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URL: http://www.bailii.org/uk/cases/UKPC/2002/D2.html
Cite as: 2002 SLT 939, [2002] UKHRR 1074, 2002 SCCR 860, [2002] 3 WLR 1597, [2002] HRLR 44, [2002] UKPC D2, 2003 SC (PC) 1, 13 BHRC 549, 2002 GWD 26-886, [2004] 1 AC 441, [2004] AC 441, [2002] UKPC D 2

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Mills v Her Majesty’s Advocate & Anor (Scotland) [2002] UKPC D2 (22 July 2002)

[2002] UKPC D2
    ADVANCE COPY

    Privy Council DRA. No. 1 of 2002

    Kenneth Anthony Paton Mills Appellant

    v.

    (1) Her Majesty’s Advocate and
    (2) The Advocate General for Scotland Respondents

    FROM
    THE HIGH COURT OF JUSTICIARY
    SCOTLAND

    ---------------

    JUDGMENT OF THE LORDS OF THE JUDICIAL
    COMMITTEE OF THE PRIVY COUNCIL,

    Delivered the 22nd July 2002

    ------------------

    Present at the hearing:-
    Lord Nicholls of Birkenhead
    Lord Mackay of Clashfern
    Lord Steyn
    Lord Hope of Craighead
    Lord Scott of Foscote

  • For the reasons given in the judgments of Lord Steyn and
    Lord Hope of Craighead, with which I agree, I would dismiss this
    Lord Mackay of Clashfern

  • I have had the advantage of reading the opinion of my noble
    and learned friend Lord Hope of Craighead. I agree that this appeal
    should be dismissed for the reasons he has given.
    __________________________

  • A question arises on the meaning of article 6(1) of the
    European Convention for the protection of Human Rights and
    Fundamental Freedoms. The answer to it is of great importance for
    the sensible and orderly application of the principles of article 6(1).
    Having already given a judgment on this point I feel diffident about
    doing so again. There are, however, developments of importance to
    be taken into account, and threads to be brought together. I fear I
    must return to the point.

  • Counsel for the appellant argues that where in appellate
    proceedings there has been a breach of the guarantee of a hearing
    within a reasonable time under article 6(1) of the European
    Convention on Human Rights, the only and inevitable remedy is to
    quash the conviction. For this proposition he relies on the decision
    of the Privy Council in Darmalingum v The State [2000] 1 WLR
    2303. In that case the Privy Council considered section 10(1) of
    the Constitution of Mauritius which is modelled on article 6(1) and
    is to the same effect. In Flowers v The Queen
    [2000] 1 WLR 2396
    the Privy Council considered section 20(1) of the Constitution of
    Jamaica which is also modelled on article 6(1) and is to the same
    effect. The Privy Council departed from Darmalingum.
    Subsequently the Privy Council has taken the view that, although the
    outcomes of both cases were correct, there were important
    principled differences between Darmalingum and Flowers: Dyer v
    Watson [2002] SLT 229, per Lord Bingham of Cornhill, at para 29.
    Counsel for the appellant has invited the Privy Council to attempt
    to resolve the problem created by the conflicting dicta. In order to
    do so it is necessary to attempt to identify the differences in
    reasoning in Darmalingum and Flowers.

  • Article 6(1) is of central importance in the scheme of the
    Convention. The relevant part of article 6(1) reads as follows:
    “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 object and purpose of article 6(1) is “to enshrine the
    fundamental principle of the rule of law”: Salabiaku v France
    (1988) 13 EHRR 379, 388, para. 28. In Darmalingum the Privy
    Council considered article 6(1) in the light of European
    jurisprudence. Giving the judgment of the Board I said, at pp
    2307H-2308B:
    “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.” (Emphasis
    added)
    The reference to the ordinary law was, of course, a reference to the
    common law rule as stated in Attorney-General’s Reference (No 1
    of 1990) [1992] QB 630, 643-644, that no stay will be imposed for
    inordinate delay unless the defendant shows on a balance of
    probabilities that owing to the delay he will suffer serious prejudice
    to the extent that no fair trial can be held. In Darmalingum it was
    held that the scope of article 6(1) is wider.

  • In Flowers [2000] 1 WLR 2396 the Privy Council approached
    the matter differently. The Board followed an earlier decision of the
    Privy Council in Bell v Director of Public Prosecutions [1985] AC
    937, which had not been referred to in Darmalingum. In Bell the
    Privy Council had relied on Barker v Wingo, (1972) 407 US 514
    and enunciated the following proposition, at p 950:
    “Their Lordships agree with the respondents that the three
    elements of section 20, namely a fair hearing within a
    reasonable time by an independent and impartial court
    established by law, form part of one embracing form of
    protection afforded to the individual.” (Emphasis added)
    In Bell the Privy Council had not been referred to article 6(1) or to
    any European jurisprudence on it. In Flowers too there was no
    reference to European case law.

  • In deciding not to follow Darmalingum on the question
    whether article 6(1) incorporates three separate guarantees Lord
    Hutton, who gave the judgment, observed at pp 2414H–2415A:
    “The judgment of the Board 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
    .”
    (Emphasis added)
    Relying on Bell the Privy Council in Flowers rejected the idea that
    there are three separate guarantees. This ruling enabled the Privy
    Council in Flowers to consider the question of breach (as opposed
    to remedy) by weighing against a lengthy period of delay,
    countervailing matters which were plainly considered to be
    justifying, excusing or balancing factors. Those factors were the
    gravity of the crime, its prevalence in Jamaica and the guilt of the
    appellant: p 2415B. If this approach is correct the interpretation of
    article 6 in Darmalingum was wrong.

  • The question whether there are three separate guarantees or not
    is important. The point was examined by the House of Lords in
    Porter v Magill
    [2002] 2 WLR 37. In a speech delivered by Lord
    Hope of Craighead with the agreement of all the Law Lords he said,
    at p 78, para 87, that article 6(1):
    “creates a number of rights which, although closely related,
    can and should be considered separately. The rights to a fair
    hearing, to a public hearing and to a hearing within a
    reasonable time are separate and distinct rights from the right
    to a hearing before an independent and impartial tribunal
    established by law. This means that a complaint that one of
    these rights was breached cannot be answered by showing
    that the other rights were not breached. Although the
    overriding question is whether there was a fair trial, it is no
    answer to a complaint that the tribunal was not independent
    or was not impartial to show that it conducted a fair hearing
    within a reasonable time and that the hearing took place in
    public: see Millar v Dickson 2001 SLT 988, 994D-E per
    Lord Bingham of Cornhill and my own observations in that
    case, at p 1003C-F.”
    Later in his speech he continued at p 86, paras 108-109:
    “108 I would also hold that the right in article 6(1) to a
    determination within a reasonable time is an independent
    right, and that it is to be distinguished from the article 6(1)
    right to a fair trial. As I have already indicated, that seems to
    me to follow from the wording of the first sentence of the
    article which creates a number of rights which, although
    closely related, can and should be considered separately.
    This means that it is no answer to a complaint that one of
    these rights was breached that the other rights were not. To
    take a simple example, the fact that the hearing took place in
    public does not deprive the applicant of his right to a hearing
    before an independent and impartial tribunal established by
    law.

    109 I would respectfully follow Lord Steyn’s observation in
    Darmalingum v The State [2000] 1 WLR 2303 about the
    effect of section 10(1) of the Constitution of Mauritius when
    he said that the reasonable time requirement is a separate
    guarantee. It is not to be seen simply as part of the
    overriding right to a fair trial, nor does it require the person
    concerned to show that he has been prejudiced by the delay.
    In Flowers v The Queen [2000] 1 WLR 2396 a differently
    constituted Board, following Bell v Director of Public
    Prosecutions [1985] AC 937, held that prejudice was one of
    four factors to be taken into account in considering the right
    to a fair hearing within a reasonable time in section 20(1) of
    the Constitution of Jamaica. In the context of article 6(1) of
    the Convention however the way this right was construed in
    Darmalingum v The State seems to me to be preferable. In
    Crummock (Scotland) Ltd v HM Advocate 2000 SLT 677,
    679A-B, Lord Weir, delivering the opinion of the High Court
    of Justiciary, said that under article 6(1) it was not necessary
    for an accused to show that prejudice has been, or is likely to
    be, caused, as a result of delay. The article 6(1) guarantee of
    a hearing within a reasonable time is not subject to any words
    of limitation, nor is this a case where other rights than those
    expressly stated are being read into the article as implied
    rights which are capable of modification on grounds of
    proportionality: see Brown v Stott [2001] 2 WLR 817, 851BE;
    R (Pretty) v Director of Public Prosecutions [2001] 3
    WLR 1598, para 90. The only question is whether, having
    regard to all the circumstances of the case, the time taken to
    determine the person’s rights and obligations was
    unreasonable.”

    The agreement of the Law Lords, who sat in the case, are recorded
    as follows: Lord Bingham of Cornhill, p 70, para 57; my speech, p
    70, para 59; Lord Hobhouse of Woodborough, p 92, para 131; and
    Lord Scott of Foscote, p 100, para 161 and 163.

  • My Lords, I have cited lengthy passages from Lord Hope’s
    speech because they explain the structure of article 6(1) more fully
    than I had done in Darmalingum. The decision of the House of
    Lords in Porter v Magill is not binding on the Privy Council. But I
    would wish to adopt Lord Hope’s analysis. Subsequently in Dyer
    v Watson
    2002 SLT 229 the Privy Council considered the point
    again. Four of the Law Lords sitting stated in express terms or by
    concurrence with others the view that Darmalingum more closely
    reflects European jurisprudence than Flowers: see Lord Bingham of
    Cornhill, p 237, para 29; Lord Hope of Craighead, p 247, para 94;
    Lord Millett, p 251, para 123; and Lord Rodger of Earlsferry, p
    252, para 134. Lord Hutton gave a short separate judgment on the
    issue of remedies to which I will return. The language of article
    6(1), the human rights context, and European jurisprudence, suggest
    that the best interpretation is that, although the three elements of
    article 6(1) are closely related, they are nevertheless in law distinct
    and independent guarantees.

  • If it is assumed, however, that as a matter of language article
    6(1) could be read as envisaged in Flowers, how should the matter
    be approached? On this hypothesis it is important to bear in mind
    that we are interpreting a core provision in a bill of rights. A broad
    purposive approach is necessary: Delcourt v Belgium (1970) 1
    EHRR 355, p 367, paras 25-26. This is a classic case calling for
    what in Minister of Home Affairs v Fisher
    [1980] AC 319, 328,
    Lord Wilberforce described as “a generous interpretation ...
    suitable to give to individuals the full measure of the fundamental
    rights and freedoms referred to”. With great respect I have to say
    that the view which prevailed in Bell [1985] AC 937 and Flowers
    [2000] 1 WLR 2396 would seriously emasculate the value and
    effectiveness of rights conferred by article 6(1). For example, it
    would be possible in the face of a case of inordinate and oppressive
    delay, to hold that the delay is excused by the fact that the guilt of
    the defendant in respect of a serious crime was demonstrated at a
    fair hearing by a competent court. Such a view sits uneasily with
    the human rights context.

  • It is interesting to compare the corresponding provision of the
    International Covenant on Civil and Political Rights (1966), which
    has been ratified by the United Kingdom but not incorporated into
    our law. So far as material it reads as follows:
    “Article 14
    1. All persons shall be equal before the courts and tribunals.
    In the determination of any criminal charge against him, or of
    his rights and obligations in a suit at law, everyone shall be
    entitled to a fair and public hearing by a competent,
    independent and impartial tribunal established by law …
    2. ...
    3. In the determination of any criminal charge against him,
    everyone shall be entitled to the following minimum
    guarantees, in full equality:
    ...
    (c) To be tried without undue delay;”
    There cannot even be a linguistic argument in favour of a
    construction that there is a single guarantee. Unquestionably, article
    14.3 enshrines a separate and independent guarantee. It would be
    strange if article 6(1) of the European Convention, admittedly earlier
    in date, has on this point a different and more restrictive meaning.

  • Domestic decisions of high authority demonstrate that what
    can compendiously be called the fair trial guarantees under article
    6(1) must in application be considered separately. First, it is well
    established that the fair hearing guarantee is separate and absolute in
    character: Brown v Stott
    2001 SC PC 43, at p 60; R v Forbes
    [2001] 1 AC 473, p 487, para 24. The only degree of flexibility is in
    regard to the content of a fair trial: in that respect the triangulation of
    the interests of the defendant, the victim and his family, and society,
    do arise, eg measures to protect victims: Doorson v Netherlands
    (1996) 22 EHRR 330. Once it is established that a defendant has
    not had a fair hearing at trial the conviction must be quashed:
    Brown v Stott and R v Forbes. Secondly, it is settled law that the
    guarantee of a hearing before an independent and impartial tribunal
    is separate and absolute in character: Millar v Dickson [2002] 1
    WLR 1615, 1639-1642, paras 61-70; Porter v Magill [2002] 2
    WLR 37, at p 78, para 87. If it is established that at trial there was a
    breach of this guarantee, the conviction must be quashed: Millar v
    Dickson and Porter v Magill. The third guarantee must now be
    considered. It is of fundamental importance to distinguish clearly
    between two matters, namely (a) the scope the guarantee and breach
    of it and (b) the question of remedy. This distinction is explicit in
    Darmalingum but not in Flowers.

  • Given that there is no single rolled-up guarantee but three
    distinct rights or guarantees, it follows that the views expressed in
    Bell and Flowers on the scope of “one embracing form of
    protection” is not correct. In these circumstances I would
    respectfully follow the analysis of Lord Hope in paragraphs 108-
    109 of his speech in Porter v Magill which I have set out in extenso
    in paragraph 8 above. It is to be noted that prejudice, although a
    relevant factor, is not a prerequisite under the reasonable time
    guarantee. This is in accord with the approach of the European
    Court of Justice to this guarantee: Eckle v Federal Republic of
    Germany
    (1982) 5 EHRR 1, 24, para 66; Corigliano v Italy (1982)
    5 EHRR 334, 341, para 31; Howarth v United Kingdom,
    Application No 38081/97, (21 September 2000) [2001] Cr LR 229.
    Purposively construed article 6(1) may in principle be invoked by a
    defendant, who has been acquitted, or by a defendant whose guilt
    of a serious crime has been conclusively determined at trial and by
    the dismissal of an unmeritorious appeal. It may be applicable in
    any case where the delay has been inordinate and oppressive:
    Flowers [2000] 1 WLR, 2303, 2308A-B: see also Alistair Webster
    QC, “Delay and Article 6(1): An End to the requirement of
    Prejudice” [2001] Cr LR 786.

  • It may be of assistance to spell out the rationale of this
    guarantee as described in the European jurisprudence. Three
    themes can be identified. First, “in criminal matters, especially, it is
    designed to avoid that a person charged could remain too long in a
    state of uncertainty about his fate”: Stögmüller v Austria (1969) 1
    EHRR 155, 191, para 5. Secondly it is recognised that lapse of
    time may result in the loss of exculpatory evidence or in a
    deterioration in the quality of evidence generally. Thirdly, it has
    been said that “the safety of a verdict reached a considerable time
    after the offence often become[s] the subject of controversy, [and]
    undermine[s] public confidence in the criminal justice system”: S.
    Stavros, The Guarantees for Accused Persons Under Article 6 of
    the European Convention on Human Rights, (1993), p 77. Even if
    not exhaustive these underlying themes have a bearing on a proper
    disposal when there has been a breach of the “reasonable time”
    guarantee.

  • The separate question of the remedies available in respect of a

  • breach of the guarantee of a hearing within a reasonable time must
    now be considered. The court is entitled to be informed of all
    factors logically relevant to the appropriateness of the remedy. In a
    post conviction case, for example, the fact that the accused’s guilt
    was established at trial and that an unmeritorious appeal was
    dismissed, is undoubtedly a relevant factor in considering what
    remedy, if any, to grant.

  • The remedies available could include an order for

  • discontinuance of a prosecution, quashing of the conviction,
    reduction of the sentence, monetary compensation or a declaration.
    A finding of a violation of a guarantee may itself sometimes be a
    sufficient vindication of the right: Eckle v Germany (Just
    Satisfaction) (1983) 13 EHRR 556, 560, para 24. It is not necessary
    to discuss the appropriateness of particular remedies over the
    infinite range of cases which can come before the courts.

  • It is, however, necessary to identify an error in the reasoning

  • on remedies in Darmalingum, which was pointed out by Lord
    Hutton in Dyer v Watson 2002 SLT 229, 251, para 121.
    Darmalingum was viewed by their Lordships sitting in that case as
    an extreme case involving proceedings hanging over a defendant for
    fifteen years. I said at p 2310D-F):
    “The normal remedy for a failure of this particular guarantee,
    viz the reasonable time guarantee, would be to quash the
    conviction. That is, of course, the remedy for a breach of
    the two other requirements of section 10(1), viz (1) a fair
    hearing and (2) a trial before an independent and impartial
    court. Counsel for the prosecution argued however that the
    appropriate remedy in this case is to affirm the conviction
    and to remit the matter of sentence to the Supreme Court so
    that it may substitute a non-custodial sentence in view of the
    delay. The basis of this submission was that the guilt of the
    defendant is obvious and that it would therefore be wrong to
    allow him to escape conviction. This argument largely
    overlooks the importance of the constitutional guarantee as
    already explained. Their Lordships do not wish to be overly
    prescriptive on this point. They do not suggest that there may
    not be circumstances in which it might arguably be
    appropriate to affirm the conviction but substitute a noncustodial
    sentence, eg in a case where there had been a plea
    of guilty or where the inexcusable delay affected convictions
    on some counts but not others. But their Lordships are quite
    satisfied that the only disposal which will properly vindicate
    the constitutional rights of the defendant in the present case
    would be the quashing of the convictions.”

    Given that there are words of qualification in this paragraph, I am
    satisfied that the statement that “the normal remedy” for breach of
    this guarantee is a quashing of the conviction was not warranted.

  • In Dyer v Watson 2002 SLT 229, 251, para 121 Lord Hutton

  • explained:
    “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):

    ‘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 the Commission
    stated (1980) 25 DR 144, para 2 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’.”


    Lord Hutton is right: it was wrong to say that the normal remedy is
    the quashing of the conviction.

  • Since the decisions in Darmalingum and Flowers the Privy

  • Council have been asked to revisit the conflict of authority in Taito
    v The Queen (unreported) 19 March 2002. Under the heading
    Remedy the Privy Council observed, at para 22:
    “In respect of Bennett, Boyd, Donaldson, Savelio, and Taito,
    counsel invited the Board to allow their appeals and to enter
    acquittals. For this ambitious submission counsel relied on
    Darmalingum v The State [2000] 1 WLR 2303. Counsel
    emphasised that in the cases of Bennett, Savelio and Taito the
    appeals were lodged 5 to 6 years ago. Taito has already
    served his sentence and Bennett and Savelio are nearing the
    completion of their sentences. Boyd and Donaldson received
    minor non-custodial sentences which have been completed.
    In these circumstances counsel said that the only effective
    remedy for a breach of the appellants’ constitutional rights is
    the entering of acquittals. The reliance on Darmalingum is
    misplaced. Delay for which the state is not responsible,
    present in varying degrees in all the relevant cases, cannot be
    prayed in aid by the appellants. Moreover, Darmalingum
    was a case where the defendant ‘had the shadow of the
    proceedings hanging over him for about 15 years’: at 2310C.
    It was a wholly exceptional case. This argument must be
    rejected. And their Lordships are satisfied that the Court of
    Appeal should not be troubled with it on a rehearing of the
    appeals.”

    It is clear from this passage that the Privy Council took the view
    that quashing of a conviction is not the only remedy for a breach of
    the particular guarantee. On the contrary, it is clear that
    Darmalingum, and its disposal, was regarded as an exceptional
    case. The holding in Taito is inconsistent with the proposition that
    the normal remedy for such a breach is the quashing of the
    conviction.

  • In my view Darmalingum must be regarded as modified as I

  • have indicated.

  • While some reference was made in argument to Attorney

  • General's Reference (No. 2 of 2001) [2001] 1 WLR 1869, the
    implications of the judgment of the Court of Appeal do not require
    examination in the present case.

  • The premise of the appellant’s case has collapsed.

  • The actual disposal of his appeal by the High Court of

  • Justiciary was carefully considered and reasoned: Mills (No 2) v H
    M Advocate [2001] SLT 1359. A reduction of the sentence by nine
    months was a just disposal in the spirit of article 6(1).

  • I agree with the order which Lord Hope of Craighead

  • proposes and with his reasons on all aspects of the case.
    ___________________________
    Lord Hope of Craighead

  • This is an appeal under paragraph 13(a) of Schedule 6 to the

  • Scotland Act 1998. The sole issue which it raises relates to the
    remedy which may be given to an appellant for a breach of his right
    to a hearing within a reasonable time under article 6(1) of the
    European Convention for the Protection of Human Rights and
    Fundamental Freedoms, where there was a delay in the hearing of
    his appeal which was due to an act of the prosecutor.

  • On 17 October 1996 the appellant was convicted after trial in

  • the High Court of Justiciary at Edinburgh of the theft of a motor car
    and of assaulting a police officer by driving a car at him, causing it
    to strike him and then driving it at an excessive speed along certain
    roads and in such a manner as to cause him to be thrown from the
    car against a wall to his injury and to the danger of his life. The
    charge narrated that he was on bail at the time of the offence of
    assaulting the police officer. On 7 November 1996 he was
    sentenced to detention in a young offender institution for eight years
    and six months, six months of that period being attributable to the
    fact that he committed the offence while on bail.

  • The appellant then took his case to appeal. Initially his appeal

  • was only against sentence. But on 8 May 1997 he sought to appeal
    against his conviction on the ground of fresh evidence. He had
    maintained at his trial that he was not the driver of the car which
    struck and injured the police officer. Fresh evidence was now said
    to be available which supported his claim that the car was being
    driven by someone else at the time. On 9 June 1998 the court
    allowed supplementary grounds of appeal against conviction to be
    received. On 23 February 1999, having heard argument and in the
    light of a concession by the Advocate Depute, it decided to allow
    the evidence of one witness, and of a number of other witnesses in
    so far as their testimony might have a bearing on his credibility and
    reliability, to be heard on a later date: Mills v HM Advocate 1999 JC

  • A hearing to take this evidence was later fixed for 6 May 1999.

  • At the commencement of the hearing on that date the Crown asked
    for the diet to be continued to a later date for further preparation.
    This motion was opposed by the appellant, but it was granted by
    the court. The appellant was then admitted to bail. By the time of
    his release he had served just under three years of his sentence. It
    has not been suggested that there was any question of undue delay
    in the proceedings at any stage prior to this date.

  • There was then an interval of two years until 9 May 2001,

  • when the court heard the fresh evidence. On 10 May 2001 it
    refused the appeal on the ground that the fresh evidence was not
    capable of being regarded by a reasonable jury as credible. But on
    the same date the appellant was allowed to lodge a further ground
    of appeal in which he alleged that there had been a breach of his
    rights under article 6(1) because of the delay in the hearing of the
    appeal. The court heard his appeal on this further ground on 31
    July 2001. On 1 August 2001 it held that the appellant had
    established that there had been a breach of his article 6(1) right by
    the Lord Advocate which fell within section 57(2) of the Scotland
    Act 1998. His appeal was allowed, and his original sentence of
    detention was reduced by a period of nine months. The reasons for
    this decision were given in the opinion of the court which was
    delivered by Lord Coulsfield: Mills (No 2) v HM Advocate 2001
    SLT 1359. On 7 November 2001 the High Court of Justiciary
    granted the appellant leave to appeal against this decision to the
    Judicial Committee. The appellant was once again granted bail.

  • Two points should be noted at the outset. The first is that the

  • Lord Advocate has not appealed against the decision by the High
    Court of Justiciary that there was an unexplained delay in the
    hearing of the appeal which could not be said to have been
    reasonable. Nor has he appealed against its decision that the
    appellant had established a breach of his article 6(1) right by the
    Lord Advocate which fell with section 57(2) of the Scotland Act.

  • These decisions were taken before the hearing by the Judicial

  • Committee on 12 December 2001 of the appeal in Dyer v Watson,
    K v HM Advocate 2002 SLT 229 and without the benefit of the
    observations which were set out in that judgment. In that case it
    was said that, although the case law of the European Court
    provided domestic courts with no specific norm against which they
    could judge the reasonableness of the length of the proceedings, the
    decisions indicated that a relatively high threshold had to be crossed
    before it could be said in any particular case that a period of delay
    was unreasonable and that the period which has elapsed gives
    grounds for real concern that the Convention right has been
    violated: see Lord Bingham of Cornhill at p 241J-K, para 52, my
    own opinion at p245J-K, para 80, Lord Rodger of Earlsferry at p
    256C-J, para 152. I shall have to return to facts which were relied
    upon in this case at a later stage in this judgment. But for the
    present I should like simply to suggest, in the light of the opinions
    that were expressed in Dyer v Watson, that the decision that there
    was an unreasonable delay in this case should not be regarded as
    anything other than a decision on its own facts.

  • Nor have we been asked in this case to examine the question

  • what is to be taken to be an “act” of the Lord Advocate for the
    purposes of section 57(2) of the Scotland Act. That question is for
    another day: see HM Advocate v R 2001 SLT 1366; R v HM
    Advocate (Appeal No 817/01), (unreported) 31 May 2002. All that
    needs to be said about it at this stage is that it should be borne in
    mind that the position of the prosecutor is not the same at the stage
    of an appeal as it was during the trial: Howitt v HM Advocate 2000
    SCCR 195, 200B per the Lord Justice Clerk (Cullen). During the
    trial he is the master of the instance: Alison, Practice of the
    Criminal Law of Scotland (1833), pp 88-90. What happens to a
    conviction thereafter is the responsibility of the court. It may be
    more difficult in these circumstances to identify an “act” of the
    Lord Advocate which can be said to have caused delay in the
    hearing of an appeal.

  • The second point relates to the jurisdiction of the Judicial

  • Committee to hear this appeal. Although it was not suggested that
    your Lordships should not hear this appeal, it is important to
    understand the basis on which the jurisdiction is being exercised in
    this case.

  • Paragraph 13 of Schedule 6 to the Scotland Act provides that

  • an appeal shall lie to the Judicial Committee “against a determination
    of a devolution issue”. The expression “devolution issue” is
    defined in paragraph 1 of Schedule 6. The definition which is in
    point where an issue is raised with reference to section 57(2) in
    regard to an act by the Lord Advocate is in these terms: “a question
    whether a purported or proposed exercise of a function by a
    member of the Scottish Executive is, or would be, incompatible
    with any of the Convention rights or with Community law”:
    paragraph 1(d) of Schedule 6. There is no doubt that the decision
    of the High Court of Justiciary which was given on 1 August 2001
    was a determination of a devolution issue within the meaning of that
    paragraph. The question which it had been asked to decide was
    whether there had been an act by the Lord Advocate which resulted
    in a breach of the appellant’s right to a hearing within a reasonable
    time under article 6(1). But that question is no longer in issue, as
    the Lord Advocate has accepted the court’s decision on this point.
    The only question which has been brought before the Judicial
    Committee, with the leave of the High Court, relates to the
    consequences of that finding.

  • In my opinion the jurisdiction which has been given to the

  • Judicial Committee by paragraph 13 of Schedule 6 is not confined
    to answering the single question which the definition of the
    expression “devolution issue” in paragraph 1(d) has identified. It
    extends also to any other matter which may reasonably be said to
    be incidental to the determination of a devolution issue. For
    example, section 100(1) of the Scotland Act provides that a person
    is not entitled to bring any proceedings in a court or tribunal on the
    ground that an act is incompatible with the Convention rights unless
    he would be a victim for the purposes of article 34 of the
    Convention if proceedings in respect of the act were to be brought
    in the European Court. This raises a preliminary question which, if
    it is put in issue, it would be open to the Judicial Committee to
    determine under paragraph 13 of Schedule 6. So too are questions
    which are consequential upon the determination of a devolution
    issue, such as the question as to the appropriate remedy for breach
    of a Convention right which has been raised by this case. The fact
    that the principal question is no longer in dispute does not deprive
    the Judicial Committee of its jurisdiction to examine the question
    whether the appropriate remedy for the breach which has been
    established in this case is the quashing of the conviction. As I said
    in Dyer v Watson 2002 SLT 229, 249L, para 109, the question of
    remedy forms part of the devolution issue.
    The facts

  • Before I deal with the question as to the appropriate remedy in

  • this case, I must say a little more about the facts. No complaint has
    been made in this case about pre-trial delay. Nor is there any
    complaint about delay in the appeal process up to the date of the
    diet of 6 May 1999 which had been originally fixed for the hearing
    of the fresh evidence. It is the delay which occurred during the
    period after that date that has been criticised.

  • The interlocutor of 6 May 1999 states that the court continued

  • the appeal to a date to be afterwards fixed pending further
    preparations by the Crown. These preparations were to include the
    precognition of the appellant’s witnesses, the recovery of certain
    productions used during the trial and an application to the Deputy
    Principal Clerk of Justiciary for the extension of the whole of the
    evidence in the trial including the speeches to the jury by both the
    Advocate Depute and counsel for the accused. Transcripts of the
    evidence at the trial were obtained and received in the Justiciary
    Office on 13 August 1999. On 19 August 1999 the Deputy
    Principal Clerk of Justiciary wrote to the Crown Office saying that,
    due to a misunderstanding, only the evidence and not the speeches
    had been extended. He said that some delay might be anticipated in
    obtaining a transcript of the speeches as the shorthand writer
    responsible for taking notes of part of the trial had left the
    employment of the firm of shorthand writers. He had already written
    to the firm of shorthand writers asking for the speeches to be
    transcribed as a matter of urgency. The precise date when a
    transcript of the speeches reached the Justiciary Office has not been
    identified, but it appears that they became available in December
    1999. That date marks the beginning of the period which is under
    scrutiny on the ground that there was a delay which was
    unreasonable. It ends on 9 May 2001 when the court began hearing
    the fresh evidence.

  • The appellant accepts that it would not have been possible for

  • the court to hear the fresh evidence as soon as the transcript of the
    speeches became available. The Crown was entitled to a little more
    time to complete its preparations for the appeal. A fresh diet then
    required to be fixed by the court, in accordance with the direction
    to this effect in the interlocutor of 6 May 1999. But, as Lord
    Coulsfield has explained, it would ordinarily have been expected
    that the hearing on the fresh evidence would take place within two
    or three months of the date of the request for a fresh diet: 2001 SLT
    1359, 1362F, para 6. So the case has been argued on the basis that
    there was a delay of about twelve months prior to the hearing of the
    appeal for which the Crown was unable to give any explanation.
    The court held that a breach of article 6 by the Lord Advocate had
    been established because there had been a failure by the Crown to
    intimate when its preparations were complete: p 1362K-L, para 8.

  • But this narrative would be incomplete without taking the

  • following facts also into account. The appellant was admitted to
    bail on 6 May 1999. He was not recalled to custody to serve the
    remainder of his sentence until the court disposed of his remaining
    grounds of appeal on 1 August 2001. In the event his appeal
    against sentence was rejected on the ground that it was not
    excessive having regard to the serious nature of the offence: 2001
    SLT 1359, 1363K-L, para 14. His appeal against conviction on the
    ground of fresh evidence was held to have been entirely without
    merit: 1363L, para 15. No other grounds have been put forward for
    suggesting that his conviction for the offences of which he was
    found guilty at his trial was a miscarriage of justice, nor has it been
    suggested that the result of the appeal would have been any
    different but for the delay. The effect of the breach of his article
    6(1) right to a hearing within a reasonable time must be measured
    against the fact that, had there been no delay, he would have known
    that his appeal would be refused approximately one year earlier.
    Remedy

  • Mr Bell QC did not seek to find authority for his argument that

  • the conviction should be quashed in the jurisprudence of the
    European Court. He relied instead on the decision of Privy Council
    in Darmalingum v The State [2000] 1 WLR 2303. But it is
    necessary first to examine the jurisprudence of the European Court
    on the question of remedy, as the breach which has been
    established in this case is a breach of the reasonable time guarantee
    in article 6(1) of the European Convention for the protection of
    Human Rights and Fundamental Freedoms. A convenient starting
    point for this examination is to be found in article 50 of the
    Convention. It is in these terms:
    “If the Court finds that a decision or a measure taken by a
    legal authority or any other authority of a High Contracting
    Party is completely or partially in conflict with the obligations
    arising from the present Convention, and if the internal law of
    the said Party allows only partial reparation to be made for
    the consequences of this decision or measure, the decision of
    the Court shall, if necessary, afford just satisfaction to the
    injured party.”

  • Article 50 provides the background to the many cases which

  • are to be found in the jurisprudence of the European Commission
    on Human Rights and the European Court of Human Rights on this
    issue. The Convention leaves it to each contracting state, in the first
    place, to secure the enjoyment of the rights and freedoms which it
    enshrines. The machinery of protection established by the
    Convention is of a subsidiary character: Eckle v Federal Republic
    of Germany (1982) 5 EHRR 1, 24, para 66. The court observed in
    that case, at the end of paragraph 66, that the subsidiary character is
    all the more pronounced in the case of states which have
    incorporated the Convention into their domestic legal order and
    which treat the rules of the Convention as directly applicable. It is,
    of course, open to the victim of a breach found by the court first to
    seek compensation within the domestic legal order: Eckle v
    Germany (Just Satisfaction) (1983) 13 EHRR 556, 557, para 14.
    Measures taken in the domestic legal order, such as a reduction of
    his sentence by the domestic court or a discontinuance of the
    prosecution, will then be taken into consideration by the European
    Court for the purpose of assessing the extent of the damage which
    he has suffered. The question for decision by the European Court
    is whether, after taking account of such reparation as may have
    been obtained in the domestic legal order, an award of just
    satisfaction should be made under article 50.

  • The remedy which the appellant seeks for the unreasonable

  • length of the proceedings is the setting aside of his conviction. But
    in none of the cases in which alleged or admitted breaches of the
    right to a trial within a reasonable time have been considered by
    European Commission and the European Court has it been held that
    this is a necessary consequence of a breach of this guarantee. On
    the contrary, in Bunkate v The Netherlands (1993) 19 EHRR 477,
    where it was held that no satisfactory explanation had been offered
    by the government for a period of delay between the filing by the
    appellant of his appeal against the judgment of the Court of Appeal
    and the receipt of the case file fifteen and a half months later by the
    registry of the Supreme Court, the claim for just satisfaction was
    dismissed. The appellant had been sentenced to sixteen months
    imprisonment for forgery. His claim was for non-pecuniary
    damages for each of the days that he served his sentence, for the
    cost of proceedings in which he had sought an injunction
    prohibiting execution of the prison sentence pending the
    proceedings in Strasbourg and for travel expenses incurred during
    home leave from prison. At p 484, para 25, the court said:
    “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.”

  • In Beck v Norway, Application No 26390/95, (unreported) 26

  • June 2001, the applicant complained that criminal proceedings
    against him, which had lasted for seven years and seven months,
    had not been concluded within a reasonable time as required by
    article 6(1) of the Convention. The court noted that it did not
    appear that there was any period of inactivity between the date when
    the criminal proceedings against him were instituted in the City
    Court and the rejection of his appeal by the Supreme Court. The
    period of delay for which there was no satisfactory explanation
    occurred between the issue of the indictment and the institution of
    the proceedings in the City Court. But the City Court took account
    of the length of the proceedings as a mitigating circumstance when
    it sentenced the applicant to a period of imprisonment which was at
    the lower end of the scale of punishment which had been authorised
    for the offences. The European Court noted in paragraph 28 of its
    judgment that the City Court had expressly upheld the substance of
    the applicant’s complaint under article 6(1) of the Convention that
    the proceedings had exceeded a reasonable time and had said that it
    was satisfied that he had been afforded adequate redress for the
    alleged violation of article 6(1) by the reduction in sentence. This
    decision shows that the European Court is likely to find that just
    satisfaction has already been afforded where, as in the present case,
    the domestic court has expressly recognised that there was a breach
    of the applicant’s right to a trial within a reasonable time under
    article 6(1) and has reduced the length of his sentence appropriately
    in order to give effect to his right to be compensated for the effects
    of the delay. It is wholly inconsistent with the appellant’s argument
    that the remedy to which he is entitled is the quashing of his
    conviction.
    Darmalingum

  • The appellant relies instead in support of his appeal on the

  • following passage in the judgment of the Board in Darmalingum v
    The State [2000] 1 WLR 2303, 2310D:
    “The normal remedy for a failure of this particular guarantee,
    viz the reasonable time guarantee, would be to quash the
    conviction.”

    He has invited the Judicial Committee to depart from the decision of
    the Privy Council in Flowers v The Queen [2000] 1 WLR 2396 in
    so far as the decision in that case is not compatible with the
    authority of the European Court and the decision in Darmalingum.

  • The decisions in Darmalingum and Flowers are inconsistent

  • with each other in two respects. This fact has attracted the attention
    of various commentators: see Alistair Webster QC “Delay and
    Article 6(1): an end to the requirement of prejudice?” [2001] Crim
    L R 786; P W Fergusson, Advocate, “Trial without a Reasonable
    Time”, 2001 SLT (News) 141. The first inconsistency relates to the
    question whether it is necessary for the person who complains that
    there has been a breach of his right to a trial within a reasonable time
    to show that he has been prejudiced by the delay. In
    Darmalingum the Board held that section 10(1) of the Constitution
    of Mauritius, which is the equivalent of article 6(1) of the European
    Convention, contained three separate guarantees. It also held that,
    while the reasonable time guarantee may be applicable where a
    defendant has been prejudiced by inordinate delay, its reach is
    much wider as it may be applicable in any case where the delay has
    been inordinate and oppressive, and that a breach of the guarantee
    cannot be justified even if the defendant’s guilt is manifest: [2000] 1
    WLR 2303, 2307G-2308A. In Flowers a differently constituted
    Board held, with reference to the right given by the equivalent
    provision in section 20(1) of the Constitution of Jamaica, that one
    of the factors to be taken into account was prejudice to the
    defendant and that the strength of the case against the appellant was
    such that the possibility of prejudice to him due to the delay could
    be substantially discounted: [2000] 1 WLR 2396, 2411H-2413A.
    At p 2414H-2415A the Board said that the right given by section
    20(1) of the Constitution must be balanced against the public
    interest in the attainment of justice and that the right to a trial within
    a reasonable time is not a separate guarantee but rather, with the
    other elements of section 20(1), forms part of one embracing form
    of protection afforded to the individual.

  • The second inconsistency relates to the question of remedy. In

  • Darmalingum, in the passage which I have already quoted, the
    Board said that the normal remedy for a failure of the reasonable
    time guarantee would be to quash the conviction: [2000] 1 WLR
    2303, 2310D. Lord Steyn went on to say in the judgment which he
    delivered for the Board, of which I too was a member, at p 2310EF
    that their Lordships did not wish to be overly prescriptive on this
    point and that they did not suggest that that there might not be
    circumstances in which it might arguably be appropriate to affirm
    the conviction but substitute a non-custodial sentence. But these
    qualifications did not contradict the proposition that the normal
    remedy would be to quash the conviction. In Flowers, on the other
    hand, the Board held that it was right to take into account the fact
    that the public interest in Jamaica required that persons convicted of
    the crime of murder in the course of a robbery should be convicted
    and punished: [2000] 1 WLR 2396, 2413B-C. It was pointed out
    that the defendant had been proved on strong evidence to be guilty
    of murder in the course of an armed robbery, that that type of
    offence was very prevalent in Jamaica and that it posed a serious
    threat to the lives of innocent persons: p 2415B. The Board held
    that, taking account of these various factors, the defendant’s
    conviction should not be quashed by reason of the delay: p 2415EF.

  • I have already said more than once that in my opinion, in the

  • context of article 6(1), the way in which the reasonable time
    guarantee was construed in Darmalingum is preferable: Porter v
    Magill [2002] 2 WLR 37, 86D, para 109; Dyer v Watson 2002 SLT
    229, 247H-J, para 94. I do not wish to say any more on this point,
    except that I agree with all that Lord Steyn has said on this issue in
    his judgment. The point which requires further examination in the
    present case relates to the second inconsistency.

  • The facts in Darmalingum were that the defendant, who had

  • been found guilty of embezzlement and forgery and had been
    sentenced to a total term of four years’ imprisonment, had had the
    shadow of the proceedings hanging over him for a period of about
    15 years. There had been a flagrant breach of the reasonable time
    guarantee. The Board was invited to hold that the appropriate
    remedy was to affirm the conviction and to remit the matter of
    sentence to the Supreme Court so that it might substitute a noncustodial
    sentence. It was not suggested that a sufficient remedy
    for the delay would be for his sentence of imprisonment to be
    reduced. The Board did not find it necessary to examine the
    decisions of the European Court on the question of the appropriate
    remedy. It was, of course, exercising its jurisdiction as the court of
    final appeal from the Supreme Court of Mauritius.

  • The decision of the Board in Flowers on the question of

  • remedy, on the other hand, was heavily influenced by its view that
    the right to be tried within a reasonable time was not an absolute
    right but must be balanced against the public interest in the
    attainment of justice: [2000] 1 WLR 2396, 2413C-D. Here again the
    question of a reduction in sentence was not in issue. The appellant
    asked for his conviction to be quashed, but he had been convicted
    of murder. For reasons which were unconnected to the breach of
    the reasonable time guarantee his conviction of capital murder was
    set aside, a verdict of non-capital murder was substituted and the
    case was remitted to the Court of Appeal to pass a custodial
    sentence for non-capital murder. It was not suggested that the
    custodial sentence should be reduced to any extent to take account
    of the breach of the guarantee. The breach was recognised, but the
    appellant was left without any other remedy.

  • I do not think that any weight should be attached to either of

  • these two decisions in the present context. For the reasons which I
    have already indicated, I consider that the proposition in Flowers
    that the choice of remedy should be influenced by balancing the
    interests of the defendant against the public interest is inconsistent
    with the jurisprudence of the European Court. On the other hand,
    the proposition in Darmalingum that the normal remedy is to quash
    the conviction goes too far. This has already been recognised by
    the Board in Taito v The Queen, 19 March 2002, para 22, in which
    Darmalingum was described as a wholly exceptional case. It
    would be more accurate to say that it is one of a variety of possible
    remedies, the choice between which must depend on the
    circumstances of each case.

  • This point applies also to the choice of remedy in the event of

  • a breach of the right to a fair hearing. While a conviction which was
    obtained in breach of the right to a fair trial must be quashed, the
    position is different where the breach occurs at the stage of an
    appeal. This can be demonstrated by what happened in Hoekstra v
    HM Advocate (No 2) 2000 JC 387. In that case it was held that one
    of the judges who sat to hear the appellants’ appeals on grounds
    alleging that their rights under articles 6 and 8 of the Convention had
    been violated at their trial could not properly be regarded as
    impartial. The remedy which was regarded as appropriate in these
    circumstances was to set aside the interlocutor of the court which
    heard the appeals so that these grounds of appeal could be dealt
    with again by a differently constituted court. It was not suggested
    that, once the breach of the appellant’s right to a fair hearing of their
    appeal had been established, the remedy to which they were entitled
    was to have their convictions quashed. That would plainly have
    been an extravagant and unnecessary remedy. The proceedings in
    which the appellants were convicted were not affected in any way
    by the fact that the appellants did not receive a fair hearing at the
    stage of the appeal.
    Conclusion

  • The approach which I would take to the question which has

  • been raised in this appeal is first to identify the remedy which would
    ordinarily be thought to be appropriate in domestic law for a breach
    of the kind which has taken place, and then to consider whether the
    remedy which has thus been identified would achieve just
    satisfaction for the breach as indicated by the jurisprudence of the
    European Court. I think that it is important to start with the position
    in domestic law because, as was emphasised in Eckle v Federal
    Republic of Germany 5 EHRR 1, 24, para 66, the Convention
    leaves to each contracting state, in the first place, the task of
    securing the enjoyment of the rights and freedoms which it
    enshrines. The machinery of protection established by the
    Convention, of which article 50 forms part, is of a subsidiary
    character.

  • In a case of pre-trial delay, for example, one of the remedies

  • which is available in domestic law is to uphold the accused’s plea in
    bar of trial. This was familiar ground long before the coming into
    effect of the Scotland Act 1998. It is available under the common
    law where there is such a grave risk of prejudice at the trial due to
    undue delay that no direction by the trial judge can be expected to
    remove it; see McFadyen v Annan 1992 JC 53; Normand v Rooney
    1992 JC 93. It is available also where the point is taken as a
    devolution issue under the Scotland Act, for which purpose it is not
    necessary for the person charged to show that he has suffered, or
    will suffer, any actual prejudice: Dyer v Watson, K v HM Advocate
    2002 SLT 229, 245I-J, para 79. In K v HM Advocate, where a
    breach of the article 6 guarantee was established, the Board held
    that to dismiss the indictment was the only appropriate course in the
    circumstances. As Lord Rodger of Earlsferry said, at p 262K, para
    182, it was, in the circumstances of that case, the only effective
    remedy. But different considerations apply where the delay has
    occurred between the date of a conviction and an appeal. There is
    no precedent in domestic law for the setting aside of a conviction
    which has been upheld on appeal as a sound conviction on the
    ground that there was an unreasonable delay between the date of the
    conviction and the hearing of the appeal.

  • The circumstances of the present case provide a clear example

  • of a situation where the setting aside of the conviction would be
    regarded in domestic law as both unjustified and unnecessary. It
    would be regarded as unjustified because the appellant’s appeal
    against his conviction was, as the High Court of Justiciary said in
    this case, at p 1363L, para 15, wholly without merit. No grounds
    exist for regarding the conviction itself as unsound, nor is there any
    question of its having been affected in any way by the delay. And
    the setting aside of the conviction would be regarded as
    unnecessary, because the effects of the delay can be recognised
    perfectly well by a reduction in the appellant’s sentence. Here again
    we are on familiar ground, as delay in bringing the accused to
    justice is widely recognised as a mitigating factor that can be taken
    into account when he is being sentenced.

  • The way in which effect can be given to this mitigating factor

  • is plain in the present case. The purpose of the reasonable time
    guarantee is to avoid a person charged remaining too long in a state
    of uncertainty about his fate: Stögmüller v Austria (1969) 1 EHRR
    155, 191, para 5. It has been held that article 6 does not require the
    person charged to co-operate with the judicial authorities: Eckle v
    Federal Republic of Germany 5 EHRR 1, 30, para 82. The
    appellant was under no obligation to take steps to obtain an earlier
    hearing of his appeal, and it cannot be held against him that if he
    was concerned about the delay he should have made an application
    to the court. So the only matter that needs to be examined is the
    extent to which the appellant has been prejudiced by the delay. As
    Lord Coulsfield observed, it might perhaps be said that the delay
    involved two elements of prejudice to him: 2000 SLT 1359, 1363L-
    1364A, para 15. One was the anxiety resulting from prolongation of
    the proceedings. The other was that his life had changed during the
    period of the delay. This could lead to additional problems and
    possibly hardships for himself and his family if he had to return to
    prison. Taking account of all these factors the court held that a
    reduction in sentence of nine months, leaving him with about six
    months of the original sentence to serve before he became eligible
    for parole, would produce an equitable result.

  • The question then is whether there is anything in the

  • jurisprudence of the European Court which suggests that the
    reduction in sentence which was held to be appropriate in domestic
    law would be regarded as providing the appellant with less than just
    satisfaction for the purposes of article 50 of the Convention. The
    jurisprudence of the European Court indicates very clearly that the
    fact that an appeal against conviction on a criminal charge has been
    held not to have been decided within a reasonable time does not
    mean that the execution of the sentence has become unlawful:
    Bunkate v The Netherlands 19 EHRR 477, 484, para 25. On the
    other hand, it has been held that a person may be deprived of his
    status as a victim within the meaning of article 34 of the Convention
    if the national authorities have acknowledged in a sufficiently clear
    way the failure to observe the reasonable time requirement and have
    afforded redress by reducing the sentence in an express and
    reasonable manner: Eckle v Federal Republic of Germany 5 EHRR
    1, 24, para 66; Beck v Norway, Application No 26390/95, 26 June
    2001, para 27. It seems to me that these two requirements have
    been fully satisfied in this case.

  • I would hold therefore that the decision of the High Court of

  • Justiciary to reduce the appellant’s sentence by nine months in
    order to compensate him for the effects of the delay was an
    appropriate and sufficient remedy. It meets with the requirements
    indicated by the jurisprudence of the European Court. I would
    dismiss the appeal.
    _____________________________
    Lord Scott of Foscote

  • I have had the advantage of reading the opinions of my noble

  • and learned friends Lord Steyn and Lord Hope of Craighead. I
    agree with them and that for the reasons they have given this appeal
    should be dismissed.


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