HIGH COURT OF JUSTICIARY
OPINION OF LORD KINGARTH
in the cause
HER MAJESTY'S ADVOCATE
WILLIAM MAXWELL LITTLE
17 June 1999
William Maxwell Little has been indicted to face trial on seven charges. The charges are that -
"(1) on various occasions between 21 December 1978 and 20 December 1983, both dates inclusive, you did assault A.B. born 21 December 1971, care of Strathclyde Police and did lie on top of her and did rape her;
(2) On various occasions between 21 December 1978 and 20 December 1989, both dates inclusive, you did conduct yourself in a shamelessly indecent manner towards A.B. born on 21 December 1971, care of Strathclyde Police, and did expose your private member to her, induce her to handle your private member and to masturbate you, handle her private parts, engage in sexual intercourse with her in the presence of C.D. born 11 May 1974, care of Strathclyde Police and between 21 December 1983 and 20 December 1989, both dates inclusive, you did engage in sexual intercourse with her, handle the private parts of E.F. born 24 October 1974, care of Strathclyde Police, in the presence of said A.B., induce said E.F. to handle your private member in the presence of said A.B. engage in unnatural carnal connection with G.H., born 15 September 1973, care of Strathclyde Police, in the presence of said A.B. and on one occasion did attempt to penetrate her hinder parts with your private member;
(3) on various occasions between 24 October 1980 and 23 October 1986, both dates inclusive, and you did conduct yourself in a shamelessly indecent manner towards E.F. born 24 October 1974, care of Strathclyde Police and did remove her pants, lick her on the private parts, handle her private parts, insert your fingers into her private parts, induce her to handle your private member and to masturbate you and in her presence did engage in unnatural carnal connection with G.H. born 15 September 1973, care of Strathclyde Police, and in particular in the presence of A.B., born 21 December 1971, care of Strathclyde Police you did handle the private parts of said E.F. and did induce her to handle your private member;
(4) on various occasions between 24 October 1980 and 23 October 1986, both dates inclusive, you did assault E.F., born 24 October 1974, care of Strathclyde Police, and did rape her;
(5) on various occasions between 15 September 1980 and 14 September 1986, both dates inclusive, you did conduct yourself in a shamelessly indecent manner towards G.H., born 15 September 1973, care of Strathclyde Police, and did induce him to handle your private member and to masturbate him, lie on top of him and rub your private member against his body and in his presence did rape E.F., born 24 October 1974, care of Strathclyde Police
(6) on various occasions between 15 September 1980 and 14 September 1986, both dates inclusive, you assault G.H., born 15 September 1973, care of Strathclyde Police and did penetrate his hinder parts with your private member and did have unnatural carnal knowledge with him;
(7) on various occasions between 11 May 1985 and 10 May 1987, both dates inclusive, you did conduct yourself in a shamelessly indecent manner towards C.D., born 11 May 1974, care of Strathclyde Police and did handle your private parts in her presence and on one occasion did engage in sexual intercourse with A.B. born 21 December 1971, care of Strathclyde Police in her presence."
It will be seen that the overall period covered by the alleged offences extends from 1978 to 1989 and that the charges involve four complainers. The complainer in charges 1 and 2 (A.B.) and the complainers in charges 3, 4, 5 and 6 (E.F. and G.H.) are all siblings. Charge 4 alleges rape on various occasions by the accused at a time when she was between the ages of 6 and nearly 12, and charge 3 alleges indecent conduct on various occasions towards her during the same period, including sodomy allegedly committed in her presence with G.H.. Charge 6 alleges sodomy on various occasions with G.H. at a time when he was between the ages of 7 and nearly 13, and charge 5 alleges indecent conduct with the same complainer during the same period including the rape of his sister E.F. allegedly committed in his presence.
The matter came before me by way of Minute at the instance of the accused in which he challenges (in bar of trial) the competence of further proceedings by the Crown. He does so on the basis (as developed in argument) that insofar as the Lord Advocate proposes to call the indictment for trial in relation to charges 3, 4, 5 and 6 (that is the charges in respect of E.F. and G.H.) this would be an act he has no power to do, being incompatible with the rights of the accused under the Convention for the Protection of Human Rights and Fundamental Freedoms, and in particular incompatible with his rights under Article 6, paragraph 1 thereof.
On 20 May 1999 the Lord Advocate became a member of the Scottish Executive in terms of section 44 of the Scotland Act 1998. Section 57(2) of the said Act (which came into force on 6 May 1999) provides:
"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law".
By section 126(1) "the Convention rights" has the same meaning as in the Human Rights Act 1998. Although that Act is not yet in force, Section 129(2) of the Scotland Act 1998 provides:-
"If any of the following provisions come into force before the Human Rights Act 1998 has come into force (or come fully into force), the provision shall have effect until the time when that Act is fully in force as it will have effect after that time: Sections 29(2)(d), 57(2) and (3), 100 and 126(1) and Schedule 6."
By virtue of sections 1 and 21 of the Human Rights Act 1998 "the Convention Rights" means the rights and fundamental freedoms set out in inter alia Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Paragraph 1 of Article 6, as set out in Schedule 1 of the Human Rights Act 1998, provides, so far are relevant:-
"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 Minute gives rise, it was agreed before me, to a question whether a proposed exercise of a function by a member of the Scottish Executive is or would be incompatible with any of the Convention rights. It was therefore a "devolution issue" within the meaning of Schedule 6, paragraph 1(d) of the Scotland Act 1998, and fell to be determined in accordance with that Schedule and in accordance with the provisions of the Act of Adjournal (Devolution Issues) Rules 1999, which came into force on 6 May 1999. The Minuter was indicted on 4 February 1999. Notice of his intention to raise a devolution issue was given on 20 May and due intimation then effected in accordance with the Rules. Notwithstanding that Rule 40.2(1) provides:-
"Where a party to proceedings on indictment proposes to raise a devolution issue he shall, not later than seven days after the date of service of the indictment, give written notice of his intention to do so...", Mr Alonzi
for the Minuter sought leave, on cause shown, and in accordance with Rule 40.5(1), to raise the issue before me on the basis that it could not have been raised earlier. In these special circumstances the Solicitor General offered no opposition, and I allowed the matter to proceed.
I was informed, in the course of the hearing before me on Thursday 3 June, that the case was set down for trial at Kilmarnock High Court on the following Monday, 8 June. With consent of the parties, and to enable the matters raised to be properly considered, I postponed the trial diet to 5 July 1999 and extended the twelve month period affecting the Minuter to 16 July, all under and in terms of Rule 40.8 of the Act of Adjournal.
It became plain early in Mr Alonzi's presentation that the basis of the Minuter's claim was that although, in terms of Article 6, paragraph 1, "In the determination ... of any criminal charge against him ..." he was entitled to "a ... hearing within a reasonable time...", his rights in that respect had been infringed, in particular having regard to the delay, said to be unreasonable, between the date when he was first charged by the police in respect of alleged acts of indecency towards the children E.F. and G.H. (namely, 4 January 1988) and the service of the present indictment on him, containing charges 3, 4, 5 and 6 in respect of these two complainers, on 4 February 1999. Mr Alonzi did not seek to argue before me that, by reason of the delay complained of, the Minuter could not fairly be tried or that his ability to defend himself had thereby been substantially prejudiced. He did not seek to found on the fair hearing guarantee in Article 6(1). I was informed that at an earlier stage in proceedings, and in particular on 29 and 30 April 1999, the Minuter had sought to argue, before Lord MacLean, a plea in bar of trial inter alia on the basis that it would be unfair and oppressive for the Crown, by reason of the delay complained of, to proceed to trial in respect of charges 3, 4, 5 and 6. This plea was, it was understood, refused on the basis that it could not be said, prior to evidence being led, that there existed a risk of prejudice so grave that no direction by the trial judge could be expected to remove it (McFadyen v Annan 1992 S.C.C.R. 186), it being open to the trial judge, if persuaded in light of the evidence that there had in fact been such prejudice, to protect the interests of the accused by deserting the diet (HM Advocate v McGill 1997 S.C.C.R. 230). Before me Mr Alonzi expressly reserved his position in respect of that argument, however it might be presented - and in particular, as I understood it, reserved the right in the course of any trial to move the Court to desert the proceedings. The argument before me therefor was presented on a basis apparently quite separate from any suggestion that the Minuter could not fairly be tried.
Before turning to the arguments advanced it is important to indicate the basic factual background as presented. In the event it seemed to me that Mr Alonzi's summary of matters, so far as relevant, was not seriously disputed by the Solicitor General, but I shall record such differences as there were.
At about the beginning of January 1988 the police were informed of allegations of sexual abuse by the Minuter of E.F. and G.H.. The allegations made were of misconduct at two addresses where he lived. On or about 3 January 1988 statements were taken from the two complainers (and apparently in respect of G.H. again on 5 January 1998), and from their sister A.B. E.F. spoke of several occasions of indecency and of occasions of apparent attempted intercourse. She spoke of seeing, on one occasion, the Minuter in the same bed as her brother G.H., her brother crying. G.H. spoke of occasions of sodomy and of seeing, on one occasion, the Minuter "riding" his sister E.F.. A.B. did not suggest that anything improper had occurred so far as she was concerned, and had no first hand knowledge of improper actings in relation to her brother and sister. It appeared ultimately to be accepted by Mr Alonzi and the Solicitor General that on the basis of the statements made there was a sufficiency of evidence to support charges (putting it broadly) of sexual abuse of both E.F. and G.H. and that on the basis, at least in respect of E.F., of apparent direct corroboration and in both cases at least on the basis of the application of the rule in Moorov. The Minuter was interviewed by the police on 3 or 4 January 1988 and was charged by them on 4 January 1988 with offences against E.F. and G.H.. The Solicitor General- who intimated that Crown papers relating to events in the 1980s had, by reason of a practice then applied generally, been destroyed and that such limited information as there was had come from the police - was able to say that the charges proffered were first,
"Between 1 December 1984 and 24 December 1985, within the dwellinghouse you did use lewd, libidinous and indecent practices against E.F. (aged 13, born on 24 October 1974) at that time being a girl under the age of 12 years"
"Between 1 December 1984 and 31 July 1986 within the dwellinghouse and within the (second) dwellinghouse you did use lewd, libidinous and indecent practices against G.H. (aged 14, born on 15 September 1973)."
In due course nothing was made before me of the fact that the charges in the present indictment are different, the Solicitor General accepting, as I understood it, that the allegations made arise broadly from the same alleged course of conduct.
According to Mr Alonzi the Minuter had a recollection of having thereafter appeared in Court but he accepted there was no record of this and I was not invited to proceed on the basis that he had. According to him, on 4 January 1988 both complainers were medically examined. The medical examination of E.F. disclosed that her hymen was intact and that this was inconsistent with sexual intercourse. The medical examination of G.H. disclosed no positive evidence of sodomy, although it could not be said that the findings were inconsistent therewith. The Solicitor General, although apparently having less clear information, accepted this but did not concede that the findings in respect of E.F. were necessarily inconsistent with penetration, this being a matter on which evidence would be required.
Thereafter, it seems, matters were referred to the Procurator Fiscal. By 25 April 1988 a decision was made to mark the case "no proceedings". A subject sheet to that effect was held by the Procurator Fiscal. Mr Alonzi could not say definitely that the Minuter had been informed of this (and an argument before Lord MacLean that the Crown were personally barred from proceeding was, it was understood, rejected), but nor was he in a position to accept, having regard to the Minuter's poor recollection and understanding of events, that he had not been informed. The information available to the Crown suggested that after matters had been referred to the Procurator Fiscal there had been some further precognition (to an extent unclear) and some further investigation by the police had been directed. From conversation with police officers it seemed possible that one or other of the two relevant complainers was reluctant to speak to the allegations. This was, it was said, consistent with certain up-to-date information in E.F.'s more recent precognition. It was possible, but uncertain, that Crown counsel had been involved in the decision to mark the case "no proceedings". The Crown had no information to indicate that that decision had been intimated, but although this in the circumstances seemed unlikely, could not say definitely that it had not. In the absence of fuller information the Crown was not in a position to say clearly on what basis the decision to mark the case "no proceedings" had been taken.
Thereafter according to Mr Alonzi nothing transpired until on 12 September 1997 the police received a letter from solicitors requesting that they investigate allegations of sexual abuse by the Minuter of A.B., E.F. and G.H.. On 5 November 1997, after certain investigations, the police called at the Minuter's home and advised him that they were investigating allegations made by A.B. He was thereafter interviewed under taped conditions and under caution in respect of these allegations. He was formally charged in respect of alleged abuse of her at the end of the interview. Thereafter the Minuter was served with a petition on 13 March 1998 which contained four charges relating only to A.B. He was then released on bail. The present indictment was served on 4 February 1999, containing charges not only in respect of A.B. and another but the relevant charges in respect of E.F. and G.H. This was some 11 years and one month after he had been charged by the police.
I was informed by Mr Alonzi that the Minuter's reaction to seeing these charges in the indictment was that he had already been tried in 1988 and acquitted. Other witnesses too, it was said, appeared on precognition to recollect a trial and indeed a not proven verdict. On about 19 February 1999 agents acting for the Minuter sought to investigate the truth or otherwise of this by contacting the Procurator Fiscal's Office, the Crown Office and the police. Although it was said that their response was less than helpful, it was learned from the police before 1 March 1999 that the Minuter had indeed been charged on 4 January 1988 and by letter of 3 March 1999 from the Procurator Fiscal's office, information to the effect that the case had been marked "no proceedings" was then received. In the course of submission by Mr Alonzi it was suggested that the source of the Minuter's confusion may have been that Children's Panel proceedings did take place in 1988.
On behalf of the Minuter it was argued that it was clear that the Minuter's rights under Article 6 to a hearing within a reasonable time had been infringed, an unreasonable time having elapsed, having regard in particular to the delay between 4 January 1988 and 4 February 1999. The clear purpose of the relevant part of Article 6 was to protect parties to court proceedings against excessive procedural delays and, in criminal matters, to avoid that a person charged should remain too long in a state of uncertainty about his fate. Reference was made to Stögumüller v Austria 1 EHRR 155. (I record incidentally that insofar as I was referred by the parties to the jurisprudence of the European Court of Human Rights or of the Commission, it was not submitted that the cases or any of them should not be followed). The starting point for consideration was the date when the Minuter had been charged by the police. Whether delay was unreasonable depended on the facts and circumstances of each case. The question of whether the delay was unreasonable fell to be assessed, having regard to the complexity of the case, the conduct of the party complaining and the conduct of the competent authorities. Reference was made to Dougan v The United Kingdom, 1997 S.C.C.R. 56, a decision of the Commission, and in particular to the reference therein to Kemmache v France 1992 14 E.H.R.R. 590. The first two factors were not in this case relevant. The period of 11 years and one day - like the 12 years and 11 months period between the applicant's arrest and charge and the final disposal of his case in Dougan- was prima facie unreasonable, and called for some compelling explanation. None had so far been offered by the Crown. The only factor which, on the face of it, could explain the apparent change of stance was the emergence of allegations by A.B. of similar abuse at or about the same time. Where, however, there had been a sufficiency of evidence in 1988 that was not an adequate explanation for the purposes of Article 6(1).
The Solicitor General submitted that although the further effect given (and to be given) to the Convention rights under the Scotland Act and the Human Rights Act was significant, it should not be overstated. Since 1966 citizens have had the right to petition the Commission and thereafter to seek redress from the Court in Strasbourg. Many of the principles of the Convention ratified by the United Kingdom in 1950 were wholly consistent with principles of Scots law, and in particular with the recognition of the right to a fair trial which was at the core of the Scottish criminal system. Reference was made to Anderson v HMA 1996 S.C.C.R. 114 and McLeod v HMA 1998 SCCR 77. It was not accepted that the right to a hearing within a reasonable time could be looked at separately from the rest of paragraph 1 of Article 6, which as a whole was concerned essentially with the right to a fair hearing. What was or was not a reasonable time within the meaning of the Article depended upon the circumstances of each case. The period to be considered in criminal cases started with the date of "charge". This had an autonomous meaning. Reference was made to the decision of the Court in Eckle v Federal Republic of Germany 1983 5 EHRR 1 and in particular to paragraph 73 of the opinion on page 27 where it was said:-
"In criminal matters the 'reasonable time' referred to in Article 6(1) begins to run as soon as a person is 'charged'; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened. 'Charge' for the purposes of Articles 6(1), may be defined as 'the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence', a definition that also corresponds to the test whether 'the situation of the [suspect] has been substantially affected'".
Against that background it was not disputed that the appropriate starting point in this case was the date when the Minuter was charged by the police. This was consistent with the approach in Dougan. It was accepted that an important aim of the provision was to prevent a person charged remaining too long in a state of uncertainty. It was agreed that "amongst other things" (Eckle, para 80) the reasonableness of the time taken fell to be assessed by reference to the complexity of the case, the conduct of the applicant and the conduct of the judicial or other authorities. Only delays attributable to the authorities could justify a view that there had been a breach of Article 6. Reference was made to a decision of the Court in Proszak v Poland 1997 Series A Reports 2767 where the Court, at paragraph 40, said:-
"The Court firstly reiterates that only delays attributable to the State may justify a finding of failure to comply with the 'reasonable time' requirement...".
In this case it was accepted that the length of time referred to - in the absence of any apparent complexity or conduct causative of delay by the Minuter - called for explanation by the Crown. Any delay must however be intrinsic to the proceedings and be the fault of the State. Reference was made to Eckle and Dougan where delays attributable to the authorities in the processing of apparently "live" charges were criticised. Here, upon receipt of the papers from the police, the Crown, after certain further investigation, had taken a decision not to proceed. Although the Crown was not now in a position to say upon what basis that decision had been taken, nothing in the information available suggested that it was not one which could not be properly have been taken in the exercise of the appropriate discretion, not least in light of the information which suggested possible reluctance on the part of one complainer. Sufficiency was not the only criterion for prosecution. The Crown further required to assess inter alia reliability and credibility, ability or willingness of witnesses to give evidence and whether in the whole circumstances it was in the public interest to prosecute. It was not, as I understood it, suggested that such decisions were not in this context open to assessment by the Court, but on the limited information available the Court could infer that the decision taken had been a proper exercise of discretion. Thereafter, no apparent intimation of that decision having been made to the Minuter, the explanation for the inclusion of the relevant charges in 1992 was the appearance of further evidence; in particular, as I understood it, the allegations being made by the sister of the relevant complainers of abuse of her by the Minuter at or about the same time, in the light of which certain further statements were taken from the complainers themselves. Further, another factor which fell to be considered in assessing the reasonableness of the time taken, or which, as I understood it, was an essential component of an applicant's claim in this respect, was whether he or she had suffered prejudice. Reference was made to Stromillo v Italy 1991 Application No 15831/89, Reports of Decisions of the European Commission of Human Rights 317 and Asch v Austria 15 EHRR 597. Whereas the applicant in Eckle had appeared to suffer plain prejudice by reason of the State's intromissions with him over a long period, the Minuter had not been able to point to any particular prejudice suffered directly by the relevant delay. It was not his position, for example, that he, aware of the charge, had been kept in a state of uncertainty for years. Rather, for reasons which were unclear, he had wrongly thought that he had been tried. In any event it could not be said that for the Lord Advocate to call the indictment for trial, in circumstances where it cannot be said that the Minuter could not fairly be tried, would be incompatible with the Minuter's Convention rights.
In response, Mr Alonzi appeared to argue that the decision to take no proceedings could be criticised on the basis that there had been a sufficiency of evidence. His final position however, as I understood it, was that even if the Crown authorities had been entitled to take that decision, they could only properly have taken a final decision not to prosecute. In any event, it was plain from the Solicitor General's response that the Crown were not able to say what the basis was for the decision taken or clearly that it had not been intimated to the Minuter.
I consider in the first place that it is open to the Minuter to found upon that part of Article 6 which provides for a hearing within a reasonable time separately from any question of whether, by reason of delay or otherwise, his rights to a fair hearing have been infringed. Contrasting the relevant part of Article 6 with the similar provision in Article 5(3) the Court in Stögumüller said (of Article 6(1)):-
"The latter provision applies to all parties to court proceedings and its aim is to protect them against excessive procedural delays; in criminal matters, especially, it is designed to avoid that a person charged should remain too long in a state of uncertainty about his fate".
In these circumstances it is difficult to see why, in appropriate circumstances, an applicant, who perhaps cannot say that he could not fairly be tried, should not be able to complain that there has nevertheless been unreasonable delay in proceeding to trial. The language of Article 6 is wholly consistent, it seems to me, with the notion that persons are entitled both to a fair and public hearing and that within a reasonable time. Further, in the cases to which I was referred, Eckle, Dougan and Proszak, the question of whether the applicants had been deprived of a fair hearing was not considered. Though questions of alleged unreasonable delay were considered in Eckle and Dougan after the conviction of the applicants, the question of unreasonable delay was considered in Proszak, albeit in a civil context, even after the applicant had had a measure of success in a claim for damages. That is not to say that in appropriate cases delay (whether after charge or indeed even before charge) may not be relevant as a cause of alleged unfairness in trial proceedings.
In considering whether there has been unreasonable delay it was not disputed that the period to be considered began when the Minuter was charged by the police - notwithstanding that this was not a charge by the authority competent to commence or proceed with court proceedings. There was no dispute that each case would depend on its own facts and circumstances, nor that, in assessing the reasonableness of the time, factors which were relevant were the complexity of the proceedings, the applicant's conduct and the conduct of the authorities. It was not disputed in this case that the first two factors were not significant nor that the delay founded upon by the Minuter, of 11 years and one month, was one which called for satisfactory explanation by the Crown. This was plainly consistent with the approach of the Court in Eckle, where, at paragraph 80, it was said:-
"The present case concerns sets of proceedings which endured 17 years and 10 years respectively. Such a delay is undoubtedly inordinate and is, as a general rule, to be regarded as exceeding the 'reasonable time' referred to in Article 6(1). In such circumstances, it falls to the respondent State to come forward with explanations".
Perhaps even more relevant, in Dougan, which arose out of Scottish proceedings, where a period of 12 years and 11 months elapsed from charge by police to the end of the trial (albeit the applicant himself had been substantially responsible for long delays, not least by his failure appear at the first diet of trial), the Commission indicated at paragraph 49:-
"On the other hand the Commission finds that these proceedings are extraordinarily long and that some compelling justification is needed for the delay".
I am not satisfied that the Crown in this case have been able to provide a sufficient relevant explanation. Taken at its highest the Crown's position is that after certain inquiry in early 1988 the decision was taken not to continue, albeit not to abandon, proceedings, and that the approach was later changed when further information, apparently providing some support for the allegations, came to light. Although the initial charge was not made by the prosecuting authority, I see no reason why, in assessing the conduct of the authorities thereafter, full recognition should not be given to the fact that in Scotland the system calls for independent assessment of the evidence and for assessment, even in the presence of sufficient evidence, of whether it is in the public interest that proceedings be instituted. Whatever might be said in other cases, however, the Crown (no doubt by reason of the lack of appropriate records) could not in this case say that at the time the case was marked "no proceedings" there was any reasonable expectation of any further evidence being forthcoming or of matters otherwise changing at any stage, far less in early course. It was not either, as I understood it, possible to say that any decision had been taken regularly to review the position or indeed that such reviews (or any) had taken place. Given the mischief which it is agreed this part of Article 6 is designed to address, I do not see how delay thereafter for a substantial period of years during which it appears no further information was obtained or sought and no reviews made, but during which the Minuter still faced relevant charges, could ever be said to be, for the purpose of the Article at least, satisfactorily explained. I did not understand it to be disputed that if the Crown had, for example, been challenged in early 1997 their position (no doubt after due enquiry) would have been that the question of possible proceedings in respect of the matters covered by the charges remained open, in case inter alia further information came to light, albeit there was, on the face of it, no necessary reason to think that it would. If that was regarded as adequate, it would in my view serve to defeat the purpose of this part of the Article. The fact that thereafter the Crown were able to explain the inclusion of charges 3, 4, 5 and 6 by reference to further information which happened to come forward cannot, it seems to me, in the context of this part of the Article, provide a satisfactory explanation for delay prior thereto. Equally, although the relevant delay can be said in large part to have resulted from a decision (again taking the Crown position at its highest) not to progress meantime the relevant charges (indeed not to proceed to prosecution), that could, it seems to me, just as much be described as delay between charge and hearing attributable to the authorities as the delays in cases such as Eckle and Dougan where the authorities were seeking to progress apparently "live" charges. To interpret the relevant provision in such a way that only acts or omissions in the latter type of situation could be relevant would it seems to me be to adopt a restrictive interpretation not consistent with the apparent purpose of the Article.
In any event in this case the Crown were not - no doubt because of the passage of time and the destruction of records - able to explain the basis on which the decision to mark the case "no proceedings" was taken or indeed to exclude the possibility that when taken it was apparently final and intimated as such to the Minuter. In the jurisprudence to which I was referred - in particular Dougan - the Crown, it would seem, must take the consequences of such gaps in the explanations offered. That is not to say, on the information available, that it would be possible for anyone to suggest that the decision apparently taken (not to proceed) could not have been a reasonable exercise of discretion - and I reject any submission made to the contrary. I reject also as too simplistic the proposition that insofar as the Crown were entitled to mark the case "no proceedings" that could only have been on a final basis. I should also add that although Mr Alonzi appeared at one point to make something of the fact that charges in respect of the two relevant complainers did not appear in the petition of 13 March 1998, and although no clear explanation for that was offered by the Crown, this it seems did not have any material effect on the progress of proceedings.
Furthermore I am not persuaded by the argument that the Minuter, at this stage at least, requires to show specific actual prejudice. In the first place it is difficult to see that that can be a relevant factor in the assessment of whether the length of time has been reasonable. Neither of Stromillo or Asch were concerned with this part of Article 6. Both were concerned with whether the applicants had received a fair hearing (in one case having regard to the alleged impartiality of the investigating judge, in the other having regard to certain hearsay evidence), in which context it was emphasised inter alia that consideration required to be given to the proceedings as a whole. It is true, however, that in that context, as I would understand it, the jurisprudence of the Court and the Commission does suggest that prejudice requires to be considered. And it is at least arguable that since the relevant part of Article 6 requires to be seen, in its context, as an aspect of fair proceeding, to characterise anything as unfair in the absence of prejudice (for example in this context, anxiety or loss of reputation caused by the applicant facing charges over a long time) would be wrong. Nevertheless the language of the relevant part of Article 6, for reasons already discussed, appears to allow for it to be looked at, in an appropriate case, separately from the general fair hearing guarantee. More importantly the cases to which I was referred do not suggest, for the purpose of assessing whether there has been infringement of the relevant part of the Article (or even for the purpose of considering whether an applicant is a victim, as it seems the Minuter would require to be - section 100 of the Scotland Act 1998) that proof of prejudice is relevant, although plainly it would be in relation to any claim for compensation. Neither in Dougan or Eckle was there express consideration of prejudice as a necessary element in the assessment of whether the relevant part of Article 6 had been infringed. Indeed in Dougan the Commission found in favour of the applicant notwithstanding that "he has not shown that he was gravely prejudiced by their length"(ie. of the proceedings). At paragraph 66 of their Opinion the Court in Eckle observed:-
"The word 'victim', in the context of Article 25, denotes the person directly affected by the act or omission which is in issue, the existence of a violation being conceivable even in the absence of prejudice; prejudice is relevant only the context of Article 50.
Consequently, mitigation of sentence and discontinuance of prosecution granted on account of the excessive length of proceedings do not in principle deprive the individual concerned of his status as a victim within the meaning of Article 25; they are to be taken into consideration solely for the purpose of assessing the extent of the damage he has alleged he suffered.
The Court does not exclude the possibility that this general rule might be subject to an exception when the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention".
It was no doubt in the light of comments such as that that the Commission in Stromillo were able to say:-
"In this case the Commission notes that at the end of the proceedings the applicant was acquitted of the offences with which he had been charged. This acquittal became final with the judgement of the Court of Cassation dated 14 November 1988, deposited with the Registry on 17 March 1989. The Commission notes that the outcome of the trial could not have been more favourable to the applicant; thus, thanks to the use of domestic remedies, any defects the proceedings might have had must be considered to have been remedied. It follows that the applicant can no longer claim to be a victim within the meaning of Article 25 of the Convention or by violation of Article 6 of the Convention....".
The view I have reached in respect of this matter would appear to be consistent with certain observations in Harris, O'Boyle and Warbrick on the Law of the European Convention on Human Rights, to which I was referred, at pages 165 and 166 and footnote 12 thereof. There it is suggested that the Convention organs have tended to regard the presence of prejudice as being inherent in infringement of the right. Notwithstanding this I am inclined to agree with the submission of the Solicitor General that the Minuter did not (clearly at any rate), in argument, suggest any prejudice stemming directly from the relevant delay.
I add for completeness that although the Solicitor General did argue that the Court should be slow to find that the Minuter's rights had been infringed having regard to (a) the need to balance the interests of the public in the prosecution of serious alleged crime and (b) the Convention rights of others or at any rate the Crown's need to have regard to such rights (reference in this context being made to Doorson v The Netherlands 22 EHRR 330 where consideration, in assessment of whether a fair trial had been afforded under Article 6(1), was given inter alia to the rights to life, liberty and security of the person of witnesses who had given evidence anonymously, and to X and Y v The Netherlands 8 EHRR 235 where the absence of suitable provisions of law to enable criminal prosecution of the sexual assailant of a mentally defective girl was said to amount to infringement of her rights under Article 8), these arguments were not it seemed to me fully developed, nor was I immediately attracted by them in the absence of any general public interest saving in Article 6, compared, for example, to Articles 8 to 11, and in the absence of any clear identification of which other Convention rights fell to be considered, and in what way.
In these circumstances it seems to me that it can be said that there has elapsed, in apparent infringement of the Minuter's rights under Article 6(1), an unreasonable time from the date when he was charged with offences relating to E.F. and G.H. in particular having regard to the period before 4 February 1999.
It appears to me to follow - notwithstanding that the Minuter does not, at least at this stage, argue that he could not have a fair hearing - that for the Lord Advocate to proceed to trial in respect of charges 3, 4, 5 and 6 on the indictment after such an unreasonable time would be for him to act in a way incompatible with Convention rights, and in particular with the Minuter's rights, under Article 6, to a hearing within a reasonable time. This he has no power to do, by virtue of section 57(2) of the Scotland Act 1998. I therefore sustain the Minuter's plea in bar of trial in respect of these charges.
In the course of the hearing before me and on the application of the Solicitor General I made an order under section 4 of the Contempt of Court Act 1981 prohibiting publication or report of the proceedings insofar as reference was made to evidence until the conclusion of the trial of the Minuter. That order of course applies to publication of any report of this Opinion.