Scottish High Court of Justiciary Decisons

PROCURATOR FISCAL, LINLITHGOW v. JOHN WATSON and PAUL BURROWS [2001] ScotHC 22 (27th April, 2001)

[1] On 25 August 2000, at a preliminary diet in the Sheriff Court at Linlithgow, the sheriff was asked to hold that in proceedings by complaint against the two respondents, the Crown was in breach of the respondents' right, in terms of Article 6(1) of the European Convention on Human Rights, to a fair and public hearing "within a reasonable time". It was agreed before us that, but for the objection taken, which was successful, it was likely that a trial would have taken place in about August or September 2000.

[2] Article 6(1) of the European Convention on Human Rights provides that: "1.  In the determination of...any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time...". It is agreed that the "reasonable time" referred to in Article 6(1) begins to run as soon as a person is "charged" (Robb v. H.M. Advocate 2000 S.C.C.R. 354, applying Eckle v. Federal Republic of Germany 1983 E.H.H.R. 1). Before the sheriff, it was submitted for the respondents that they were "charged" within the meaning of that word in this context when, in July 1998, they were informed that a complaint that they had committed perjury at a trial in April 1998 was being investigated by the police at the request of the regional procurator fiscal and their notebooks were taken for examination. The procurator fiscal, however, submitted to the sheriff that the respondents were not "charged" until they were detained and questioned on 28 January 1999 in terms of section 14 of the Criminal Procedure (Scotland) Act 1995. It was submitted for the respondents before the sheriff that, whichever submission was correct as to when the respondents were "charged", there was unreasonable delay in breach of Article 6(1). The sheriff held (1) that the submission for the respondents as to the date of their being "charged" was correct, and (2) whichever submission as to the date of the respondents being "charged" was correct, there was unreasonable delay in bringing the respondents to trial and he granted the pleas in bar of trial and dismissed the complaint. The appellant now appeals against the sheriff's decisions as to the date when the respondents were "charged" and, in any event, as to there having been a breach of Article 6(1).

[3] There was no dispute before the sheriff, nor before us, as to the history of the case. The respondents are police officers of Lothian and Borders Police. They both appeared as Crown witnesses in a trial at Linlithgow Sheriff Court on 3 and 14 April 1998. The subject-matter of that trial is apparent from the terms of the complaint against the respondents now in issue. This complaint charges that:

[4] It is immediately apparent that the trial in April 1998 was dealing with matters in April 1996. The only relevant point for present purposes is that it involved events which occurred two years previously and more than four years before the likely date of any trial of the respondents.

[5] In giving his decision at the end of the trial in April 1998, the trial sheriff made comments which were agreed before us to be substantially to the same effect as the allegations made in the complaint against the respondents. We are told that the trial sheriff's comments were given wide press publicity so that the respondents would obviously have been made aware at that time as to the trial sheriff's views as to the evidence which they had given on the matters now specified in the complaint against them.

[6] The trial sheriff's judgment in which he made the comments referred to was delivered on 22 April 1998. Upon seeing press coverage of the judgment, the deputy chief constable apparently wrote to the procurator fiscal at Linlithgow who, in turn, asked for a report from the depute who had conducted the trial. That depute had by then moved to Edinburgh and replied to the procurator fiscal with a full report on 25 May 1998. Following upon receipt of that report, the procurator fiscal referred the report to the regional procurator fiscal in accordance with standard practice in such circumstances. A clear allegation of a criminal nature being involved, the regional procurator fiscal then instructed the deputy chief constable to investigate and report. This apparently happened on 26 June 1998. The sheriff records that, at about the same time, the police received from solicitors acting for the accused in the original trial intimation of a claim for damages. The advocate depute said that police investigations started in July 1998. As already mentioned, it was in the same month that the respondents were made aware of the investigations and had their notebooks taken from them. Between August 1998 and November 1998 eight witnesses were interviewed by the police. On 28 January 1999, the respondents were detained in terms of section 14 of the 1995 Act, as already mentioned, and interviewed on tape. Following interview, they were placed on reduced duties. A report was made by the police to the regional procurator fiscal on 9 April 1999. Thereafter the case proceeded to precognition by the procurator fiscal at Linlithgow. In particular, the regional procurator fiscal instructed the procurator fiscal to have precognitions taken from four of the witnesses already mentioned. These instructions were passed to one of the procurator fiscal's staff in May 1999 and by December 1999 that member of staff had written to all four potential witnesses. One witness was interviewed in December 1999 and two in January 2000. During January 2000 it was decided not to insist on the attendance of the fourth witness. By the end of March 2000 the precognitions were passed to the regional procurator fiscal and Crown counsel was consulted. In April 2000, Crown counsel gave authority to prosecute and the papers were referred to the procurator fiscal at Linlithgow who immediately raised the complaint against the respondents. The pleading diet took place on 23 May 2000. The various steps in procedure mentioned above accorded with approved standard procedure where such allegations against police officers are concerned. This procedure is set out in the Book of Regulations for the Crown Office and Procurator Fiscal Service. At the pleading diet on 23 May 2000, the court continued the case on the motion of the procurator fiscal for debate on the devolution minutes lodged on behalf of the respondents. As already mentioned, the debate took place on 25 August 2000.

[7] So far as the appellant's first ground of appeal is concerned, I can deal with this matter quite shortly. Counsel for the respondents accepted that the sheriff may well have erred in holding that the respondents were "charged" in July 1998 rather than on 28 January 1999. In my opinion, the sheriff did err on this point. The advocate depute referred to the case of Reilly v. H.M. Advocate 2000 S.C.C.R. 879. Lord Prosser, in delivering the Opinion of the Court, explained why a person is not "charged" in this context until there has been an official notification given to that person by a competent authority of an allegation that he has committed a criminal offence (at pages 881D to 882B). In particular, references in the case of Eckle v. Federal Republic of Germany (1982) 5 EHRR 1 to a person being possibly "charged" when "preliminary investigations were opened" referred to German procedures complying with the test of official notification above mentioned and are to be distinguished from police investigations in Scotland. In the present case, the taking of police notebooks in July 1998 did not satisfy the test of official notification by a competent authority mentioned. I agree with the advocate depute that the sheriff erred on this point.

[8] Before us the debate was very much centred on whether the sheriff was justified in concluding that, even if he was wrong as to the date when the respondents were "charged", there has been a breach of Article 6(1). The advocate depute said that the lapse of time relevant was about 15 months from January 1999. Full precognition was required in the circumstances of the case even if the matter proceeded summarily. It was the reasonableness of the whole period that mattered (Smith v. Lord Advocate 2000 S.C.C.R. 926). Delivering the Opinion of the Court in that case Lord Prosser said at page 930:

Following the interview of the respondents on 28 January 1999, the report to the regional procurator fiscal in April 1999 involved quite fast procedure. Between May and December 1999 papers had been read and considered. There had been no active precognition. Other cases, including custody cases in particular, had to be given priority. The advocate depute accepted that the present was not a complicated case. However, the total time taken was not unusual. The advocate depute referred to the Opinion of the Court delivered by Lord Prosser in Gibson v. H.M. Advocate (now reported at 2000 S.C.C.R. 51). Lord Prosser had made what he described as "very general observations" in the opinion in that case. He had observed that "relevant considerations may well fall outside particular categories which have been identified in the past". He had referred to the requirement of Scottish practice for careful investigation and thought both before a matter is reported to the procurator fiscal, and thereafter by him, and where appropriate by Crown counsel, before any charge is brought by way of complaint or indictment. He said:

He said that:

He thereafter observes that:

Later he observes:

He later said:

In that case the court found that the reason or explanation for time passing was to be found in the broad circumstances of the case and there was no lapse of time resulting in a breach of Article 6(1).

[9] The advocate depute submitted that, whatever be the position so far as the first ground of appeal is concerned, the sheriff erred in holding that there had been a breach of Article 6(1).

[10] Mr. Carroll and Mr. McBride, for the respondents, both submitted that, whatever be the position with regard to the first ground of appeal, the appeal should be refused on the grounds that the sheriff's decision that there had been a breach of Article 6(1) was justified in the particular circumstances of the particular case.

[11] Mr. Carroll said that this was an exceptional case. There had been a public declaration that the respondents had committed perjury. There had been press coverage to the effect that the police officers had lied. Thus, fairly immediately the respondents became aware of the allegation of perjury. The substance of the allegation was very straightforward as was demonstrated by the terms of the complaint against the respondents. The respondents had had their notebooks taken in July of 1998. The next significant matter so far as the respondents were concerned was the interview of them in January 1999, when they were detained under section 14 of the 1995 Act. It was clear that there was inexplicable delay between May and December 1999. The overall picture had to be looked at. Twenty-five months had elapsed between the allegation being first made and the pleading diet. Prejudice was not an essential element in unreasonableness but there was prejudice in the present case. The original incident had happened in April 1996. In any trial of the respondents witnesses would be dealing with matters which happened more than four years previously. The appeal should be refused.

[12] Mr. McBride submitted that it was very rare to find quite so simple a matter for the Crown to deal with. There was no forensic evidence. There was no medical evidence. The sheriff at the trial in April 1998 had given judgment one week after the trial. He had believed two women in the shop. He had disbelieved the respondents. He had invited the Crown to investigate. The respondents had been substantially affected by what had happened. There was little doubt that there would be a trial in due course because of what the sheriff had said. Precognition of the case might have taken about half a day. From May 1999 this straightforward matter had been left on the desk of a hard-pressed precognoscer for seven months. In the whole circumstances, the appeal should be refused.

[13] In my opinion, the submission for the respondents on the second ground of appeal is correct. I agree with the judicial observations referred to by counsel in their submissions as to some of the relevant considerations to be taken into account in the approach to be taken where there is an allegation of breach of Article 6(1) on account of failure to provide a "fair and public hearing within a reasonable time". This case demonstrates as well as any the need to consider whether the requirements of Article 6(1) are met by the particular circumstances of the particular case. I make no criticism of the procedures used in the investigation of, and in coming to a decision as to whether, and if so how, to prosecute in respect of allegations against police officers such as are made here. Accordingly, it is correct to take into account specialties in prosecution processing of this type of case and this I do. I am also particularly mindful of the discretion which must be allowed to the prosecuting authority so far as prioritisation of cases is concerned in considering application of Article 6(1), arising particularly from the practical need to prioritise custody cases but not confined to such justification. In the result the need to exercise discretion in prioritising cases seems to me to be the only really weighty factor which the appellant is able to advance in favour of this appeal. The special procedures for cases such as this mentioned above may be a weighty factor in some cases but I do not consider this to be so in the present case. What concerns me most about this case, and what clearly concerned the sheriff very much, is the combination of the sharp raising of the prospect of proceedings by the trial sheriff's comments in April 1998 combined with the apparent extreme simplicity of the case so far as investigation and preparation and decision-making is concerned. While the relevant period between the respondents being "charged" and the prospective date of trial would be of the order of 20 months, it is not disputed that it is relevant to take into account events prior to the commencement of that period in deciding whether the relevant period was one of unreasonable delay. In some cases, this consideration might weigh in favour of the prosecution but in the present case I consider that it weighs in favour of the defence, tending to make the passage of time after January 1999 up to date of prospective trial not only inexplicable but unreasonable. While previous cases assist on the principles to be applied in answering the question raised in this appeal, the matter in the end of the day is one of impression overall in the particular circumstances of the particular case as to whether the requirements of Article 6(1) have been met

[14] In the whole circumstances of the present case, in my opinion the sheriff was justified in concluding that there had been a breach of Article 6(1) and in my opinion the appeal should be refused.

[1] I agree with your Lordships that the sheriff erred in holding that, for the purposes of the respondents' Convention right, in the determination of the criminal charges against them respectively, to a hearing within a reasonable time, the date of the "charge" occurred in July 1998. It was in January 1999 and only then that the accusation of perjury was put to them by the police and that they were accordingly officially notified of it. Although they were earlier aware that the sheriff at the original trial had formed, and publicly expressed, a view about their evidence and that this matter was being taken further by a police investigation, such awareness, while no doubt a matter of concern to them, cannot meet the test laid down in Eckle v. Federal Republic of Germany [1982] 5 EHRR 1, as applied in the context of Scottish procedure in H.M. Advocate v. Robb 2000 S.C.C.R. 354. Reference may also be made in this connection to Reilly v. H.M. Advocate 2000 S.C.C.R. 879.

[2] I am unable, however, to agree with your Lordships that, the respondents having been "charged" on 28 January 1999, the fact that the complaint was not served on them until shortly prior to a pleading diet fixed for 23 May 2000 constituted an infringement of their Convention right under Article 6. The terminus ad quem for the purposes of that Article will generally be the date when the whole proceedings, including any appeal proceedings, have been completed (Eckle v. Federal Republic of Germany at para. 76). But in the present case, where a plea to the competency has been taken, the issue must be whether the lapse of time between January 1999 and May 2000 has been such that the continuation of proceedings would inevitably involve (or would, if the plea to the competency had not been taken, have inevitably involved) a breach of the respondents' Convention right.

[3] In Eckle the Court observed at para. 80:

For present purposes other agents of the State, namely, the police and the prosecuting authorities must be read for "the judicial authorities". It then noted that in that case the (two) sets of proceedings had endured for 17 years and 10 years respectively. The Court continued:

[4] In the present case no question arises of the conduct of the respondents. Their counsel, however, relied on the conduct of the prosecuting authority against the background of the subject-matter of the present charge being "simple". The thrust of their submissions was that, in the context of the relative straightforwardness of the matter and having regard, among other things, to the period of time which had elapsed and the events which had occurred prior to January 1999, the procurator fiscal could and should have instituted proceedings earlier than she had.

[5] In my view the respondents' contention involves a fundamental misconception of approach. Assuming, as I do, for present purposes that precognition of the potential witnesses in this case could, once commenced and actively pursued, have been completed within a matter of days, I am of opinion that it does not follow that it should, consistently with the respondents' Convention right, have been commenced and actively pursued earlier than in fact it was. It was not suggested that this was a case, such as one involving children or other vulnerable persons or persons remanded in custody pending trial, in which priority required to be given to expediting matters. Nor was there any material before us to the effect that, measured against the treatment of similar cases in the Sheriffdom in question or in Scotland generally or elsewhere, the lapse of time from January 1999 (or even from April 1998) was unusual. Nor did counsel seek to argue in this case that there had been a failure by reason of the State not providing adequate funding for the expeditious processing of criminal business. In effect, the submission came to be that because the subject-matter was simple and could, if immediately addressed, have been prepared substantially earlier than it was, there was, taking into account the history prior to January 1999, a breach of the respondents' Convention right in not addressing it earlier. But, leaving aside for the moment any specialty arising from the prior history, this would amount to priority being given to a simple case over a more complex case merely because it was simple. For my part I accept the advocate depute's submission that simplicity is not of itself a reason for giving a case priority over other cases. To do so would amount, within the scope of defined resources, to postponing more complex cases. But a wide discretion must inevitably be accorded to the prosecuting authority in relation to the ordering of cases, including their preparation (Gibson v. H.M. Advocate 2001 S.C.C.R. 51, per Lord Prosser at page 56F). Unless it is demonstrated that in the circumstances of a particular case that discretion was unreasonably exercised (or not exercised at all) no unreasonableness can in that respect be implied.

[6] The present case, involving as it did an accusation (indeed, a very serious accusation) against serving police officers, required in compliance with the Book of Regulations for the Crown Office and Procurator Fiscal Service, the carrying through of precognition procedure notwithstanding proceedings on indictment may never have been contemplated and that an investigation had already been carried out by the police. The independence of precognition procedure, which is adopted whatever the nature of the allegation against serving police officers, was in the interests of, among others, those who had been accused. Some eight months passed between the instruction and the completion of that procedure, during the first seven of which there appears to have been little, if any, progress in it. Unless this particular case was one which demanded priority being given to it, this was not, so far as appears, an unusual, far less an unreasonable, time to elapse. Moreover, as was explained to the sheriff and to us, the member of the appellant's staff charged with precognition of this case had, during that period, responsibilities in relation to other cases of higher priority, a murder case and a case involving sexual offences against children.

[7] Emphasis was placed by counsel for the respondents on the whole period of time which had elapsed between the sheriff's observation from the Bench in April 1998 and the bringing of the present complaint. Reference was also made to the fact that the events which formed the subject-matter of the evidence given at that trial had occurred in 1996. The period with which the Convention right is concerned is that commencing at the time of the charge. It has, however, been recognised that any prior lapse of time and the reasons for it do not fall to be ignored (Reilly v. H.M. Advocate, per Lord Prosser at page 882). Precisely how prior lapse of time bears on this matter does not, as yet, appear on the authorities to be wholly clear. It cannot, however, be that that time is simply cumulated with the time since the date of the "charge"; otherwise that date would have no significance. It may be that, in considering the reasonableness of the time which has elapsed since the charge, prior time and events (or non-events) may demonstrate, for example, that some prioritisation or other special treatment of the case is called for in the post-charge period. In my view, however, there is nothing in the prior period, either in respect of time or events, which demanded special treatment or prioritisation of this case. No complaint is made or could reasonably be made about the time taken between the sheriff's pronouncement in April 1998 and the "charge" being put to the respondents in January 1999. No doubt the terms of the sheriff's reported observations and the knowledge that the matter was being further investigated were matters of concern to the respondents, but the same would be true of any person, or at least any professional person, who learned that it had been suggested that he had committed a serious offence and that that suggestion was being investigated. As to the relative events having occurred in April 1996, I am unable to accept that, in the context of a time lapse of some four years, and having regard to the nature of the subject-matter, acceleration by some five months or so is likely to have made any material difference to the quality of the evidence.

[8] Having regard to the whole circumstances I am unable to accept that proceeding with this complaint would have infringed the respondents' Convention right. I would allow the appeal.

[1] I agree with the Opinion of your Lordship in the Chair, and have nothing to add.