Scottish High Court of Justiciary Decisons

ELIZABETH LIDDLE REILLY v. HER MAJESTY'S ADVOCATE [2000] ScotHC 71 (28th June, 2000)

[1] The appellant is charged upon indictment with having embezzled a sum of over £54,000 from her employers during 1991. On 5 April 2000, the Sheriff at Stirling heard parties in respect of a minute which had been lodged by the appellant, raising a devolution issue. The court refused the minute, and the appellant appeals against that refusal.

[2] The appellant alleges a breach of the provision contained in Article 6(1) of the European Convention on Human Rights, that everyone is entitled to a fair and public hearing "within a reasonable time" by an independent and impartial tribunal established by law.

[3] The appellant was a Director, shareholder and office holder of a Limited Company, which carried on business as insurance brokers. In October 1992, an inspection of the company's books for the year ended 31 December 1991 revealed a substantial deficit. The Managing Director told the appellant that she was to be dismissed forthwith, and warned her that he intended to bring the matter to the attention of the police. Her employment was terminated the next day, and she also resigned as a director. Shortly thereafter, she was informed by the company's solicitors that her actings had been reported to the police, and that the matter was now under investigation by the Fraud Investigation Team. It appears that the matter was indeed reported to Central Scotland Police at that time. We were shown a document setting out the Crown's position, from which it appears that when seen by the Managing Director, the appellant admitted to him and others who were present that she had taken money, and spent it on clothes and shopping. She said that she had not taken as much as was being alleged.

[4] In February 1994, a memorandum was sent to the Procurator Fiscal at Stirling, informing him of the ongoing police investigation. The memorandum stated that between 650 and 700 company clients required to be contacted. Authority was sought to send out questionnaires to potential witnesses. Between February 1994 and September 1996, questionnaires were sent out, and 20 volumes of replies were compiled. In September 1996, a report was submitted to the Procurator Fiscal, with three volumes summarising the evidence obtained. Following upon perusal of that document, an instruction was issued to the police to interview the appellant, and she was interviewed on 23 December 1996. In March 1997, the action which required to be taken in order to establish whether or not there was a corroborated case was identified, and the matter was returned by the Procurator Fiscal to Central Scotland Police, to carry out that action. In May 1997 the reporting officer met and received further instructions from the Procurator Fiscal. By August the required action had been taken, and the matter was referred back to the Regional Precognition Unit for consideration. The Deputy Crown Agent became involved, and received a progress report in September 1997. In February 1998, a long memorandum was prepared, setting out what further enquiry required to be made. In addition, it was decided that the matter would be referred to a firm of accountants for a report. A quotation for this work was obtained and the matter was passed to the accountant in June 1998. For reasons which are not clear, the accountants did not start work until October 1998. They submitted their report in December 1998 and after discussions with the police and amendments, a final report was submitted to the Procurator Fiscal on 18 March 1999. That report having been considered, and after further discussion, the decision was taken that it was appropriate to issue a Petition Warrant for the appellant's arrest. The appellant appeared on the Petition Warrant on 28 June 1999.

[5] At the hearing before the Sheriff, it was accepted by the appellant's solicitor that the starting point for assessing delay was 23 December 1996, when the appellant was interviewed by the police - although it was also submitted that the previous four years, during which the appellant was aware that she was under investigation, were also relevant as providing a context within which the reasonableness of subsequent delay must be assessed. In presenting this appeal, counsel for the appellant submitted that the appropriate starting point was not in 1996, but in 1992, when the appellant was told that the matter was under investigation by the police. In making this submission, counsel relied upon what was said in Eckle v. Germany, [1982] 5 EHRR 1, at page 27: "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." Counsel relied particularly upon this reference to the date when preliminary investigations were opened, and submitted that in the present case, that had occurred at the end of 1992. We are not, however, persuaded that the relevant time began to run then. In Eckle, immediately following upon the passage which we have quoted, the court went on to say this:

In the present case, it cannot be said that there had been any official notification given to the appellant by any competent authority in 1992, and reading this passage in Eckle as a whole, we are satisfied that the reference to preliminary investigations cannot be read as covering investigations made by the police at a stage before any official notification is given to the person concerned. We were referred to McLean v. H.M. Advocate 2000 SCCR 112, and Robb v. H.M. Advocate 2000 J.C. 368. In Robb, the distinction between investigation and notification is drawn at page 374G, and dealt with at page 377C to D, on lines which in our opinion confirm that in the present case the relevant period began in December 1996.

[6] On behalf of the appellant, the contention that time began to run in 1992 was supported by a submission that in the circumstances of this case, where the appellant herself had made an initial admission of taking money, the police effectively had enough to justify seeking a Petition Warrant, on the basis of her confession, in 1992. In refraining from taking that step, and embarking upon years of investigation before any form of official notification to the appellant, they had effectively postponed the commencement of the period during which delays would come under scrutiny in terms of Article 6(1). That was quite contrary to justice. For the purposes of Article 6(1), the first four years of police activity or inactivity should be regarded as part of, and not postponing, the period with which the Article was concerned. We are not persuaded that this argument is sound. We entirely accept, as the Sheriff did, that in judging the reasonableness of the time which elapses after official notification, it will be appropriate to take note of any prior lapse of time and the reasons for it. But the provision contained in Article 6(1) is concerned not with that prior period, but with the lapse of time following upon official notification.

[7] As regards the prior period from late 1992 to late 1996, we are not persuaded that it was in any way incumbent upon the police to seek a Petition Warrant upon the basis of what the appellant appears to have told the Managing Director about having taken money. Quite apart from the very inspecific nature of what she seems to have said, the position was apparently this. The company had a considerable number of clients who paid insurance premiums in cash. Receipts were issued and recorded, and on a weekly basis the payments were lodged with the bank. The alleged deficit lay in the difference between the cash payments recorded as received, and the sums lodged in the bank. It was in order to establish the true amount of the deficit and its cause that questionnaires were sent to some 700 clients. It is acknowledged that competing demands upon resources caused an initial postponement of serious investigation; but the submission that this was a relatively simple matter, in the light of what the appellant had originally said, is not in our opinion well-founded, and the overall approach to investigation of the case, both before and after the report to the Procurator Fiscal in 1994, was in our opinion justified, with substantial investigation being undertaken before, rather than after recourse to petition procedure.

[8] Turning to the period which began with the appellant's interview in December 1996, counsel accepted that the delay between then and March 1997 would normally be seen as quite ordinary, particularly given the 23 volumes of material which formed the basis of the enquiry. From then on, the sufficiency of the case, and in particular the issue of corroboration, was being considered, with the involvement not only of the Procurator Fiscal at Stirling, but the Regional Precognition Unit and the Deputy Crown Agent. During the period from March 1997, when the requirements were identified and conveyed to the police, and February 1998, when they were provided with a long memorandum setting out further enquiry requirements, there is no indication of matters having been put aside, or of inactivity. While this period is obviously substantial, counsel for the appellant was unable to suggest that any of those involved, at various levels, had been dilatory in their handling of the matter. A suggestion that the expert evidence of an accountant should have been sought sooner does not appear to us to be well founded: it would in our opinion be appropriate to delay engaging an expert, for opinion evidence, until the prosecuting authorities had identified, amidst the voluminous material before them, the factual basis of any potential prosecution, upon which the expert would be asked to comment. It was of course very unfortunate that the expert engaged in June did not start work until October; but that delay over the summer months appears to us to be the only period which can be described as one of inactivity. We have considered whether, against the background of events in 1992 to 1996, and the overall handling of the case between 1996 and 1999, including this specific period of delay, the appellant's rights in terms of Article 6(1) have been breached. We are, however, satisfied that, contrary to the submissions of counsel for the appellant, the matter was not a simple one. Notwithstanding the fact that the eventual indictment can be described as simple, with a quite limited number of witnesses, it is important to have regard to the very substantial enquiries which were seen as appropriate, and the work which would be required, and was clearly carried out, in reaching decisions as to what could be established, corroborated, and used as a foundation for indictment. The length of time which this took is considerable, but we are not persuaded that the Sheriff reached a wrong conclusion, or that the appellant's rights in terms of Article 6(1) have been breached. The appeal is refused.