APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal No: C479/99
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
NOTE OF APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
HER MAJESTY'S ADVOCATE
Appellant: Findlay, Q.C., Young; Ross Harper, Glasgow
Respondent: Gray, A.D.; Crown Agent
2 September 1999
This is an appeal against the decision of Lord Nimmo Smith of 16 July 1999 in which he repelled a plea in bar of trial which had been put forward on behalf of the appellant at a preliminary diet under section 73 of the Criminal Procedure (Scotland) Act 1995. On 13 May 1999 the appellant was served with an indictment containing a charge of murder. It alleged that on 29 January 1997 the appellant had assaulted Margaret McLenaghan at a house in Glasgow by repeatedly punching and kicking her on the head and body or by other means to the prosecutor unknown inflicting blunt force injuries upon her, repeatedly striking her on the body with knives, locking her in the house and abandoning her there without obtaining medical assistance for her and that Margaret McLenaghan had been so severely injured that she subsequently died on 25 December 1997. The appellant was required to stand trial on that indictment at a sitting commencing on 21 June 1999. However, by minute under section 72 of the 1995 Act, she sought an order for a preliminary diet, maintaining that the Crown had "unreasonably and oppressively delayed in bringing this matter to trial". At the preliminary diet on 16 June the court allowed to be received a further minute for the appellant in which she stated her intention to raise this as a devolution issue in terms of schedule 6 to the Scotland Act 1998 and continued consideration of both minutes until 28 June. In due course, the trial was adjourned to the sitting commencing on 20 July, and the preliminary diet was continued until 12 July when parties were heard in debate by Lord Nimmo Smith.
The plea in bar of trial which was advanced on behalf of the appellant was based on the fact that, as from 20 May 1999, the Lord Advocate was subject to the terms of section 57(2) of the Scotland Act, which provides, inter alia, that a member of the Scottish Executive has no power to do any act so far as the act is incompatible with any of "the Convention rights". That expression has the same meaning as in the Human Rights Act 1998, and hence includes the rights set out in Article 6(1) of the European Convention. So far as relevant for the present purposes that Article provides:
"In the determination of his civil rights and obligations or of any 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 appellant maintained that the trial at the sitting commencing on 21 June was not "within a reasonable time", and that the delay had been caused by the acts and omissions of the Crown. Section 129(2) of the Scotland Act provides that section 57(2) is to have effect meantime as it will have effect after the Human Rights Act is fully in force. The "act" of the Lord Advocate to which the plea in bar of trial was directed was his prospective act in having the case called for trial at the sitting. It is not in dispute that the appellant's plea gives rise to a devolution issue within the meaning of paragraph 1(d) of Schedule 6 to the Scotland Act.
The factual background to the present issue can be put shortly as follows. On 28 May 1997 the appellant pleaded guilty to the attempted murder of Margaret McLenaghan on 29 January 1997. The appellant was sentenced to imprisonment for twelve years in respect of that charge. The victim remained unconscious, having suffered from bilateral haematomas in the frontal lobes of her brain, until she died on 25 December 1997. A post mortem report dated 30 December 1997 concluded that the cause of her death was bronchopneumonia due to unconsciousness. On receipt of this report the Procurator Fiscal made a preliminary report to Crown Office on 31 December 1997. On 9 January 1998 he was informed that Crown counsel had decided that the appellant should be prosecuted on a charge of murder. He was instructed to afford the appellant autopsy facilities, to release the body to the relatives of the deceased, and to precognosce the pathologists who had prepared the report. It appears that the view taken by Crown counsel at that stage was that, having regard to the appellant's plea of guilty, it would not be necessary to re-precognosce the witnesses who had been listed in the original indictment, and that it would be enough to have a "minimum precognition" in order to confirm that the death was due to the injuries sustained by the deceased and her subsequent unconsciousness. In the circumstances it was thought that there was no need for a further petition to be presented in the sheriff court.
On 11 March 1998 the Crown Office asked the Procurator Fiscal for an update. Along with his report he sent to Crown Office a form with a view to the case being allocated, on a provisional basis, to a sitting of the High Court. On 30 March 1998 the Crown Office provisionally allocated the case to a sitting at Glasgow commencing on 6 July 1998. On 3 June 1998, in a letter to the appellant's solicitors, the Procurator Fiscal referred to a letter from those solicitors dated 1 June 1998 and stated:
"It is intended to indict this case to the sitting of the High Court at Glasgow on 6 July 1998. It should be noted that this date may be changed due to pressure of business".
Despite this letter no indictment was served during the remainder of 1998. On 6 November 1998 the Procurator Fiscal reported to Crown Office with the "minimum precognition" which had been instructed. However, it was decided in Crown Office that, contrary to the previous view, it would not be enough to rely on the extract conviction to prove that the appellant had assaulted the deceased, and that a full precognition would be required. This was instructed on 16 November 1998. On 15 December 1998 the Procurator Fiscal reported with the result of a full precognition. The case was then provisionally allocated to a sitting commencing on 12 April 1999. However, the pressure of business prevented this from being dealt with at that sitting. On 13 May the indictment to which we have already referred was served.
For the appellant, Mr Findlay concentrated on the period since the letter from the Procurator Fiscal dated 3 June 1998, which he agreed was the appropriate starting point. He pointed out that the only material change in circumstances since the appellant had been sentenced to imprisonment for the attempted murder was that the victim had died. Following her death the imposing of a sentence of life imprisonment upon the appellant would be almost a certainty if the Crown decided to indict her for murder, but nothing was done about further proceedings against her until the present indictment was served. She had been kept "dangling". It had taken from January to November 1998 for an "minimum precognition" to be carried out, and yet a full precognition had been completed thereafter by December. Mr Findlay also questioned why it had taken from then until 13 May 1999 for the indictment to be served. Overall, given that the Crown had intimated to the appellant that it was their intention to prosecute her for murder, why had it taken from then until the sitting commencing on 21 June 1999 for there to be a date at which an indictment could call for her trial? The case had been, in his words, "put on the back burner", and this had caused an unreasonable amount of time to elapse. He did not maintain that the appellant had suffered any prejudice thereby. That was not fatal to her claim that her right to trial within a reasonable time had been infringed. Standing the delay, it was for the Crown to justify it. Mr Findlay was also critical of the observation by Lord Nimmo Smith that there had been no need for this case to be accorded priority over others. There was no suggestion that any question of prioritisation was involved. Further, the judge had misdirected himself by relying on the fact that, for the purposes of section 65(1) of the 1995 Act, Parliament had treated the elapsing of a year between an accused's appearance on petition and his trial as being acceptable. Mr Findlay submitted that it could not now be safely assumed that the provision would always be compatible with Article 6(1).
In reply, the Advocate depute maintained that the present case was quite different from the ordinary. The appellant was not on remand. She had already pleaded guilty to the charge of attempted murder, for which she was serving a substantial sentence of imprisonment. Thus there was much less uncertainty about her fate than in the ordinary case. While he accepted that the appellant did not have to show prejudice, the absence of prejudice was an important factor in determining whether the period which had elapsed was or was not unreasonable. While the present case was not particularly complex, it required to be carefully reviewed by Crown counsel and to have sufficient time made available for it to be properly investigated. The fact that the resources available to the prosecutor were finite meant inevitably that there had to be some prioritisation. Thus, for example, it was to be expected that priority would be given to cases where the accused was on remand, or which involved a child complainer or child witness, or where the passage of time tended to operate to the disadvantage of the accused. It was essential to balance the need for expedition along with what was required for the proper administration of justice overall. It was necessary to take into account the rights of those who were involved in or affected by other proceedings. In the present case, the period which had elapsed was not prima facie unreasonable, and did not call for explanation by the Crown. The period was of the same order as that permitted under section 65(1). That set out one of the time limits by reference to which the Crown had to organise the preparation of cases in time for trial. In any event, the period of twelve months was perfectly reasonable. Even if prima facie the contrary appeared, the relative priority accorded to other cases would have to be taken into account.
The plea in bar of trial advanced on behalf of the appellant was based, as we have already noted, on the proposition that the Crown had "unreasonably and oppressively delayed in bringing this matter to trial". It is, however, important to note that there is a clear distinction between a plea based on oppression in the ordinary sense and a plea based on a right under Article 6(1). The former is concerned with the question whether, by reason of delay or some other cause, the prospects of the accused receiving a fair trial have been gravely prejudiced (see McFadyen v Annan 1992 J.C. 53). The latter, on the other hand, is concerned with the alleged failure to bring a case to trial within a reasonable time. It follows that, in order to demonstrate that it is incompatible with his or her right for the prosecutor to insist on the trial, the accused does not require to show that that prejudice has been or is likely to be suffered thereby. In Eckle v Federal Republic of Germany (1982) 5 EHRR 1 the European Court of Human Rights at para 66 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 in the context of Article 50".
The underlying purpose of the right to trial within a reasonable time is of some significance. In its decision in Stögmüller v Austria (1969) 1 E.H.R.R. 155 the European Court pointed out that the provision as to reasonable time in Article 6 had as its aim to protect the parties "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" (paragraph 5).
In the present case parties directed their attention to the period from 3 June 1998. This was in accordance with the correct interpretation of Article 6(1). In Eckle the court stated at para 73:
"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".
In the present case it is not in dispute that the appropriate date was 3 June 1998 when the appellant was "officially notified" that she would be prosecuted for the murder. Any finding that there has been a failure to comply with the requirement of trial "within a reasonable time" must be based on delays attributable to competent authorities of the state. How long is more than "a reasonable time" is a matter which must be assessed in each instance according to the particular circumstances There is no universally applicable norm against which the period in a particular case can be compared A number of factors may be relevant, and there is not an exhaustive list. In Eckle the European Court observed at para 80:
"In this exercise, the court has regard to, among other things, the complexity of the case, the conduct of the applicants and the conduct of the judicial authorities."
In the present case the Advocate depute did not claim that there was any significant complexity and there is no question of the appellant having contributed to the length of time which elapsed. While the case appears to have been relatively straightforward, it is necessary, in our view, to take into account not only the need to avoid delay in the particular case which is under consideration, but also what is required in order to meet the needs of other cases and the interests of those who are involved in them. In a passage in Boddaert v Belgium (1992) 16 E.H.R.R. 242 at para 39, to which we were referred by the Advocate depute, the European Court observed:
"Article 6 commands that judicial proceedings be expeditious, but it also lays down the more general principle of the proper administration of justice. In the circumstances of the case, the conduct of the authorities was consistent with the fair balance which has to be struck between the various aspects of this fundamental requirement".
As a matter of common sense and ordinary experience it is unrealistic to expect that all cases should progress towards trial at the same speed. Each makes its own particular demands in regard to preparation. Some cases are subject to the imperative created by the fact that the accused is remanded in custody. Others have features which call for special expedition. Pressure of business may lead to proceedings taking longer than they would otherwise have done.
A particular feature of the present case, which is relatively unusual, is that the appellant is already serving a very substantial sentence of imprisonment for the attempted murder of the deceased. Mr Findlay did not dispute that this was a relevant factor for the court, although he rightly emphasised that the effect of a prospective mandatory life sentence was very different from that of a determinate sentence. Given the previous plea of guilty, there does not appear to be much scope for uncertainty as to the outcome of a trial for murder. The only real uncertainty was as to when, rather than whether, the trial would take place. These considerations have the effect of significantly narrowing what was at stake for the appellant.
In the end of the day the question whether more than "a reasonable time" had elapsed depends on our assessment of the various factors to which we have referred, against the background of our general knowledge as to the criminal justice system in Scotland. We do not find it necessary to consider whether we should or should not draw any analogy with the twelve month period provided under section 65(1) of the 1995 Act. On any view it deals with a different situation from that obtaining in the present case. We do not consider that the period which elapsed in this case was prima facie unreasonable. Accordingly we do not consider that the Crown was required to provide a further explanation to justify it. We consider that Lord Nimmo Smith was entitled to hold that there had not been a failure to bring this appellant to trial "within a reasonable time".
In these circumstances we refuse the appellant's appeal.