Scottish High Court of Justiciary Decisons

At advising on 8th February 1985 the opinion of the court was delivered by the Lord Justice-Clerk.

LORD JUSTICE-CLERK (Wheatley).—The respondent, who is a police officer, was charged on a summary complaint at the instance of the appellant that on 28th October 1982 in Kent Road, Glasgow, near Brechin Street, he assaulted Sharon Reid, then aged 13 years, 15 Brechin Street, aforesaid and struck her on the groin with his knee. The complaint was dated 26th September 1984. When the case called before the sheriff on 21st November 1984 the solicitor for the respondent submitted that the appellant was barred from proceeding against the respondent in respect that he, the appellant, had acted with undue delay in raising the proceedings. The sheriff has set out what he regarded as the salient facts in the case as follows:

"1. On 28th October 1982 the respondent in the course of his duties went to investigate an incident in Kent Road, Glasgow. Arising out of this charges were preferred and a case brought before the district court in which the now respondent was to be a material witness. 2. Unknown to the respondent a complaint was made by Sharon Reid to the police about the respondent's conduct. 3. In respect of the other matters a trial diet was fixed in the district court for 1st September 1983. This diet was adjourned to 22nd September 1983 and then to 9th March 1984, when I understand that a trial took place with what result I do not know. 4. A report prepared by the Strathclyde police disciplinary department was submitted to the procurator fiscal's department on 22nd February 1983. 5. Following the resolution of the trial in the district court a report from the procurator fiscal's department was submitted to the Crown Office on 18th July 1984. 6. The procurator fiscal's department received instructions from Crown counsel to proceed with the charge against the respondent on 29th August 1984. 7. At no time was the respondent ever cautioned or cautioned and charged in respect of said alleged offence."

To that certain further information, accepted by both parties, was presented to this court. 1. The case referred to in paragraph 1 was a charge of breach of the peace brought against the mother of Sharon Reid arising out of the incident referred to in paragraph 1 of the sheriffs report. The respondent was interviewing Sharon Reid about this when the alleged offence is said to have taken place. 2. As noted, the trial of Sharon Reid's mother took place in the district court on 9th March 1984. It was stated by the advocate-depute that it was the general but not necessarily the inveterate practice not to take action by way of issuing a summary complaint against a person in respect of a complaint made against him, when that person was a witness in a trial in a case associated with the same set of circumstances as the complaint against him. The reason for this was said to be that the result of the trial might have some effect on that person's credibility and have a bearing on the decision whether to go on with a prosecution against him. We must confess to a certain difficulty in comprehending the justification for and the significance of this. 3. On 29th October 1982 a senior officer of the disciplinary branch of the police force interviewed the respondent about the complaint made by Sharon Reid.

The time-table of events was accordingly this. The alleged assault took place on 28th October 1982. On the following day the respondent was interviewed by a senior officer of the disciplinary branch of the police force regarding Sharon Reid's complaint. The report on this was sent to the procurator fiscal by the disciplinary branch on 22nd February 1983. On an unascertained date, but presumably shortly after the incident, a complaint was served on Mrs Reid. A trial diet for that case was fixed for 1st September 1983, adjourned till 22nd September 1983 and finally took place on 9th March 1984. The result of the trial on 9th March 1984 was communicated by the procurator fiscal to the Crown Office on 18th July 1984. Instructions were given by the Crown Office to prosecute the respondent on 29th August 1984. The complaint was served on the respondent on 26th September 1984, one month short of two years from the date of the alleged assault, during which interval of time the respondent had never been cautioned or cautioned and charged.

Parties were agreed that in deciding whether there was delay of an order to constitute oppression the test adumbrated by Lord Hunter in the case of H.M. Advocate v. Leslie and Others (31st January 1984) was appropriate, namely "(1) Was there undue delay? and (2) did it result in gross or grave prejudice?" That, therefore, resolves itself into a question of fact in the circumstances of the case. A question arose whether the delay had to be considered as extending from the date of the alleged assault to the serving of the complaint on the respondent, or simply from the conclusion of the trial of Mrs Reid on 9th March 1984 to the serving of the complaint. In what we can only regard as an unnecessary concession in reply to a question from the bench, counsel for the respondent accepted that it was the latter period, but went on to argue that this period from 9th March 1984 to 26th September 1984 had to be viewed against the background of the previous delays on the part of the prosecution, and on that view the same result occurred whichever approach was taken.

Counsel for the respondent submitted that delay is a relative matter and that the delay in the instant case was manifestly undue, that no reasonable explanation had been given for it, and that it resulted in gross prejudice to the respondent who had no intimation that he was going to be prosecuted until almost two years had elapsed from the incident alleged. The advocate-depute disputed that the delay was undue, and that any prejudice arising from the delay was of a grave order. He pointed to the case of H.M. Advocate v. Stewart 1980 J.C. 84 where periods of years extending into double figures had been held not to constitute undue delay.

We are of the opinion that the test adumbrated by Lord Hunter and accepted by the parties is an appropriate one. It is one which can be applied equally to solemn and summary procedure cases. As between these two procedures different weight may be given to factors, but as each case has to be decided on its own facts that should not present any practical barriers. During the debate reference was made to section 331 of the Criminal Procedure (Scotland) Act 1975, which provides that normally statutory charges have to be brought within six months after the alleged contravention of the statute. While acknowledging this only applied to statutory as distinct from common law charges counsel for the respondent suggested that this was a signpost towards what should be regarded as a reasonable time in which to bring a complaint in summary proceedings for common law charges. The advocate-depute's riposte to this was that if Parliament had intended so to restrict proceedings in common law cases, it would have been easy for Parliament to legislate for this. When consideration is given to the fact that the whole procedure is not only designated as summary procedure but provisions are made to effect the procedure in a summary manner, it can at least be said that undue delay may take on a restricted character in relation to relatively minor matters dealt with under the summary jurisdiction procedure.

The sheriff dismissed the complaint on the ground of mora. The first question is whether he can be faulted for failing to consider and apply the proper tests, namely was there undue delay and did it result in gross or grave prejudice? It is clear that he considered both branches of the test, and so he cannot be faulted on that score. Thus the question ultimately resolves itself to this—did he reach a conclusion on the facts in holding the tests to be satisfied which no reasonable judge would have reached. In finding that there was undue delay he proceeded broadly on the basis that some two years after the events giving rise to the complaint the respondent suddenly and without warning found himself for the first time formally charged with a crime, when at least he could have been cautioned or even warned at a much earlier stage that at least proceedings were likely. On the question of resultant prejudice he said:

"As it is, he finds himself for the first time two years after the event in the position of having to prepare a defence. In these circumstances I think, he has been fatally prejudiced."

We feel disposed to add further considerations in support of the conclusions which the sheriff reached, conclusions which we consider justified. As we have noted supra, counsel for the respondent, somewhat unguardedly, accepted that the period up to 9th March 1984 could not be considered as constituting undue delay, and that the delay was occasioned by the lack of action taken between 9th March 1984 and the service of the complaint on the respondent on 26th September 1984. In our view the delay during that latter period has to be considered against the background of what went before. In particular there was the period of inactivity to await the result of the trial of Mrs Reid, which resulted from what was the normal practice of the Crown. Whether an arbitrary decision to follow that practice can be regarded as a "due" delay may be a question depending on the circumstances of the particular case. While we were informed that the court case arose out of an incident which the respondent was later investigating when the alleged assault took place, the respondent was neither accused nor complainer. He was only a witness, and we find it difficult to comprehend why in these circumstances proceedings in relation to an incident which took place on 28th October 1982 should have to await the outcome of a trial which, with all the attendant delays at present in the district courts, did not conclude until 9th March 1984, before a decision to prosecute the respondent was made and the machinery therefor set in motion. That, however, is not all. Virtually between every step in the process both before and after 9th March 1984 there were long intervals of inactivity. We are conscious of the heavy burden of work in the inferior courts in all departments, but there was no, or no satisfactory explanation for these delays. Although each of these delays in itself may not qualify for being "undue", the totality of them may well do so. In particular, after the long delays up to and including 9th March 1984 one would have thought that some urgency might have been given to the case, yet more than four months elapsed between the conclusion of the trial and the result being communicated by the procurator fiscal to the Crown Office. Instructions from the Crown Office to the procurator fiscal to prosecute took six weeks, and it was another four weeks before the complaint was served on the respondent, 22 months after the alleged incident. Giving full allowance far all the pressures on courts and the administration which have existed for some time now, we are of the opinion that the sheriff was entitled to find that in the circumstances of this case the delay was undue. In considering such a question the test of "undue" is not simply measured by the length of time. That is undoubtedly a factor, but it is only a factor, and all the other relevant factors in the particular case have also to be considered. On the question of the resultant prejudice the sheriff was rather brief but he was to the point. A police officer serving in Glasgow is liable to have many cases and many incidents to deal with. When, despite an interview by a senior officer of the disciplinary branch on the day following the alleged incidents, he carries on his duties and his private life without a whisper of a prosecution, and then out of the blue he is served with a complaint and has to set about preparing his defence, he is clearly suffering a prejudice. Whether it was gross or grave is a matter of fact and judgment. The sheriff expressed the view that the respondent had been fatally prejudiced by the delay. The adverb may be somewhat extreme, but in using it he clearly regarded the prejudice arising from the delay as being sufficiently substantial to fall within the classification of gross or grave. We cannot say that in the circumstances he was not entitled so to regard it. We are accordingly of the opinion that he was entitled to reach the decision which he did, and we therefore refuse the appeal.