Scottish High Court of Justiciary Decisons

DAVID BLAIR GIBSON v. HER MAJESTY'S ADVOCATE [2000] ScotHC 107 (5th December, 2000)

[1] On 29 June 2000, the sheriff at Perth heard parties on a Minute by the appellant, in terms of which he averred that the Crown had failed to bring him to trial "within a reasonable time" in breach of Article 6(1) of the European Convention on Human Rights. The sheriff refused the Minute, but granted leave to appeal.

[2] The appellant had been indicted for trial on 8 May 2000. The indictment contained two charges. The first was a charge of stealing an articulated trailer in December 1996. The second was a charge of stealing a double axle trailer between 10 August and 17 September 1998. Before the sheriff, and in this court, the appellant's submission that the Crown were in breach of Article 6(1) was advanced in relation to the first charge only. Moreover, in relation to that charge, it was common ground that the period which required to be considered started on 10 January 1997 (when the appellant was charged with that offence by the police) and ran to 9 August 1998. One would normally look to the whole period up to trial, but in this case other matters, including that now covered by charge 2, were the subject of investigation and proceedings by the Crown from 10 August 1998 onwards. There was no suggestion that there was anything unreasonable in the time taken thereafter, or in the decision to postpone indictment on the 1996 charge so that all matters could be dealt with together. The total period is thus one of nineteen months.

[3] This appeal was heard along with three others, each raising the issue of "reasonable time" under Article 6(1). The appeals were heard together because it was thought that in each a point of law might arise, which did not in fact arise. In the event, we saw no need in two of the appeals to add to what had been said by the sheriff; whereas in this appeal and one other (by William Hendry) we thought it appropriate to issue written opinions.

[4] At the hearing before the sheriff, the Procurator Fiscal Depute explained in some detail certain matters which required investigation at a time when there were five possible separate charges - that is to say, at a time subsequent to 10 August 1998. However, it is plain (as the sheriff observes) that in assessing the period before that date, he should take into account only the explanation given of the investigation of the first charge. It does not seem to have been clear whether certain matters mentioned by the Depute related to the trailer mentioned in the charge with which we are concerned. One must assume that they were not. It is the investigation of that charge alone, prior to 10 August 1998, which is in point.

[5] The offence is identified as having occurred between 20 December and 23 December 1996. On 10 January 1997 the appellant was charged with the offence, by the police. According to the account given to us, the appellant thereafter appeared, and was granted bail, on 21 January. He was then told that there might be proceedings against him. On 4 February, his solicitor wrote to the Procurator Fiscal, asking to be told whether the appellant was to be prosecuted, and expressing his wish to recover possession of the trailer (which he claimed was his). On 6 March, the Procurator Fiscal replied saying that "as matters stand" he did not intend to take proceedings, but indicating that any question as to recovery of the vehicle, on the basis that it belonged to the appellant, should be taken up with the police.

[6] On behalf of the appellant, it was not suggested that in the period up to 6 March there had been any unreasonable inactivity or delay. But it was submitted that from then on, and in particular in the light of what the Procurator Fiscal had said in that letter, it appeared, at least in the absence of further explanation, that there had been a quite unreasonable period of inactivity over the seventeen months up to August 1998. Any complexities arising thereafter were completely irrelevant. An explanation was called for.

[7] According to the Crown, the appellant in January 1997 had said that the trailer in question had been bought by him from a third party at a particular place. That had to be looked into. Some of the investigation had already then been done, but most of it was done in the period from then to August 1998. The Procurator Fiscal Depute informed the sheriff that the trailer was one which had a serial number. It had been sold to a company known as TIP Rentals. It had then been sold to another party, who then registered the identification of the trailer. It was said that this was not a simple matter. "The trailer had been discovered allegedly in particular circumstances. A witness had given a name. There had been great difficulty in tracing the person behind the name. Indeed, he had still not been traced." The sheriff observes that the Depute was unable to tell him the extent to which the investigations had been done prior to January 1997. He goes on to say that, "some of the descriptions of the nature of the enquiries were obscure. By way of example, the brief description of the manufacture of a trailer with an identification number and its subsequent registration was unclear and the Procurator Fiscal Depute could shed no further light on it."

[8] Counsel for the appellant had submitted to the sheriff that in the absence of a detailed chronology of events showing what the Crown was doing, the period of delay was prima facie unreasonable. The sheriff agreed that the explanation given was lacking in detail but says that he took the view that there was enough in the information before him to show that the identification of the true ownership of the trailer in the first charge was not a straightforward matter and that it must have caused delay. He also accepted that time would have to be spent in investigating the appellant's claim that he had purchased the trailer. More generally, referring to "cases which called out for an explanation of the time that had elapsed", he says that it seemed to him that a period of twenty months to investigate a crime was "certainly at the lower end" of such cases.

[9] In presenting the appeal, counsel did not indulge in elaboration. He simply submitted that the overall period under consideration, and in particular the period from March 1997 to August 1998, was one which "called out for explanation", and that the explanation given, with no detail or chronology, was quite inadequate. The sheriff had effectively speculated as to what might have been required. This was a case where the lapse of time could not be regarded as reasonable, and a breach of the appellant's rights under Article 6(1) had occurred.

[10] Counsel rightly refrained from taking us either to the European jurisprudence which expresses the relevant principles, or to the subsequent Scottish decisions, in which the application of those principles to the Scottish context has been discussed and clarified. Much that was unfamiliar is now familiar, if not trite. The question of whether leave to appeal should be granted is no longer to be answered by a ready "Yes". Good reasons must exist. And unless it is clear that a previous case was closely analogous in its circumstances to the case in hand, it seems to us that the stage has been reached where reference to prior authority will seldom be of real assistance. In each individual case, what will determine the issue - and whether there really is an issue - will be specific circumstances which appear to be in point.

[11] The circumstances which are in point in this case are indeed rather unusual. We find it necessary to approach them by way of certain very general observations. At the outset, we would observe that relevant considerations may well fall outside particular categories which have been identified in the past. For example, "complexity" is merely one example of the kind of circumstance which may itself involve time consuming work, or may explain why the matter could not, in competition with other cases requiring consideration, be considered and dealt with at an early stage. Again, the conduct of the accused, while it may be relevant where he has caused some delay, will not usually be relevant, or an indication of unreasonable delay, where he is simply not to blame. In addition, and perhaps most importantly, it is essential that the circumstances be considered in the light of normal Scottish practice and experience.

[12] The normal and familiar is not, of course, necessarily reasonable; and scrutiny of our practices, in the light of provisions such as Article 6(1), can of course be illuminating. But Scottish practice requires careful investigation and thought both before a matter is reported to the Procurator Fiscal, and thereafter, by him and where appropriate by Crown counsel, before any charge is brought by way of complaint or indictment. These careful procedures inevitably take some time. And in general it appears to us that it is in the interests of accused persons, and a matter of public duty as well as public interest, that the appropriate time be taken at these stages. We are not aware of any case in which it has been suggested by those representing an accused person that that approach itself is unreasonable. But it has been suggested in certain cases that the only reasonable course for either the police or the Procurator Fiscal would have been to depart from normal practice, and to pass matters on without the usual kind of investigation, on the basis perhaps of a mere sufficiency of evidence. We find it hard to picture a situation in which that would be a reasonable course, far less the only reasonable course.

[13] There is of course no generally "appropriate" time required, either for the police to report a matter to the Procurator Fiscal, or thereafter for any of the stages which lead to eventual complaint or indictment. The statutory time-limits provide one indication of what the law regards as a generally acceptable time-scale in given circumstances. Moreover, experienced practitioners will know that at each stage, in comparable cases, there can be quite a substantial variation in the length of time which it takes to move from one stage to the next, without there being any basis for suspecting that something odd or out of the ordinary, far less something unreasonable, has occurred in the handling of the matter. And if in any particular case it seems initially that the police or the Crown have taken longer at some particular stage than is usual, it will often be fairly evident what the reason or "explanation" for this is likely to be, having regard to the known circumstances of the case. Any suggestion that in these familiar situations there has been even prima facie some unreasonable delay appears to us to be without foundation. An assertion that there has been, even prima facie, some unreasonableness (and of course any further assertion that unreasonableness at a particular stage has produced an overall lapse of time which is not reasonable) will be justified only if some factual basis for inferring such unreasonableness can be identified and averred. In its ordinary English sense, even the word "delay" seems to us to imply some departure from some norm. It appears to us that in quite a number of cases where Article 6(1) has been invoked in this context, the expressions "delay" and "unreasonable delay" have been used with no apparent justification.

[14] One matter which plainly affects the speed with which a matter can be dealt with is the availability of resources, in all senses of that word. Putting the matter broadly, the greater the resources, the more quickly the matter will be disposed of, and the less the resources, the more time it will take. That being so, it will be easy, but in our opinion quite wrong, to describe the timescales achieved by, say, a busy Procurator Fiscal's department as demonstrating some kind of "failure", merely because greater resources would have made it possible to deal with more cases faster. Correspondingly, it is inappropriate to describe the improvements which could thus theoretically be achieved with greater resources as a "remedy" for such a "failure", which it is somehow the duty of the funding authorities to fulfil. Any such generalised approach appears to us to be without foundation. In principle, no doubt, lack of resources could lead to situations in which some given service has so far deteriorated that it will result, across the board, in a systemic failure to bring criminal charges to trial within a reasonable time. And even where there is no such general failure, some particular event (such as a strike by public servants) might produce a temporary inability to process cases within a reasonable time, in which case particular steps to "remedy" that "failure" might be required to avert breach of Article 6(1) in this respect. But in general, and subject to questions of prioritisation between particular cases, timescales reflect available resources, and any claim that a case or cases are not coming to trial within a reasonable time, on the basis that greater resources would result in better timescales, would need averments (as opposed to simple assertions or assumptions) indicating that the existing timescales produced a period of time between charge and trial which was not reasonable.

[15] In deciding upon priorities, a wide discretion is inevitable. Almost every case will have some feature which can be said to point to its being given priority. But all such features must be weighed in what will be quite imprecise but practical processes of "prioritisation". That implies no unreasonableness. We would add one specific comment. While prejudice is not an essential element in breach of Article 6(1), it is in our opinion obvious that if the passage of time is likely to be prejudicial to the accused in a given case, that will weigh heavily in favour of giving that case priority over others where such prejudice is not regarded as likely. In this respect absence of prejudice is very relevant to the issue of reasonableness.

[16] We have dealt with these matters at some length because they appear to us to provide the appropriate context for consideration of the present case. The lapse of time from March 1997 to August 1998 was in our opinion unusual, by general standards. The case is to be distinguished from those (unfortunately quite numerous, even now) in which it appears to be suggested that quite limited or familiar lapses of time are said to "call for explanation" and indeed to call for some detailed factual chronology from the Crown.

[17] This is in our opinion a case in which the question of whether there has been a breach of Article 6(1) in this respect necessitates scrutiny of the circumstances. But we reject the suggestion that in the absence of a detailed chronology of events, showing exactly what the Crown was doing, the period of delay was prima facie unreasonable. In some of the (quite rare) cases in which an explanation is needed from the Crown, that explanation may of course take the form of, or include, a detailed chronology. But in many cases the explanation may lie in the burden of work and necessary priorities. That is now a familiar explanation. It is a reason which will not usually need to be "explained".

[18] In the present case it appears that investigation, and indeed progress, presented difficulties. In March 1997 the Procurator Fiscal had to reserve his position on prosecution. Interestingly even the appellant was apparently unable to establish his ownership quickly. For a Procurator Fiscal to take some time, even without being able to make positive progress in his investigations, is not in our opinion unreasonable. If a matter remains unresolved, he is well entitled to take time before abandoning the prospect of successful prosecution. Whether the time he takes is to be seen as anything other than reasonable, or as making the total period from charge to trial greater than is reasonable, is another matter again. The letter which was written to the appellant's solicitor in March 1997 shows how and why the later "delay" came about. Inactivity is not always unreasonable, for a time.

[19] In the whole circumstances of this case, we are satisfied that a "detailed chronology" was not in point. The reason or explanation for time passing is to be found in the broad circumstances of the case, and shows no unreasonable conduct by the Crown. More particularly, we are not persuaded that the consequential lapse of time resulted in a breach of Article 6(1). The appeal is refused.