Scottish High Court of Justiciary Decisons

ALAN O'BRIEN and MICHAEL RYAN v. HER MAJESTY'S ADVOCATE [2001] ScotHC 36 (7th June, 2001)

[1] The appellants Alan O'Brien and Michael Ryan were indicted together upon a charge of having committed an assault to severe injury in Glasgow, on 7 February 1999. After various procedure, they appeared at a first diet in the Sheriff Court at Glasgow on 8 January 2001, when a plea in bar of trial was advanced on behalf of both appellants, upon the basis that if the Lord Advocate called the indictment to trial, there would be a breach of the right, under Article 6 of the European Convention for the protection of Human Rights and Fundamental Freedoms, to trial within a reasonable time. The court repelled this plea, but granted leave to appeal to this court against that decision.

[2] Each of the appellants now appeals, on the ground that the sheriff was in error in failing to hold that certain specified periods of delay, and their cumulative effect, were unreasonable and incompatible with the right to trial within a reasonable time. The first of the specified periods commences with caution and charge, which are said to have been on 8 February 1999, but may have been on 7 February, the day of the alleged offence. This first period upon which the appellants rely runs from then until the date of receipt of a DNA report on 20 December 1999 - approximately 101/2 months. The second period specified runs from that date, 20 December 1999, to 8 January 2001 "including in particular the period from the date of first appearance on petition which was 29 February 2000 until the date of commencement of precognition by the Crown which is understood to have been early October 2000." This second period is thus one of just over a year, particular reference being made to a seven month period within that year. The total time from the original caution and charge in February 1999 to the original date for trial of 8 January 2001 is approximately 23 months. It is not disputed that this is the overall period which we require to consider.

[3] The charge is of an assault on a middle-aged man who was walking home, at night. According to the Crown, his recollection was virtually nil, due to drink and injuries. He could only remember encountering some youths, being struck, being found by the police and being taken to hospital. There was no direct eye-witness evidence. Therefore the forensic evidence was extremely important. The two appellants had been arrested and reported while in custody, and had been interviewed on tape at that time. They were, however, released by the Crown, due to insufficiency of evidence at that time. Although there was blood on certain clothing, a number of youths might have been involved.

[4] In relation to the first of the periods specified in the appellant's grounds of appeal it is convenient to quote what is said by the sheriff:

[5] In relation to the second period specifically referred to in the grounds of appeal, following upon receipt of the DNA report, no criticism is made in relation to the time which elapsed between receipt of the report and appearance on petition on 29 February 2000. Equally, no real criticism is made in relation to the lapse of time between the case being reported to Crown Office, on 13 November 2000, and the serving of the indictment in early December or the trial diet of 8 January 2001. What is said to constitute an unreasonable delay is the lapse of time, with no real progress, between the end of February and some time in October, when things began to move. The submission that this was an unreasonable delay, when further investigation and precognoscing should have been completed sooner, was founded not only upon the alleged lack of progress during that period itself, but also upon the context: many months had already been lost awaiting the DNA report, and it was submitted both that that earlier period of delay could have been used to embark upon precognition, and that against the background of such a loss of time, receipt of the DNA report should have been followed by any further investigation, and the process of precognition, as matters which must be given priority and treated with urgency.

[6] As was the case before the sheriff, the two appellants were separately represented, but the argument for both is essentially the same. Counsel emphasised that this matter was not raised as a devolution issue, and moreover did not really involve any criticism of the way in which the matter had been handled by the procurator fiscal. The first unreasonable delay was attributable to lack of progress by the forensic laboratories. The second unreasonable delay was attributable to the police, rather than the fiscal. It was accepted that the fiscal wanted material from the police, and in particular transcripts of the interviews of the appellants, before embarking on precognition. It was accepted that while awaiting the DNA report, the fiscal had done what he could to get the laboratory to treat the matter as one of urgency and requiring priority. And once the fiscal had received the required transcripts, he had moved quite rapidly. But the Crown had been unable to say why it had taken so long for the police to provide these transcripts, and did not appear to have been urging the police to get a move on, in the way in which the laboratory had been urged to make progress.

[7] It was submitted that in these circumstances the failures and delays should be seen as essentially systemic: there were apparently insufficient resources for the laboratory to process matters within a reasonable time. As the sheriff had been told, outside forensic agencies of the kind which defence agents were often obliged to use operated with a working regime of three weeks or so for the examination and report in respect of material submitted. Indeed, if a case was particularly urgent, these agencies had a fast-track system which could give results in five days. Such a course could be expensive; but faced with the very long delays which would arise through leaving the matter with the forensic laboratory, it was submitted that the fiscal should effectively have said "If you can't do it till October, give us it back and we will send it to someone who can, even if that is expensive." The delay by the police in dealing with such a straightforward matter as transcription could not perhaps be cured so readily; but the lapse of many months for this reason could not be regarded simply as a matter of discretionary prioritisation - it was effectively an inability of the system to cope in a reasonable way.

[8] In this connection, we were referred to a number of authorities, and in particular to Warnes and Simpson v. H.M. Advocate 2000 S.C.C.R. 1127, in which the court derived guidance from what had been said by the European Court of Human Rights in Buchholz v. Germany (1981) Series A No. 42, in relation to the duty of States to organise their legal systems so as to allow the courts to comply with the requirements of Article 6(1). Particular reliance was placed upon the observation that a temporary backlog of business does not involve liability on the part of the contracting States "provided they have taken reasonably prompt remedial action to deal with an exceptional situation of this kind." It was submitted that the backlog at the forensic laboratory was plainly of a substantial nature, and there was no indication that prompt remedial action had been taken or was in hand to resolve that problem. It could not properly be regarded as a temporary problem, giving rise to problems of prioritisation. It was an uncured problem, inherently causing unacceptable delay in relation to important matters.

[9] On behalf of the Crown, it was submitted that there had been no period when matters were not being attended to, or when it could really be said that nothing was being done. Ordinary forensic examination had been sought initially, and it was not until some time later that the DNA report itself had been sought. The relevant period was from May to October. Not only had the procurator fiscal done what he could to progress matters, but the forensic laboratory was doing what it could to progress matters, although necessarily having to give priority to some cases over others. Until that report was available, it was reasonable not to embark on other precognitions. And in relation to the period of time before the police produced transcripts of interviews, there was no indication that the police had simply put the matter aside, or forgotten about it. A busy police office, like a busy laboratory or indeed a busy fiscal's office, must be allowed a discretion in deciding which cases should have priority. The argument that a simple matter, which would not itself take long, should be given priority had been considered by the courts in other cases, and identified as unsound. The question for the court did not concern the reasonableness of particular courses adopted by the fiscal or other agencies. It was a question relating to the time which elapsed between charge and trial, and it was the reasonableness of that lapse of time which was in issue. It was submitted that looking at the matter overall, there had been no breach of the appellant's rights under Article 6.

[10] There are of course differences between the delay in producing the DNA report and the subsequent delay in producing transcripts for the procurator fiscal. But in essence it appears to us that the issue raised by each of these delays is the same. It does not appear to us that in either case the time taken could be described as acceptable in ordinary terms, or such as could be seen as satisfactory if intentionally built into a system, even for cases which did not deserve much or any priority. In each case, if such a delay occurred as a result of the work in question having been overlooked through carelessness, or having simply been put aside with no place in the queue, the delay would effectively be an unnecessary one, with no reasonable basis, and might, depending on circumstances, produce a breach of Article 6(1). But it does not appear to us that there is any basis for regarding either of these two periods of delay in the present case as having been brought about by that kind of failure. We see no basis for thinking that in either case, there was anything other than a bona fide prioritisation of work, which led to an obviously undesirable delay, essentially because the laboratory and the police were overburdened. As counsel for the appellants submitted, the cause of the delay can thus be expressed as one of a shortfall in human and financial resources. And the fact that the procurator fiscal did not transfer the DNA analysis from the forensic laboratory to a private agency appears to us to illustrate the same problem in a slightly different form: a decision to devote part of the limited funds available to such an admittedly expensive course of action is essentially one of discretion and prioritisation, in which the decision to await the report from the forensic laboratory cannot be characterised as unreasonable, and is again essentially attributable to a lack of resources.

[11] The speed with which work can be done is in a sense always dependent on the resources available, and one will almost always be able to say that with greater human or financial resources, work might have been done sooner. Nonetheless, the time taken may be regarded as acceptable. As we have indicated, that does not seem to us to be the position in the present case. If delays such as these were identified as occurring regularly and inevitably as a consequence of the limited budget and manpower available to the forensic laboratory, or to the police, or indeed to the procurator fiscal, and nothing was done to alter that situation, then in our opinion there would be what could be described as systemic under-funding. And a failure on the part of Government to take steps to remedy such a systemic under-funding, and the unacceptable delays which it was seen to be producing, would in our opinion properly be described as unreasonable, in the context of any fair system of justice. Whether in any particular case this produced a breach of an accused's rights under Article 6(1) would be another and broader question, since any specific delay would have to be looked at in the context of the overall lapse of time. But the specific delay itself would be unreasonable, as flowing from an unreasonable failure to remedy the system.

[12] Is this such a case, in relation to either or both of the delays in question? And is the overall result a breach of the appellants' rights under Article 6(1)? We have not found it easy to answer these questions. If the situation at the forensic laboratory, which is revealed by this case, has been or is being left untouched, with no attempt to achieve substantial improvement in clearing the work-load, there would in our opinion be a systemic unreasonableness in the resultant delays. And we are likewise persuaded that the delay revealed in this case in the production of transcripts by the police would be unreasonable if the situation has been or is being left in that state. In the light of what has been revealed in this case, prompt remedial action is in our opinion clearly called for, and if not taken could properly be regarded as a systemic and unreasonable failure, if comparable delays occurred in future cases. In relation to the present case, however, we have come with some hesitation to the conclusion that it has not been shown, on either matter, that the defects had passed from being temporary into being inherent and uncured elements in the system. And that being so, we are not persuaded that either of these delays is to be seen as demonstrating a persistent under-funding of the system by Government which had become unreasonable.

[13] The question remains whether the overall delay represents a breach of the appellants' rights under Article 6(1). It appears to us that the police delay, when taken along with the procurator fiscal's prompt action thereafter, would not itself result in a breach of those rights. And taking that fact, along with the fortunate circumstance that there was virtually no lapse of time between the date of the alleged offence and the charging of the appellants, we have come to the view that the overall period, although of course unsatisfactory, does not entail a breach of the appellants' Convention rights.

[14] In these circumstances, we are satisfied that the sheriff reached the correct conclusion, and the appeals are refused.