Scottish High Court of Justiciary Decisons

ALAN VALENTINE and PHILIP WELLS and THOMAS MURPHY and MICHAEL MURPHY v. HER MAJESTY'S ADVOCATE [2001] ScotHC 49 (6th July, 2001)

[1] The appellants are Alan Valentine, Phillip Wells, Thomas Murphy and Michael Murphy who were indicted to stand trial in the Sheriff Court at Falkirk in the sitting of 30 April 2001, with the first diet on 18 April. Each of them lodged a devolution minute alleging that, by purporting to proceed against them on behalf of the Lord Advocate, the procurator fiscal was acting in a manner which was incompatible with their rights under Article 6(1) of the European Convention of Human Rights and Fundamental Freedoms. In terms of Section 57(2) of the Scotland Act 1998 the procurator fiscal, as the Lord Advocate's representative, had no power to act in this way and the proceedings were therefore incompetent. At a continued preliminary diet the Sheriff dismissed the minutes but granted leave to appeal to this court.

[2] The indictment against all four accused contains four charges. The first three are charges of the assault to severe injury of three different complainers at the same locus on 15 May 1999. The fourth charge, of breach of the peace, relates to the same locus and the same date.

[3] The allegation on behalf of the appellants is that, due to delays, any trial of the appellants in the sitting of 30 April 2001 would not take place "within a reasonable time" in terms of Article 6(1). The starting-point for calculating the relevant period is not in doubt. The appellants, Valentine and Wells, were both detained and interviewed by the police on 16 May 1999, the day after the alleged incident. On 23 May Thomas Murphy was interviewed by Detective Constable Moir and another officer. Although none of these appellants was charged at this stage, the Crown accepted, both in the Sheriff Court and before this court, that the dates of the detention and interview marked the start of the period. It also seems to have been accepted that, by 16 May 1999, the police had information relating to all three. Michael Murphy was interviewed under caution in August 1999 and was again interviewed and, this time, charged on 14 October 1999. In his case, accordingly, the period to be taken into account would begin on 14 October 1999. On his behalf, Mr. Brown adopted the submissions made by Mr. Wheatley and Mr. Shead and argued that the later starting-point made no significant difference: any trial would still not have taken place within a reasonable time. In the case of the first three appellants, therefore, the time to the start of the trial would be from May 1999 to April 2001, approximately 23 months, while in the case of Michael Murphy it would be from October 1999 to April 2001, approximately 18 months.

[4] The Sheriff records in his report that the Crown accepted that a period of some 23 months from the time of the commencement of an investigation to the date of trial was unusual and called for an explanation. The explanation was along the following lines.

[5] Detective Constable Moir was the officer in charge of the inquiry from the time when he took it over on 22 May 1999 until 12 October 1999. During that time he was involved in a number of other matters, including an inquiry into a nursing home, games at Stirling, a course at the Police College, a robbery in Laurieston in August, a murder inquiry in Bo'ness from 28 August until 17 September, annual leave from 17 September to 4 October and a missing persons inquiry from 4 to 15 October. The Sheriff records that he himself was aware that the nursing home inquiry was lengthy and complex, concerning allegations of assaults on elderly patients over a period of years.

[6] On 12 October 1999 responsibility for the inquiry in this case passed to Detective Constable McGuckin who proceeded to detain and interview Michael Murphy on 14 October. On 25 October Valentine attended the police station voluntarily and was charged with the offences in question. Thereafter, a package containing details of the inquiry was held within the offices of the C.I.D. at Falkirk Police Station while awaiting allocation to an officer to prepare the case for submission to the procurator fiscal. The Crown accepted that at the time of the incident the police officers did not take details of potential witnesses, apparently because there had been a lot of people milling around. They also accepted that no new material witnesses had come to light after the initial police investigation in May 1999. On 28 November the task of preparing the police report was allocated to Detective Constable Halliday. Nothing was done to advance the inquiry between 25 October and 28 November and, thereafter, Detective Constable Halliday took until 22 February 2000 to prepare, compile and submit the case to the procurator fiscal.

[7] By April 2000 the papers had been examined by a procurator fiscal depute who had come to the view that the matter was not straightforward and that she should discuss it with the procurator fiscal. The Advocate Depute explained that the difficulties arose out of the fact that none of the complainers was able to identify the various appellants as the persons who had carried out the assault. The necessary evidence came from other witnesses, who gave somewhat differing accounts, and questions had arisen as to whether there was sufficient evidence to proceed against the various accused on the different charges. Due to the commitments of the procurator fiscal and his depute, it had not proved possible to arrange the meeting by June. On 5 June it was decided that matters could not wait any longer and the case was marked for petition proceedings. The petition warrant was granted on 20 June 2000 and the appellants appeared on petition in August and were admitted to bail. Thereafter, because of pressure of business in the Falkirk office, the papers were sent to the procurator fiscal's office at Dundee for the preparation of the precognition. The precognition was then submitted to Crown Office for Crown Counsel's instructions and on 3 January 2001 they instructed the procurator fiscal to indict the case in the Sheriff Court. The indictment was served on or about 29 March 2001 for trial in the sitting beginning on 30 April.

[8] The Crown were ready to bring the appellants to trial within about 8 months of their appearance on petition, well within the period of twelve months permitted by Section 65(1) of the Criminal Procedure (Scotland) Act 1995. In our view, given the fact that the whole point of placing an accused on petition is to give the Crown increased powers to carry out any necessary investigations and to precognosce the case, it is quite impossible to say that this period would in itself amount to delay on the part of the Crown. Mr. Wheatley submitted that, since the case had had to be sent to the procurator fiscal's office in Dundee due to pressure of business at Falkirk, this itself showed that there had been a lack of resources and that the matter had taken longer than it need have done if the proper resources had been available at Falkirk. We reject that argument. In the first place, there is no basis in the Sheriff's report for concluding that passing the papers to Dundee resulted in the preparation of the precognition taking longer than it would have taken if additional staff had been available at Falkirk. Moreover, in a large organisation like the Procurator Fiscal Service, with offices in various parts of the country, it is inevitable that the pressure of work will vary at different times in different offices. It therefore makes eminently good sense, in the interests of efficiency and of wise expenditure of the resources which taxpayers have provided, to move work, where appropriate, from an office which is particularly busy to another office which happens to have spare capacity at the time in question and so can make speedier progress. Indeed, had the Crown not taken this step, we have little doubt that an argument would have been advanced that their failure to take this step had resulted in unnecessary delay.

[9] The main thrust of the appellants' attack was, however, on the period between May 1999 and the appellants' appearance on petition. Mr. Wheatley drew attention to the Sheriff's remark in his report that it appeared that the progress of the investigation had been "hindered by a lack of resources" in the police. Mr. Wheatley referred in particular to the account of Detective Constable Moir's various activities between May and October 1999, when he was in charge of the enquiry, and to the period between October and November 1999 when no officer could be identified to take on the preparation of the case for submission to the procurator fiscal. He referred to the well-known comments of Lord Philip when giving the opinion of this court in Warnes v. H. M. Advocate 2001 J.C. 110 at p. 113 D - G, paragraph 10 where he referred to the judgment of the European Court of Human Rights in Buchholz v. Germany Series A No. 42 (1981), paragraph 51 to the effect that a temporary backlog of business does not involve liability on the part of the Contracting State, provided that they have taken reasonably prompt remedial action to deal with an exceptional situation of this kind. Mr. Wheatley submitted that the Sheriff's finding, that the lack of progress during Detective Constable Moir's period in charge and then from October to November 1999 was due to lack of resources, must result in liability on the part of the United Kingdom, which would transform itself into a lack of power of the Crown to proceed with the present indictment against the appellant.

[10] We assume, for the sake of the argument, that the Sheriff was correct to hold that these facts in themselves pointed to a lack of resources in the Central Scotland Police Force - even though that is by no means a necessary inference and there are various other possible explanations for the delays in question. But, even assuming that the delay was due to lack of the necessary resources to meet the particular pressures on the Central Scotland Police in the months between May and November 1999, there is nothing to show that the lack of resources was "systemic" rather than special to a period of particular pressures, some of which are narrated by the Sheriff. In that connexion we observe that there was no evidence before the Sheriff about the financial and other resources available to the Central Scotland Police at the relevant time or as to whether, having regard to the general level of work of that force in the past or as anticipated, those resources were inadequate. Nor were we told of any later signs of similar problems. In these circumstances, applying the approach in Buchholz, we see no basis for saying either that the backlog in business, even supposing it to have been due to lack of resources, was other than specific to the particular time and circumstances or that it entailed a breach of the appellant's rights under Article 6(1).

[11] We are reinforced in that conclusion by the very terms of the admission of the Crown in the court below on which the appellants fastened in presenting their appeal. The Crown accepted that a period of some 23 months from the time of starting an investigation of this kind to the date of trial was unusual. The fact that the time taken was unusual shows that, in the normal course, a case of this kind does not take so long. This means that the resources available to the police and Crown are such that they can expect to bring a case of this kind to trial in a shorter period. In the absence of any specific information to suggest that there had been some change in the overall situation, we should therefore tend to infer that the delay in this case was not to be accounted for by a long-term lack of resources, such as would entail a contravention of the Convention. Rather, we would infer, for instance, that Detective Constable Moir could not proceed as quickly as would have otherwise been desirable because of various other matters which demanded his attention at that particular time. Similar factors may well have accounted for the difficulty in October and November in finding an officer who could prepare the report to the procurator fiscal.

[12] Mr. Wheatley and Mr. Shead also sought to criticise the time taken by the procurator fiscal's office to commence petition proceedings after the police reported the case to them. They suggested that the case was essentially simple, involving as it did, three charges of assault to severe injury and one charge of breach of the peace. There was no good reason for the procurator fiscal depute taking so long over this matter or for her thinking that she had to consult the procurator fiscal himself. In his report the Sheriff had referred to the difficulties perceived by the procurator fiscal depute and had said that he did not know whether she had been correct or not in these perceptions but he did not "regard it as the function of the Court in this context to direct, advise or comment on the activities of the procurator fiscal's office." This self-denying ordinance was said to constitute a misconception of the role of the court when called upon to judge an issue of delay for Convention purposes.

[13] As Mr. Wheatley himself conceded, not even he was really contending that the Sheriff or this court should direct or advise the procurator fiscal's office as to their activities. What he wished was that we should pass comment, or more precisely, criticism on those activities and conclude that they amounted to delay. While there are, of course, occasions when the court has to take a view as to a particular course of action pursued by the Crown in preparing a case, the court must be circumspect in doing so. Judges are often told, by the defence at least as often as by the Crown, that what appears to the judge on the available information to be a simple matter is in fact, for reasons withheld from the judge's gaze, complex and requires further investigations of various kinds. Inevitably, the Crown and defence representatives will often know more about such matters than the judge can, or should, know. As a rule, therefore, and in the absence of circumstances suggesting that the judge should probe more deeply, judges tend not to look too far into such matters. They proceed on the basis that the professionals involved on both sides will be carrying out their duties properly. The Sheriff took very much that approach in this case when he declined to criticise the procurator fiscal depute for regarding the case as one which involved difficulties that should be discussed with her superior.

[14] In our view, he was correct to do so. The Advocate Depute said enough about the kinds of evidential problems involved to let us see that the procurator fiscal could indeed have had genuine concerns about what should be done. Part at least of the raison d'être of the venerable system of public prosecution in Scotland is indeed that independent, legally qualified, prosecutors should examine police reports and should identify, discuss and resolve concerns about the case before deciding whether to embark upon serious proceedings, such as those against the appellants. We respectfully refer to the observations of Lord Prosser, giving the opinion of the court in Gibson v. H. M. Advocate 2001 J.C. 125 at p. 128 D - E, paragraph 12. These procedures take time. But it is time which is, generally at least, well spent in the interests of justice and in the interests of securing a fair trial. Attempts by the courts to second-guess the procurator fiscal and to say that he or she had been unduly cautious, had pursued an unnecessarily detailed line of enquiry or had exaggerated the difficulties of some course of action, could only have a chilling effect on the work of conscientious procurators fiscal. It would be wrong to apply the Convention in such a way as to bring that about. In these circumstances we see no basis for criticising the actions of the procurator fiscal depute in this case as having led to unreasonable delay, in contravention of the appellants' rights under Article 6(1).

[15] Finally, we are conscious, of course, that it has indeed taken longer than normal for the case to come to trial. Undoubtedly also, there are some periods when it would have been preferable if more progress had been made. That remains the case even though the Crown has explained why the proceedings took as long as they did. The matters raised in this case are not dissimilar to those raised in other cases and we must simply consider whether, on the particular facts of this case, the time taken to bring the appellants to trial can be regarded as reasonable. In addressing that question, we are entitled to have regard to our knowledge of the working of our criminal justice system. See, for instance, McNab v. H. M. Advocate 2000 J. C. 80 at p. 85 B -C per Lord Justice Clerk Cullen and H. M. Advocate v. McGlinchey 2000 J.C. 564 at p. 573 A - B per the Lord Justice General. Among the things which we know about our system is that, not infrequently, because of adjournments for investigation and other vicissitudes, cases can take at least as long as two years from the time of the offence to trial. So the period in this case, though longer than usual, is not beyond the range of times taken to reach trial in some other, broadly similar, cases. While we do not attach great weight to that factor, it confirms us in our view that in this particular case there has been no breach of the appellants' Convention right to a trial within a reasonable time.

[16] For the foregoing reasons we are satisfied that the Sheriff reached the correct conclusion. The appeals are, accordingly, refused.