case. In this respect it is similar to the one that has commended itself to Commonwealth courts. Mutatis mutandis I would respectfully adopt what Sopinka J said of section 11(b) of the Canadian Charter in the Supreme Court of Canada in R v Morin [1992] 1 SCR 771, 787D-F:
  209. “The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in [R v Smith [1989] 2 SCR 1120, 1131] ‘it is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?’”
    In Martin in the New Zealand Court of Appeal Cooke P, as he then was, adopted that passage as indicative of the approach which should be followed by courts in New Zealand ([1995] 2 NZLR 419, 424).
  210. Since the exact scope of the guarantees differs somewhat under the various charters, bills or conventions on human rights, the test described by Sopinka J has to be applied by reference to the interests which the particular provision is designed to protect. In the case of article 6(1) its principal purpose at least is to prevent an accused being left too long in a state of uncertainty about his fate. Such a protection is, of course, of very real interest to an innocent person who has been charged with an offence or even to a person who has in fact committed an offence but whose guilt the prosecution cannot establish. The accused’s whole life, both private and professional, may be thrown into turmoil, doubt and confusion until he is acquitted. Especially for the innocent and for their families the time spent awaiting trial must indeed be “exquisite agony” (R v Askov [1990] 2 SCR 1199, 1219 per Cory J).
  211. That is not, however, the whole story. The reality is that, especially when they are on bail, many accused who are in fact guilty may prefer to dwell in the interim state of uncertainty rather than to march steadily to the end of their case where that state of uncertainty may well be replaced with a considerably more agonising state of prolonged imprisonment. Delay may indeed bring positive advantages to such persons: prosecution witnesses may die, leave the country, lose interest or forget. The right conferred by article 6 is therefore somewhat unusual. Not infrequently, accused persons may appear to have an interest in invoking it not in order to benefit from its fulfilment but rather in the hope of benefiting from its breach. This point has been made repeatedly in Canada where the remedy for breach of the reasonable time requirement is the stay of the proceedings. As Cory J pointed out, in such a system the risk is that the “right is one which can often be transformed from a protective shield to an offensive weapon in the hands of the accused” (Askov, [1990] 2 SCR 1199, 1222G). The same phenomenon has been identified by the German Bundesgerichtshof: judgment of 10 November 1971, BGHSt 24, 239, 240-241. Significantly perhaps, during the course of the hearing of these appeals, the suggestion from a member of the Board that, on the basis of article 6(1), an accused might actually ask the court for an order on the Crown to expedite his trial seemed to startle and unsettle defence counsel just as much as counsel for the Crown.
  212. The reality that an accused person may have no real interest in having the charge against him determined promptly has not escaped the notice of the European Court. In Corigliano v Italy (1982) 5 EHRR 334 the Italian government submitted that the applicant should not be regarded as a “victim” in terms of article 25(1) of the convention. His actings showed, the government contended, that his real aim was not to speed the course of the prosecution brought against him but rather to avoid being convicted, and that in reality compliance with the reasonable time requirement was not a source of genuine concern to him. Declining to uphold the government’s submission, the Court held (p 341, para 31) that
  213. “According to the Court’s well-established case law, the word ‘victim’ in article 25 denotes the person directly affected by the act or omission in issue, the existence of a violation being conceivable even in the absence of prejudice; prejudice is relevant only in the context of article 50. Here, it is undeniable that the duration of the proceedings in question directly affected Mr Corigliano, albeit doubtless not constituting one of his major sources of concern.”
    The Court in effect treated the government’s contention as an argument that the applicant had not suffered prejudice and accordingly rejected it on the well-established basis that prejudice is not of the essence of an infringement of this aspect of article 6(1) (Eckle 5 EHRR 1, 24, para 66).
  214. The Court went on to hold that there had indeed been unreasonable delay in the preliminary investigation of the case against Mr Corigliano and that his rights under article 6(1) had therefore been violated (p 345, para 50). But it then rejected his claim for compensation for both pecuniary and non-pecuniary damage. Pointing out that the applicant had failed to establish the existence or nature of any pecuniary damage, the Court said (p 346, para 53):
  215. “Furthermore, as the Government have rightly emphasised, the facts of the case give cause to believe that observance of the ‘reasonable time’ requirement did not constitute one of his primary concerns. The same remark applies to the alleged non-pecuniary damage; in any event, this damage has, in the opinion of the Court, already been sufficiently repaired by the finding of a breach of article 6(1).”
    There is nothing in article 6(1) which prescribes what the effect of any breach of the “reasonable time” requirement should be in the domestic systems of the contracting states. That is left for the states and for their courts to determine: they have in fact adopted a number of different solutions. The most that the European Court can do, on the other hand, is to declare that the Convention right has been infringed and, where appropriate, award just satisfaction in the form of compensation under article 41. In that particular context there is comparatively little risk of applicants to the European Court being able to use the right as an offensive weapon, rather than as a protective shield.
  216. The risk may be somewhat greater, however, if - as has hitherto been accepted - in Scotland, as in Canada and New Zealand, pre-trial breach of the right requires the proceedings to be halted or any guilty verdict to be quashed. I say no more on the risk of abuse of the reasonable time requirement, however, since it does not arise in these cases. Moreover, I agree with your Lordships that in these appeals the Board should not deal with the far-reaching additional argument of the Crown as to the effect of the infringement of the reasonable time requirement. That argument raises crucial issues not only as to the operation of article 6 of the Convention but also as to the interpretation of various sections of the Scotland Act 1998. These matters were not canvassed before the High Court. It would be unwise for the Board to embark on them without the assistance of the views of the judges in the courts below. That is particularly so since the Board was informed that the decision of Lord Reed in HM Advocate v R 2001 SLT 1366, where many of these points are discussed, is under appeal in the High Court.
  217. In concluding these general observations and turning to the two cases under appeal by the Crown, I would note once more that the exercise which a court has to carry out when considering the reasonable time requirement in article 6(1) involves ascertaining the relevant facts and applying the test described by the European Court to those facts. That exercise will require the judge to weigh and balance a number of different factors in coming to his conclusion. Where a judge has ascertained the facts and has applied the proper test, his decision will not be open to challenge, even where the judges in any appeal court might themselves have reached a different decision. As Lord Nicholls of Birkenhead has recently observed in a very different context, courts of appeal are not intended to be forums in which unsuccessful litigants may have a second trial of the same issue by different judges under the guise of an appeal: In re B (a Minor) [2001] UKHL 70, para 17. An appeal court will be justified in disturbing the decision of a judge of first instance on the matter only if the judge has failed to take account of relevant facts or has taken account of irrelevant facts or has applied the wrong test. Your Lordships’ Board must, of course, exercise equal restraint in the appeals that come before it.
  218. In both appeals the respondents were charged before 20 May 1999, the date on which the Lord Advocate became subject to the provisions of the Scotland Act 1998. It follows that in both of them part of the period between charge and trial which is said to have been unreasonable in terms of article 6(1) occurred before the European Convention was given effect in certain areas of Scots law by the Scotland Act. In an interesting article “Human Rights and their Retrospective Effect” 2002 SLT (News) 11, 16, which appeared after the hearing of the appeals, Mr Peter Ferguson draws attention to this aspect of K’s case, the suggestion being that issues relating to retrospectivity and section 22(4) of the Human Rights Act 1998 might feature in the appeal before the Board. In fact they did not do so. At all stages in the Scottish courts and at the hearing before the Board both cases have been argued on the footing that the whole of the periods concerned should be taken into account. In these circumstances, since the point has not been raised, the approach which I adopt in considering the circumstances of these cases does not reflect any view on the application of section 22(4) in these or in any other proceedings.
  219. John Watson and Paul Burrows
  220. The respondents, Watson and Burrows, are police officers who gave evidence in a summary trial in Livingston Sheriff Court on 3 and 14 April 1998 where the complaint against the accused libelled two charges of breach of the peace and two charges of police assault. The sheriff gave his verdict in open court on 22 April 1998 and, in doing so, said that he thought that the respondents had lied when giving their evidence. The comment was reported in the press and the deputy chief constable then wrote to the respondent, the procurator fiscal at Linlithgow, whose depute had conducted the trial. Thus was set in motion an investigation which was carried out, as it required to be, in accordance with the special procedures set out in the Book of Regulations. As I have mentioned already, these procedures are more time-consuming than the procedures used in most ordinary cases. Their course in these proceedings has been described by Lord Bingham of Cornhill. The essentials of that account, which I gratefully adopt, were not disputed.
  221. The investigation got under way in July 1998. The respondents were made aware of it in the same month and their notebooks were taken from them. But it was not until 28 January 1999 that the respondents were detained under section 14 of the 1995 Act and were interviewed on tape. It was accepted in the appeal court - and the point was not reopened before the Board - that for the purposes of article 6(1) this was the moment when the respondents were “charged” with perjury. In fact, however, it was not until more than a year later, in April 2000, that the procurator fiscal raised the complaint of perjury against the respondents. Before the Board it was accepted that, had it not been for the pleas in bar of trial raised by the respondents and the resulting appeals, they would have been tried on the complaint in August or September 2000. The respondents’ case accordingly is that a trial at that time would not have been a determination within a reasonable time of the charge notified to them on 28 January 1999. Sheriff Muirhead upheld that contention and the appeal court (Lord Milligan, Lord Hamilton and Sir Gerald Gordon QC), Lord Hamilton dissenting, refused the Crown appeal: Watson v Dyer 2001 SLT 751.
  222. Although the respondents’ case rests, as indeed it must, on the period of some twenty months between charge and trial, before the Board their counsel accepted that the whole of the period, except for the time between May and December 1999, had been properly taken up with various steps in the investigation of the case against them. Their criticism was that after the regional procurator fiscal had instructed the procurator fiscal in May 1999 to precognosce four witnesses, even on the Crown’s own account nothing appeared to have happened before December, except that a member of staff had written to the witnesses concerned. The first interview had not taken place until December. The passing of these seven months during which nothing of significance happened was said to be the factor which meant that the trial would not take place within a reasonable time.
  223. I accept that it is unfortunate that no progress was made during these months. It would obviously have been better if it had and, undoubtedly, in an ideal world - or even perhaps in a world that was less than ideal - progress would have been made during this time. The fact that it was not is a matter which the court must take into account in applying article 6(1) if it considers that in all the circumstances the time between charge and trial was prima facie excessive. In fact it does not appear that the specific failure to make progress between May and December 1999 was a matter which weighed heavily with Lord Milligan, with whom Sir Gerald Gordon concurred. Their attention was fixed elsewhere. Lord Milligan accepted that the court should take account of the special procedures used in considering the prosecution of police officers, but he added (2001 SLT 751, 755D-F, para 13):
  224. “The special procedures for cases such as this mentioned above may be a weighty factor in some cases but I do not consider this to be so in the present case. What concerns me most about this case, and what clearly concerned the sheriff very much, is the combination of the sharp raising of the prospect of proceedings by the trial sheriff’s comments in April 1998 combined with the apparent extreme simplicity of the case so far as investigation and preparation and decision making is concerned. While the relevant period between the respondents being ‘charged’ and the prospective date of trial would be of the order of 20 months, it is not disputed that it is relevant to take into account events prior to the commencement of that period in deciding whether the relevant period was one of unreasonable delay. In some cases, this consideration might weigh in favour of the prosecution but in the present case I consider that it weighs in favour of the defence, tending to make the passage of time after January 1999 up to date of prospective trial not only inexplicable but unreasonable.”
  225. It therefore appears that the factors which influenced the majority in the appeal court were the remarks of the sheriff at the trial in which the respondents gave evidence and what Lord Milligan describes as “the apparent extreme simplicity of the case”. In my view in both respects the majority judges fell into error. I deal with these aspects briefly, even though my own view is that for the purposes of article 6(1) the period between charge and trial was not prima facie excessive in the circumstances.
  226. The fact that the sheriff at the trial expressed the view that the respondents had lied in giving their evidence was the starting-point, not the finishing-line, for the Crown authorities’ investigation of a possible case of perjury against the respondents. Counsel for the respondents informed the Board that, if the Crown succeeded in the appeal and the case proceeded, the respondents would plead not guilty to the complaint. In these circumstances it would have been surprising, to say the least, if their counsel had enthusiastically embraced the view that the case against them was so clear-cut that there was really nothing much for the Crown to investigate, prepare or decide and nothing at any rate that merited the use of the procedures laid down in the Book of Regulations. They did not, of course, take any such stance: their complaint really focused on the lack of progress in the investigation between May and December 1999.
  227. In fact, it appears to me, the case merited - indeed required - all due consideration. The mere fact that the sheriff had decided that the respondents had told lies was not in itself by any means a conclusive basis for saying that there should be a prosecution. The kinds of issue which would face the prosecuting authorities in this type of case are not hard to see. For instance, at any trial for perjury the Crown would have to prove what the respondents actually said when giving evidence. In solemn proceedings that can be done relatively easily by obtaining a transcript of the evidence. Where, as here, the evidence is given in a summary trial, there is no mechanical recording and no transcript. The details of the respondents’ evidence would need to be assembled from the recollections and notes of those who were present, including, for example, the sheriff and the procurator fiscal. The same would have to be done with the evidence of the other witnesses whom the sheriff must have accepted in preference to the respondents. Some at least may have been witnesses who were originally hostile to the Crown and they would require to be assessed accordingly. In addition these witnesses would need to be precognosced to make sure that, if called as witnesses in any subsequent perjury trial, they would still give evidence which, if accepted, would tend to show that the account given by the respondents at the original trial had been false. Doubtless also, having assembled the necessary material, the Crown authorities would wish to consider anything said by the respondents at interview as well as the views of the trial procurator fiscal depute as to whether the respondents’ evidence had been false. The regional procurator fiscal would need to deal with these matters in the first instance. It would then be for Crown counsel, ultimately the Solicitor General, to decide whether the evidence available to them was sufficiently clear and reliable to justify prosecuting the respondents. The process would be by no means entirely straightforward.
  228. For these reasons, in the absence of any more specific information, I am quite unable to accept that the case appears to have been, in Lord Milligan’s words, one of “extreme simplicity”. On the contrary, it was one that it was wholly appropriate for the Crown to investigate thoroughly and at a senior level in accordance with the recognised procedures. Inevitably - as counsel for the respondents impliedly accepted by isolating the seven-month period - that investigation would take a considerable time.
  229. In these circumstances I am also unable to attach any particular significance, for present purposes, to the fact that the sheriff chose to say publicly that he thought that the respondents had lied in the witness box. His remarks may, I assume, have given rise to media or other speculation that there would be a prosecution. The respondents would have been aware of the comments. But such speculation frequently occurs in other circumstances - following some disaster, for example. These will often be precisely the situations which call for the greatest care on the part of the independent prosecutors in the Crown Office and procurator fiscal service, who must keep a cool head and examine the relevant issues thoroughly and objectively. Therefore such prior publicity cannot, of itself, be a reason for curtailing or expediting the investigation of the alleged offence. In placing weight on the sheriff’s public announcement of his views when assessing whether the time taken for the proceedings had been reasonable, the majority of the High Court had regard to a matter which they should have left out of account.
  230. For these reasons the approach of the majority of the appeal court was flawed and it is open to your Lordships’ Board to reconsider the matter. All the judges in the court below rejected any criticism of the Crown’s determination of the priority to be given to the investigation and the point was not renewed before the Board. In any event, as I have already indicated, I consider that, in a case of this kind where the special procedure for investigating complaints against the police applies, there is no basis for holding that a period of 20 months between charge and trial is excessive or inordinate. It may be longer than was either desirable or strictly necessary. But that is not the test. Applying the test developed by the European Court and taking full account of the seven-month period of inactivity in 1999, like Lord Hamilton I cannot say that the length of the period between the charge and the trial in this case was unreasonable. I would accordingly allow the appeal and make an order in the terms proposed by Lord Hope of Craighead.
  231. K
  232. In the case of K the period to be considered comprises about 28 months. It stretches from 31 October 1998 when, at the age of 13, the respondent was charged with a number of sexual offences, and 5 March 2001, the start of the sitting of the High Court in which his trial would have taken place, had it not been postponed on the motion of the defence. By that time K would have been 16 years of age. What happened in fact was that at the trial diet on 5 April 2001 the presiding judge, Lord Wheatley, heard argument on the respondent’s devolution minute raising the issue of the length of the proceedings. Lord Wheatley rejected the argument and repelled the plea in bar of trial. On appeal to the High Court the appeal court (Lord Coulsfield, Lord Nimmo Smith and Sir Gerald Gordon QC) allowed the appeal and dismissed the indictment: K v HM Advocate 2001 SLT 1265. Again I gratefully adopt the full account of the relevant circumstances given by Lord Bingham of Cornhill.
  233. In the hearing at first instance Mr Davidson, who was then Solicitor General, “agreed that the period of delay cited was unnaturally long”. It is a concession which could scarcely have been withheld. In the circumstances the presiding judge accepted that it was appropriate to have regard to the explanations tendered by the Crown to account for the delay. This was the correct approach, in line with the guidance given by the European Court in Eckle. I accept, moreover, that Lord Wheatley was entitled to hold that, since the witnesses in the case were young children, it had been proper for the Crown to use specialists to investigate it. He was also prepared to find sufficient reasons for the length of the proceedings in the need to give priority to other, similar, cases involving children, in changes of personnel among the investigators and in the need to deal carefully and sympathetically with young child witnesses, for example, by scheduling their interviews to coincide with a previously planned Christmas trip to Edinburgh. All these were matters that were indeed proper for the presiding judge to weigh in making an overall assessment.
  234. The appeal court held, however, that the presiding judge had concentrated on examining the particular reasons for periods of delay advanced by the Crown. What he had failed to do, and what he required to do in terms of the established case law, was to stand back and to consider whether, taking all these matters into account, the period which was conceded to be unnaturally long could properly be regarded as reasonable. In my view there is force in that criticism and the appeal court were accordingly entitled to look at the matter afresh.
  235. As Mr Prentice pointed out, the presiding judge proceeded on the basis that the Crown had provided satisfactory explanations for the delays that had occurred. Two points stand out, however. The explanations purported to account for only 17 out of the 28 months between the charge and the trial diet. More importantly, the Crown advanced no explanation for the salient fact that nothing whatever appears to have happened between 31 October 1998, when the respondent was charged, and April 1999. From then until August 1999 “the progress of the case was subject to a prioritisation process involving all cases concerning children within the particular office dealing with the current case.” In other words, on the account given by the Crown nothing really happened in the case during the eleven months after the respondent was charged. The presiding judge does not appear to have applied his mind, in particular, to the period up until April 1999. But that period is important precisely because the Crown do not explain why nothing happened – they do not even pray in aid the process of “prioritisation”. The judge’s failure to take proper account of this matter vitiates his overall assessment of the position.
  236. In saying this I am conscious that the courts, from the presiding judge to your Lordships’ Board, may have been given a less than complete picture of events, especially during the period up until April 1999. The procedures laid down for co-operation with the children’s panel reporter would lead one to expect that during that period there would have been contacts of various kinds, even if they did not result in any concrete steps. But, despite being given the opportunity to do so, Mr Davidson was unable to provide any information as to what contacts, if any, there had been between the procurator fiscal and the reporter during the proceedings. At most one can infer, as he indicated in the appeal court, that the decision to place K on petition in March 2000 was taken after the allegations about the complainer in the first charge, who was not a relative, came to the knowledge of the Crown during their investigations. With the alleged conduct extending beyond the range of K’s family, Crown counsel must apparently have decided, in the light of the Crown’s consultations with the reporter, that the matter could not be dealt with appropriately within the children’s hearing system and that K would indeed have to be prosecuted. Apart from this, however, the nature and extent of any contacts with the reporter are unknown. Significantly, no discussions or deliberations of that kind have been invoked to explain the lack of progress during the first eleven months.
  237. An unexplained delay of some seven months followed by a further period of four months in which no real progress was made would be a cause for concern in a serious case of this kind even if it involved an adult. In reality, of course, such failures to progress the case would have been most unlikely to occur with an adult accused since the Crown would have been under the constraints of either the 110-day rule or the twelve-month rule. The respondent was not in custody and so the 110-day rule did not apply. Moreover, for the reasons which I explained at the outset and which are intended to benefit children like the respondent who are accused of serious crimes, the twelve-month rule did not apply either until the respondent appeared on petition on 16 March 2000. So during the year after he was charged, the respondent’s case made much less progress than it would have done if he had been an adult. In effect the room for manoeuvre given to the Crown and the reporter, which was intended to be for the benefit of the respondent, was being used in a way that operated to his disadvantage. After all, if the respondent had been an adult, the priorities among the competing cases would have had to be resolved in such a way as to allow the Crown case against him to be investigated, using all the appropriate specialist resources and with the appropriate degree of sensitivity towards the child witnesses, in time for him to be tried by the end of October 1999. In fact, because K was a boy, the investigation of his case had hardly even begun by then.
  238. As is pointed out in para 16.01 of the Book of Regulations, the United Nations Convention on the Rights of the Child was ratified by the United Kingdom in December 1991 and came into force on 15 January 1992. It was therefore binding on the United Kingdom at all material times. The Book of Regulations notes that, in terms of article 3 of that convention, in all actions concerning children, including actions in courts of law, the best interests of the child are to be the primary consideration. The passage continues: “This has to be borne in mind when dealing with witnesses or accused under 18 years of age”. Moreover, as Lord Reed pointed out in HM Advocate v DP and SM 2001 SCCR 210, 215B–D, para 11, article 40(2)(b) of the United Nations Convention provides:
  239. “Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
    (iii) To have the matter determined without delay …”
    Similarly, rule 20 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (“the Beijing Rules”) provides that
    “Each case shall from the outset be handled expeditiously, without any unnecessary delay.”
    The European Court has taken account of both the United Nations Convention and the Beijing Rules when considering proceedings involving children (V v United Kingdom (1999) 30 EHRR 121, 175–176, paras 72–73). Lord Reed did so too, when dealing with the reasonable time requirement, in DP and SM 2001 SCCR 210, 215B, para 11.
  240. Moreover, the directions given by the Lord Advocate to procurators fiscal as to the way they should proceed if they decide, in consultation with the children’s reporter, to retain a case with a view to precognition and reporting to Crown counsel reflect the spirit of the United Nations Convention and the Beijing Rules:
  241. “this precognition and reporting should be completed as soon as possible in order that if the matter is ultimately referred to the reporter, the delay in his dealing with it is kept to a minimum. Such cases often involve allegations of sexual abuse or violence by children upon other children” (Book of Regulations, para 16.18).
  242. The passages in the Book of Regulations show not just that the Lord Advocate is duly conscious of the obligations imposed by these international agreements, but that he has been particularly concerned to ensure that the precognition and reporting of just this very kind of case should be completed as soon as possible. These international obligations and this direction by the Lord Advocate are relevant to any assessment as to whether the time between charge and trial in this case was reasonable They amply justify the view that, in making that assessment, the court should treat it as a case which called for more than the usual degree of expedition. As the commentary to rule 20 of the Beijing Rules points out,
  243. “As time passes, the juvenile will find it increasingly difficult, if not impossible, to relate the procedure and disposition to the offence, both intellectually and psychologically.”
    In my view, there is clearly a risk of that happening in the present case where the proceedings have taken so long that the boy of 13 who was charged in 1998 had become a youth of 16 before he was to be tried and, if found guilty, punished. During all that time the matter was hanging over him. In such a situation the delay affects the effectiveness and credibility of the proceedings which the reasonable time requirement exists to promote (DP and SM 2001 SCCR 210, 215G–216A, para 12).
  244. The appeal court rightly attached importance to these points. In particular, in the opinion of the court Lord Coulsfield noted that there was no indication that “the lapse of time ever led the authorities, as it should have done, to treat the case with increasing urgency as time went by” (2001 SLT 1261, 1264 I). Having examined the opinion, I am satisfied that their Lordships applied the correct approach and that they had regard to all the relevant facts. I can therefore find no basis on which it would be proper to interfere with their conclusion that article 6(1) had been infringed. In any event I am satisfied that it was correct: the overall time taken appears prima facie to be excessive and the periods of inactivity and the lack of urgency on the part of the Crown in a case involving a boy of 13 combine to lead to the conclusion that the time taken was indeed unreasonable. Moreover, even if the additional argument for the Crown were sound and it were open to the court in an appropriate case to grant a remedy other than the dismissal of the indictment, in my view, in the circumstances of the present case, the only effective remedy for the breach of article 6(1) would be to stop the proceedings. I would accordingly dismiss the Crown’s appeal.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/uk/cases/UKPC/2002/D1.html