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HER MAJESTY'S ADVOCATE v. MARTIN McGLINCHEY and RYAN JAMES RENICKS [2000] ScotHC 12 (1st February, 2000)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Coulsfield

Lord Nimmo Smith

Appeal No: C27/00

OPINION OF THE LORD JUSTICE GENERAL

APPEAL

under Section 74(1) of the Criminal Procedure (Scotland) Act 1995

HER MAJESTY'S ADVOCATE

Appellant;

against

MARTIN McGLINCHEY and RYAN JAMES RENICKS

Respondents:

_______

Appellant: Menzies, Q.C., A.D.; Crown Agent

Respondents: McBride, F.M. Davies; McAfee, Airdrie: Murray, Q.C., Gilbride; Bell Russell

& Co., Airdrie

18 February 2000

The respondents in this Crown appeal under Section 74(1) of the Criminal Procedure (Scotland) Act 1995 are Martin McGlinchey and Ryan James Renicks who successfully appealed against a conviction on a charge of murder. This court allowed the appeal on the ground of misdirection by the trial judge and granted authority to the Crown to bring a new prosecution in terms of Section 118(1)(c) of the 1995 Act. The Crown served a fresh indictment, again charging the respondents with murder. The respondents lodged a minute raising a devolution issue, viz. that the Lord Advocate has no power to call the indictment because to do so would infringe the respondents' right under Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms to a fair and public hearing "within a reasonable time". The presiding judge held in favour of the respondents and the Lord Advocate has appealed against his decision.

The relevant chronology must be set out in more detail. The charge which the respondents presently face is in essence similar to the charge of which they were originally convicted. It arises out of alleged events on Saturday 15 June 1996. The respondents were detained on 17 June and appeared on petition on about 20 June 1996. Along with a number of co-accused they went to trial in the High Court at Glasgow. The trial began on 10 October and ended in their conviction on 22 October 1996.

Agents for Renicks indicated an intention to appeal on 28 October and the agents for McGlinchey on the following day, 29 October 1996. In each case the agents took this step well within the period of two weeks allowed under Section 109(1) of the 1995 Act. The agents then had a further six weeks within which to lodge a note of appeal. The agents for Renicks lodged the note of appeal on 9 December and the agents for McGlinchey on 10 December 1996, again within the statutory time-limit.

It was then the duty of the Clerk of Justiciary, under Section 110(1)(a) to send a copy of the note of appeal and the other relevant documents to the Trial Judge. We were not told exactly when this was done but there is no suggestion that there was any delay by the officials in forwarding the papers. Under Section 113(1) it is the duty of the Trial Judge to furnish this court with a written report "as soon as is reasonably practicable after receiving the copy note of appeal sent to him under Section 110(1)". In fact, however, the report in the case of Renicks was not received until about 30 September 1997 and the report in the case of McGlinchey was not received until about 27 November 1997. In the present proceedings we are concerned only with McGlinchey and Renicks, but in fact their co-accused also appealed and they experienced similar difficulties in obtaining the necessary reports for the purposes of their appeals.

In the period between December 1996 and September 1997 the agents for Renicks wrote to the Justiciary Office on a number of occasions to enquire about progress. It is clear also that officials in the Justiciary Office were in contact with the Trial Judge to try to obtain the necessary reports. The only positive information which we have about any reason for delay comes in a letter of 10 June 1997 from Justiciary Office indicating that the Trial Judge was on holiday for two weeks. The trigger for the eventual appearance of the report in the case of Renicks was a hearing which had been fixed in a petition to the nobile officium seeking an order on the Trial Judge to produce the report. In the case of McGlinchey the report was produced in response to an order pronounced by the court on 21 November requiring the report to be produced within seven days. Once the necessary reports had been obtained for all of the appellants, leave to appeal was granted on 12 December 1997.

In due course a procedural hearing was held on 10 July 1998. I have looked at the minute of that hearing which shows that counsel for the appellants made various motions. In particular the Advocate Depute and counsel for certain appellants (but not the respondents) asked for the extension of parts of the evidence. Counsel for all of the appellants (including the respondents) asked for the extension of the notes of the speeches to the jury by counsel for the appellants and by the Advocate Depute. The extension of the speeches was sought, partly at least, because one of the grounds of appeal for all of the appellants concerned a criticism which the Trial Judge had made of certain remarks by two counsel in addressing the jury. So far as the evidence was concerned, there had been changes in representation and the counsel instructed for the appeal could not obtain a sufficient account of the evidence from the trial judge's reports. The court took two steps. First, it requested the Trial Judge to prepare a supplementary report in respect of an additional ground of appeal lodged by one of the other appellants. That report became available on 15 December 1998. Secondly, the court ordered the preparation of transcripts of the relevant parts of the evidence and of the speeches of the Advocate Depute and counsel for the defence.

Most of the necessary transcripts were prepared quickly. Unfortunately, however, one of the shorthand writers had in effect given up shorthand writing when the courts began to tape-record the evidence in criminal trials. He claimed that he was no longer able to transcribe his notes of the parts of the trial which he had covered - including the speeches for the Crown and the defence and part of the evidence of one of the witnesses. Attempts to resolve this problem - which were ultimately to prove unsuccessful - continued over a period of months and led to a substantial delay in fixing the hearing of the appeal. The hearing was eventually set down for 2 and 3 June 1999 and took place on those days. The court made avizandum and announced its decision, allowing the appeals by the respondents, but refusing the appeals by the other appellants, on 25 June 1999. See Mowat v. H.M Advocate 1999 S.C.C.R. 688. In allowing the respondents' appeals, the court granted leave to the Crown to bring a fresh prosecution but admitted the respondents to bail in terms of Section 119(10) of the 1995 Act. Under Section 119(5) proceedings in the new prosecution had to begin within two months and the Crown met that deadline by serving a fresh indictment on the respondents on 24 August 1999 for trial on 29 September 1999. The trial diet was adjourned on defence motion until 22 November 1999 and again until 10 January 2000. On about 7 January 2000 the agents for the respondents lodged the devolution minutes giving rise to the present proceedings. The preliminary diet was held the following week and the presiding judge gave his decision in a written opinion on 17 January. The appeal from his decision was heard on 1 February 2000.

In the court below the respondents raised a number of different issues which were said to have given rise to a breach of the respondents' rights under Article 6(1). The presiding judge rejected all of them except the contention based on the right to a hearing "within a reasonable time". The respondents did not cross-appeal and so we are concerned with this one point only.

Before turning to look at that issue in more detail, I should record one particular submission of the Advocate Depute. When, on 25 June 1999, the Crown sought authority from the court to raise a fresh prosecution, counsel for the respondents did not oppose the Crown motion. In the hearing before us the Advocate Depute argued that the presiding judge should have taken this into account when deciding whether the proceedings had taken more than a reasonable time. He specifically disavowed any suggestion that the failure of counsel to oppose the motion had made it incompetent for them subsequently to take the point, but he agreed that his submission had "the flavour of personal bar". In my view it would be wrong to attach any real significance to the failure of counsel to oppose the motion for a new trial, especially when the rights of accused persons under Article 6 of the Convention were not yet common currency among practitioners. At most, one might observe that there was apparently nothing in the proceedings as a whole, including their length, which suggested to experienced counsel, without further reflection, that it would be wrong for the Court to grant authority for a new prosecution.

From the narrative which I have given it emerges that there was a period of delay by the Trial Judge in preparing his reports under Section 113(1). In addition, even once the reports were available, a further hitch occurred because of the failure of one particular shorthand writer to prepare the necessary transcripts. In the court below counsel for the respondents tried to link these two periods of delay by contending that, if the Trial Judge had produced his reports promptly, any request for transcripts would have been made at a time when the shorthand writer could and would have prepared the transcripts. The presiding judge considered the relevant circumstances and found it impossible to reach a view which would be anything other than conjecture or speculation. He therefore declined to hold that the delay by the trial judge in producing his original reports had been the cause of the failure by the shorthand writer to produce the transcripts and of any consequential delay in fixing the appeal hearing. Again, counsel for the respondents did not challenge that conclusion and this court must therefore proceed on the basis that no such connexion was made out.

Counsel did not criticise the time taken for any other aspect of the proceedings, whether before or after trial. It follows that the only period of unwarranted delay to which the respondents point is the delay by the Trial Judge in producing the reports under Section 113(1). Counsel were, understandably, somewhat diffident in suggesting to members of the court what would have been a reasonable period for the trial judge to produce the necessary reports. Since the trial involved a number of accused, participating in the incident in various ways, and since there was a fair amount of evidence to analyse and narrate, this was not the very simplest kind of case in which to prepare reports. On the other hand, there was nothing difficult or technical in the evidence and the trial concerned the kind of incident which is, unfortunately, not unusual in cases in the High Court. Making allowance for these factors and for the trial judge's other commitments, I can see no satisfactory reason why the trial judge's reports should not have been available by the end of March 1997 at the latest. On that basis the abnormal delay in producing the reports in these cases was of approximately six months in the case of Renicks and eight months in the case of McGlinchey. Although there was this difference in the periods, counsel for McGlinchey did not seek to make anything of the difference. In my view he was correct not to do so, since it appears that, if a petition had been presented in his case at the end of September, then the report might have been available then too. In the circumstances, I have considered the position of each of the respondents on the same basis.

The right with which we are concerned derives from the first sentence of Article 6(1):

"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."

In Stögmüller v Austria Series A No. 9 (1969) at paragraph 5 the European Court of Human Rights said that the stipulation as to a hearing within a reasonable time 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."

Some twenty years later, in the context of civil proceedings in H. v. France Series A No. 162-A (1989) at paragraph 58, the European Court of Human Rights said that the guarantee

"underlines the importance of rendering justice without delays which might jeopardise its effectiveness and credibility".

In the present case, although the appeal proceedings took longer than they need have done, counsel for the respondents did not suggest that as a result they had lacked effectiveness or credibility. Indeed, the appeals were ultimately successful and vindicated the respondents' contention that the trial judge had misdirected the jury. In the court below counsel for the respondents argued that the Trial Judge's delay in preparing his reports had led to the shorthand writer's failure to produce a transcript of certain portions of the evidence and that this would compromise the fairness of any retrial. Counsel did not renew that submission before us. Nor did they suggest any other respect in which the respondents' position at any retrial would be prejudiced. In other words they did not suggest that, in terms of the common law, it would be oppressive for the Crown to proceed to trial. They simply argued that Article 6(1) had been breached in circumstances where the whole proceedings would not have been completed within a reasonable time and the respondents had remained too long in uncertainty about their fate. See McNab v. H. M. Advocate 2000 J.C. 80 at p. 82 per the Lord Justice Clerk giving the opinion of the court. Hence the Lord Advocate could not call the indictment in contravention of the respondents' right.

In this case the original trial of the respondents and their co-accused was held very quickly. No issue under Article 5(3) or Article 6(1) arises in that connexion. We are therefore concerned with the subsequent stages in the proceedings. It is well-established, of course, that the guarantee of a hearing within a reasonable time under Article 6(1) applies not only to the trial itself but to the proceedings as a whole, including proceedings on appeal. Moreover, certain of the factors which a court should take into account when considering what constitutes "a reasonable time" are not in doubt, having been stated by the European Court of Human Rights on a number of occasions. For instance in Eckle v. Germany Series A No. 51 (1982) at paragraph 80 the Court said:

"The reasonableness of the length of the proceedings must be assessed in each instance according to the particular circumstances. 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 suggest that the conduct of the applicants or of their representatives had played any significant part in determining the length of the proceedings. That element can therefore be disregarded. He did, however, argue that the presiding judge had erred because he had not taken account of the complexity of the case in reaching his decision that the proceedings had not taken place within a reasonable time.

In my view that criticism of the presiding judge is misconceived. He reached his decision by considering the effect of the delay by the Trial Judge in preparing his report for the appeal court on the overall length of the proceedings. No explanation was given for that delay. More particularly, even if - contrary to my view - this case could be regarded as complex because of the number of accused and appellants, there is nothing to suggest that this supposed complexity was the actual reason why the Trial Judge took so long to produce his report. That being so, on the information available to us, complexity is not a factor which has any bearing on the time taken by the proceedings. Complexity is therefore not a factor which has to be taken account in determining the issue under Article 6(1) in this case.

The Advocate Depute also argued that, in sustaining the respondents' argument, the presiding judge had failed to take account of the gravity of the charge of murder which the respondents faced and now face. The more serious the charge, he said, the more important it was that the prosecution should get it right. I note that this is not one of the criteria to which the Court refers in Stögmüller. More importantly, in the normal situation at least, the gravity of the offence will not usually constitute a reason in itself why the proceedings should take longer.

The Advocate Depute sought support for his submission that the gravity of the offence could be relevant in the present context in the opinion of the Court in Boddaert v. Belgium Series A No. 235-D (1992) at paragraph 38. Happily, almost the only point of resemblance between that case and the present appears to be that both concerned charges of murder. The murder for which Boddaert eventually stood trial with his co-accused occurred in July 1980. An investigation continued over the next few years and in due course the co-accused came under suspicion of having murdered a casual female acquaintance in 1983. The Crown prosecuting authorities decided to investigate this second murder. This further delayed proceedings against Boddaert, but in February 1986 the court ordered joinder of the proceedings relating to both murders. The trial began on 4 March 1986 and on 14 March 1986 Boddaert was convicted. The Court rejected his application based on a breach of Article 6(1). Referring to the decision of the prosecuting authorities to await the outcome of the investigation of the second murder in order to complete the file on the first and so to hold a joint trial on all the charges brought against the co-accused, the Court observed:

"In proceeding in this manner they undoubtedly took the risk of postponing even further Mr. Boddaert's committal for trial. However, the latter had been released on 2 February 1982... Moreover the gravity of the offences in question and the interdependence of the charges, noted by the assize court in its judgment of 4 March 1986..., could reasonably appear to make it necessary for such a 'parallel progression' of the two cases, which were joined on 11 February 1986...."

The Advocate Depute relied on the Court's reference to the "gravity of the offences". It is obvious, however, that the Court was dealing with a very particular situation where it considered that a deliberate decision on the part of the Crown prosecuting authorities could be justified because of the gravity of the offences and the interdependence of the charges. At most, the Court's observation supports the view that in an exceptional case the gravity of the offence, when taken in conjunction with other factors, may justify a particular course of action by the prosecution, even though it has the effect of prolonging the proceedings.

In the present case there is nothing to suggest that the time which the Trial Judge took to produce his report was in any sense affected by the fact that the convictions of the respondents and their co-accused were for the grave charge of murder. For that reason the gravity of the offence has no bearing on the issue of delay.

We are therefore left with a case where the relevant factor which we have to consider among the factors listed by the Court in Eckle is the conduct of the judicial authorities, i.e. the conduct of the Trial Judge. In particular, it is a case where the Trial Judge took about six months longer than would have been appropriate to prepare his reports for the use of this court. As a result the respondents' appeals marked time. Despite this, their appeals against conviction were decided just over three years after the court proceedings against the respondents began with their appearance on petition in respect of the offence - and indeed just a little over three years after the offence itself. Had the timetable set down by the Crown been observed, the respondents' new trial could probably have been completed before the middle of October 1999, about three years and four months after court proceedings against the respondents began. The question is whether in these circumstances, by seeking to call the indictment against the respondents for their new trial, the Lord Advocate would be infringing their right to a hearing within a reasonable time in terms of Article 6(1) of the Convention.

The period which the court requires to consider is the total period covered by the proceedings, rather than just the particular period of delay by the Trial Judge. That particular period - and the lack of any proper reason for it - must, of course, be taken into account, but within the context of the proceedings as a whole and of the circumstances as a whole. See, for instance, the approach of the Court in Boddaert at paragraph 36; Cesarini v. Italy Series A No. 245-B (1992) at paragraph 17. The Advocate Depute suggested that the presiding judge had erred in law by not adopting this approach and by concentrating exclusively on the period of delay by the Trial Judge. That criticism is not easy to reconcile with what the presiding judge actually said:

"Of course, in connection with the requirements of Article 6.1, I am not concerned with the time taken to undertake some particular stage of criminal proceedings; rather I am concerned with the whole time taken to undertake the proceedings from the relevant point of commencement. Clearly, some delay that might be seen as unreasonable in relation to some particular stage of the whole proceedings might not necessitate the conclusion that the time taken for the whole proceedings was unreasonable. However, after the most anxious consideration, I have reached the conclusion that, in the circumstances of the present case, there has been an infringement of the rights of the accused conferred by Article 6.1 of the Convention. It is plain that the delay in the furnishing by the trial judge of his reports, following the lodging of the grounds of appeal, which was inordinate in relation to that stage of procedure, represents a very material part of the whole period of time taken up by these proceedings. If some explanation for that delay had been available, the position might have been different, but, at no stage during the discussion before me was any such explanation advanced. In the whole circumstances, for these reasons, I determine that the Lord Advocate has no power to call the present indictment for trial, since to do so would be incompatible with the rights of the accused under Article 6.1 of the Convention."

The passage shows that the presiding judge did consider the proceedings as a whole. On the other hand, it seems clear that he was considerably influenced by the fact that, because no explanation could be put forward for a delay, comprising a very material part of the proceedings as a whole, it would be incompatible with the Convention to allow the Lord Advocate to call the indictment. In that connexion, it may be worth noting that, if the period of unexplained delay is reckoned at about six months and the period which the proceedings would have taken from June 1996 until the scheduled completion of the new trial in October 1999 at approximately 40 months, then the unexplained delay accounts for about 15% of the total period of the proceedings. The imprecise nature of such an exercise is plain.

Counsel for the respondents did not suggest that, when judged alongside the periods to be found in some of the cases from Continental Europe, the total period in the present case was excessive. Indeed they readily accepted that the periods before trial in many of them were far longer than would be conceivable in our system. For instance, I have already mentioned Boddaert where the murder was committed in June 1980 and the investigation was opened on 18 July 1980. The Court held that in the circumstances of that case the trial in March 1986 was held within a reasonable time for purposes of Article 6(1) - even though during long periods the investigation against the applicant lay dormant (cf. paragraph 33). Counsel none the less submitted that where, as here, one could identify a significant period of inactivity which could not be justified, the court should hold that a breach of the respondents' right under Article 6(1) had occurred, even though proceedings might take longer in another system.

As authority for this approach, counsel cited the opinion of the Commission in Bunkate v. The Netherlands Series A No. 248-B (1993). The proceedings began on 12 September 1983 and ended with a decision of the Dutch Supreme Court on 26 May 1987, but 10 months were to be disregarded because the applicant had been abroad. There was a delay of fifteen-and-a-half months between the end of proceedings in the Court of Appeal and the receipt of the case file by the Supreme Court. Referring to a provision of the Dutch Code of Criminal Procedure which required papers to be passed to the Supreme Court within 54 days of the decision of the Court of Appeal, the Commission said (at paragraph 34 of their Opinion):

"It is true that the assessment of the reasonableness of the length of the proceedings under Article 6 � 1 of the Convention cannot be made dependent on time-limits stipulated in domestic law... But it must be taken into account that the national law prescribes a time-limit which has been surpassed by almost fourteen months."

In that situation the Commission held that there had been a breach of Article 6(1). The Court made no reference to the domestic legislation and its decision is recorded in this way (at paragraph 23):

"The Court cannot accept a period of total inactivity lasting for fifteen and a half months. There has accordingly been a violation of Article 6 � 1."

If in applying the Convention a court were simply to concentrate on the standards to be expected in its own domestic system, then this would lead to Article 6(1) of the Convention being applied differently in different Contracting States. The Commission recognise this in the passage which I have quoted where they say that the assessment of the reasonableness of the length of proceedings under Article 6(1) cannot be made dependent on time-limits stipulated in domestic law. More particularly, such an approach could have the apparently perverse result that a breach of the Convention would be established more readily in a Contracting State where proceedings were generally relatively fast than in a Contracting State where proceedings generally moved more slowly. That having been said, I infer from the cases that, even where the domestic procedure has operated relatively quickly - as in the Bunkate case - the Court will have regard to any unexplained period of inactivity in deciding whether there has been a breach of Article 6(1).

In McNab the court applied this test (2000 J.C. at p. 85 B - C):

"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."

I am content to adopt that approach, while bearing in mind that we are applying the international standard which is set by the Convention.

As I have explained, the total length of the proceedings was just over three years until the decision in the appeal and might have been about three years and four months until the end of any retrial. Looking at the matter in terms of the Convention but in the light of my general knowledge of the criminal justice system in Scotland, on neither approach do I regard that as an unreasonable period, considering the various steps in procedure which are involved. I am aware that there are many cases in our system which take just as long, though for different reasons. For instance, any case where the accused were not in custody might have taken roughly twelve months before trial. Adjournments are not uncommon. It is by no means unusual to find that appeal proceedings extend over a number of years - for example, because of additional grounds of appeal being lodged, because of the unavailability of counsel for hearings, because of changes of counsel, because of the need to extend notes of evidence, because of the need to have a continued hearing before a court made up of specific judges. Against that background there is nothing in the length of the present proceedings which marks them out as exceptional. Admittedly, about six months of the total length of the proceedings is accounted for by a period when the Trial Judge failed to produce his report. That should not have happened and it added unnecessarily to the time taken. But other factors, such as the original trial taking place within the 110-day period and the problems with the shorthand writer, also played very significant, though different, roles in determining the overall length of the proceedings. Looking at the proceedings as a whole and giving full weight to the Trial Judge's delay, I have reached the view that the proceedings down to the end of the appeal in June 1999, though more protracted than necessary, had taken place within a reasonable time in terms of Article 6(1). Similarly, I would hold that, in the absence of any further unexplained period of inactivity, any new prosecution would also take place within a reasonable time in terms of that Article.

It follows that I respectfully differ from the view of the presiding judge that, by calling the indictment, the Lord Advocate would be doing something which was incompatible with the respondents' rights under Article 6(1). I would therefore allow the appeal and recall the determination of the presiding judge.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Coulsfield

Lord Nimmo Smith

Appeal No: C27/00

OPINION OF LORD COULSFIELD

APPEAL

under Section 74(1) of the Criminal Procedure (Scotland) Act 1995

HER MAJESTY'S ADVOCATE

Appellant;

against

MARTIN McGLINCHEY and RYAN JAMES RENICKS

Respondents:

_______

Appellant: Menzies, Q.C., A.D.; Crown Agent

Respondents: McBride, F.M. Davies; McAfee, Airdrie: Murray, Q.C., Gilbride; Bell Russell

& Co., Airdrie

18 February 2000

Martin McGlinchey and Ryan James Renicks were indicted for trial at an Edinburgh sitting due to commence on 10 January 2000 for their alleged part in a murder committed on 15 June 1996. By minutes lodged on their behalf they sought to raise a devolution issue, namely that the Lord Advocate had no power to proceed with the indictment against them, in that to do so would breach their rights under the European Convention on Human Rights and in particular under Article 6. On 17 January 2000, the presiding judge sustained the minutes and held that the Lord Advocate had no power to proceed with the indictment. The Crown now appeal against that decision.

The case arises from the death of Robert O'Donohue on 15 June 1996 following an assault upon him by a number of persons. Initially, seven persons were indicted on a charge of murder. The trial on that indictment took place in October 1996. During the course of the trial, the Crown accepted a plea of guilty to the reduced charge of assault from one of the seven. On 22 October 1996, the remaining six persons, including the respondents, were found guilty by the verdict of the jury. All of the six persons convicted intimated their intention to appeal and grounds of appeal were lodged in about December 1996. The trial judge, however, did not produce reports in relation to the two respondents, in terms of section 113 of the 1995 Act, until, in one case, the end of September, and, in the other, the end of November 1997, despite the fact that he was repeatedly asked by the Justiciary Office to do so. No explanation of that delay has ever been given. Leave to appeal in the six cases was granted in December 1997. The next step in the appeal was a procedural hearing which was held in July 1998. The purpose of the hearing was to discuss how the appeal should proceed, in particular in the light of the fact that the trial judge's report was brief and did not give a satisfactory explanation of the evidence as it related to each of the six appellants. This was important, because there had been changes in the representation of the appellants since the trial. It was therefore ordered that the shorthand notes of some of the evidence and speeches should be extended. The respondents' counsel were not, however, among those who asked that notes of the evidence should be extended. It turned out that one of the shorthand writers was unable to reproduce his notes because of the passage of time and the fact that he was no longer engaged in shorthand writing for the court and had lost familiarity with the necessary skills. There was a good deal of correspondence between the Justiciary Office and the shorthand writer over this topic between late 1998 and May 1999. Eventually, however, it was made clear by the shorthand writer that he could not produce a meaningful transcript and, in the light of that, the appeal proceeded on the basis of the material available. The appeal was heard in June 1999 and the decision was given on 25 June 1999. By that decision, the convictions of the two respondents were quashed but the remaining four convictions were affirmed. Leave was granted to the Crown to bring fresh prosecutions against the respondents.

It is, I think, helpful to say something about the circumstances of the murder and the grounds on which the convictions were quashed, although it is not necessary or appropriate to go into the matter in a great deal of detail. Some time about 3 a.m. on the morning of 15 June 1996, a group of young persons, including the deceased, the seven accused on the original indictment and two girls, were in the vicinity of a public park in Coatbridge. One of the girls, Ann Burns, was touched by the deceased and this led to one of the accused, Paul Mowat, taking exception to the deceased's behaviour. This in turn led to an assault on the deceased by a group of youths. The assault could be regarded as falling into two distinct stages. There was an initial assault, after which the deceased rolled down a bank into a burn, where he ran up and down trying to escape, while members of the group lined the bank and prevented him from doing so. The deceased then managed to crawl out of the burn on the far side from the group and members of the group crossed the burn by a bridge and again attacked the deceased in a wooded area where, eventually, he was left almost naked. The deceased sustained a great many injuries consistent with the use of weapons, and with punching, kicking and stamping, and stones were found which could have been used as weapons. A number of the injuries were serious but it was a particular feature of the case that, according to the evidence of the pathologists who examined the deceased's body, the death was caused by a single injury which, once inflicted, would have caused death within a fairly short time. The consequence of that evidence was that the fatal blow must have been struck not during the first part of the incident but during the second stage, when the deceased was assaulted in the wooded area on the far side of the burn. There were no eye witnesses to that part of the attack but there was evidence, including evidence of remarks and statements made by some of the accused, from which inferences could be drawn that some at least of the accused had been involved in a concerted attack on the deceased at the point of time at which the fatal injury must have been sustained. It was therefore vital for the Crown to establish that each of the accused against whom a conviction for murder was sought had been involved in a concerted attack on the deceased at the stage when the fatal injury was inflicted and it was therefore, in turn, essential that the judge should correctly direct the jury as to the evidence which they required to consider and the proper approach to that evidence. At the appeal, the arguments put forward on behalf of each of the accused were different. The evidence of the witness Ann Burns was discussed to a considerable extent in the submission on behalf of accused other than the two minuters. There was criticism of some remarks made by the trial judge which were not related to the issue of participation in a concerted attack and of some other aspects of his charge, not directly affecting the position of the respondents. The reason why the respondents' convictions were quashed was that the judge's directions in regard to the evidence against them and the inferences which might be drawn in relation to their participation in a murderous attack on the deceased were regarded as inadequate. I would add that it was not submitted that the Crown evidence against the respondents was insufficient in law to entitle the jury to infer that they were guilty of murder, had the jury been given proper directions.

After the decision on the appeal, a fresh indictment was served on the respondents within, if only just within, the two month period permitted under the 1995 Act. The case has been listed for trial at two sittings since then and has been postponed at the request of the defence, for reasons concerned with the precognition or re-precognition of witnesses and otherwise for purposes of preparation for trial. The present minutes were lodged in January 2000. The respondents have been on bail since the date of the decision in the appeal in June 1999. It was suggested, on behalf of the Crown that the respondents had contributed to the overall delay by not raising the present issue when the Crown moved for authority to bring a fresh prosecution in June 1999 and by their later application to postpone the trial. I do not, however, think that the respondents can reasonably be criticised for not raising the point immediately on the disposal of the appeal, and the later applications for postponement were not opposed and were made for reasons accepted as sufficient at the time. Accordingly, while it is true that the minuters have in fact contributed something to the total delay, that cannot, in my view, be regarded as a significant element in the whole circumstances of the case.

Article 6.1 of the Convention provides:

We were referred to a range of authorities concerned with the application of Article 6.1 but it does not seem to me to be necessary to survey many of them. There are certain principles which can clearly be drawn from the jurisprudence concerned with Article 6 without going into too much detail. Firstly, in determining whether there has been a breach of Article 6.1, in regard to failure to bring a case to trial within a reasonable time, the time to be considered starts from the point at which a "charge" is brought against the complainer. (Ringeisen v. Austria (1971) 1 EHRR 455). That is of little relevance in the present case, in view of the fact that the initial proceedings were brought and disposed of within the normal time limits, but it nevertheless has to be borne in mind that it is the whole period of the proceedings which has to be considered. Secondly, the relevant factors in judging reasonableness are, or perhaps more accurately include, the complexity of the case, the conduct of the applicant and the conduct of the administrative and judicial authorities. (Eckle v. Germany (1983) 5 EHRR 1 at para. 80: Kemmeche v. France (1991) 14 E.H.R.R. 520 at para. 33: and many other cases). In the present case, there is no criticism of the conduct of the respondents or of the prosecution authorities. The material delay appears to have been mainly due to the failure by the judge to produce an adequate report within what might be regarded as a normal time scale and the problem over the shorthand notes. Thirdly, the mere fact that there has been some delay or some period of inactivity is not per se sufficient to show that there has been a breach. Fourthly, if a case has passed through various stages, the fact that there has been delay at one stage does not necessarily determine that, when the proceedings are viewed as a whole, there has been a breach of Article 6.1. (Boddaert v. Belgium (1992) 16 E.H.R.R. 42). Apart from these principles, the jurisprudence is unanimous that the question whether or not proceedings have been brought within a reasonable time is one to be determined with regard to the whole circumstances of the case.

Reference was made to a series of cases in which various periods of delay had occurred in different circumstances. While particular cases may illustrate the way in which the principles mentioned above have been applied, it does not seem to me that close examination and comparison of the facts of particular cases is really called for. The procedures followed and the roles played by various judicial and other authorities vary so greatly between jurisdictions that it is, in most cases, in my opinion, difficult to take anything from the facts of a particular decision which significantly adds to the general proposition that what is a reasonable time depends upon the whole circumstances of the case. There have been cases where periods of delay which, at first sight, might seem very substantial have been held not unreasonable (for example Kemmache v. France (1991) 14 E.H.R.R. 520 in which the whole proceedings took 81/2 years, although attention was centred on a period of detention of 2 years 10 months, and Lombardo v. Italy (1992) 21 E.H.R.R. 188 in which the whole period was approximately 111/2 years). On the other hand, there have been cases in which much shorter periods have been held unreasonable. One of these is the only case which, in my view, requires to be closely examined. It is Bunkate v. The Netherlands (1993) 19 E.H.R.R. 477. In that case, the applicant was arrested on suspicion of forgery on 12 September 1983 and was tried by a regional court in December of that year and sentenced to one year's imprisonment on 5 January 1984. He was allowed to remain at liberty pending an appeal and travelled to the Dominican Republic where he stayed for about 11 months. Various other events took place, which are not material for the present purpose, but the applicant's appeal was heard by a Court of Appeal on 14 May 1985. By a decision of 28 May 1985, the Court of Appeal altered his conviction but increased his sentence to one year and four months. The applicant then lodged an appeal to the Supreme Court on points of law on 10 June 1985. The registry of the Court of Appeal transmitted the case file to the registry of the Supreme Court on 23 September 1986. The appeal was eventually heard and dismissed on 26 May 1987. The material point in the case was the delay of 151/2 months which took place between the lodging of the applicant's appeal to the Supreme Court and the transmission of the file to the registry of that court. The judgment of the European Court of Human Rights states at paragraph 22 that the reasonableness of the length of proceedings is to be assessed with reference to the criteria laid down in the court's case law and in the light of the circumstances of the case, that the case was not particularly complex and that no complaint was directed against the proceedings in the regional court and the Court of Appeal. With regard to the delay in transmission of the file, the decision states, in paragraph 23:

"Article 6.1 imposes on the contracting states the duty to organise their legal systems in such a way that their courts can meet each of its requirements. The court cannot accept a period of total inactivity lasting for 151/2 months. There has accordingly been a violation of Article 6.1".

Reference to the opinion of the Commission, at page 481 of the report, shows that the Commission took into account the fact that there was, under national law, a prescribed maximum period of 54 days for the transmission of the file. The Commission states that the reasonableness of the length of the proceedings cannot be made dependent on time limits stipulated in domestic law but that it must be taken into account that the national law prescribes a time limit which had been surpassed by almost 14 months and adds that the delay could not be justified, as suggested by the Government, by a lack of available staff. The decision suggests, therefore, that the extent to which proceedings have or have not complied with the standards and norms of a particular jurisdiction is relevant, as one, but only one, of the circumstances of the case.

I think it necessary to refer to Bunkate v. The Netherlands in such detail because the case does have some similarity to the present, in particular in that there was a substantial period of unexplained delay by the judicial or administrative authorities. The decision of the court in that case is sufficient to show that the delay which occurred in the present case between the verdict of the jury and the hearing of the appeal is one which must be considered very seriously. The presiding judge did consider it very seriously. He describes the delay in the furnishing of the reports by the trial judge as inordinate and observes, correctly, that that delay represented a very material part of the whole period of time taken up by the proceedings. Since that delay was unexplained, he reached the conclusion that the Lord Advocate had no power to call the present indictment to trial.

I can fully understand the judge's reasons for coming to that decision, but I find that I am unable to agree with his conclusion. As I have said, it is clearly established that the decision in a case like this must be taken on a consideration of the whole circumstances. It respectfully appears to me that, given the involvement of six, or originally seven, accused in an incident of the character which I have described, notwithstanding the speed with which the original charge was brought to trial, the consideration of and preparation for an appeal would be bound to have taken a substantial time. The trial judge would have required some period of time to prepare his report and further time would have been required for all the accused to consider their positions and the steps necessary for preparation for the appeal. In particular, it would have been necessary for all of the appellants to consider whether to ask for extension of some or all of the notes of evidence. The difficulty which arose over the shorthand notes is the sort of difficulty which could arise in any case and could have arisen in the present case, even without the delay for which the judge was responsible. The fact that arrangements required to be made to fit in, so far as reasonably possible, with the availability of counsel for six appellants would itself have tended to delay the proceedings. I am reluctant to try to quantify particular periods of time which would have been required in any event or to attribute particular periods to particular causes of delay. I prefer to say that, although the period of time taken by the proceedings in the present case was greater than one would have hoped and expected to see, I have come to the conclusion that, given the nature of the case and the complexity of the circumstances of the appeal, it was not so excessive as to constitute an unreasonable time for the purposes of Article 6.1. In these circumstances, I agree that there is no ground for holding that the Lord Advocate does not have power to proceed with this indictment.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Coulsfield

Lord Nimmo Smith

Appeal No: C27/00

OPINION OF LORD NIMMO SMITH

APPEAL

under Section 74(1) of the Criminal Procedure (Scotland) Act 1995

HER MAJESTY'S ADVOCATE

Appellant;

against

MARTIN McGLINCHEY and RYAN JAMES RENICKS

Respondents:

_______

Appellant: Menzies, Q.C., A.D.; Crown Agent

Respondents: McBride, F.M. Davies; McAfee, Airdrie: Murray, Q.C., Gilbride; Bell Russell

& Co., Airdrie

18 February 2000

Your Lordship in the chair has set out the relevant chronology, which I need not repeat. I agree with the analysis of the proceedings to date which yields the conclusion that they have been protracted by a period of about six months as a result of the unexplained failure of the trial judge to furnish his reports as soon as reasonably practicable, in accordance with section 113(1) of the Criminal Procedure (Scotland) Act 1995. The question is whether, in the particular circumstances of the case, the overall length of the proceedings, protracted as they have been by this delay, is such that it can be said that more than a reasonable time has passed, in contravention of Article 6(1) of the Convention. The need to consider the whole circumstances, and not just one stage of the proceedings, is well established: see, for example, Eckle v. Germany and McNab v. H.M. Advocate. Of course, the fact that there has been an unreasonable delay at one stage may be decisive, as in Bunkate v. The Netherlands, but only after account has been taken of all other relevant circumstances. The decisions of the European Court of Human Rights to which we were referred do not appear to me to require us to treat Article 6(1) as the source of a Procrustean timetable applicable throughout the Contracting States, without account being taken of the timescale for which provision is made within each jurisdiction. On the other hand, considerations arising from compliance with or departure from the requirements of our domestic procedure must be examined in light of the international standard provided by the Convention.

In the present case, the original trial took place within the 110 day period, without any of the adjournments which have become quite common in cases such as this. Apart from the delay caused by the failure of the trial judge to furnish his reports timeously, the only other matter of significance in the course of subsequent procedure was the unrelated difficulty in connection with the shorthand writer. In other respects the appeal was disposed of expeditiously. As your Lordship has pointed out, numerous factors may contribute to delays in the disposal of appeals, and it cannot be said that the present proceedings have been exceptionally protracted, notwithstanding the presence of unusual features. While it is not necessary for the present respondents to be able to demonstrate that they have been prejudiced by such delay as there has been, the absence of any prejudice appears to me to be a factor which may legitimately be taken into account in considering whether the proceedings have taken place within a reasonable time. With some hesitation, I have concluded that, notwithstanding the delay occasioned by the trial judge, the overall timescale cannot be said to have been more than was reasonable, and accordingly there has been no infringement of the respondent's rights in Article 6(1). I accordingly agree with the disposal proposed by your Lordship in the chair.