Scottish High Court of Justiciary Decisons

---

You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> HER MAJESTY'S ADVOCATE v. R. [2001] ScotHC 118 (10 October 2001)
URL: http://www.bailii.org/scot/cases/ScotHC/2001/118.html
Cite as: [2001] ScotHC 118

---

[New search] [Help]

---

HER MAJESTY'S ADVOCATE v. R. [2001] ScotHC 118 (10th October, 2001)

HIGH COURT OF JUSTICIARY, SCOTLAND
	OPINION OF LORD REED in the cause HER MAJESTY'S ADVOCATE   against R.     ________________

 

 

Act: McCreadie, A.D.,; Crown Agent

Alt: Bovey, Q.C., Blair; Grigor & Young

10 October 2001

[1] The accused in the present case is charged with six offences of indecent behaviour towards children. On 29 August 2001 he was indicted for trial in the High Court of Justiciary sitting at Edinburgh on 2 October 2001. On 30 August 2001 a minute was presented on his behalf, giving notice of his intention to raise an issue under the Human Rights Act 1998 as to the lawfulness of the Lord Advocate's prosecuting him on two of the charges on the indictment, and seeking a preliminary diet. That minute was intimated to the Crown and to the Advocate General for Scotland, and a preliminary diet was set down for 13 September 2001. On that date the matter came before me. At an early stage in the hearing counsel then acting for the accused (who did not appear subsequently at the adjourned diet) sought an adjournment of the diet until the following week to enable senior counsel to be instructed. I accordingly adjourned the diet, as requested, until 19 September 2001. During the intervening period, those acting for the accused intimated to the Crown and to the Advocate General a further minute, seeking to amend the original minute so as to raise in addition an issue under the Human Rights Act as to the lawfulness of the court's allowing the charges in question to be brought to trial, and an issue under the Scotland Act 1998 as to the competency of the Lord Advocate's prosecuting the accused on those charges. At the adjourned diet on 19 September 2001, I allowed the second minute to be received and the original minute to be amended accordingly. I then heard submissions on 19 and 20 September 2001. At the conclusion of the submissions, I indicated that I would require time for consideration before giving a reasoned decision, and that since I was about to embark on a two week sitting of the High Court at Glasgow, I would require to adjourn the preliminary diet and to order the postponement of the trial diet. After inquiries had been made into suitable dates, I adjourned the preliminary diet to 10 October 2001 and ordered the postponement of the trial diet to the sitting of the High Court at Edinburgh on 29 October 2001. I granted an application by the Crown, which was not opposed, for an extension of the twelve month time bar to the end of that sitting.

[2] The history of the case, so far as material, was not in dispute before me and can be summarised as follows.

[3] On 13 August 1995 a girl whom I will refer to as "S" (then aged 7) and another girl whom I will refer to as "L" (then aged 8) made disclosures to the police about indecent behaviour towards them by the accused, who was living at that time with S's mother. The accused was detained the same day and interviewed by the police under caution. He made admissions of touching each of the children inappropriately. At the end of the interview he was cautioned and charged. The charges were in broadly similar terms to charges 1 and 3 on the present indictment.

After being cautioned and charged the accused was released. He was told that a report would be submitted to the procurator fiscal, On 23 August 1995 the police sent a report on the case to the (then) procurator fiscal. On 13 November 1995 the reporting officer received a letter from the procurator fiscal which stated:

"I am not taking proceedings in this matter on the basis of insufficient evidence. If the position changes regarding evidence you will no doubt let me know".

That decision was not intimated to the accused. Early in 1996 however S's mother, with whom the accused was still living, made informal inquiries of the police as to what was happening, and was told that the Crown were not proceeding with the charges. She passed that information on to the accused. That information was not given by the Crown or with its authority, and there is no suggestion that it gives rise to any bar to proceedings on the basis explained in Thom v HM Advocate 1976 J.C.48. From that point onwards the accused believed that the charges were not being proceeded with.

[4] In April 1999 a statement was made to the police by S's sister, H, alleging that she had suffered sexual abuse at the hands of the accused. A further statement was taken from H in December 1999. In April 2000 a statement containing similar allegations was made by another girl, N. In May 2000 the procurator fiscal received a report from the police concerning the allegations made by H and N. On 27 October 2000 the accused, who was by this time living in England, was detained and interviewed regarding the allegations made by H, N and S (it appears from the transcript of the interview that a statement had also been taken from S at some earlier point during 2000, when she had repeated the allegations made by her in 1995). At the end of the interview the accused was charged with offences against H, N and S, and arrested. On 30 October 2000 he appeared before the sheriff on a petition charging him with offences against H, N and S. He was granted bail, and has remained on bail since then. He was thereafter indicted for trial in the High Court at Inverness in the sitting commencing on 16 July 2001. I was told by the Advocate Depute that the defence informed the Crown that they were not ready to go to trial at that sitting and were minded to apply for an adjournment. In the event there was no need for them to do so, however, as it emerged that the indictment had omitted to specify the locus of the alleged offences against S, and was therefore defective. The Crown accordingly moved the court to desert the diet pro loco et tempore. That motion was not opposed, and was granted. The Crown's intention was then to re-indict the accused for trial in the High Court sitting at Aberdeen on 24 September 2001. The Crown encountered some difficulty in arranging to have that indictment served on the accused by the police in England, and an error occurred. The accused was therefore re-indicted for trial at Edinburgh on 2 October 2001, as I have already mentioned. The indictment contains six charges. I have already mentioned the charges concerning S and L (charges 1 and 3 respectively). Charge 2 is a similar charge concerning indecent behaviour towards N. Charges 4 to 6 concern indecent behaviour towards H, charge 4 being brought under the common law (like charges 1 to 3), charge 5 under section 5 of the Sexual Offences (Scotland) Act 1976, and charge 6 under section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995.

[5] The present minute (as amended) states, correctly, that a period in excess of five years elapsed between 13 August 1995, when the accused was cautioned and charged with offences against S and L, and 30 October 2000, when the accused appeared on petition in respect of the same offences. The minute states that the present proceedings, so far as they relate to the charges concerning S and L, are incompatible with the "reasonable time" guarantee contained in Article 6 of the European Convention on Human Rights. The minute then invokes section 6(1) of the Human Rights Act and section 57(2) of the Scotland Act in support of three propositions:

(1) Since the Lord Advocate is a public authority within the meaning of section 6 of the Human Rights Act, it is unlawful for him to continue to prosecute the accused on the charges involving S and L, as to do so would mean that the accused would not have been brought to trial within a reasonable time.

(2) Since the court is a public authority within the meaning of section 6, it is unlawful for the court to allow these charges to be brought to trial.

(3) Since the Lord Advocate has no power to do any act which is incompatible with Convention rights, by virtue of section 57(2) of the Scotland Act, he has no power to continue to prosecute the accused on these charges.

The minute therefore invites the court to dismiss charges 1 and 3 from the indictment.

[6] It was common ground before me that the relevant period had begun on 13 August 1995, when the accused was charged by the police with the offences in question. It was also common ground before me that no progress had been made in respect of those charges between November 1995 and October 2000. That lack of progress had been due solely to the decision taken by the procurator fiscal in November 1995 that no proceedings should be taken due to there being an insufficiency of evidence. The Advocate Depute informed me that there was no doubt that there had in fact been sufficient evidence: not only were the statements of S and L mutually corroborative, but they were each individually corroborated by the accused's admissions. The procurator fiscal was unable now to explain his decision. His letter (quoted above), in requesting to be notified of further evidence, suggested a concern about the legal sufficiency of the evidence rather than its quality. Such a concern was however without foundation. In these circumstances, the Advocate Depute said that there was a period of delay of about five years for which the Crown had no satisfactory explanation. He conceded that this was an unreasonable delay, contrary to Article 6(1).

[7] The principal issue at this preliminary diet is to decide what follows from that concession. The accused's position is that it follows inevitably that these charges cannot proceed to trial. As will appear, that position is in accordance with the approach which has been followed in all Scottish cases to date concerned with a violation of the reasonable time guarantee. The Crown however argued in the present case that a violation of that guarantee need not necessarily have such a drastic consequence. In order to understand the argument, it is appropriate to begin by giving an account of the relevant case-law of the European Court of Human Rights and the European Commission on Human Rights.

[8] Article 6 of the Convention, so far as material, provides:

"In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time .....".

The obligation imposed by Article 6 is an engagement of the State as a whole, constituted under international law. Any person claiming to be the victim of a violation of Article 6 can make an application to the European Court of Human Rights under Article 34 (formerly Article 25) of the Convention. The Court then decides whether the application is admissible and, if so, whether there has been a violation of Article 6.

[9] Delays in the administration of justice have given rise to more cases before the Strasbourg Court than any other issue. The case-law of the Court has focused principally on two aspects of the right conferred by Article 6: the calculation of the length of the period (i.e. the start of the period and the end of the period), and the determination of the reasonableness of the period (having regard to such matters as the complexity of the case, the conduct of the parties and the conduct of the judicial authorities). In a small number of cases, however, the Court has also had to consider the implications of action taken by the domestic judicial authorities in order to afford redress for what they recognised to have been an excessive delay. Such action was also considered in a larger number of cases by the Commission, which had the primary responsibility for determining issues of admissibility prior to the creation of the new Court in accordance with Protocol No.11. Finally, in a number of cases the Court has had to consider what constituted "just satisfaction" under Article 41 (formerly Article 50) for a violation of the reasonable time guarantee.

[10] In 8182/78 X v Germany D.R.25, 142 (1980), the Commission dealt with a case in which criminal proceedings had been of excessive length, but in which that factor had been taken into account by the domestic courts in mitigation of sentence. The Commission's decision on admissibility merits quotation at some length:

"1. The applicant complains that the excessive length of two criminal proceedings taken against him was not adequately reflected in the reduction of the sentences which the competent courts pronounced against him. He alleges a violation of Article 6(1) of the Convention according to which everyone is entitled to a hearing within a reasonable time in the determination of any criminal charge against him.

2. The violation of the above-mentioned provision of the Convention which the applicant alleges has, as such, already been stated by the domestic courts. The question before the Commission is only whether the said violation persists, having regard to the allegedly insufficient redress which the applicant obtained for it in the domestic courts.

....

Insofar as the applicant claims a right to discontinuation of the criminal proceedings in view of the long delays which had occurred, the Commission considers that such a right, if it could at all be deduced from the terms of Article 6(1) would only apply in very exceptional circumstances. Such circumstances did not exist in the applicant's case.

It is true that all the offences committed by the applicant could have been tried, preferably in joint proceedings, by the year 1971. ... The effective delay of the trial therefore was more than four years in the Munich case, and more than two years in the Dusseldorf case. These are substantial periods of time. However, the Commission notes that the length of proceedings was considered as a mitigating factor in both proceedings, and again in the proceedings before the Regional Court of Munich on the formation of a global sentence. This factor led to a substantial reduction of the sentences eventually imposed, and the Commission considers that the redress thereby obtained for the excessive length of the proceedings in question is appropriate and sufficient.

It follows that the applicant can no longer claim to be a victim of a violation of his right under Article 6(1) of the Convention to a hearing within a reasonable time, and his complaint must therefore be rejected as being manifestly ill-founded within the meaning of Article 27(2) of the Convention".

[11] Paragraph 2 of that decision implies that a violation of the Convention may come into existence, but may then be brought to an end if sufficient redress is given by the domestic courts. It is only if the redress given is insufficient, with the consequence that the violation persists, that a complaint to the Convention organs is admissible.

[12] That general approach to the relationship between a violation of the Convention and domestic redress was consistent with the approach adopted by the Commission in relation to complaints of violations of other Convention guarantees. For example, in 5572/72, X v Austria, DR1,44 (1974), the Commission had held that an applicant could not claim to be the victim of a violation of the fair trial guarantees in Article 6 if he was acquitted or if his conviction was quashed on appeal:

"As shown by the rule of the exhaustion of domestic remedies laid down in Article 26 of the Convention, it first falls to the national authorities to redress any violation of the Convention. In many cases the violation itself cannot be wiped out with retroactive effect. (No restitutio in integrum can be made). Only reparation can be made and constitute the redress. Such redress is thus, in the Convention system, a means whereby a State can avoid scrutiny by the organs of the Convention.

In the present case, the alleged violations of the Convention at the trial were rectified by the applicant's acquittal. They would similarly have been rectified by the quashing of the applicant's possible conviction, even on ground outside the scope of the Convention".

A similar conclusion was reached by the Commission in 5577-5583/72, Donnelly v United Kingdom, DR4,4 (1975), pp.64 and 86, where complaints under Article 3 concerning ill-treatment by members of the security forces were held to be inadmissible after civil actions for damages were settled by agreement: the Commission considered that the applicants, having obtained adequate redress by their domestic remedy, could no longer claim to be victims of violations of the Convention.

[13] The decision in X v Germany applied that approach in the specific context of a breach of the reasonable time guarantee in respect of criminal proceedings (it having been previously applied to the same guarantee in respect of civil proceedings: 6504/74, Preikhzas v Germany, DR16,5 (1978)). It is noteworthy that the Commission regarded a reduction in sentence as an appropriate means of redress, and considered that "a right to discontinuation of the criminal proceedings .... if it could at all be deduced from the terms of Article 6(1) would only apply in very exceptional circumstances".

[14] This decision (sub nomine Schloffer v Germany) was considered by the Court in Eckle v Germany, A51 (1982). In its Eckle judgment, the Court did not rule out such an approach. At paragraphs 66-67, it said:

"66. The word 'victim', in the context of Article 25, denotes the person directly affected by the act or omission which is in issue, the existence of a violation conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 50 (see inter alia the Adolf judgment of 16 March 1982, Series A, No.49, p.17, § 37).

Consequently, mitigation of sentence and discontinuance of prosecution granted on account of the excessive length of proceedings do not in principle deprive the individual concerned of his status as a victim within the meaning of Article 25; they are to be taken into consideration solely for the purpose of assessing the extent of the damage he has allegedly suffered (see mutatis mutandis, the Ringeisen judgment of 22 June 1972, Series A no.15, p.8,§§ 20-21, the Neumeister judgment of 7 May 1974, Series A, no. 17, pp.18-19, § 40, and also the Commission's opinion in the Wemhoff case, Series B, no.5, pp.89 and 273-274).

The Court does not exclude that this general rule might be subject to an exception when the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention (see the Commission's decision of 16 October 1980 on the admissibility of application no. 8182/80, Schloffer v The Federal Republic of Germany). In such circumstances, to duplicate the domestic process with proceedings before the Commission and the Court would appear hardly compatible with the subsidiary character of the machinery of protection established by the Convention. The Convention leaves to each Contracting State, in the first place, the task of securing the enjoyment of the rights and freedoms it enshrines (see especially the judgment of 23 July 1968 on the merits of the 'Belgian Linguistic' case, Series A no.6, pp.35, § 10 in fine, and the Handyside judgment of 7 December 1976, Series A no.24, p.22, § 48). This subsidiary character is all the more pronounced in the case of States which have incorporated the Convention into their domestic legal order and which treat the rules of the Convention as directly applicable (see the Van Droogenbroeck judgment of 24 June 1982, Series A no.50, § 55).

67. As the Convention forms an integral part of the law of the Federal Republic of Germany, there was nothing to prevent the courts of the country from holding, if appropriate, that the Convention and, in particular, Article 6 § 1 had been breached. The national courts also had available to them a means of affording reparation which, in the Court's opinion, is capable of proving suitable: according to well-established case-law of the Federal Court of Justice, when determining sentence the judge must take proper account of any over-stepping of the 'reasonable time' within the meaning of Article 6 § 1 (see the judgment of 10 November 1971, Entscheidungen des Bundesgerichtshofes in Strafsachen, vol 24, pp. 239-243).

Accordingly, it has to be ascertained whether, as the Government submitted, the German courts held that Article 6 § 1 had been breached, and, if so, whether they granted redress".

[15] It is to be noted that in paragraph 67 the Court expressly accepted that a reduction in sentence could be regarded as a suitable means of affording reparation. The Court observed (at para 69) that the national court, in the proceedings in which a reduced sentence had been imposed, had not expressly acknowledged the existence of a breach of Article 6, but that the language employed could be taken as amounting to a finding to that effect. It was less certain that that could be read into the decision which had brought an end to the proceedings in which a discontinuance had been ordered. The Court continued (at para.70):

"Even if it were accepted that the relevant decisions do acknowledge in a sufficiently clear manner the failure to observe the 'reasonable time' requirement, it would still be necessary that redress should have been given. The issue that exists is thus whether the mitigation of sentence granted, according to the terms of its decision, by the Trier Regional Court and the discontinuance of proceedings ordered by the Cologne Regional Court remedied the matters complained of".

So far as the mitigation of sentence was concerned, the Court concluded (at para 87) that the national court's decision did not contain sufficient indications to allow an assessment of the extent to which the length of the proceedings had been taken into account. So far as the discontinuance was concerned, the Court concluded (at para.94):

"The discontinuance of the prosecutions, ordered by the Regional Court on 21 September 1977 with the consent of the applicants, was in principle capable of affecting their entitlement to claim to be 'victims' within the meaning of Article 25, but the length of the delays attributable to the authorities was such that the applicants in no way forfeited their status as 'victims'; moreover, the discontinuance decision, whether or not read in the light of the formal submissions presented by the public prosecutor's office, discloses no indication whatsoever that it had been taken having regard to the above-mentioned delays (see paragraphs 68 and 70 above).".

[16] It appears from this judgment that the Court considered that steps taken by the domestic judicial authorities, by way of a reduction in sentence or by ordering a discontinuation of the prosecution, were in principle capable of constituting redress and so affecting an applicant's entitlement to claim to be a victim of a breach of Article 6(1) by reason of proceedings having exceeded a reasonable time, but that they need not necessarily have that effect. In particular, it appears to be implicit in the judgment that a reduction in sentence would only have that effect if it could be seen to have taken the length of the proceedings adequately into account; and a discontinuation of the proceedings would only have that effect if it also had been ordered having regard to the length of the proceedings, and if the length of those proceedings was such that the discontinuation of the prosecution would afford sufficient redress.

[17] At first sight, it may seem paradoxical that proceedings may have exceeded a reasonable length, contrary to Article 6, and yet the person affected may not be regarded by the Court as the victim of a violation of Article 6. The Court's reasoning, however, like that of the Commission in the decisions previously cited, is based on what paragraph 66 of the judgment describes as "the subsidiary character of the machinery of protection established by the Convention". Under Article 1 of the Convention, States are obliged to secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of the Convention. It is therefore the responsibility of the domestic authorities, in the first instance, to prevent violations of those rights. Equally, where a violation has already occurred and it is therefore impossible for it to be prevented, it is the responsibility of the domestic authorities to provide adequate redress for that violation. This responsibility is reflected in Article 13 of the Convention:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity".

Article 13 is in turn reflected in the requirement imposed by Article 35 (formerly Article 26) that the domestic remedies must have been exhausted before the Strasbourg Court may deal with the matter. As the Court said in Ahmet Sadik v Greece, Reports 1996-V, p.1638 at para.24:

"[T]he supervision machinery set up by the Convention is subsidiary to the national human rights protection systems. That principle is reflected in the rule set forth in Article 26, which 'dispenses States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system'.".

The purpose of Article 13 is to require States to provide a remedy which will "put matters right" where a violation has occurred.

[18] Primary responsibility for providing an effective remedy is thus laid on the State. The right of individual complaint to the Strasbourg Court under Article 34 of the Convention is of a subsidiary nature. It appears, from what was said in the Eckle judgment at paragraph 66 (and the Commission decisions previously cited) that that right of individual complaint cannot be invoked where the applicant has had an effective domestic remedy; and a reduction in sentence, or the discontinuation of a prosecution, may constitute such a remedy, depending on the circumstances.

[19] Subsequent to the Eckle judgment, the Commission applied the same approach in a number of decisions on admissibility. For example, in 9132/80, Neubeck v Germany, DR41,13 (1983), the Commission said (at para.131):

"The Commission accepts that an excessive length of criminal proceedings can in principle be compensated for by measures of the domestic authorities, including in particular a reduction of the sentence on account of the length of procedure".

The same approach was followed in 8858/80, G v Germany, DR 33,5 (1983), where the discontinuation of the proceedings was held to have the consequence that "the applicant is no longer a victim of the alleged violation"; in 10232/83, S v Germany, DR 35,213 (1983), where a reduction in sentence was held to have the consequence that "the applicant can no longer claim to be a victim of a violation"; in 10884/84, H v Germany, DR 41,252 (1984), where a reduction in sentence was held to have the same consequence; in 13020/87, Conrad v Germany, DR 56,264 (1988), where the same consequence was held to follow from the discontinuation of the proceedings; and in 17669/91, Van Laak v Netherlands, DR 74,156 (1993), where the same consequence was held to follow from a reduction in sentence.

[20] The Court itself reiterated the approach which it had adopted in its Eckle judgment in a number of subsequent cases concerned with breaches of other Convention guarantees. Examples include De Jong v Netherlands, A77 (1984), where the Court accepted (at para.41) that unlawful pre-trial detention might be redressed by a reduction in sentence based upon an acknowledgement of the violation of Article 5; Inze v Austria, A126 (1987), where the Court accepted (at para.32) that an illegitimate child who had suffered discrimination under the law of succession might be deprived of his status as a victim of a violation of Article 14 taken together with Article 1 of Protocol No.1 if the national authorities had acknowledged the breach of the Convention, either expressly or in substance, and had afforded redress for it; and Lüdi v Switzerland, A238 (1992) where the Court said (at para.34), in the context of alleged violations of Article 6(3)(d) and Article 8:

"The word 'victim' in the context of Article 25 denotes the person directly affected by the act or omission in issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 50. Consequently, mitigation of a sentence in principle deprives such a person of his status as a victim only where the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention".

This general approach appears to be the same as that adopted by the Commission in its X v Austria decision, from which I quoted earlier. Redress rectifies the violation. Whether one says that the violation does not persist after redress has been made (to use the terminology employed by the Commission in paragraph 2 of its Schloffer v Germany decision) or that the applicant is deprived of his status as a victim (to use the terminology employed by the Court in paragraph 34 of its Lüdi judgment), the consequence of redress being made is that the person concerned is no longer the victim of a violation of the Convention.

[21] So far as the reasonable time guarantee in particular is concerned, the approach of the new Court can be gauged from the judgment in Beck v Norway (26 June 2001). The applicant complained under Article 6(1) that the criminal case against him was not determined within a reasonable time. The Norwegian Government responded that the applicant had been afforded adequate redress by a reduction in sentence. As in Eckle, the Court considered (in its decision on admissibility, dated 16 November 1999) that the question whether adequate redress had been given was closely linked to the merits of the complaint as to the duration of the proceedings, and therefore joined to the merits the question whether the applicant was deprived of the status of victim. In its judgment on the merits, the Court said:

"27. The question remains whether the applicant may continue to claim to be a victim of a violation of Article 6§1 of the Convention on the grounds of the length of the criminal proceedings against him. In this regard the Court recalls that the mitigation of a sentence on the ground of the excessive length of the proceedings does not in principle deprive the individual concerned of his status as a victim within the meaning of Article 34 of the Convention. However, this general rule is subject to an exception when the national authorities have acknowledged in a sufficiently clear way the failure to observe the reasonable time requirement and have afforded redress by reducing the sentence in an express and measurable manner (see the Eckle v Germany judgment of 15 July 1982, Series A no.51, §66).

28. Applying these principles in the present case, the Court notes in the first place that the City Court expressly upheld the substance of the applicant's complaint under Article 6§1 of the Convention that the proceedings had exceeded a reasonable time.

Secondly, the Court is satisfied that the applicant was afforded adequate redress for the alleged violation. On this point it should be recalled that, despite the gravity of the offences in question, the applicant was sentenced to 2 years' imprisonment which was at the lower end of the scale of punishment authorised by the relevant penal provisions and appreciably less than in comparable cases. The City Court held expressly that it attached a 'not insignificant' weight to this third factor and little weight to a second factor regarding the uncritical attitude of banks in giving loans. The age mitigating factor did not apply to all the defendants, yet they all received comparable sentences according to their respective responsibilities. Thus, the time/delay element stood out as being the primary mitigating factor. Although the City Court's reasoning could have been more precise, the Court is satisfied, given the particulars on comparable sentencing practices submitted by the parties, that the reduction in sentence on account of the length factor was measurable in the present case, and had a decisive impact on the applicant's sentence.

29. Against this background, the Court does not find a violation of Article 6§1 of the Convention in the present case.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that there has been no violation of Article 6§1 of the Convention".

[22] It is clear from this decision that the new Court remains of the view that a violation of the reasonable time guarantee can be effectively redressed by the domestic authorities, and that if such redress is given then no violation will be found by the Court. It is also clear that a reduction in sentence may (depending on the circumstances) be one possible means of affording redress.

[23] The case-law of the Court in relation to this issue has prompted the following observations in the respected monograph by Van Dijk and Van Hoof, Theory and Practice of the European Convention on Human Rights (3^rd edition, p.450):

"Article 6(1) does not stipulate what the consequences for the proceedings are, if the reasonable-time requirement has not been met. It would seem to ensue from this provision that, if the reasonable time has been exceeded and, consequently, the determination can no longer be made within a reasonable time, the proceedings would have to be stopped and the civil action or criminal charge to be declared inadmissible. However, the Strasbourg organs have adopted a more flexible view and indicated that:

an excessive length of criminal proceedings can in principle be compensated for by measures of the domestic authorities, including in particular a reduction of the sentence on account of the length of procedure (Neubeck v Germany).

This point of view, which seems difficult to be reconciled with the text of Article 6(1), offers the most appropriate solution in certain cases. In civil proceedings the applicant should not become the victim of an unreasonable delay for which the public authorities are to be blamed; both parties can be victims of the delay and be entitled to some form of just satisfaction. And in criminal procedures the public interest in the prosecution and conviction of the criminal may be so great that the prosecution should not be stopped for the sole reason that the reasonable time has been transgressed; another, more proportionate compensation should be awarded to the victim of that transgression".

This approach accords with the Court's wider recognition of the need for a fair balance between the general interest of the community and the personal rights of the individual: as Lord Bingham of Cornhill noted in Stott v Brown, 2001 SCCR 62 at page 80, the search for that balance is inherent in the whole of the Convention.

[24] Finally, in relation to the Strasbourg case-law, it is to be noted that awards made under Article 41 (formerly Article 50) to afford "just satisfaction" to persons convicted after lengthy proceedings have not been made on the footing that the proceedings should have been discontinued. In its Article 50 judgment in Eckle v Germany, A65 (1983), for example, the Court said (at para. 20):

"The Court's judgment of 15 July 1972 (sic), whilst pronouncing the length of the proceedings taken against the applicants to be unreasonable, did not in any manner hold, or carry the implication, that their prosecution, conviction and imprisonment were also in breach of the Convention. The sole matter to be taken into consideration is thus the prejudice possibly entailed by the fact of the two proceedings in question having lasted beyond a 'reasonable time'." (emphasis added).

The words which I have emphasised appear to me to make the position clear. A violation of the reasonable time requirement does not imply that it is incompatible with the Convention rights of the accused for the State (i.e. the prosecution, the court and other agencies such as the prison service) to proceed with the prosecution, conviction and punishment of the accused. It is the length of the proceedings which is in violation of the Convention, not the proceedings themselves. In accordance with that approach, in some cases the Court has taken the view that the finding of a violation in itself furnished sufficient just satisfaction (e.g. in Eckle v Germany itself; in S v Austria A175 (1990); and in Abdoella v Netherlands, A248-A (1992)). In other cases, the Court has awarded relatively modest sums to compensate for prolonged uncertainty and consequent anxiety (e.g. Milasi v Italy, A119 (1987); Mansur v Turkey, A321 (1995)). The gravity of the crime has been treated as a material factor in deciding whether such an award should be made.

[25] In considering the issue of delay under Scots law, it is instructive to begin by considering the compatibility with the Convention of the law as it stood prior to the enactment of the Scotland Act or the Human Rights Act. Scots law had (and continues to have) a number of mechanisms designed to prevent undue delay in criminal proceedings, and to provide protection to accused persons against the consequences of such delay. Examples include the requirement that a trial on indictment must begin within 12 months of the accused's first appearance on petition in respect of that offence; and that an accused who is committed for any offence cannot be detained for more than 80 days unless an indictment is served within that period, or for more than 110 days unless the trial is commenced within that period. These requirements compare favourably with protections available in many other jurisdictions, as was noted by members of the Court of Appeal of New Zealand in Martin v Tauranga District Court [1995] 2 NZLR 419.

[26] The first of these statutory requirements protects the accused in the present case. As I mentioned earlier, I have granted a short extension of the 12 month period as a consequence of the present application, and the consequent need to postpone the trial diet set down for 2 October 2001: otherwise the accused would have been entitled to have his trial begin within 12 months of his first appearance on 30 October 2000.

[27] These statutory provisions do not protect an accused person in proceedings on indictment against delay prior to his first appearance on petition (nor against delay after the commencement of his trial). There is not however a complete absence of protection: the common law provides protection in these circumstances in a variety of ways, the most far-reaching of which is by barring the Crown from proceeding with a trial if it would be oppressive for them to do so. As Lord Justice General Rodger observed in Montgomery v HMA, 2000 SCCR 1044 at p.1073:

"Despite its somewhat sinister name, in practice oppression has come to be a plea which turns on the fairness of any trial - the kind of issue which is focused in Article 6".

The test in cases of oppression is set out in a well-known passage in the Opinion of Lord Justice General Emslie in Stuurman v HMA, 1980 JC111 at p.122:

"As the authorities show, the High Court of Justiciary has power to intervene to prevent the Lord Advocate from proceeding upon a particular indictment but this power will be exercised only in special circumstances which are likely to be rare. The special circumstances must indeed be such as to satisfy the Court that, having regard to the principles of substantial justice and of fair trial, to require an accused to face trial would be oppressive. Each case will depend on its own merits, and where the alleged oppression is said to arise from events alleged to be prejudicial to the prospects of fair trial the question for the Court is whether the risk of prejudice is so grave that no direction of the trial judge, however careful, could reasonably be expected to remove it".

[28] Stuurman was a case where the plea of oppression was based on prejudicial pre-trial publicity. In McFadyen v Annan, 1992 SCCR 186 it was made clear that the same test applied in all cases where a plea of oppression was advanced in bar of a jury trial, whatever the basis of the plea. McFadyen v Annan was itself a case where the plea was based on delay. As is clear from McFadyen v Annan, and subsequent cases in which it has been applied (the effect of which is summarised in Renton & Brown's Criminal Procedure, 6^th edition. para.9-23), delay will not normally require the court to uphold a plea in bar of trial, as the court cannot normally be satisfied in advance of trial that a fair trial is no longer possible. Prejudice caused by delay may be capable of being addressed at the trial (e.g. by admitting hearsay evidence of statements by witnesses who have died or disappeared, or by directing the jury as to the implications of delay for the recollection of witnesses or the establishment of a defence such as alibi), and is generally best left to be dealt with by the trial judge. If the trial judge considers that it is impossible to deal with these matters in such a way as to enable the accused to receive a fair trial, then he can bring the trial to an end by deserting the diet (HMA v McGill, 1997 SCCR 230).

[29] Even where delay causes no material prejudice to the prospects of the accused receiving a fair trial, Scottish courts have long recognised that it may expose the accused to anxiety, distress and other consequences over an unnecessarily prolonged period. That factor has been taken into account by the courts in mitigation of sentence, although not necessarily in any measurable way.

[30] Viewing domestic law (prior to the patriation of the European Convention) in the light of the Convention jurisprudence discussed earlier, it is apparent that the possibility existed of a violation of the reasonable time guarantee, notably (but not solely) as a result of delay between the date when an accused person was charged by the police and the date when active proceedings began with his being placed on petition. That possibility of course remains, as the facts of the present case demonstrate. It is also apparent that the courts might in some cases take account of such delay in mitigation of sentence, although in practice it was unlikely that that would be done in a sufficiently clear manner to satisfy the Strasbourg Court that effective redress had been made. In other cases the courts would not reflect the delay in a reduction of sentence, either because the sentence was mandatory or because, in the particular circumstances, the delay was not a significant mitigating factor. In such cases, and in cases in which the accused was acquitted, no redress would be given.

[31] In practice, although there have been a substantial number of applications to the Strasbourg institutions concerned with Scottish criminal proceedings (see Lester and Pannick, Human Rights Law and Practice, paras.5.05 and 5.11), there appears to have been only one such case concerned with delay. That case, 21437/93, Dougan v United Kingdom, concerned a situation which could only be described as exceptional. The applicant was charged in 1981 with the attempted murder of his wife. He failed to appear for his trial later that year. The procurator fiscal instructed the police to arrest the applicant for his failure to appear. The police were not informed of the seriousness of the charge which the applicant faced. Efforts by the police to trace the applicant at that time were unsuccessful. In 1992 the applicant was traced, arrested and re-indicted for trial. A plea in bar of trial on the ground of delay was rejected on the basis that any prejudice could be addressed by the trial judge's directions to the jury. At the trial diet, in 1993, the applicant pled guilty to a reduced charge of assault and to a charge of failure to appear at the trial diet in 1981. He was sentenced to perform community service, and a fine was imposed. The case was referred to the High Court of Justiciary by the Secretary of State for Scotland on the question whether a procedural irregularity in the case had amounted to a miscarriage of justice. At a hearing in 1994 the referral was not insisted upon. The proceedings thus lasted 13 years in all. In its report (dated 11 January 1995, and reported at 1997 SCCR 56), the Commission found that, although the applicant had not shown that he was gravely prejudiced by the length of the proceedings, they were nevertheless "extraordinarily long". The Government had failed to provide any compelling justification for the delays: in particular, they had not demonstrated that the applicant could not have been traced by the authorities before 1992. The Commission considered that poor administration in the procurator fiscal's office had contributed considerably to the delay in bringing the applicant to trial. There was therefore a violation of Article 6(1). The Committee of Ministers subsequently held that the applicant should be paid £2000 as just satisfaction in respect of non-pecuniary damage. Although the possibility that the sentencing judge might have taken the delay into account was mentioned by the Commission in its decision on admissibility (dated 11 May 1994), no argument appears to have been presented to the effect that the violation of Article 6(1) had been redressed.

[32] The Dougan case confirms that a delay which does not prevent a fair trial from taking place, and therefore does not entitle a Scottish court to uphold a plea in bar of trial under the common law, may nevertheless result in a violation of Article 6(1). It does not on the other hand add to or qualify the other Strasbourg case law, discussed earlier, as to the nature of an effective remedy for such a violation.

[33] Following the entry into force of the Scotland Act, complaints of unreasonable delay, contrary to Article 6(1), began to be brought before the Scottish courts. These complaints were brought in the form of a plea in bar of trial, based upon section 57(2) of the Scotland Act. The first case of this kind was HMA v Little, 1999 SCCR 625, which was decided by a single judge at a preliminary diet. That was a case, like the present case, in which there had been a long delay between the accused being charged by the police with sexual offences against children and his appearance in court, due to a decision by the procurator fiscal to take no further proceedings. As in the present case, it was not argued that the delay would prevent the accused from receiving a fair trial. The accused's argument was that there had been a violation of Article 6(1), and that therefore his plea in bar of trial should be sustained. The Crown disputed in the first place the existence of a violation. In addition, the Crown submitted that in any event it could not be said that to proceed to trial, in circumstances where it could not be said that the accused could not be fairly tried, would be incompatible with the accused's Convention rights. The court does not however appear to have been addressed fully on the Strasbourg jurisprudence to which I have referred, at least in support of any argument that a violation could be redressed otherwise than by upholding a plea in bar of trial. The court does not, for example, appear to have been referred to the Article 50 judgment in Eckle v Germany; or to the Commission's series of decisions from X v Germany to Van Laak v Netherlands. The absence of full argument and full citation of authority on this point has to be borne in mind in considering the court's conclusion (at p 638):

"It appears to me to follow - notwithstanding that the minuter does not, at least at this stage, argue that he could not have a fair hearing - that for the Lord Advocate to proceed to trial in respect of charges (3), (4), (5) and (6) on the indictment after such an unreasonable time would be for him to act in a way incompatible with Convention rights and, in particular, with the minuter's rights, under Article 6, to a hearing within a reasonable time. This he has no power to do, by virtue of section 57(2) of the Scotland Act 1998".

[34] In subsequent cases, including cases which came before the High Court of Justiciary on appeal, no argument appears to have been directed to the question whether a violation of Article 6(1) necessitated the sustaining of a plea in bar of trial. In particular, in Robb v HMA, 2000 SCCR 354 (another case concerned with alleged sexual offences against children), where a plea in bar of trial was sustained, the point appears to have been assumed. The same appears to be true of Docherty v HMA, 2000 SCCR 717. Subsequently the court listed several cases for hearing together in December 2000 so that consideration might be given to the question whether, where there had been established a breach of the "reasonable time" requirement, it inevitably followed that a plea in bar of trial must be sustained. In the event, when the cases were heard the court rejected the appellants' contentions that there had been an unreasonable delay and did not feel it necessary to decide what remedy might have been appropriate if those contentions had been upheld (Gibson v HMA, 2001 SCCR 51, para.3). In later cases, such as HMA v P, 2001 SCCR 210, Dyer v Watson, 2001 SCCR 430 and Kane v HMA (4 May 2001, unreported), the point was again not argued. I should perhaps make it clear that although the point does not appear to have been argued until the present case (in which I asked to be addressed on the issue of remedy), it does not necessarily follow that the outcome of all the earlier cases would have been different if the point had been argued there. In particular, the Advocate Depute in the present case said that the Crown did not quarrel with the outcome of HMA v P, a case which concerned delay in bringing relatively young children to trial on very serious charges, and in which the court emphasised the consequent risk of prejudice to the prospects of their receiving a fair trial in accordance with Article 6(1).

[35] Apart from HMA v Little, the only case subsequent to the entry into force of the Scotland Act in which the court has considered the issue of the appropriate remedy for a breach of the reasonable time requirement is Mills and Cochrane v HMA (1 August 2001, unreported). The delay in Mills and Cochrane occurred subsequent to conviction, in the course of appeal proceedings. The appellants sought to rely on section 57(2) of the Scotland Act, on the basis that responsibility for the delay was attributable to the Crown as well as to the court. The court accepted that there had indeed been a failure by the Crown to monitor the progress of each appeal, and that the appellants had therefore established a breach of Article 6 by the Lord Advocate, falling within the scope of section 57(2). In relation to the issue of remedy, the relevant section of the Opinion begins as follows (at para.11):

"The consequence of the application of section 57(2) has been taken to be, that if a prosecution has not been begun or brought to trial within a reasonable time, then the Lord Advocate has no power to proceed with it and it must be stopped. The same rule would apply if a reasonable time is exceeded, so long as the Lord Advocate is master of the instance. It does not appear to be open to the court, as it is in England (see Attorney General's Reference (No.2 of 2001), 2 July 2001) to permit a prosecution to proceed, although a reasonable time has been exceeded, on the footing that the accused can be 'compensated' for the delay by one means or another".

The court held however that the position was different after conviction (at para.12):

"Once the person prosecuted has been convicted, however, the position is no longer the same as it was before conviction. Once there has been a conviction, as was pointed out in the earlier argument, the Lord Advocate is no longer master of the instance. In such a case, ex hypothesi, the Lord Advocate did have power to commence and continue the prosecution through to conviction. If so, there is in our view, no reason to suppose that, merely by reason of some subsequent failure, the conviction need be treated as invalid. If an unreasonable time elapses after conviction (not forgetting that the period which has to be taken into account under Article 6 is the whole period until final determination of the case) there is no sufficient reason why that should be held to reflect back on and render void acts done earlier which were intra vires when they were done. It follows, in our opinion, that the court is not restricted to quashing the conviction as the only appropriate remedy, but can 'compensate' the appellant by a reduction of sentence or otherwise".

[36] Although the court did not question what "the consequence of the application of section 57(2) has been taken to be" prior to conviction, its cautious language does not appear to me to be an endorsement of that approach: it did not need to consider the issue of remedy for delay prior to conviction, and it did not address that issue in any detail. I do not in those circumstances regard its observation that "[i]t does not appear to be open to the court ... to permit a prosecution to proceed" as a decision on that point which precludes my reaching a different conclusion. I return to the Opinion in Mills and Cochrane below.

[37] If the European Court of Human Rights does not consider that breach of the reasonable time requirement in Article 6(1) necessitates the discontinuation of the proceedings - as is clear from the two Eckle v Germany judgments and Beck v Norway - but on the contrary considers that effective redress may be given within the domestic legal order by other means (such as a reduction in sentence, or compensation, or a formal acknowledgement of the violation, depending on the circumstances), one would not expect either the Scotland Act or the Human Rights Act to compel the domestic courts to discontinue the proceedings in all cases of unreasonable delay, regardless of the public interest. Counsel for the accused nevertheless submitted that that was the effect of the statutory provisions in question.

[38] The present application, so far as founded on the Human Rights Act, is based on section 7(1)(b), which enables a person to rely on Convention rights in any legal proceedings. As Lord Hope of Craighead observed in Stott v Brown at page 90, sections 7 to 9 of the Act were intended to lay down an appropriate remedial structure for giving effect to the Convention rights as defined by section 1(1) of the Act. The Act was thus intended to give effect to the United Kingdom's obligation under Article 13 of the Convention, which I have already quoted. Article 13 is not prescriptive of the form which the remedy must take, but affords Contracting States a margin of discretion, as was noted in Montgomery v HMA, 2000 SCCR 1044, at page 1093, per Lord Hope of Craighead. Sections 7 to 9 of the Act equally enable the courts to grant a wide range of remedies: Section 8(1), in particular, provides:

"In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers, as it considers just and appropriate".

If, then, the European Court of Human Rights accepts that a reduction in sentence (to take only one example) may constitute an effective remedy for a violation of the reasonable time requirement, then one would expect that such a remedy would also be open to the court under section 8(1) of the Human Rights Act.

[39] The position under the Scotland Act is somewhat different. Although that Act also gives effect to Article 13 of the Convention (as explained by Lord Hope of Craighead in Stott v Brown at page 90), it does so in a specific context, namely the extent of the legislative and executive powers of the Scottish Parliament and the Scottish Executive. In that particular context, effect is given to Article 13 by limiting the legal competence of the devolved institutions. In particular, section 57(2) provides:

"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights ....".

For any particular act to be incompetent by virtue of the words I have quoted, therefore, it must be an act which is incompatible with Convention rights.

[40] The Scotland Act does not provide special remedies to enable violations of Convention rights to be prevented or redressed, although it makes provision (in Schedule 6) for a particular procedure to be followed where "devolution issues" are raised. It leaves it to the remainder of the law to provide the remedy which can appropriately be sought, in the particular circumstances, in consequence of any lack of legislative or executive competence. In some circumstances, there may be an act which, if it lies beyond the competence of the Scottish Executive, can be challenged as being ultra vires: the appropriate remedy, in such a case, may be one which prevents the act or which (if it has already been performed) deprives it of effect. In other circumstances, however, the act may not be of the kind which can be quashed or deprived of effect. If section 57(2) is interpreted, as it has been (and I express no view as to the soundness of such an interpretation), as covering all types of act, and as extending to the acts of those for whom the Scottish Executive are responsible, then it may cover acts to which the concept of nullity cannot be applied: an example might be the ill-treatment of a prisoner, in violation of Article 3; or the reading of the prisoner's correspondence, in violation of Article 8. In such a case, section 57(2) would appear to have the consequence that the act in question cannot be treated as being within the lawful powers of the person who committed it, and so prevents a possible justification or defence from being put forward. It does not however in itself enable any effective remedy to be granted by the court in a case of that kind. Where the act can be treated as delictual under the ordinary law of delict (e.g. an assault on a prisoner), then the court can provide an effective remedy under the law of delict, for example in the form of damages. Where the act is not delictual under the ordinary law, then section 57(2) does not confer upon the court a power to award damages. The Human Rights Act may however enable such damages to be awarded, since the conduct is also an unlawful act within the scope of section 6(1) of that Act, and section 8 empowers the court to grant a wide range of remedies, which may include damages, in respect of such an act. In other words, section 57(2) of the Scotland Act only addresses the issue whether the act in question falls within the powers of the Scottish Executive; and there may be circumstances in which a violation of the Convention has occurred, as the result of an act which falls within the scope of section 57(2), but in which the only effective remedy may lie under sections 7 to 9 of the Human Rights Act.

[41] There may in addition be situations in which a violation of the Convention occurs, but in which there is not any specific act (in the ordinary sense of that word) which can be identified as the occurrence of the violation: the existence of the violation may be a conclusion which one draws from considering a set of circumstances as a whole, without there being any particular act which constitutes the violation. A violation of the "reasonable time" requirement, in particular, is liable to be of this nature: as I mentioned earlier, the Convention case-law indicates that it is the length of proceedings, rather than the proceedings themselves, which constitutes the violation of Article 6(1). One cannot even identify any particular point in time at which the length of the proceedings becomes excessive.. As the United States Supreme Court observed in Barker v Wingo, 407 U.S.514 (1972) at page 521:

"[T]he right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to speedy trial".

Even if it is possible to establish a point in time by which the length of the proceedings has become excessive, the Convention case-law indicates that subsequent stages of the proceedings are not in breach of the Convention (again, because the breach consists in the length of the proceedings rather than the proceedings themselves). In such a situation, if there is no specific act which is in breach of the Convention or which causes the breach of the Convention, the appropriate remedy may not be a challenge to the competency of a specific act, but one which redresses the effect of the violation, considering as a whole the circumstances out of which it arose. Mills and Cochrane might be regarded as an example of such a situation.

[42] These general points are material to certain assumptions which seemed to me to be implicit in some of at least of the submissions advanced on behalf of the accused: that whenever there is a violation of the Convention for which a member of the Scottish Executive is responsible, there is necessarily an identifiable act which can be challenged as being incompetent; that such an act is necessarily a nullity; that it necessarily renders incompetent any subsequent acts in the course of the same legal relationship; and that compensatory remedies, such as damages, are inherently unsatisfactory. In my opinion it is in every case essential to examine the specific nature and circumstances of the violation, in order to determine its legal consequences, and thus find an appropriate remedy.

[43] In the argument before me, the Advocate Depute sought initially to base his submissions on the "victim" requirement imposed by section 100(1) of the Scotland Act and section 7(1) of the Human Rights Act. Section 100(1) of the Scotland Act provides:

"This Act does not enable a person -

1. to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or
2. to rely on any of the Convention rights in any such proceedings,

unless he would be a victim for the purposes of Article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights".

Section 7 of the Human Rights Act provides:-

"(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may -

1. bring proceedings against the authority under this Act in the appropriate court or tribunal; or
2. rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

....

(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act".

The Advocate Depute's argument, as I understood it, was that the European Court of Human Rights would not treat a person in the position of the present accused as a "victim" unless and until the proceedings against him had been concluded and no effective redress had been given to him, for example by way of a reduction in sentence. It was therefore impossible to hold the accused to be a "victim" at the stage of a plea in bar of trial .

[44] I reject this argument. If the availability of effective domestic redress under the Human Rights Act or the Scotland Act were to deprive a person of the status of a "victim" before the redress had been obtained, so preventing the person from seeking that redress, the relevant provisions would be rendered pointless. It is true that, if an effective remedy may be available domestically, then an applicant has to exhaust that remedy before his application to the European Court of Human Rights will be admissible; but it will only be in the event that such a remedy has been obtained that he will be regarded as no longer being the victim of a violation. In short, a person directly affected by a violation of his Convention rights must be regarded as a victim unless and until he is granted an effective remedy; and it is his being a victim that entitles him to seek that remedy under the provisions in question.

[45] The argument presented by counsel on behalf of the accused can be summarised as follows. There is a violation of Article 6(1) from the point at which the length of the proceedings becomes excessive until the point at which redress is made. Once the violation has started, the court cannot (under section 6 of the Human Rights Act) authorise any continuation of the proceedings, because that would be to authorise a continuing violation. The court has to give a remedy as soon as it is requested to do so, because it must bring the violation to an end at the earliest opportunity. In particular, the court cannot allow a case to go to trial after an unreasonable delay, because that would be to allow the violation to continue, when the court could bring the violation to an end by sustaining a plea in bar of trial. The court is in a similar position under the Scotland Act, as a result of section 57(2). Counsel accepted that the Convention did not itself require one particular remedy - the discontinuation of proceedings - to be given, rather than another, such as a reduction in sentence or the payment of compensation or the formal acknowledgement of the violation. It was submitted however that the domestic legislation required the court to bring the violation to an end at the earliest opportunity, since it would be incompatible with the Convention rights of the accused for the Crown, or the court, to allow the violation to continue. Counsel cited Bell v Director of Public Prosecutions [1985] 1 A.C.937 at p.947G-H per Lord Templeman:

"If the constitutional rights of the applicant had been infringed by failing to try him within a reasonable time, he should not be obliged to prepare for a retrial which must necessarily be convened to take place after an unreasonable time".

Similarly, counsel submitted, the accused in the present case should not be required by the court to prepare for a trial to be held, in breach of his Convention rights, after an unreasonable time.

[46] I reject this argument also. So far as the present application is based on the Human Rights Act, the starting point is section 6(1):

"It is unlawful for a public authority to act in a way which is incompatible with a Convention right".

I can only sustain the plea in bar of trial on the basis of the Human Rights Act, if (1) for the Lord Advocate to proceed to trial is incompatible with the accused's Convention rights or (2) for the court to proceed to trial is incompatible with the accused's Convention rights. It is plain from the Convention jurisprudence that to proceed to trial would not be incompatible with the accused's Convention rights merely by reason of the length of proceedings. That appears most clearly from the Court's Article 50 judgment in Eckle v Germany, which I have already quoted:

"The court's judgment .... whilst pronouncing the length of the proceedings taken against the applicants to be unreasonable, did not in any manner hold, or carry the implication, that their prosecution, conviction and imprisonment were also in breach of the Convention".

The fact that proceedings have lasted more than a reasonable time prior to trial therefore does not entail that to proceed with the trial is a violation of the Convention or, therefore, incompatible with a Convention right. If however a public authority has acted in a way which is incompatible with a Convention right, the court can grant such remedy, or make such order, within its powers as it considers just and appropriate. That power would enable the High Court of Justiciary in particular to give a reduction in sentence in recognition of the violation, if the accused were to be convicted and such a reduction were considered appropriate; or it would enable the Court of Session to grant a declarator, or to award damages, if appropriate.

[47] So far as the present application is based on the Scotland Act, the starting point is section 57(2), which I have already quoted. On the basis of the Convention jurisprudence to which I have already referred, it is plain that for the Crown to proceed to trial, after an unreasonable pre-trial delay, is not (merely by reason of the delay) a violation of the Convention, and is therefore not an act incompatible with Convention rights. That being the position, there appears to me to be no basis under section 57(2) for my sustaining the plea in bar of trial in the present case.

[48] The court in Mills and Cochrane appears to have had in mind an argument which was not advanced before me: that since the Lord Advocate has no power to do any act which is incompatible with any of the Convention rights, proceedings which exceed a reasonable length of time are ultra vires and therefore void. The court rejected such an argument in the context of post-conviction delay (at para.12) on the basis that "there is no sufficient reason why that should be held to reflect back on and render void acts done earlier which were intra vires when they were done". It did not require to consider the soundness of such an argument in the context of pre-conviction delay.

[49] If expressed as in the preceding paragraph, the argument does not specify clearly the "act" which is said to be incompatible with Convention rights, where proceedings exceed a reasonable length of time. One approach might be that the criminal proceedings as a whole constitute an "act" within the meaning of section 57(2) of the Scotland Act, and that they are an "act" of the Lord Advocate (at least insofar as concerns that part of the proceedings which precedes conviction or acquittal). Whether or not those propositions are correct (as to which I need express no opinion), such an argument in any event elides the distinction between two different propositions: first, that the length of the proceedings violates the accused person's Convention right under Article 6(1); and secondly, that the proceedings themselves violate the accused person's Convention rights.

[50] The fact that the length of the proceedings considered as a whole exceeds a reasonable time and therefore violates the accused person's Convention rights does not have the consequence that the acts undertaken by the prosecution in the course of those proceedings (such as placing the accused on petition or on indictment, or presenting evidence, or inviting the jury to convict), or for that matter the acts undertaken by the court (such as committing the accused, or returning a verdict, or passing sentence), are in violation of his Convention rights - whether those acts are considered individually or cumulatively. If those acts are not a violation of his Convention rights - as is clear from the Convention case-law - then I see no reason to conclude that they are rendered ultra vires by section 57(2) of the Scotland Act.

[51] A different approach might proceed on the basis that, where the excessive length of proceedings is due to a period of delay by the Crown for which there is no satisfactory explanation, then that delay is an "act" which is incompatible with the accused's Convention rights and therefore incompetent by virtue of section 57(2). That argument assumes that inactivity can be an "act" which is "done" by the Lord Advocate within the meaning of section 57(2). Again, I need express no opinion as to whether that assumption is correct. Even assuming that the delay is an "act" which is incompatible with the accused's Convention rights, delay is not in itself something to which the concept of "nullity" can be applied. In some contexts delay might affect the validity of the action or decision which had been delayed; but, in the present context it is clear from the Convention jurisprudence that, notwithstanding the passage of an unreasonable length of time, to proceed with the prosecution by placing the accused on petition is not in breach of the Convention. The same would be true of other specific acts which might be considered, such as the indictment of the accused for trial. Since the delay does not render incompatible with the Convention the action which was delayed, I see no reason to conclude that the delay renders such action ultra vires.

[52] It is true that, for the purpose of obtaining effective redress under sections 7 to 9 of the Human Rights Act, there has to have been an "act" within the meaning of section 6 of the Act (which expressly includes a failure to act: section 6(6); and if the violation of Article 6(1) has been caused by the Crown's inactivity, then it may be appropriate to regard that inactivity as constituting an "act", within the meaning of section 6, which is incompatible with a Convention right (since it is the cause of a violation of a Convention right). That appears to have been the approach adopted by the Court of Appeal in Attorney General's Reference (No.2 of 2001) (2 July 2001, unreported) (at para.20, quoted below). Assuming that that is the position (a matter on which I need express no concluded opinion), it does not follow that the proceedings are a nullity. Even if one took the view that such an "act", within the meaning of section 6 of the Human Rights Act, must also be regarded as an "act" within the meaning of section 57(2) of the Scotland Act (another matter on which I need express no opinion), the only conclusion I would draw is that section 57(2) would make it clear (if it were not otherwise) that the act in question was not authorised by statute or by the common law. The Lord Advocate would therefore be unable to claim that he was acting within his powers in failing to make more rapid progress, for example in the event that proceedings were to be brought against him under section 8 of the Human Rights Act.

[53] I note that a similar conclusion, so far as the Human Rights Act is concerned, was reached by the Court of Appeal in Attorney General's Reference (No.2 of 2001). Lord Woolf LCJ said (at para 20):

"The explanation for the judge taking the view which he did, in our judgment, is because the judge failed to distinguish between the conduct which constitutes the unlawful act for the purpose of Article 6(1) and the remedy which the court provides for the unlawful act if there has indeed been an unlawful act. If a person complains of a contravention of the reasonable time requirement in Article 6, and if the court comes to the conclusion that there has been a contravention, then at the request of the complainant the court is required to provide the appropriate remedy. If the court is willing and able to provide the appropriate remedy, then the court is not compelled to take the course of staying the proceedings. That is a remedy which the court can grant, but it is certainly not a remedy which it is required to grant. It seems to us in general that the approach that previously existed as to the provision of the remedy of staying the proceedings should be confined, as it was prior to the Convention becoming part of our domestic law, to situations which in general terms can be described as amounting to an abuse of the process of the courts. But there are many other actions which the court can take which avoid the need for such action. In particular, if the court comes to the conclusion that this would provide the appropriate remedy, the court can mark the fact that the way the prosecution has been conducted does contravene the reasonable time requirement in Article 6(1) and acknowledge the rights of the defendant by so doing. In many cases the court will come to the conclusion that that is not a sufficient recognition of the defendant's rights. If that be so, then the court can take other action. It can, for example, take account of the failure to proceed with the case with due expedition in the sentence which the court imposes. It has always been the practice for the courts in this jurisdiction to take into account delays of the sort to which we have referred when sentencing a defendant. It does so, recognising that it is inevitably a disadvantage to a defendant to have a charge hanging over his or her head longer than is reasonably required. The criminal process inevitably subjects an individual to distress. Albeit that they are acquitted at the end of the process, they still have been subjected to unnecessary distress. The difference which the Human Rights Act 1998 makes is that the remedies available to a court can be greater than they were hitherto. In particular, it is now in appropriate circumstances open to the courts to make awards of compensation. This court accepts that where a person is acquitted at a subsequent trial, it could be appropriate for there to be compensation if there has been delay which contravenes the reasonable time requirement in Article 6(1) of the Convention. It depends on all the circumstances whether compensation is appropriate".

I respectfully agree with that approach. The only observation I would add is that it is possible to conceive of circumstances in which delay might not be considered a significant mitigatory factor (e.g. if the accused person acquiesces in delay by the Crown or himself seeks repeated adjournments, or if for some other reason he is untroubled by delay). I also respectfully agree with the observation (at para.19) that:

"[A]t the trial of a defendant on a criminal charge, it is not only the defendant who is to be considered. The public are interested in whether or not defendants are tried for criminal offences they have committed. As is the case with many of the rights which are contained in the Convention, the courts are called upon to hold the balance between the rights of the individual and the rights of the public".

That observation in my opinion accurately reflects the Convention case-law on the "reasonable time" requirement and, indeed, most if not all other Convention rights.

[54] The Court of Appeal also referred to some Commonwealth cases concerned with "reasonable time" guarantees. Such cases were also cited before me; and counsel for the accused founded in particular, as I have mentioned, on Bell v Director of Public Prosecutions. I should say at the outset that I accept that, in principle, Commonwealth decisions on human rights issues, particularly where they concern provisions very similar to those contained in the European Convention on Human Rights, may be of assistance in deciding how such provisions should be applied within the common law tradition. Nevertheless, it has to be borne in mind that such decisions may reflect a particular legal and cultural context, and may be a misleading guide in the context of the European Convention, whose interpretation by the European Court of Human Rights has not been influenced primarily by that tradition. Such decisions cannot in any event be followed, in the application of the Human Rights Act or the Scotland Act (so far as concerned with Convention rights), insofar as they are inconsistent with any clear and consistent jurisprudence of the European Court.

[55] As regards the decision in Bell v Director of Public Prosecutions, I respectfully agree with the observation of Lord Woolf LCJ in Attorney General's Reference (No.2 of 2001) (at para.23):

"[T]he court clearly adopted the approach that the significant factor was whether or not there was prejudice. In that case there had been a lapse of seven years between the date of the alleged offence and the date of the retrial. The view was taken that there was specific prejudice caused as a consequence of delay of that nature. As we have already indicated, if there has been prejudice caused to a defendant which interferes with his right to a fair trial in a way which cannot otherwise be remedied, then of course a stay is the appropriate remedy. But in the absence of prejudice of that sort, there is normally no justification for granting a stay".

[56] The decision of the Privy Council in Darmalingum v The State [2000] 1 WLR 2303 was also cited to me, as it had been also to the Court of Appeal. Reliance was placed in particular on a passage in Lord Steyn's speech at p.2310 which begins as follows:

"The normal remedy for a failure of this particular guarantee, viz the reasonable time guarantee, would be to quash the conviction".

Again I agree with the observations in this regard of Lord Woolf LCJ in Attorney General's Reference (No.2 of 2001) (at para.23):

"We have no difficulty with the view of the Privy Council in that case insofar as it is confined to the type of situation being considered in that case. But it should not be regarded as guidance which should be applied in consideration of breaches of the reasonable time requirement in Article 6(1) in this jurisdiction. Although the opening words of Lord Steyn are of a general nature, they would not be applicable here because they are inconsistent with the jurisprudence of the Strasbourg Court which recognises, for example, that a reduction of sentence is an appropriate remedy for a breach of Article 6(1)".

As the Court of Appeal observed, that passage of Lord Steyn's speech has also to be read subject to the comments of the Privy Council in Flowers v The Queen [2000] 1 WLR 2396. Similar observations about Darmalingum were also made in Mills and Cochrane (at para.13).

[57] I was referred to some other comparative material which I should mention briefly. The United States case law proceeds on the basis that the dismissal of the indictment is the only possible remedy for a breach of the right to speedy trial guaranteed by the Sixth Amendment to the Constitution, notwithstanding that it is an "unsatisfactorily severe remedy" (Barker v Wingo at page 522). Since that approach is inconsistent with the jurisprudence of the European Court of Human Rights, it is of no direct assistance in the present context. The United States Supreme Court's recognition that a rule requiring the automatic dismissal of the indictment is contrary to the public interest and therefore unsatisfactory supports the view that a more flexible approach is to be preferred.

[58] I was also referred to the extensive case-law of the Supreme Court of Canada on section 11(6) of the Canadian Charter of Rights and Freedoms. That body of law is however concerned with the consequences of delay in a legal context which is far removed from that of the present case. For that reason, and since it is inconsistent with the Convention jurisprudence, I have found it of no material assistance.

[59] The judgments of the High Court of Australia in Jago v The District Court of New South Wales (1989) 168 CLR 23 contain an important discussion of the treatment of delay under the common law in the absence of any special right to trial within a reasonable time; but they are for that reason of no direct relevance to the present case. Nevertheless, the judgment of Brennan J in particular contains observations (at paragraph 28) which are of general importance and with which I respectfully agree:

"[A]lthough our system of litigation adopts the adversary method in both the criminal and civil jurisdiction, interests other than those of the litigants are involved in litigation, especially criminal litigation. The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society. The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances. If a power to grant a permanent stay were to be exercised whenever a judge came to the conclusion that prejudice might or would be suffered by an accused because of delay in the prosecution, delay in law enforcement would defeat the enforcement of the law absolutely and prejudice resulting from delay would become a not unwelcome passport to immunity from prosecution. Refusal by a court to try a criminal case does not undo the anxiety and disability which the pendency of a criminal charge produces, but it leaves the accused with an irremovable cloud of suspicion over his head. And it is likely to engender a festering sense of injustice on the part of the community and the victim. The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public

mind".

[60] The last Commonwealth case cited to me was the decision of the Court of Appeal of New Zealand in Martin v Tauranga District Court. That case again follows a different approach from the Convention jurisprudence and is therefore of no direct relevance. I note that several of the judgments drew attention to the public interest in the prosecution to trial of alleged offenders, and the consequent undesirability of imposing a stay of proceedings as a remedy for delay where a fair trial remains possible. Hardie Boys J observed (at pages 430-431):

"As with other rights relevant to the investigative and trial processes of the criminal law, there is tension between the individual right and the interest of the community in the detection and conviction of offenders. An over-enthusiastic assertion of the former to the detriment of the latter can only lead to a destructive diminution of community respect for the law, its institutions, and the administration of justice".

That observation, like Brennan J's prediction that the commonplace ordering of stays could lead to a loss of public confidence, is supported by the understandable reaction, in public discussion in Scotland, to some of the cases I have already mentioned in which pleas in bar of trial were upheld. In the New Zealand case, an award of monetary compensation was suggested as a possible alternative to a stay which would acknowledge the breach of the accused's right to a trial without delay but also respect victims' rights and the public interest (e.g. at pages 427-428 per Richardson J, and at page 432 per Hardie Boys J). The judgment of Hardie Boys J also identified (at page 432) the fallacy in the proposition that breach of the right to trial without undue delay must logically result in a stay of proceedings:

"The right is to trial without undue delay: it is not a right not to be tried after undue delay".

[61] I should conclude this survey of comparative material by mentioning a case which was not cited to me, but which was perhaps more relevant than some of those which were: the judgment of the European Court of Justice in case C-185/95P Baustahlgewebe GmbH v Commission [1998] ECR-I 8417. The case concerned a violation of the reasonable time requirement in Article 6(1) (as forming part of the general principles of Community law) by the Court of First Instance, in proceedings concerning anti-competitive practices in respect of which that court had imposed a fine. Advocate General Léger, in his Opinion, reviewed (at pages 8434-8435) the remedies provided by the legal systems of the Member States where the right to a hearing within a reasonable time was violated in criminal proceedings, in order to determine whether there was a common legal tradition which might offer guidance to the Court of Justice. He found that the remedies differed from one Member State to another: in some States the prosecution was ruled inadmissible or was withdrawn or the penalty might be reduced, or suspended. In most Member States, however, a breach of the principle did not affect the validity of the proceedings in question, but merely enabled an action for compensation to be brought. The Advocate General concluded that the Member States appeared to regard a right to compensation as the most appropriate remedy where a "reasonable time" had been exceeded. He expressed his own opinion that modifying the penalty or taking steps with regard to the prosecution itself was not a suitable remedy for exceeding time limits. The Court of Justice gave effect to the breach of Article 6(1) by assessing a sum which would constitute reasonable satisfaction for the excessive duration of the proceedings. The amount of the fine was then reduced by that sum. The Court observed (at para.49) that "in the absence of any indication that the length of the proceedings affected their outcome in any way, that plea [scil. the plea alleging excessive duration of the proceedings] cannot result in the contested judgment being set aside in its entirety". In considering this decision, it is relevant to bear in mind that section 57(2) of the Scotland Act is concerned with Community law as well as Convention rights; and the Baustahlgewebe decision therefore provides guidance as to the approach which should be adopted in the application of section 57(2) in circumstances where a contravention by the Scottish Executive of the reasonable time guarantee in Article 6(1) occurs within an area of activity governed by Community law.

[62] The Convention jurisprudence discussed earlier in this Opinion makes it clear that domestic courts can provide an effective remedy for a violation of the "reasonable time" requirement in a variety of ways, which may include the discontinuation of proceedings, a reduction in sentence, an acknowledgement of the violation, and an award of monetary compensation. I see no reason why, in general, Scottish courts need depart from their previous approach to pleas in bar of trial on the ground of delay, or their previous approach to delay as a mitigatory factor (although more explicit reasoning may be necessary). Following that approach, it will only be in exceptional cases that delay will justify sustaining a plea in bar of trial. Equally, there will be cases in which delay cannot appropriately be reflected in sentence: the sentence may be mandatory; or the delay may not be a significant mitigatory factor in the particular circumstances; or the accused may be acquitted. In cases where redress cannot appropriately be given within the criminal proceedings themselves, I cannot see any reason why, under section 8 of the Human Rights Act, the civil courts should not grant an appropriate remedy, guided by the European Court of Human Rights's case-law on "just satisfaction".

[63] In the circumstances of the present case, it was not suggested that there was any factor which would warrant the court's sustaining a plea in bar of trial, if (contrary to counsel's submission) the sustaining of the plea was not the automatic consequence of unreasonable delay. I shall accordingly refuse to sustain that plea. It will be a matter for the trial judge to consider whether it is possible and appropriate to give redress for the violation of Article 6(1) in the further course of these proceedings.