Scottish High Court of Justiciary Decisons

WILLIAM HENDRY v. HER MAJESTY'S ADVOCATE [2000] ScotHC 108 (5th December, 2000)

[1] On 14 February 1999 the appellant was charged with having committed two assaults and a breach of the peace that same day. The Procurator Fiscal received the police report on 29 March. The petition warrant was granted on 20 April, and passed to the police for execution on 27 April 1999. Five months later, on 29 September 1999, the appellant was arrested and appeared on the petition warrant. Nine months later, on 28 June 2000, he was indicted to appear at Glasgow Sheriff Court, with a trial diet set for 31 July 2000, nearly eighteen months after he had originally been charged with the offences.

[2] The appellant submitted a Minute contending that he had not been brought to trial within a reasonable time, in terms of Article 6(1) of the European Convention of Human Rights. On 26 July 2000, the sheriff refused the Minute, but granted leave to appeal.

[3] The overall period for consideration is that of nearly eighteen months, from 14 February 1999 to the trial diet on 31 July 2000. Nothing turns on the period up to 27 April 1999, nor on the period after 28 June 2000. The unreasonableness of the overall period is said to result from the fourteen month period between those dates. For five months, the police had the petition warrant, but did not execute it. And thereafter, the appellant having appeared on petition on 29 September 1999, nine months passed before the indictment was served. The sheriff considered that the five month period required explanation, but that the subsequent nine month period did not appear of itself to amount to an unreasonable delay. He had regard to the explanation provided by the Crown for the five month period, and concluded that there was a breakdown in communication within the police, which resulted in delay in the execution of the warrant. But in considering the passage of additional time caused by this breakdown, he had regard to the expedition with which other parts of the proceedings had taken place. In relation to the nine month period, he had regard to what was required to deal with other cases being processed by the Procurator Fiscal at the same time, including cases which required to be prioritised. Having considered the whole procedure and the whole period, he concluded that the appellant had not been deprived of his right to a hearing within a reasonable time.

[4] When the matter came before this court at appeal, it was heard along with three other appeals in which sheriffs had rejected contentions that there had been breaches of the same right under Article 6(1) of the Convention. The four appeals were heard together because there was a point of law which might arise in relation to any or all of them. In the event, that point did not arise. In refusing two of the appeals, we saw no reason to add to what had been said by the sheriff. In relation to the present appeal, and the appeal of David Blair Gibson, we thought it appropriate to issue written opinions. In addition to what we say here we would refer to the general observations which we make in our opinion in the Gibson appeal. In the present case, the lapse of five months between the police receiving the warrant and executing it is of course abnormal, with no reason or "explanation" evident or implicit in the general circumstances of the case. That being so, an explanation would be needed if the lapse of time were to be understood. It would not otherwise appear reasonable. Such a lapse of time before executing a warrant can properly be described as a "delay"; and if such a delay were to remain unexplained, it might in our view, in itself, appropriately be described as unreasonable.

[5] However, an explanation was given. Put shortly, things went quite badly wrong. The appellant moved house the day after the incident. When the police went there with the warrant, they were told he was no longer there. It appeared that "his present whereabouts were unknown", and the police started looking for him, pursuing the usual lines of enquiry, following a false lead to England, and eventually tracing him to his actual address, and arresting him, on 29 September 1999.

[6] Upon such facts, the position would often be that the delay was the accused's own fault, having moved away from the address known to the police and effectively disappearing. But that is not the position here. It appears that he and a relative contacted the police to inform them of his change of address. Moreover, his solicitor contacted the police on 21 July. Despite this intimation and subsequent confirmation of the appellant's new address, the police did not execute the warrant there. In the circumstances, that can properly be described as a "failure" to adopt a word too easily used in cases of this type. But not merely did the police fail to execute the warrant: the appellant's solicitor was told, on 21 July, that there was no warrant in existence. There was thus not merely a failure, but wrong information which remained uncorrected.

[7] These events occurred because within the police, the left hand did not know what the right hand was doing. The contacts made by the appellant and his solicitor were made with Cambuslang Police office - understandably, since the warrant related to Cambuslang. It was the warrants officer at Cambuslang who told the solicitor that no warrant was in existence. But in consequence of a split in police divisions, on 1 May 1999, warrants relating to Cambuslang were held not there, but at Hamilton Police Office. Unless enquiry was made there, the warrant would not be traced. There would be no record of it at Cambuslang Police Office. If the warrant had been recorded on the Police National Computer, as it should have been, and if that had been investigated, the warrant would have been disclosed. Otherwise, its existence would only be discovered at Hamilton. Quite how a warrants officer at Cambuslang could positively assert that there was no warrant in existence is not clear. But it happened, and the Crown acknowledge that this error and its consequences were regrettable. It was a single error but the consequences were serious. Quite apart from questions of time and delay in coming to trial, the combination of uncertainty and eventual arrest in September, out of the blue, contributes to the backdrop against which this subsequent passage of time must be judged.

[8] The resultant passage of some five months before the warrant was executed can be seen as more directly in point, when the reasonableness of the overall lapse of time is being considered. But the overall time which elapsed up to the point where the warrant was executed, is not such, in itself, as to appear odd, far less unreasonable. If things move quickly, for whatever reason, at one stage, that is obviously relevant to any assessment of whether the overall lapse of time should be seen as reasonable. The sheriff was in our opinion right to have regard to the expedition with which other parts of the proceedings had taken place; and we are not persuaded that by the time the warrant was executed, there had been a delay which overall could be seen as unreasonable, or as requiring subsequent accelerated procedure to prevent the overall lapse of time from being unreasonable.

[9] As regards the next nine months, and even on the undisputed basis that the case was not in any sense complex, the question becomes one of the appropriate assessment of priorities. Apart from the background, neither the Procurator Fiscal's assessment of priorities, nor the resultant lapse of time, is said in this case to have been unreasonable. Nor can we see it as having been so. Even with the background, the sheriff took the view that the appellant had not been deprived of his right to a hearing within a reasonable time. We agree, and the appeal is refused.