England and Wales Court of Appeal (Criminal Division) Decisions

“…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 far trial can be held: in other words, that the continuance of the prosecution amounts to the misuse of the process of the court.”

“19. The illogicality of this approach, or the nonsense it produces, is illustrated when the position is looked at where it is not a party to criminal proceedings who is complaining about a contravention of the reasonable time requirement in Article 6, but a defendant to civil proceedings. The position of such a defendant was put to (counsel). The defendant would say, “Because of the delay my Article 6 rights have been infringed. Section 6(1) means that you cannot proceed with the trial of the claim which is brought against me”. But what about the claimant? The claimant is also entitled to Article 6 (1) rights. The claimant says that he is entitled to have his rights determined within reasonable time. If (counsel) is correct, the court would not be entitled to proceed with the trial because of its effect upon the defendant. With the greatest respect, that approach cannot be right. Similarly, at the trial of a defendant on a criminal charge, it is not only the defendant who is to be considered. The public are interested in whether or not defendants are tried for criminal offences they have committed. As is the case with many of the rights which are contained in the Convention, the courts are called upon to hold the balance between the rights of the individual and the rights of the public.

20. The explanation for the judge taking the view which he did, in our judgment, is because the judge failed to distinguish between the conduct which constitutes the unlawful act for the purpose of Article 6(1) and the remedy which the court provides for the unlawful act if there has been indeed an unlawful act. If a person complains of a contravention of the reasonable time requirement in Article 6, and if the court comes to the conclusion that there has been a contravention, then at the request of the complainant the court is required to provide the appropriate remedy. If the court is willing and able to provide the appropriate remedy, then the court is not compelled to take the course of staying the proceedings. That is a remedy which the court can grant, but it is certainly not a remedy which it is required to grant. It seems to us in general that the approach that previously existed as to the provision of the remedy of staying the proceedings should be confined, as it was prior to the Convention becoming part of our domestic law, to situations which in general terms can be described as amounting to an abuse of the process of the courts. But there are many other actions which the court can take which avoid the need for such action. In particular, if the court comes to the conclusion that this would provide the appropriate remedy, the court can mark the fact that the way the prosecution has been conducted does contravene the reasonable time requirement in Article 6(1) and acknowledge the rights of the defendant by so doing. In many cases the court will come to the conclusion that that is not a sufficient recognition of the defendant’s rights. If that be so, then the court can take other action. It can, for example, take account of the failure to proceed with the case with due expedition in the sentence which the court imposes. It has always been the practice for the courts in this jurisdiction to take into account delays of the sort to which we have referred when sentencing a defendant. It does so, recognising that it is inevitably a disadvantage to a defendant to have a charge hanging over his or her head longer than is reasonably required. The criminal process inevitably subjects an individual to distress. Albeit that they are acquitted at the end of the process, they still have been subjected to unnecessary distress. The difference which the Human Rights Act 1998 makes is that the remedies available to a court can be greater than they were hitherto. In particular, it is now in appropriate circumstances open to the courts to make awards of compensation. This court accepts that where a person is acquitted at a subsequent trial, it could be appropriate for there to be compensation if there has been delay which contravenes the reasonable time requirement in Article 6(1) of the Convention. It depends on all the circumstances whether compensation is appropriate.

21. There is a certain amount of authority on this subject. However there is no authority which supports the conclusion that a stay is the appropriate remedy, except in limited circumstances where it is no longer possible for a defendant to have a fair trial, bearing in mind the ability of the court to exclude evidence or to take other action to achieve a fair trial. If a fair trial is not possible, then a stay would have to be imposed. Equally it would be appropriate to stay proceedings if the situation is one where it could said that to try the accused would in itself be unfair.”

“… if Counsel for the Crown is conducting himself conscientiously, he is doing no more than stating what pleas, what resolution of the case, he considers will satisfy the interests of justice. That… is his duty, and there is nothing improper in his making the Crown’s position clear especially when asked. Had (counsel), in the present case, failed to answer the question raised by Mrs Herbert’s counsel, or had his answer not been relayed to the appellant, one could well imagine a different challenge being mounted on the basis that the appellant should have been told and that counsel was in dereliction of his duty.”

“What weighs with me is the length of time that you waited for today, a wait of over five years with the concomitant blight on your family life, and that phrase in mitigation is absolutely right in describing the effects of the last five years on you and your family. It has taken that time because of the colossal scale of the investigation and the prosecution process that followed, an investigation that was hindered by the wholesale destruction of documents when it became apparent that the game was up. It made it necessary for third party reconstruction of conveyancing files. I dwell on that aspect what happened for this reason: to make it clear that there is no evidence that I could act upon that you participated in the filleting and burning of incriminating documents.

The lapse of time, therefore, becomes a factor in the sentencing exercise that I have to undertake that will not necessarily apply to others convicted.”

“I would like you to sit down for a moment please, because it is important that you and the public, together with anyone else, who has an interest in today’s proceedings should understand the basis on which I have imposed this particular sentence.”

“What weighs with me – and I repeat to you what I said to your sister last month – is the length of time you have waited for today. A wait of over five years with the concomitant blight it has imposed on your family life and the effect that it has had upon you personally. It has taken that time to reach today for you because of the colossal scale of the investigation and the prosecution process that then followed. An investigation was hindered by the destruction of documents making it necessary for third party reconstruction of the files that bear upon your case. I dwell on that fact, as I made plain I hope to your sister, that there is no evidence that I could act upon that you participated in that process of document destruction at all. That is of critical importance in determining what the appropriate sentence is for you, because it means that lapse of time as a factor in sentencing has real relevance to your case in the sense that you are not responsible for the time that has passed before you were brought before the court. That, therefore, justifies the view that I have formed that in a sense you have already been punished by the effect of the wait over all of these years. That in my judgment, amounts to an exceptional reason which entitles me to suspend the inevitable prison sentence. However long that sentence is in fixing the particular term that I have determined upon is mitigated by your pleas of guilty and by the personal factors including the references I read about you from others, which makes it shorter rather than a longer period.”

“1. The prosecution have said that if Mrs Najera pleads guilty to the indictment, they would not proceed against Mr Najera

2 The trial judge, when sentencing Beryl O’Shea to a period of 9 months imprisonment, suspended on the ground of lapse of time, said “the lapse of time, therefore, becomes a factor in the sentencing exercise that I have to undertake that will not necessarily apply to others convicted”.

3. The trial judge, when sentencing Valerie Milsom, said that the length of the wait was the factor which justified the suspension of the sentence.

4. Mrs Najera continues to profess her innocence. In the light of the matter set out above, however, Mrs Najera wishes a plea of guilty to be entered on her behalf.”

“The appellant contends that the Crown made an error of judgment in not reaching and communicating a decision not to proceed against Mr Najera independently of the plea of guilty against Mrs Najera because:

i. In addition in deciding not to proceed against Mr O’Shea, the Crown had decided not to proceed against Mr Milsom (the husband of another sister in a comparable position). It must have been obvious that to place Mrs Najera in the position of reaching a conclusion which affected the potential liberty of her husband in circumstances where pleas of guilty by her sisters had freed their husbands from such risk would put undue pressure on her to reach one conclusion rather than another; and

ii. In the subsequent prosecution application to let the matters against Mr Najera lie on the file following his wife’s plea of guilty, the Crown made clear their view that in respect of one count they had, following the handwriting experts report in June that there was “no cogent evidence” to support one count and were dependant in another of making the assertion “he must have known” based upon some events which were ipso facto; and

iii. It was clear from the sentencing remarks of the learned judge that his mind was also affected by whether or not the defendant in question had participated in the destruction of documents. The Crown alleged, but had no admissible evidence before the start of the trial, that Mr Najera might have been so involved. This increased the pressure on Mrs Najera to plead guilty rather than put her husband at risk of conviction and sentence to an immediate custodial sentence.”

“The appellant will also argue that the failure to communicate to the appellant that no allegation would be made of the destruction of documents for any purpose, notwithstanding the Crown’s concession made to the learned judge some few hours later in the course of the application that the learned judge should disqualify himself from hearing the Harrovian Leisure trial on the grounds of bias compounded the error of judgment alleged by the appellant”.

“The lapse of time, therefore, becomes a factor in the sentencing exercise that I have to undertake that will not necessarily apply to others convicted”.

1. That the remarks were addressed to her since she was present at the time and must have been recognised by the judge having appeared before him on earlier interlocutory applications; and

2. That they were intended to convey to her that on a plea of not guilty the outcome would not necessarily be the same.

“It is important that you and the public, together with anyone else, who has an interest in today’s proceedings should understand the basis on which I have imposed this particular sentence”.

It is said that it was “clear that anyone else was Mr and Mrs Milsom and those representing her (and him)”.

(1). That the judge considered the criminality involved merited imprisonment;

(2). That a person, who was not responsible for the delay, was entitled to a lesser sentence because of the delay factor;

(3). In the case of Mrs O’Shea, and by implication any one in a similar position, that the delay made the difference between an immediate sentence and a suspended sentence; and

(4). That delay would not necessarily have the same consequences for a person who had brought it about.

(1) (2) and (3) were necessary for the judge to make clear in order to explain his sentence. (4) was necessary to prevent others in a different position from asserting that the sentence had given rise to a legitimate expectation that they would not go to prison.

“Whether any steps can be taken which would enable him to enter a plea of not guilty in accordance with his profession of innocence”.

“My Lord, there is a slight difference here. Monthly her husband will pay them. She does not work.. She is not able to. She has two children, who do not even attend nursery school yet. She has no savings. The breadwinner is her husband. I simply propose this -- obviously, it is for your Lordship to decide -- but putting the question somewhat rhetorically, is it right for the husband not being proceeded with by the Crown to find costs”.

(A costs application was made by the Crown against the appellant in the sum of £6,000.)PRIVATE 

LORD JUSTICE KAY: We consider the appropriate order to make is no order that she should pay the costs. That is largely on the basis that this was an appeal in which she was legally aided. The matter was considered by the single judge. The single judge thought it merited consideration by the Court. In those circumstances it is not normal to order that an appellant pay the costs where she is legally aided. We see no reason to depart from the normal course in this particular case, so we make no order.