Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. JAMES HYND [2000] ScotHC 59 (9th May, 2000)

At this preliminary diet I am invited by Mr Alonzi for the accused to dismiss the indictment as incompetent. The contention is that by virtue of section 57(2) of the Scotland Act 1998 the Lord Advocate has no power to prosecute this case since to do so would be incompatible with the accused's right under Article 6(1) of the European Convention on Human Rights in the following terms:

The Advocate Depute maintains that the indictment has been brought within a reasonable time in terms of Article 6(1).

The material facts are not in dispute. The accused is indicted on four charges alleging abuse of two nephews and a niece extending to sodomy and attempted rape between 19 July 1981 and 30 September 1985. The allegations were first reported to the police in April 1998. The accused was interviewed and charged on 2 May 1998. The case was then reported by the police to the procurator fiscal on 20 May 1998. That report was followed by full police statements received by the procurator fiscal on 17 June 1998. Thereafter no action was taken by the procurator fiscal dealing with the case until 13 July 1999 when instructions were issued to obtain a petition warrant. The warrant is dated 20 July 1999 and the accused first appeared before the sheriff on 10 August 1999. The present indictment was served on 13 April this year for trial at the sitting of the High Court in Perth commencing on 29 May. The case is not complex, involving only six witnesses in addition to the three complainers.

There is also no dispute about the applicable law. The trigger for the application of the relevant part of Article 6(1) is the date of charge, viz. 2 May. What is a reasonable time depends on the particular circumstances of the case. The question for the court is whether the accused has been brought to trial within a reasonable time of being charged having regard to the whole period involved and the whole procedure involved. That question has to be determined not exclusively in the light of the time-limits that apply in Scottish criminal procedure but by looking broadly at the whole circumstances of the case. In deciding whether there has been unreasonable delay in bringing this case to trial the possible relevant factors identified by counsel are the conduct of the accused, the complexity of the case and the conduct of the prosecuting authority. It is not suggested that the conduct of the accused has contributed to delay. It is not suggested that the case is in any way complex. There has, however, plainly been default on the part of the Crown in failing to take any action whatsoever in the prosecution of this case between 17 June 1998 and 13 July 1999. That period accounts for roughly 50% of the time between the date the accused was charged and the date of the sitting for which this trial is scheduled.

Prior to devolution, and in particular prior to 20 May 1998 when the Lord Advocate assumed office as a Scottish Minister, there was no right in Scotland to a fair trial within a reasonable time. That may seem odd in a country which has always been proud of the time limits which apply to criminal proceedings. These relate to securing that an accused does not remain longer than necessary in custody and that, once an accused had been fully committed for trial, that trial should take place within one year. Until the European Convention became part of domestic law in relation to prosecution of crime on 20 May 1998, delay between the date of charge and the date of proceedings could only be prayed in aid by an accused in support of a plea in bar of trial on the ground of oppression, effectively that the accused could not receive a fair trial for reasons including delay. Such a plea seldom succeeded. There are many examples of cases proceeding to trial where the delay was far greater than is involved in this case. It has perhaps been a surprising feature of Scottish criminal procedure that in the past the strict timetable for bringing those in custody to trial, including the renowned 110 day rule, should not be complemented by rules designed to ensure that those not in custody, who are subject to serious criminal charges but not active proceedings, and who are presumed innocent, should have their fate determined within a reasonable time. The introduction of such a right under the Convention must be welcomed by those interested in the rights of persons who face serious criminal charges in a society which prides itself in the presumption of innocence as a fundamental element of criminal trial procedure. That right now exists for the protection of all of us who may at any time be rightly or wrongly the subject of such charges.

The accused has been charged twelve and a half years after the events with very serious offences. He was charged on 2 May 1998. The witnesses are few. The issues are straightforward. Within seven weeks of his being charged full statements were in the hands of the procurator fiscal. No further material enquiries were necessary at that stage before a decision could be taken whether or not to prosecute. There was no further activity in the case for thirteen months. There is no satisfactory explanation for that inactivity. That is deplorable. Such delay plainly calls for an explanation. If the explanation is satisfactory, then the delay will be of little if any significance in determining the question whether the case has been brought to trial within a reasonable time. On the other hand, even if in the overall context of the whole period between charge and trial the period of delay is very significant, the absence of a satisfactory explanation will not necessarily be fatal to the Crown's right to prosecute. It is easy to conceive of a case being overlooked in circumstances which can be explained but for which the explanation is unsatisfactory, but where, on rediscovery of the case, the prosecutor takes urgent steps to bring the accused before the court on petition and thereafter to bring him to trial more speedily than would otherwise have been the case in ordinary course. In such a case the court might well determine that the accused was brought to trial within a reasonable time in spite of the unnecessary delay for which there was no satisfactory explanation. However, no such circumstances pertain in this case. Once the accused appeared on petition his case proceeded in the same way as cases of this nature do, and no indication was been given that any special arrangements were made. No issue was taken by the Advocate Depute with Mr Alonzi's submission that in the ordinary course one would expect an accused to appear on petition within about three months of the case being fully reported by the police. The accused's trial has accordingly been delayed by about ten months for no good reason. In my opinion, in the context of a straightforward case which would ordinarily have been brought to trial within about fifteen months of the accused being charged, that delay is unreasonable. I accordingly consider that the accused's right to be brought to trial within a reasonable time in terms of Article 6(1) of the Convention has been breached. I accordingly sustain his plea in bar of trial and dismiss the indictment as incompetent.