Scottish High Court of Justiciary Decisons

NORMAN ROBB v. HER MAJESTY'S ADVOCATE [2000] ScotHC 20 (18th February, 2000)

The appellant, Norman Charles Robb, was indicted at the instance of Her Majesty's Advocate on four charges of indecent practices or conduct, involving three female complainers. A trial diet having been fixed at the Sheriff Court in Linlithgow for 15 November 1999, the appellant lodged a Minute, intimating his intention to raise a devolution issue. At a first diet on 3 November, the appellant advanced a plea in bar of trial, on the basis of his Minute. Having heard submissions on behalf of the appellant and the procurator fiscal, the sheriff repelled the appellant's plea. Leave to appeal to the High Court of Justiciary was granted. The plea in bar of trial, and consequently this appeal, turn upon the provision in Article 6 of the European Convention on Human Rights that in the determination 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. It is not disputed by the Crown that the Lord Advocate has no power to do any act incompatible with this provision of Article 6; and the appellant's contention is that the proceedings on this indictment, and in particular any trial, would not be "within a reasonable time".

The conduct narrated in all four charges in the indictment is said to have occurred at the appellant's address in Livingston. The complainer under charges 1 and 2, is D.S., who was born on 22 January 1980. Charge 1 relates to conduct "on various occasions" between 1 August 1985 and 31 March 1990. Charge 2 concerns different conduct, not said to be "on various occasions", between 1 August 1985 and 31 August 1988.

The complainer under charge 3 is N.S., who was born on 30 August 1985. The conduct in question is said to have occurred between 1 January and 29 November 1994. The complainer under charge 4 is A.M., who was born on 19 May 1981. The conduct in question under this charge is said to have occurred between 1 January 1993 and 1 January 1994. (As in charge 2, and in contrast to charge 1, the conduct referred to in charges 3 and 4 is not said to have occurred "on various occasions" but it appeared from the Advocate depute's submissions that in relation to one or more of these charges the Crown might wish to clarify or expand the charge, by amendment to include a reference to "various occasions"). It is to be noted that the allegations relating to D.S. cover a period when she was aged between 5 and 10, running up to March 1990; that no allegations are made in relation to the period between then and January 1993; and that the conduct relating to A.M. (in 1993) and N.S. (in 1994) relates to times when they were aged 11 or 12, and 8 or 9, respectively. N.S. is now 14, and D.S. and A.M. are adult.

Turning from the dates of the alleged offences to those dates which may be relevant to the issue of "reasonable time" under Article 6, it is convenient to set these out briefly, before considering matters in greater detail.

The periods which the appellant contends are relevant, in considering the question of "reasonable time" under Article 6, commence in relation to each complainer with the date when he was first interviewed by the police as to that complainer's allegations: for D.S., 23 May 1993, and for A.M. and N.S., 13 December 1994. Using these "start dates", the appellant points out that the total period up to the appointed trial diet in November 1999 would be nearly 61/2 years in the case of D.S., and nearly 5 years in relation to A.M. and N.S. It is said that no part of the time which has thus elapsed can be attributed to either some particular complexity of the case or the conduct of the appellant; and that in the circumstances, these periods are prima facie unreasonably long. More particularly, it is said that the Crown has been unable to provide a sufficient explanation for the delay of more than 3 years and 9 months which occurred between December 1994 (the last "start date") and September 1998 (when the appellant was charged by the police after detention and interview).

Having been addressed by the parties, the sheriff concluded that the relevant period did not begin until the date when the appellant was charged - 30 September 1998. Taking that as the starting off point, he considered whether the delay of 13 months thereafter, up to the appointed trial date, was unreasonable. He concluded that it was not.

Since the matter was before the sheriff the position has however changed significantly.

The appeal hearing before this court proceeded upon an express concession by the Advocate depute that in relation to D.S. and A.M., the appropriate starting dates were 23 May 1993 and 13 December 1994 respectively, as the appellant contended. Moreover, counsel for the appellant expressly abstained from claiming that the delay from September 1998 until trial was either unreasonable in itself, or would render the overall delay unreasonable if there had been no unreasonable delay prior to September 1998. In relation to D.S. and A.M., therefore, it is inappropriate to approach matters by considering the sheriff's conclusions, which are no longer in point. Furthermore, while the start date for D.S. was taken as 23 May 1993, so that the lapse of time from then until 13 December 1994 was in a sense relied upon by the appellant as part of the relevant delay, it was essentially the period from 13 December 1994 until September 1998, during which the appellant had been informed of complaints by more than one complainer and had not been charged with any offences, that was relied upon as a delay for which the Crown had been unable to provide any sufficient explanation. This represented some 3 years and 9 months during which nothing had essentially changed, and nothing had been done. Within that period, the delay from September 1997 (when D.S. had gone again to the police, inquiring as to what was happening with her case, and had been re-interviewed) was perhaps particularly unreasonable.

There being no concession as to the appropriate starting date in relation to N.S., that remains an issue which we must determine. Because the matter turns to some extent upon detail, it is convenient to leave it aside at this stage, and come back to it after a consideration of how matters stood at various stages between 1992 and now.

As formulated in the indictment, the charges against the appellant in relation to the three complainers are very similar. In each case it is alleged that he placed his hands beneath the complainer's clothing, and either handled or touched her naked private parts. Charge 4, relating to A.M., categorises this as shamelessly indecent conduct, whereas charges 1 and 3, relating to D.S. and N.S. respectively, treat the conduct as "lewd, indecent and libidinous practices and behaviour" - this expression also being used in charge 2, which makes the additional allegation in relation to D.S. that the appellant sat on top of her and rubbed himself against her body.

Despite the very similar and relatively straightforward form in which the allegations are set out in the indictment, it appears that at least in some respects the charges in the indictment differ from allegations made at earlier stages. Some indication of this was given by the Advocate depute; but it is not possible, or necessary, to go into very great detail. Put shortly, D.S's original allegations in 1992 appear to have contained the elements now contained in charge 2, and putting hands beneath clothing, but not to have extended to the handling of her private parts. Correspondingly, one must infer that what was put to the appellant at interview on 23 May 1993 was limited to this original account. As regards A.M. it is not clear what exactly she said to the teacher about the appellant's conduct towards N.S. or herself. But her allegations in 1994, whether to the teacher or to the police, appear to have been relatively limited, with talk of the appellant putting his hand under her bedclothes but on top of her clothes, and touching her bottom once. She was not then making the more serious allegations now contained in charge 4. N.S. apparently remembered, or said she remembered, nothing. At the appellant's interview on 13 December 1994, it is not clear how much was put to him of what A.M. had said to the teacher, about herself and N.S., but we were told that this interview related to both A.M. and N.S., resulting in a complete denial by the appellant. Nor is it clear whether, at that interview, D.S's 1992 allegations, upon which the appellant had earlier been interviewed, were mentioned, or linked to the new allegations concerning A.M. and N.S. This uncertainty stems largely from the fact that the tape recording of the interview was destroyed. Its destruction may have other significance but at all events, the Crown's position is that at this stage - in December 1994 - there was no case in relation to N.S., and no corroboration in relation to either D.S. or A.M. Upon that basis, the decision then taken was apparently that no proceedings against the appellant could or should be taken meantime; that with the mothers of D.S. and A.M. having been seen, but affording no corroboration, there was no evident further avenue to explore; but that given the allegations and information available, this was not a case in which the matter could be closed, with the appellant being told that there would never be proceedings against him in respect of these allegations.

The only "new" event which appears to have occurred after the appellant's release on 13 December 1994 and before he was detained and charged on 30 September 1998 appears to be D.S's contact with the police in September 1997. At that time, D.S. apparently made allegations which went further than those she had made in 1992, and which would afford a proper basis for the full terms of charge 1 in the indictment. It was apparently D.S's 1997 allegations to the police which led to her re-interview and further action in September 1998. During that year, the papers were apparently with the police rather than the procurator fiscal.

After the appellant was charged with offences relating to D.S. and A.M. in September 1998, further evidence emerged as a consequence of these charges being known. N.S. made certain allegations, and the potentially incriminating letter, alleged to have been written by the appellant, came into police hands. Only then was there, for the first time, an allegation made by N.S. herself, with possible corroboration of improper conduct towards her, in the terms of the letter. Moreover, N.S's allegations then, and then only, afforded the possibility that the allegations made by A.M. might be corroborated by N.S's evidence on the basis of Moorov v. H.M. Advocate 1930 JC 68. The petition procedure in October 1998, and the subsequent indictment, accordingly proceeded with these additional foundations available.

But it is to be noted that when the appellant was charged by the police in September 1998, that material was not yet available, and the charges (in relation to D.S. and A.M.) if made on the basis that corroboration was available must have proceeded upon the view that the allegations made by D.S. and A.M. were mutually corroborative. It also appears that up to that point, A.M's allegations had not gone beyond the somewhat limited allegations which she had made in 1994: it is not clear when these were expanded upon, and took form, as presumably they must, justifying the terms of charge 4 as it appears in the indictment.

The submissions advanced on behalf of both the appellant and the Crown in this appeal turn very substantially upon issues as to sufficiency of evidence. It is apparently common ground between the parties that in December 1994 there was not sufficient evidence to bring charges against the appellant in relation to either D.S. or A.M. unless mutual corroboration could be seen as available on the basis of Moorov. In the sheriff's narrative of the procurator fiscal's submissions to him, it is said that "the cases of D. and A. were not sufficiently similar to enable the Moorov doctrine to afford corroboration" and no charges were preferred. In presenting this appeal, counsel for the appellant noted that proposition but questioned whether (whatever the Crown's attitude might now be) that was really the historical view which had been taken at the time, and represented the true reason for charges not being brought in 1994. In reply, the Advocate depute suggested that where one had two different complainers making allegations of sexual indecency in the same place, against the same man, one would assume or infer that a prosecuting authority would at least consider Moorov, and that any reasonable procurator fiscal might come to the view that the cases of D.S. and A.M., separated as they were by many years, were not sufficiently similar to provide the required corroboration. But he was unable to confirm that this had in fact been the reasoning at the time, and counsel for the appellant submitted that where an explanation was called for, an assumption was no substitute.

Furthermore, on the hypothesis that Moorov had not been seen as affording mutual corroboration in the cases of D.S. and A.M., in 1994, counsel for the appellant submitted that the passage of time between then and the charges which were brought in September 1998 revealed no change that was relevant in this respect. The fact that D.S. had made more serious charges in September 1997 in no way affected the question of whether these two witnesses might corroborate one another. Both before and after D.S's visit to the police at that time, the police and the Crown had made no further investigations. The police eventually charged the appellant in September 1998 upon a basis which, good or bad, was apparently the same as it had been ever since September 1994. That was not merely prima facie an unreasonable delay, but was one which the Crown could not explain. While the subsequent delay from September 1998 to the trial date could not in itself be criticised as unreasonable, the delay which had already occurred since the start date remained unreasonable, and did not cease to be so merely because thereafter some further time reasonably elapsed, nor because during that time certain further evidence came to hand. In relation to the charges concerning D.S. and A.M. there was a clear breach of Article 6.

In thus contending that there had been a breach of Article 6, counsel for the appellant submitted that the correct legal approach could be found in what was said by Lord Kingarth in H.M. Advocate v. Little 1999 S.C.C.R. 625, at page 635C-D:

In the present case, as in Little, it was not disputed that the first two factors were not significant: proceedings were not complex, and no conduct on the part of the applicant had contributed to delay. This was indeed a case which depended on its own facts and circumstances, and in particular upon the conduct of the authorities.

On behalf of the Crown, the Advocate depute did not quarrel these propositions. But as a foundation for his own submissions, he drew our attention to certain additional authorities. In identifying the starting date for the relevant period (which was still in issue in relation to N.S.) Little showed that the period might begin not only when the authority competent to institute a prosecution commenced that prosecution, but at the earlier stage when a charge was made by the police. But as the Crown concession in relation to D.S. and A.M. showed, the period might begin before even the police made a charge in the accepted sense of Scottish criminal procedure. In Eckle v. The Federal Republic of Germany 1982 5 EHRR 1, at page 27, the court had held at paragraph 73 that "In criminal matters, the 'reasonable time' referred to in Article 6(1) begins to run as soon as a person is 'charged'; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened. 'Charge', for the purposes of Article 6(1), may be defined as 'the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence', a definition that also corresponds to the test whether 'the situation of the [suspect] has been substantially affected'". One would not therefore require a "charge" in its normal Scottish sense, and it was accepted by the Advocate depute that in the present case the initial interviews of the appellant in relation to D.S. and A.M. in 1993 and 1994 respectively had involved an official notification to the appellant, by the police, of an allegation that he had committed a criminal offence. As regards N.S., it could perhaps be said that preliminary investigations had been opened by the time of the 1994 interview, but that would not normally, in itself, mean that the clock was running. The question was whether official notification had been given to the appellant of an allegation that he had committed a criminal offence. At the time of the 1994 interview, the police could not themselves make such an allegation, nor were they even in a position to say that N.S. had made such an allegation, since all that was available was A.M's statement to that effect. N.S's case illustrated the definition set out in Eckle, and fell outside it.

On the broader issue of reasonableness, the Advocate depute accepted what had been said in Stögmüller v. Austria 1969 1 E.H.R.R. 155, in paragraph 5 at page 191, to the effect that the aim of the provision in Article 6(1) is to protect all parties against excessive procedural delays and that "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." But even where there was no problem of complexity, and nothing in the appellant's conduct which was in point, one must remember in considering the facts and circumstances as a whole, and the conduct of the authorities, that "only delays attributable to the State may justify a finding of failure to comply with the 'reasonable time' requirement": Proszak v. Poland (1997) Series A, No. 2767, at paragraph 40.

Proceeding upon the basis of this last proposition, the Advocate depute submitted that in the present case the significant delay between December 1994 and September 1998 was not "attributable to the State". It was attributable to an insufficiency in evidence, which made it inappropriate for charges to be brought against the appellant either by the police or by the procurator fiscal. The passage of time without charges being brought was attributable to the absence of the necessary evidence. Despite his inability to say categorically what consideration, if any, had been given to Moorov, or to D.S's allegations as part of the background to A.M's, the Advocate depute submitted that upon the basis of reasonable assumptions, together with the lapse of time and the relatively trivial nature of D.S's original allegations, the decision to take no proceedings in 1994 was simply a reflection of the state of the evidence - and even if it were to be seen as attributable to the State, it was a reasonable decision for any procurator fiscal to have taken in the circumstances. The police decision to make charges in September 1998 had been triggered by D.S's further allegations in 1997. While there was no specific explanation for the lapse of time between those further allegations and the appellant's being charged a year later, the correct view was that there was no unreasonable delay attributable to the State before September 1997, and the lapse of time between September 1997 and September 1998, viewed as it must be on its own, was not unreasonable.

If at the beginning of the relevant period there is a clear insufficiency of evidence, or if the competent authorities reasonably then consider that to be the position, the passage of time thereafter, with no further proceedings being taken, will often be unsurprising. In some cases, it will be possible to say that further investigations should have been undertaken or that arrangements should be made to review the case. A failure to take proper investigative steps may well constitute unreasonable conduct on the part of the State, and make it proper to say that the delay is both attributable to the State and unreasonable. But in the present case, no particular investigations were identified by counsel for the appellant, which "ought" to have been undertaken after his release from detention in 1994. And while the provision in Article 6(1) is designed to avoid a person remaining too long in a state of uncertainty about his fate, it does not seem to us to be unreasonable to keep the file open for review, when serious allegations have been made. A lapse of time in unchanging circumstances may not be "attributable" to the State or entail unreasonable delay on the part of the State.

But the problem for the Crown in this case may perhaps be expressed thus. When the police charged the appellant, in relation to D.S. and A.M., in September 1998, they must have considered that there was sufficient evidence to justify their doing so. What had changed, and why should they not have proceeded in the same way in December 1994? Given that charges were brought in September 1998, is this not perhaps a case where, so far from there being an insufficiency of evidence throughout the relevant period, there was a sufficiency of evidence all along? If there was no relevant change of circumstances, why did it take so long to produce a change of mind?

In considering the sufficiency of evidence, one may of course be talking in a quite strict sense, of minimal legal sufficiency. But in deciding whether to proceed with charges or prosecution, police and prosecutors must ask themselves whether there is sufficient evidence, in a much wider sense, to make it proper to take these serious steps. It is not suggested that in the present case there were policy reasons for abstaining from proceeding, or that (as may happen) some judgment was made as to whether it would be proper to proceed with charges, taking into account such matters as their gravity, the tender years of the complainers, the apparent strength or weakness of the evidence, or the like. Both parties treated the matter as one concerning sufficiency of evidence in its more formal legal sense. Nonetheless, we would observe that even that will be a question for assessment, and in judging reasonableness in the context of Article 6(1) what will matter is not the court's retrospective view of whether there was, on the information available to it, technically sufficient evidence. It is the views and decisions of the authorities at the time which are important. Did they take an unreasonable view, or reach an unreasonable decision, and thereafter allow - either knowingly or inadvertently - an unreasonably long period to elapse before re-considering and reversing their position?

We have already noted that the Crown must rely on certain assumptions as to the views and decisions that were taken in 1994. It is to be noted that one of the officers carrying out the interview of the appellant in 1994 had also been one of those conducting the interview in 1993, and might thus be assumed to be aware of the connection. While the Advocate depute noted the relative triviality, as he put it, of D.S's original allegations, and the comparatively greater seriousness of her later 1997 allegations, it was not clear to us that this change would really alter the situation from one where the Moorov doctrine might reasonably be thought not to be available, to a situation where it was seen as providing a proper basis for the charges brought in 1998. While it was said that D.S's later allegations "triggered" the bringing of charges, it was not really explained whether or how the additional gravity altered the evidential position, or whether it simply had the effect of galvanising the authorities into actions which might have been taken sooner.

In our opinion, there is a wide range of possibilities as to what exactly may have happened at various stages, in terms of just what had been said and just what may have led to the decisions which were taken. We do not think it would be sensible or possible to attempt neat categorisations, or to hold, in relation to any particular moment, that what was done deserved criticism. But in relation to both D.S. and A.M., the relevant period before charges were brought is a long one, and we are satisfied that in the whole circumstances it would have to be seen as unreasonable if the authorities cannot show either that it is not attributable to them, or that if attributable to them it was not unreasonable. We were referred to a number of cases in which shorter periods had to be considered, and in which matters such as pressure of business, lack of resources, general practicability and the need to balance different factors were commented upon. But none of these appears to us to have a material bearing on the present case in relation to either D.S. or A.M. And while we acknowledge the general difficulty of retrospective assessment of responsibility, or blame, for delays, the Crown do not in this case seem to us to have been able to provide any adequate explanation of why charges such as those eventually made in September 1998 were not brought sooner, whether in December 1994, or on some subsequent review or reconsideration during the succeeding 3 years and 9 months. If the history of inaction, over that period were explicable, we would have expected the Crown to be able to provide the explanation in a way which we could at least broadly understand. Without speculating as to what ingredients there may have been to bring about the delay or to cause its eventual re-activation in September 1998, we are satisfied that Article 6(1) must be held to have been breached in the case of both D.S. and A.M. In each of these cases therefore the appeal succeeds, and the plea in bar of trial must be sustained as respects the charges concerning those complainers.

Returning to the position in regard to N.S., we are not persuaded that the relevant period begins in December 1994. There will of course be cases in which a problem arises as to whether there has been "official notification" of "an allegation". It is unfortunate that in this case, because of the destruction of the tape, one cannot know precisely what was put to the appellant; and in relation to all three complainers, the destruction of the tape is perhaps to be seen as something which calls for explanation. But we are satisfied that with N.S. herself making no allegation, and with the hearsay account of her having previously made an allegation to others being something which could not be the basis of any allegation by the police or the prosecuting authorities, it does not appear to us that the situation in 1994 meets the definition set out in Eckle, so as to constitute the beginning of the relevant period. In N.S's case, we see the beginning of the relevant period as having been in October 1998, and it is not suggested that the lapse of time since then is unreasonable. In these circumstances, in N.S's case, the plea in bar of trial is unsound, and should be repelled. The appeal is refused to that extent.