Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. KAREN HALLIDAY SKILBECK OR WRIGHT and MATTHEW WRIGHT [2001] ScotHC 117 (31st May, 2001)

[1] Karen Wright and Matthew Wright were indicted upon a charge of assault to severe injury, permanent disfigurement and permanent impairment, Matthew Wright being also indicted upon a second charge of assault to injury. At a continued first diet, on 8 December 2000, in the Sheriff Court at Linlithgow, the sheriff issued his decision in respect of a Minute which contained a plea in bar of trial, on the ground inter alia that the accuseds' right to a trial within a reasonable time, in terms of Article 6(1) of the European Convention on Human Rights, had been breached. The sheriff sustained these pleas in bar of trial on that ground, and dismissed the indictment against each of them. This is a Crown Appeal against that decision.

[2] It is common ground that the period which requires to be considered began on 21 May 1999 in respect of Karen Wright and on 2 June 1999 in respect of Matthew Wright. The whole period from then to the date of trial must, of course, be looked at, in a consideration of the question as to breach of rights under Article 6(1). But for practical purposes one is concerned with the period of approximately 17 months, up to 24 October 2000 when the indictment was passed to the police for service. Moreover, in the present case a distinction is to be drawn between the first nine months, and the final eight months of that overall period. When the matter was reported to the procurator fiscal late in June 1999, summary proceedings were instituted. There was a pleading diet on 19 October of that year, and the intermediate diet was fixed for 9 February 2000. A continued intermediate diet was fixed for 27 February; but before that could occur, the procurator fiscal decided that summary proceedings were inappropriate, and that the accused should be indicted. They appeared on petition on 23 February 2000.

[3] The sheriff heard submission as to the history of events during the nine months prior to that date. That period of course remains relevant, as part of the overall period which must be considered and as the context within which the events of the succeeding eight months must be scrutinised. But the sheriff was not satisfied that the decision to prosecute summarily was unreasonable. The pace of preparation, while the proceedings remained summary, was in his view reasonable. And while, at the end of this nine month period, he considered that certain medical records should have been looked at somewhat earlier than they were, in which case solemn proceedings would have been instituted somewhat earlier, he did not consider this delay itself to be of any great materiality, as at best it could have only amounted to a few weeks. In these circumstances, it is not necessary for us to consider these first nine months in detail: their significance is as a background to the course of events from 23 February 2000 onwards.

[4] After the accused had appeared on petition, the case was within days allocated to a depute for precognition. Various documents were obtained shortly thereafter from the sheriff clerk. Witnesses were precognosced in March. During the four months from April to July, the precognition statements which had been obtained were dictated, and further precognition work was done, although it does not appear whether or when any further interviews of witnesses occurred. The precognoscer was on leave for two weeks during this period, and the depute was dealing with court commitments and precognition of other cases. Towards the end of July a provisional list of witnesses was sent to the defence solicitors, and the police were asked to obtain a statement from an additional witness. On 7 August, the police confirmed that this witness statement had been taken and would be transmitted. In September there were telephone discussions with two witnesses, clarifying matters in relation to their evidence. There was also a discussion with the defence solicitor in relation to defence precognition. On 17 October the precognition was sent to the Crown Office, and on 20 October Crown counsel's instructions to indict were received.

[5] On behalf of the accused, it was submitted that not much had been done or achieved in the period from April to August. We did not, however, understand it to be suggested that if there had been no unusual lapse of time before their appearance on petition, the lapse of eight months between petition and indictment would result in a breach of their rights under Article 6(1). What made that lapse of time unreasonable was that it came on top of the previous period of nine months while matters were being dealt with at the summary level. Against that background, it was submitted to the sheriff, and he accepted, that this was "an exceptional case" of the sort envisaged by the court in Smith and Fisher v. H.M. Advocate which "should have been reported without precognoscing the witnesses". The sheriff in his report says that he "would find it surprising if Crown counsel would not have been prepared to deal with the matter on the material which the Crown possessed in February 2000 if a full explanation had been given of the circumstances." The accused could then have been indicted without a petition, and an indictment would presumably have been served some time in March. In the alternative, and if it was appropriate for the Crown to precognosce the case fully, then the sheriff says that there was in the circumstances, in his opinion, an obligation to "fast-track" the matter. He refers to the case of Alves & Quinn, to which we shall return. His Lordship also compared the overall period of 18 or 181/2 months before coming to trial in the present case with the period of about 14 months within which such a case would normally be expected to come to trial. Against that 14 month period, his Lordship expresses the view that 18 to 181/2 months is a prima facie unreasonable overall period.

[6] On behalf of the Crown, the advocate depute submitted that the sheriff had erred in holding that there had been a breach of the accused's rights under Article 6(1). Despite the upgrading from summary to solemn procedure, the overall period was not outwith the familiar range, even if somewhat more than the period identified by the sheriff as normal for a relatively straightforward case. There was no prima facie unreasonableness in such a period, and no actual unreasonableness on the facts of this case. The eight months from petition to indictment was not abnormal, and the history of events revealed no inactivity or failure which could be described as unreasonable - although of course one could say that it might have been shorter. The suggestion that a reasonable course (or indeed the only reasonable course) for the procurator fiscal to adopt would have been to report the case to Crown Office without precognitions was without any proper foundation, and in any event would be most unlikely to result in a decision by Crown counsel to upgrade the case as envisaged by the sheriff. Time might indeed have been wasted by attempting and failing to obtain upgrading without the material normally required for indictment. The alternative proposal of "fast-tracking" should likewise be rejected as representing the only reasonable course. "Fast-tracking" just meant giving priority over other cases. Whether this particular case should be given priority over others depended upon what were the relevant features of those other cases. This was not a case in which the loss of some months could be expected to cause prejudice, nor was it said that it had done so. The fact that it had not been decided to give this case abnormal priority did not mean that the procurator fiscal had exercised her discretion unreasonably, nor that any unreasonable delay had occurred as a result of her exercise of her discretion. The sheriff had erred in sustaining the pleas in bar of trial, and his decision should be reversed.

[7] The solicitor advocate on behalf of Karen Wright and counsel on behalf of Matthew Wright essentially contended that the submissions made to and accepted by the sheriff were sound. It was submitted that the procurator fiscal's decision that the case should be upgraded to the solemn level made the case "exceptional" so that it should have received the exceptional treatment of being reported to the Crown Office without precognitions, or of being fast-tracked. There was no explanation of why this had not been done. The background meant that the proceedings after the accused had appeared on petition should have been handled with unusual expedition. The fact that this had not been done meant that there had been unreasonable delay, in contravention of the Article 6(1) rights.

[8] We are not persuaded that there was any breach of these rights in the present case. The overall period of 18 months or so does not appear to us to be "prima facie unreasonable" either generally or in the light of the history of events throughout that period. The lapse of time before the accused appeared on petition of course provides an additional reason for proceeding expeditiously. But reporting a case to Crown Office without the usual degree of preparation has obviously undesirable features, which would have to be weighed against any gain in time. And unlike the sheriff, we would be surprised if Crown counsel had seen the background of this case as justifying such a course. We would be even more surprised if, on such a course being adopted, Crown counsel were willing to upgrade the case and authorise indictment, without precognitions. Neither the solicitor advocate for the first accused nor counsel for the second accused, both of whom have substantial experience in the procurator fiscal service, could think of any occasion upon which an instruction to indict had been obtained in that way. That does not surprise us at all. We are not persuaded that this would have been a reasonable course, far less the only reasonable course.

[9] As regards fast-tracking or prioritisation the Crown's submissions again appear to us to be well-founded. As this court said in Gibson v. H.M. Advocate, unreported 5 December 2000, "In deciding upon priorities, a wide discretion is inevitable. Almost every case will have some feature which can be said to point to its being given priority. But all such features must be weighed in what will be a quite imprecise but practical process of 'prioritisation'. That implies no unreasonableness". We went on to add this: "While prejudice is not an essential element in breach of Article 6(1), it is in our opinion obvious that if the passage of time is likely to be prejudicial to the accused in a given case, that will weigh heavily in favour of giving that case priority over others where such prejudice is not regarded as likely. In this respect absence of prejudice is very relevant to the issue of reasonableness." These observations appear to us to be apposite in the present case. It is important that the courts in matters of this kind abstain from assuming that a prioritisation which would of course be desirable in the case in hand would be appropriate as an exercise of discretion, comparing one case with others. We see no proper basis for reaching such a view in the present case. And in any event, the question is not whether that would have been a reasonable thing to do. The question is whether the course actually adopted resulted in the accused being deprived of their right to trial within a reasonable time. We see no ground for holding that they were.

[10] We have mentioned the case of Alves & Quinn, which was the subject of a Crown Bill of Advocation, following upon a decision by this sheriff to sustain pleas in bar of trial. That was also a case in which after proceedings had commenced on complaint, the accused were subsequently placed on petition and indicted. It was suggested that we should delay our decision in this case until the outcome of the advocation in that case was known. It has now emerged that that case had in fact been disposed of before this case was heard, the court passing the Bill and recalling the sheriff's decision. The steps taken in that case were somewhat different and need not be considered in detail; but the court's decision affords no support to this sheriff's approach, either in regard to precognition or on prioritisation.

[11] In these circumstances the appeal is allowed, and the pleas in bar of trial are repelled. The case is remitted to the sheriff to proceed as accords.