B e f o r e :
(The Lord Woolf of Barnes)
MR JUSTICE WRIGHT
MR JUSTICE GRIGSON
ATTORNEY GENERAL'S REFERENCE No. 2 of 2001
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1972
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Smith Bernal, 180 Fleet Street, London EC4A
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MR T WATSON appeared on behalf of THE ACQUITTED OFFENDER
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"(i) Whether criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in Article 6(1) of the European Convention for the Protection of Fundamental Rights and Freedoms ('the Convention') in circumstances where the accused cannot demonstrate any prejudice arising from the delay.
(ii) In the determination of whether, for the purposes of Article 6(1) of the Convention, a criminal charge has been heard within a reasonable time, when does the relevant time period commence?"
"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...."
"(a) 'Criminal charge' is an 'autonomous' concept which must be understood within the meaning of the Convention.
(b) The term has a 'substantive' rather than a 'formal' meaning.
(c) On the facts, the Court held the proceedings against the applicant had constituted a 'criminal charge' which could be defined as 'the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence'."
"There accordingly exists a combination of concordant factors conclusively demonstrating that the case has a criminal character under the Convention. The 'charge' could, for the purposes of Article 6(1), be defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence. In several decisions and opinions the Commission has adopted a test that appears to be fairly closely related, namely, whether 'the situation of the [suspect] has been substantially affected'."
"In answer to the second question posed by the Attorney-General, no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind: first, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly, the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict.
It follows from what we have said that in our judgment the decision of the judge to stay the proceedings in the instant case was wrong. The delay, such as it was, was not unjustifiable; the chances of prejudice were remote; the degree of potential prejudice was small; the powers of the judge and the trial process itself would have provided ample protection for the respondent; there was no danger of the trial being unfair; in any event the case was in no sense exceptional so as to justify the ruling.
This judgment will, we hope, result in a significant reduction in the number of applications to stay proceedings on the ground of delay. At the risk of repetition, we emphasise the exceptional nature of the jurisdiction. In the event of an unsuccessful application to the Crown Court on such grounds, the appropriate procedure will be for the trial to proceed in accordance with the ruling of the trial judge and, if necessary, the point should be argued as part of any appeal to the Court of Appeal (Criminal Division)."
"In those circumstances [the infringement of Article 6], to proceed with the trial would be for the prosecution and the court to act in a way incompatible with Convention rights, contrary to Section 6 of the 1998 Act. I therefore grant a stay, on that ground, of these proceedings."
"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 non-custodial 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."