Scottish High Court of Justiciary Decisons

FRANK DOCHERTY v. HER MAJESTY'S ADVOCATE [2000] ScotHC 2 (14th January, 2000)

Originally a plea in bar of trial was taken by the appellant in the Sheriff Court in Greenock, in which he challenged the competency of further proceedings by the Crown on the basis that if the Lord Advocate calls the present indictment for trial, this would be incompatible with the rights of the accused under the Convention for the Protection of Human Rights and Fundamental Freedoms and in particular incompatible with his rights under Article 6(1). The particular part of Article 6(1) which was founded upon was the part which says that all trials must be brought within a reasonable time. The charges were of theft alternatively fraud, and a charge of contravening Section 1(1) of the Prevention of Corruption Act 1906. The charges related to coal distribution to various premises of the former Strathclyde Regional Council. The appellant's company acted as deliverers of coal and the invoices were sent out by the coal company, British Fuel Ltd and the appellant was paid a handling charge. The allegations against the appellant were that he made underweight deliveries and either duped janitors at schools into accepting underweight deliveries or bribed them to do so. Plainly a case of this nature would create difficulties in investigation and plainly there would be a substantial amount of documentation which would be necessary to enable the Crown to prove charges of this kind. What appears to have happened is that on or about 8 June 1992, the appellant became subject to a criminal charge against him in the context of Article 6(1). He was ultimately served with an indictment on 7 July 1999 for trial on 9 August 1999. The lapse of time therefore is one of 7 years and 2 months. Even allowing for the fact that this was a fairly complex type of case it could, we think, be said that prima facie a period of 7 years and 2 months is of an excessive nature in the absence of any explanation. The Crown endeavoured to explain the delay in this case. There was put before the sheriff a 10 page document setting out precisely what had happened in the case. We do not propose to go through this in full detail, but it is sufficient to say that the opening relevant date is 9 June 1992 when searches took place by Trading Standards officers accompanied by police officers of the house and business premises of the appellant. Thereafter, there were meetings between the Trading Standards officer and the fiscal and eventually a report was submitted by the Trading Standards officers on 26 July 1993. In October 1993 the Procurator Fiscal in Greenock submitted a report to the Fraud Unit at Crown Office asking that unit to take over the case. In February 1994, however, that unit decided not to take over the case and it was returned to the Procurator Fiscal in Greenock. That means therefore that a period of some 21 months had elapsed between the date when the appellant became subject to a criminal charge against him and the Procurator Fiscal in Greenock commencing his investigations. The next item which appears in the Crown's chronology is dated August 1994, some six months after the case had gone back to Greenock, when a precognition officer precognosced 8 witnesses. In February 1995 the Fraud Unit wrote to the Procurator Fiscal in Greenock to find out what was going on and sent a reminder in March 1995. In April one witness was precognosced and in October 1995 one further witness was precognosced. During this period the Fraud Unit were requesting a report from the fiscal. They were advised to expect the report by 30 October 1995 but eventually the Fraud Unit received the report from the procurator fiscal's office in February 1996. The period therefore between February 1994 and February 1996 appears to have been filled, if that is the right word, by the precognition officer at Greenock precognoscing a total o

The Sheriff in his report tells us that he accepted that under Article 6(1) there is no requirement for an appellant to prove that he has been prejudiced. If in fact the trial is not brought within a reasonable time, then there will be a breach of Article 6(1) and prejudice is not relevant to that. The Sheriff having gone through the chronology of this affair says that a delay of some 7 years calls for some explanation by the Crown. Mr Alonzi accepted that proposition as indeed did the Advocate Depute before us. It was also accepted as a matter of agreement that no element of the delay in this case could be laid at the feet of the appellant. The Sheriff says that the Crown seek to justify the delay by submitting that the present case is complex and that there has been nothing in the conduct of the judicial authorities which could be criticised. On the question of complexity, the Crown pointed to the difficulties in investigating the matter in some detail because of inter alia the demise of Strathclyde Regional Council, the difficulties in tracing appropriate financial records, the fact that the British Fuel Co Ltd ceased to trade, the fact that the Clyde Coal Co ceased to trade, and the difficulties in tracing school janitors. The Sheriff then accepts that the present case does constitute a complex matter. What he does not observe however, is that all of the matters which he particularly founds upon arose after February 1996 and if the matter had been investigated at an early stage, none of these difficulties would have arisen. It might well still have been a fairly complex type of case but the particular difficulties which made it even more complex were not initially there. The Sheriff accepted the Crown's submission that a considerable amount of precognition work in tracing the financial records was required and we would accept that that was so. The difficulty is that that work did not seriously commence until February 1996. The Sheriff then says that the report was submitted by the Trading Standards Department to the Procurator Fiscal's Office in Greenock in July 1993 and in September 1993 the agents for the appellant were advised that the case had been reported for prosecution. He goes on to say:

The Sheriff then says that he is satisfied that from March 1996 onwards, work was being carried out by the prosecuting authorities in connection with their investigations. He refers to the case of Boddaert v Belgium 16 EHRR 242 where it was observed that Article 6 commands that judicial proceedings be expeditious but it also lays down the more general principles of the proper administration of justice. In the circumstances of the case, conduct of the authorities was consistent with the fair balance which had to be struck between the various aspects of this fundamental requirement. The Sheriff says that he was satisfied that the present situation falls within the terms of that statement from the European Court. He says that at the end of the day, the question of whether more than a reasonable time had elapsed depended on his assessment of the various factors to which he has referred against the background of his general knowledge as to the criminal justice system in Scotland. Having heard the explanations and submissions on behalf of the Crown, he was not satisfied that the period which elapsed in this case was unreasonable.

The Advocate Depute before this court adopted what was said by the Sheriff. The Advocate Depute also referred to the case of Caroline McNab v HM Advocate unreported 2 September 1999. In McNab the Lord Justice Clerk observed that how long is a more than reasonable time is a matter which must be assessed in each instance according to the particular circumstances and there is no universally applicable norm against which the period in a particular case can be compared. The Lord Justice Clerk went on to say:

He then refers to the passage in Boddaert and goes on to say:

The Advocate Depute founded on these passages in McNab and submitted that in the present case this provided the necessary sufficient explanation of the period between 1992 and 1996. There was only the one precognition officer in the office in Greenock and obviously there would be many other cases which had priority over the present case. All cases involving custody would inevitably take priority and other cases involving time limits would also take priority. Accordingly it could not be said that the Crown were failing in their duty, because of the inevitability that other cases of a more important nature would take precedence over the present case.

In our view, the submission by the Crown in relation to this 2 year period is insufficient. We accept that there is a difficulty if there is only one precognition officer who has to deal with every case in a busy sheriffdom, and it would probably inevitably follow that in a case of this kind there will be a delay. The difficulty however is that this particular delay between February 1994 and February 1996 took place on top of a delay which had already occurred from June 1992 to February 1994 when the case was being referred to the Fraud Unit and then referred back again. There was therefore a delay of some 20 months before the precognition even could be expected to get under way. In that situation, it appears to us that some priority ought to have been given to the present case in view of the fact that there had already been this delay. There is not the slightest doubt that during the period between February 1994 and February 1996, very little seems to have been done with this case. A total of ten witnesses appear to have been precognosced, eight of them during the course of one particular month. It cannot therefore be said that there have been no excessive periods of inactivity which has been a phrase used in European jurisprudence in other cases. In our view, it is quite clear that there were excessive periods of inactivity in this case. The Sheriff was given the explanation, as we have said, that there was only the one precognition officer and he had other things to do. The Sheriff appears simply to have accepted this explanation pro veritate without considering whether it provided a proper explanation as a matter of law rather than simply accepting it as a question of fact. In our view, the Sheriff ought to have assessed the explanation in the light of the whole circumstances of the case to see if it satisfied him that the trial had been brought within a reasonable time. In our view, he has failed to do so, or if he has made such an assessment, he has not had adequate regard to the fact that so little was done during this extended period, an extended period which, as we have observed, comes on top of a previous extended period when nothing appears to have been done. On the whole matter therefore, we have come to be of the opinion that the lengthy period of 7 years and 2 months which has elapsed in this case has not been adequately explained by the Crown and we are not satisfied that there has not been a failure to bring this appellant to trial within a reasonable time. In these circumstances, we shall uphold a motion made by Mr Alonzi and in terms of Section 74(4)(a) of the 1995 Act we shall remit the case to the Sheriff to sustain the plea in bar and dismiss the indictment.

AUD