Scottish High Court of Justiciary Decisons

ALEXANDER TODD MITCHELL v. HER MAJESTY'S ADVOCATE [2000] ScotHC 109 (6th December, 2000)

[1] At a preliminary diet in the Sheriff Court at Dundee, the sheriff was asked to hold that in proceeding with an indictment with a trial diet of 31 July 2000, the Crown were in breach of the appellant's right, in terms of Article 6(1) of the European Convention on Human Rights, to a fair and public hearing "within a reasonable time". The sheriff repelled the appellant's motion asking him to hold, upon that basis, that the Crown were barred from proceeding to trial. With leave, the appellant appealed.

[2] The indictment contains two charges. The first narrates that the appellant had made a written declaration on 8 January 1991, that on that date he had become unfit for work, and had delivered that declaration to the Department of Social Security. The charge is to the effect that having received Order Books, by means of which to obtain payment of benefits between 8 May 1991 and 23 February 1999, the appellant made certain false representations, and being no longer sick, and being remunerated for work, he presented orders from the Order Books and received payment of certain benefits amounting to £46,861.32, by fraud. The second charge is based upon a written declaration said to have been made in February 1998, again delivered to the Department of Social Security, with Order Books being received and sums amounting to £444.58 being obtained by fraud.

[3] In May 1998, the appellant had been advised by representatives of the Benefits Agency that he was under investigation for potential fraud, and his benefit payments were stopped. On 25 August 1998, he was cautioned by two officers of the DSS Fraud Investigation Branch, interviewed by them and advised that he would be reported for prosecution. Before the sheriff, it was agreed that this date was the starting point for the period which required to be considered, in relation to the alleged breach of the appellant's rights under Article 6(1). (At appeal, counsel for the appellant embarked upon an argument that the correct starting date would have been May. There was however no basis for this either in what had been put to the sheriff, or in the grounds of appeal, and we did not allow counsel to proceed with that submission. The earlier events in May are however, of course, part of the overall circumstances which must be taken into account.) The relevant period, up to the date fixed for trial, is thus one of some twenty three months. Within that overall period, it is to be noted that after two months, the Social Security Fraud Department sent the papers to the Crown, on 27 October 1998; that a further nine months passed thereafter, before the appellant had a petition served upon him early in August 1999; and that nearly eleven months after that, the indictment was served, on 26 June 2000. In practical terms one is concerned with the twenty months between 27 October 1998 and 26 June 2000 of which approximately nine months preceded service of the petition, and eleven months followed before indictment. Both before the sheriff and in this court, it was submitted that each of these periods was substantial, and that taken together they were very substantial. Overall, the lapse of time was unreasonable, and there was a breach of Article 6(1).

[4] Counsel for the appellant formulated his submissions in terms of precedent, citing various prior decisions. But this is not a case in which we think that any review of previous decisions is necessary or useful. As regards the general principles, reference to European jurisprudence was of course helpful when the Scottish Courts first required to consider the application of Article 6(1). But the principles have now been applied in numerous cases by the Scottish Courts, against the appropriate background of knowledge of the criminal justice system in Scotland. The way in which these principles require to be applied in a Scottish context has been clarified by quite a number of decisions, and speaking generally is no longer unclear or unfamiliar. What is in issue is the application of principles to the particular circumstances of the particular case, and unless there is some very close analogy, reference to particular prior decisions, upon their own facts, is in our opinion unlikely to be helpful. Of the cases mentioned by counsel, we refer to one below.

[5] It is unnecessary to consider whether the passage of nine months, after receiving the papers up to service of the petition, "called for" an explanation from the Crown. An explanation was in fact given. Before the sheriff, it was suggested that the investigation was in effect completed before the papers were sent to the Crown, and that the question was a simple one of whether the appellant was working while claiming benefits. But whether investigation has been done by the police, or as in this case by special investigators, there is no doubt that the Crown is under a duty to conduct its own investigation before deciding whether or not proceedings should be brought. And in the present case, the explanation that was given was a full one, with regular activity between the Procurator Fiscal, the Benefits Agency, and the Crown Office leading up to the obtaining and execution of the petition warrant. Having regard to the nature of the matter in hand, we doubt whether this period even required any explanation - but in any event it is fully and satisfactorily explained. In his submissions to this court, we did not understand counsel to advance any significant criticism in relation to the period up to August 1999.

[6] The sheriff says that the second period of delay (from August 1999 until indictment in June 2000) was in his view of more concern. Concern does not indicate unreasonableness. As regards specific dates within that period, it appears that the Crown received statements and further productions from the Benefits Agency on 27 September 1999 but there was, as the Procurator Fiscal put it to the sheriff, "not much happening" between then and March 2000, although a list of witnesses had been sent to the agents in January. In May, there were various contacts, with the appellant's agents, the police and Crown counsel. But it is clear as the sheriff says that some of this might easily have been undertaken earlier. While there is thus a period which can be described as one of delay or inactivity, this case like so many comes to be one in which the breach of Article 6(1) which is asserted consisted of a "failure" to give the particular case priority over other cases, to a degree which would materially shorten the total lapse of time before trial.

[7] The sheriff says that he accepted that in the general context of the criminal justice system, some cases may be delayed, and the Crown must prioritise the cases it intends to bring on indictment before a particular court. He notes a number of particular problems such as the planning of jury assizes and the disruption of plans where cases are adjourned, and where accused persons who are in custody must be brought to trial. He relies upon his general knowledge of the criminal justice system, and of his own court in particular. As he says, "It is quite clear that there are different considerations given to the bringing of each individual case to trial in court. While it may not be the most satisfactory situation, it is one which we have to face in the court system on a daily basis". While he does not suggest that prejudice is a necessary ingredient in breach of Article 6(1), he concludes that there was certainly no prejudice to the appellant's defence as a result of any delay. Overall he was not persuaded that there had been undue delay.

[8] In presenting the appeal, counsel for the appellant drew attention to various factors which would apply in "prioritising" particular cases. He submitted that if the Crown could not properly resource the Procurator Fiscal or the courts to ensure matters were brought to trial in a reasonable time, then the Crown must face the consequences of breach. At one stage he went so far as to submit that "failure to produce resources" was a breach per se. He drew an analogy with Buchholz v. Germany 1980 3 E.H.R.R. 597. That case related to an abnormal situation which had arisen and called for action. We do not see it as casting light on this case. In any event, counsel in the end accepted that choices of priority were unavoidable, involving questions of circumstance and degree.

[9] We are not persuaded that the present case called for high priority, or that there was any failure or unreasonableness in the Crown's handling of the matter. In these circumstances questions of remedial action do not arise. We are not persuaded that there was a breach of the Article. The appeal is refused.