Scottish High Court of Justiciary Decisons

JOHN KANE v. HER MAJESTY'S ADVOCATE [2001] ScotHC 116 (4th May, 2001)

[1] The appellant was indicted for trial at a sitting of the High Court of Justiciary in Edinburgh on 2 April 2001 on an indictment containing seven charges of lewd and libidinous practices, rape and sodomy. At the trial diet, the appellant raised a devolution issue in terms of section 57(2) of the Scotland Act 1998 arguing that the Lord Advocate had no power to proceed with the indictment because to do so would be incompatible with the appellant's rights under Article 6(1) of the European Convention of Human Rights in respect that there had been unreasonable delay in bringing the charges to trial. The trial judge refused the minute but granted leave to appeal.

[2] The appellant was born on 13 December 1984. The charges against him cover various periods of time between 18 January 1997 and 18 October 1998, when the appellant was 12 or 13 years old. There are four complainers, of whom three were in the region of 5 to 7 years old at the time of the alleged incidents which form the basis of the charges, and the fourth was between 7 and 8 years of age. The incidents involving three of the complainers came to light during 1998. The appellant was interviewed and charged on 31 October 1998. It was accepted that, for the purpose of considering whether proceedings had been taken within a reasonable time in terms of the Convention, the point at which consideration should start was 31 October 1998. The appellant did not appear on petition until 16 March 2000 and the indictment was not served until 29 January 2001. There was a further delay because, when the case called on 5 March 2001, the defence moved for the trial to be adjourned to enable them to examine a medical report and this led to the trial being fixed for 2 April 2001. It was accepted by the Solicitor General, who appeared for the Crown before the judge, that the period between the charging of the appellant in October 1998 and the service of the indictment in January 2001 was not usual in circumstances involving young children and therefore that the facts had to be investigated. We should mention that the Solicitor General also put forward an argument involving reference to Article 8 of the Convention, but the judge did not find it necessary to reach a decision on that argument, and it was not received before us.

[3] The explanation for the delay tendered by the Crown is set out fully in the opinion of the judge. We do not propose to repeat the whole of that explanation but only to set out the salient features of it. The whole period of delay was 27 months between 31 October 1998 and 29 January 2001. The Solicitor General submitted explanations to cover 17 of those 27 months. He referred, firstly, to a period of 5 months between April and August 1999 when, as it was put, the progress of the case was subject to a prioritisation process involving all cases concerning children in the particular office. It was thought important that specialist procurators fiscal should deal with such cases. At the material time, there were a number of such cases, so that the specialist deputes had not been able immediately to take up the present case. Then, one month after the case had been allocated, the depute in charge of it was unexpectedly transferred to work overseas and the case had to be re-allocated. The second period was between September and November 1999, which was taken up in obtaining access to the children named in the charges. The children failed to attend on the first occasion when an effort was made to interview them, because they had moved and it took a month to trace them. A second appointment for a second precognition, in accordance with normal practice, was cancelled because the procurator fiscal depute required to be in court in a complex murder case and had to be replaced. There were further delays thereafter because the children's mother felt it was preferable that they should attend at the same time as a planned visit to Edinburgh arranged some time earlier. It was submitted this approach was designed to diminish the harm to the children. The third episode of delay lasted from 28 January 2000 until August 2000 and arose from investigations into the fourth possible complainer, who eventually became the complainer in charge 1 of the indictment. In the course of this investigation, the possibility arose of yet another complainer and investigation of that possibility was delayed by the time taken to persuade the mother of that child that the child should be precognosced. The fourth period of delay described by the Solicitor General was between 22 September 2000 and 8 January 2001 when a decision, described as not unusual in cases involving young children, had to be taken to re-precognosce the three original complainers, who now lived in a remote area. Account again was taken of the mother's wishes in regard to the timing of the precognition. In passing, we should observe that there is also reference to re-precognition of the case in regard to the third episode of delay and it is not entirely clear whether there were two complete re-precognitions or only one. The probability, however, appears to be that there was only one and we proceed on that assumption.

[4] The Solicitor General also referred to certain other circumstances such as that consultation with agencies such as the reporter to the children's panel was required before investigation of a case of this kind could begin. Before us, the advocate depute supplemented what appears in the judge's opinion by saying that initially the reporter had taken the view that he might be able to deal with this case and that it was only on the emergence of the fourth complainer that he conceded that it was a case for trial.

[5] The judge expressed his reasons for rejecting the minute as follows:

[6] The judge went on to refer to the decision of Lord Reed in H.M. Advocate v. D.P. and S.M. and to hold that that case could be distinguished, particularly because Lord Reed had found that the explanations for the lack of progress tendered to him were wholly unsatisfactory, which was not the case in the present prosecution.

[7] In the argument before us, the solicitor advocate for the appellant founded on the period of delay and submitted that the period had not only to be considered piecemeal, as the Crown's explanations suggested, but also overall and as a whole, and that, so considered, taking account of the age of the appellant and of the complainers, the time taken was unreasonable. It was also pointed out that the Crown's approach, by starting with an explanation for the period of delay between April and August 1999, took no account of the earlier period which had elapsed between October 1998 and April 1999. As regards the second period of delay, from September to November 1999, there was no explanation as to why the tracing of witnesses had been difficult and no indication of any urgency in tracing them, notwithstanding the fact that by that time a year had already elapsed since the charge. This sort of case required expedition and alarm bells should have rung one year after the date of charge, if not earlier. There was no satisfactory explanation for the so-called re-precognition of the complainers at a later stage. Some of the delay had been accounted for by more than one change in the personnel dealing with the case. If there were such changes, attention should have been paid to the need to keep the progress of this case in mind. It was submitted that the period from 13 years of age to 16 years of age was a critical one in the development of any young person and the appellant might now appear to a jury as a different person from the person he had been at the age of 13. The appellant was now 16, which meant that he would fall to be treated and disposed of as an adult. Reference was made to the case of D.P. and S.M. supra and it was submitted that the facts were similar and particular reference was made to what Lord Reed had said about juvenile justice and to the importance of the delay to a young accused person.

[8] In reply the advocate depute rehearsed the explanations which had been put before the judge, with some additional material to which we have referred, and submitted that this was an appeal, not a re-hearing. The judge had considered the whole matter very carefully and taken account of the circumstances and there was no indication of any material error on his part. He submitted that the proper approach was to look at the whole circumstances and the whole explanation tendered and that the Crown had provided a satisfactory explanation.

[9] We do not think it necessary to cite the precise terms of the Convention or to review the authorities, now considerable in number, which have dealt with its application to the question of unreasonable delay. It is clear that the question is one, in the end, depending on the particular circumstances of the case. We would, however, refer to and adopt what Lord Reed said in H.M. Advocate v. D.P. and S.M. at paragraph 12, where he said:

[10] We would add that in this case some of the complainers were only about five years of age at the time of the incidents and that they too are likely to have developed in ways which may not only affect the evidence which they can give but also the impression they may create.

[11] In the light of those general observations, it is clear, in our opinion, that the period of 27 months which elapsed between the caution and charge and the service of the indictment in the present case was manifestly substantially too long. It is true that the Crown have provided explanations of greater or lesser cogency for parts of the period of delay. What is missing, in our view, is any indication that the lapse of time ever led the authorities, as it should have done, to treat the case with increasing urgency as time went by. We note in particular that it is stated that in the middle of the period between 28 January 2000 and August 2000, when the possibility of an additional complainer or complainers was under review, the specialist procurator fiscal depute was transferred and had to be replaced and the hand-over period took three months. By that time, 18 months, more or less, had already elapsed from the date of the caution and charge and it should, in our view, have been apparent that this case required urgent action, whatever other arrangements were being made about personnel in the procurator fiscal's office. This of course was the second delay caused by a change in personnel in the office. Further, we are not satisfied that the explanations tendered in relation to delays in tracing the children in late 1999 or bringing them in for precognition, involving deference to the wishes of the children's' mother, are satisfactory when weighed against the importance of ensuring the rapid progress of the case.

[12] Similarly, in our opinion, the judge erred in adopting the piecemeal approach suggested by the Solicitor General, and failing to give proper attention to the overall period of delay, and the repeated and cumulative failure to progress the case. Each of the explanations for particular periods of delay put forward by the Crown might well have been sufficient if that period had been the only period which called for explanation. When, however, the whole period is considered the explanations lose their force. In our view, that is an element which the judge did not take into account. In the whole circumstances, therefore, the overall period of delay has been unreasonable, and we shall sustain the minute of and dismiss the indictment.