Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. KENNETH ANTHONY PATON MILLS and JOHN COCHRANE [2001] ScotHC 52 (13th July, 2001)

[1] The appellant was charged that on 27 June 1996, he drove a car at a police officer and caused it to strike him, drove at excessive speed, tried to dislodge the officer, and caused him to be thrown from the car against a wall, to his injury and danger of life. The appellant was convicted, after trial, on 17 October 1996. On 7 November 1996, he was sentenced to detention for eight and a half years, six months of which was attributable to the fact that the appellant had been on bail at the time of commission of the offence on a bail order dating from 31 May 1996.

[2] The appellant initially appealed against sentence only by a Note of Appeal dated 30 December 1996. On 8 May 1997, the appeal was continued on the motion of the appellant to allow investigation of fresh evidence. Additional grounds of appeal against conviction based on fresh evidence were received in the Justiciary Office on 1 June 1998. On 9 June 1998, the appeal was continued for a supplementary report and an application for bail by the appellant was refused. The proposal to lead fresh evidence was opposed by the Crown and a hearing on the fresh evidence issue thereafter took place. On 7 January 1999, the court decided to allow the fresh evidence to be heard. Reasons for that decision were given in February 1999 and are reported at 1999 S.C.C.R. 202. A hearing to take the additional evidence was fixed for 6 May 1999 and bail was again refused. When the diet arrived, however, the Crown moved to continue it for further preparation. This motion was opposed by the appellant but was granted. The interlocutor of 6 May 1999 records that the preparations required included the recovery of precognitions used at the trial, recovery of certain productions and application to the Deputy Principal Clerk of Justiciary for extension of the evidence at the trial and the speeches of the Advocate Depute and defence counsel. On this occasion, an application by the appellant for bail was granted. By the time of his release, the appellant had been in custody since 28 June 1996 and had served three years, less about eight weeks, of his sentence. It was not suggested that any question of undue delay arose up to this point.

[3] Transcripts of the evidence at the trial, but not of the speeches, were obtained and received in the Justiciary Office on 13 August 1999. It is not clear what happened thereafter. No further hearing took place until 9 May 2001 when the fresh evidence was heard. The appeal on that ground was refused on 10 May 2001. The reasons for the decision are set out in an Opinion of that date: in short, the court held that the alleged fresh evidence was wholly unreliable. The court, however, also allowed a further additional ground of appeal to be lodged, raising the question of the effect of delay and alleged breach of the appellant's rights under Article 6 of the European Convention on Human Rights. On 11 May 2001, the appellant was allowed to lodge a devolution minute and intimate it to the Advocate General. A procedural hearing was fixed for 25 May 2001. The Advocate General did intimate her intention to appear and the appeal was eventually heard on 31 July and 1 August 2001. At the same diet, the court also heard an appeal by John Cochrane which raises similar questions in regard to delay in proceedings in an appeal.

[4] As we have mentioned, it is not clear what led to the critical delay between August 1999 and May 2001. It has been established that on 9 August 1999, the Crown Office wrote to the Deputy Principal Clerk of Justiciary asking when the transcripts ordered might be expected. On 19 August 1999, the Deputy Principal Clerk of Justiciary replied saying that, due to a misunderstanding, only the evidence and not the speeches had been extended and adding that, because a shorthand writer responsible for taking notes of part of the trial had left the employment of the firm of shorthand writers engaged to cover it, some delay might be anticipated. On 18 August 1999, the Deputy Principal Clerk of Justiciary wrote to the firm of shorthand writers asking for the speeches to be transcribed as a matter of urgency. There was a further letter from the Crown Office to the Justiciary Office in October 1999 in which there was reference to waiting for a fresh date for the appeal, but it does not appear that the Crown at any time intimated to the court that their preparations were complete or that any actual request to fix a date was made. So far as the appellant was concerned, counsel said that there had been no further communication after May 1999, although the appellant's agents had been aware that the transcripts which were available in August had been lodged. Further enquiry revealed that the transcripts of the speeches of counsel had been available in December 1999, the delay in producing them apparently being attributable to the difficulty in tracing the particular shorthand writer as referred to in the letter of 19 August 1999. In the end, these transcripts were not employed in any way in the substantive appeal based on fresh evidence.

[5] The appellant's complaint is that there has been a breach of his right to a fair trial under Article 6 of the ECHR in respect that the proceedings have not been completed within a reasonable time. The principles upon which questions of this kind have to be decided are now well established by decisions in Scotland and it is not necessary for the purposes of this stage of this appeal to refer to the decisions of the European Court of Human Rights or to add to the substantial volume of jurisprudential discussion of the question of undue delay and its effect. It is sufficient to note that in considering whether proceedings have been completed within a reasonable time, regard has to be had to the whole period of the proceedings, including any period required for the hearing of an appeal. It is also well established that in considering whether there has been unreasonable delay, any period of unexplained delay may be particularly significant.

[6] On the history set out above, there is little difficulty in reaching a prima facie view that the case has not been brought to a conclusion within a reasonable time. The Solicitor General, however, submitted two arguments which must be considered. The first was that there had been no infringement of the appellant's rights under Article 6, especially putting the unexplained delay in the context of the whole period occupied by the case. What is a reasonable time is a matter of the circumstances of the particular case. It would ordinarily have been expected that the hearing on the fresh evidence question would have taken place within two or three months of the receipt of the final transcripts in December 1999. At that point, the case seems to have fallen into limbo and neither the parties nor the court took any action to bring it forward. There was, as a result, an unexplained delay of something over a year, and on no view, in our opinion, could it be said that that was reasonable, given the other circumstances of the case, including the time which had already passed. It is important to note, however, that - as counsel for the appellant accepted - the Convention did not apply to the court, as a public authority, until 2 October 2000 and that in terms of section 22(4) of the Human Rights Act it does not apply retrospectively. See R. v. Lambert [2001] 3 WLR 206. Therefore, to bring home his case based on delay before 2 October 2000, the appellant had to focus it on the role of the Lord Advocate in the proceedings.

[7] The Solicitor General's second argument therefore concerned the extent to which responsibility for delay was attributable to the Crown. In terms of section 57(2) of the Scotland Act, the Lord Advocate has no power to do any act so far as incompatible with Convention rights. That provision came into force on 20 May 1999, while section 6 of the Human Rights Act 1998, in its application to the court, came into force on 2 October 2000. Accordingly, there was a period, from 2 October 2000 onward, during which both the Lord Advocate and the court had responsibilities in relation to the appellant's Convention rights. The Solicitor General submitted that there was no relevant basis for an attack on the Lord Advocate for failure to take steps to bring the case forward after August 1999, which was the ground advanced in the devolution minute. After conviction, the Lord Advocate was no longer master of the instance and could not fix a diet for an appeal to be heard. Once the appeal was under way, there was no relevant act or failure to act by the Lord Advocate and responsibility for failure to provide a decision within a reasonable time lay with the court: reference was made to Howitt v Her Majesty's Advocate 2000 S.C.C.R. 195.

[8] It is, of course, correct that the Lord Advocate is no longer master of the instance after there has been a conviction. However, the position in this case is that the appeal hearing set for May 1999 was discharged on the Crown motion, against defence opposition, to enable preparations to be made. The Crown failed to intimate when those preparations were complete, even though all the material sought by them, so far as is known, was available by December 1999. In these circumstances, it seems clear to us that there was a relevant failure by the Crown, as well as a failure by the court, to monitor the progress of the appeal. That being so, we are satisfied that the appellant has established a breach of Article 6 by the Lord Advocate and that this falls within section 57(2) of the Scotland Act.

[9] As we have mentioned, section 57(2) provides that a member of the Scottish Executive has no power to do any act so far as it is incompatible with any of the Convention rights. Sub-section 3 of section 57 makes an exception for certain acts of the Lord Advocate, thereby emphasising that, in other respects, the Lord Advocate is subject to the rule of sub-section 2. Sub-section 3 is not relevant in any way in the present case.

[10] In previous cases it has been held or assumed that in starting or continuing a prosecution, leading evidence or otherwise taking any steps in the prosecution, the Lord Advocate "acts" for the purposes of section 57(2). That is a simple and obviously appealing view and it was adopted or approved in Brown v Stott 2001 SC (PC) 43 and in Millar v Procurator Fiscal, Elgin (Privy Council 24 July 2001). As we shall mention in a later section of this opinion, experience of the working of the Scotland Act and the Human Rights Act, and in particular in regard to the interrelation of the duties of the court and those of the Lord Advocate, may raise issues as to whether some types of "action" of the Lord Advocate need not be taken to be "acts" for the purposes of the section. However, in the present case, no such issue was raised by counsel: it was a matter of agreement that an issue relating to the compatibility of an act of the Lord Advocate with the Convention had arisen.

[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. It was therefore submitted on behalf of the appellant that, by parity of reasoning, the Lord Advocate would appear to be "acting" if he takes any step in an appeal: and therefore that the consequence of holding that a reasonable time had been exceeded was that the conviction must be quashed. In that context, reference was made to Darmalingum v The State [2000] 1 WLR 2303.

[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.

[13] There is ample authority in cases under the European Convention on Human Rights that a breach of Article 6 in respect of failure to determine a case within a reasonable time does not necessarily render a conviction invalid and that the breach may be compensated in various ways, including a shortening of the sentence. That is supported by a number of decisions of the Commission, including Neubeck v Federal Republic of Germany 41 D.R. 13, H v Federal Republic of Germany 41 D.R. 252 and S v Federal Republic of Germany. It is also in line with what is said in Brown v Stott 2001 SC (PC) 43 at pp. 60 and 63-64. So far as the case of Darmalingum is concerned, that case certainly establishes that the remedy for an extremely prolonged delay may in an appropriate case be the quashing of the conviction. However, the subsequent decision in Flowers v The Queen [2000] 1 W.L.R. 2414 shows that that is not necessarily the only conclusion which may be reached. Both Darmalingum and Flowers were decisions which depended on the applicability of particular constitutional provisions and for the present purpose we do not think it necessary to analyse those decisions in detail. It is sufficient to say that, in our view, Darmalingum, which is the case most favourable to the appellant, does not require that, in our system, in every case of unreasonable delay the remedy should be the quashing of the conviction.

[14] As we mentioned at the outset, the appellant originally appealed against sentence and that appeal is still outstanding. It is therefore necessary to consider whether the sentence imposed was excessive apart from any breach of Convention rights and also to consider what the effect of the breach in this case should be. It is convenient to consider the questions in that order. It was submitted that a sentence of eight and a half years imprisonment was excessive, notwithstanding the seriousness of the crime. In the charge as originally presented, it had been alleged that the police officer sustained severe injury, but the jury had deleted the word severe in returning their verdict. The appellant had an extensive record of minor offences but none of his convictions involved violence. Since his release on interim liberation, he had not been in trouble and there were no outstanding cases. He now resided with his partner and their six week old child and had part-time employment. We have considered these circumstances and we can see that the sentence could, perhaps, be described as being towards the upper end of the appropriate range but this was a serious assault on a police officer and in our view the sentence cannot be described as excessive.

[15] As regards Convention rights, as we have said there was a breach consisting of a period of unexplained delay of about a year in processing the appeal. However, the appeal itself was entirely without merit and the appellant was guilty of a very serious assault. There is no previous experience to guide us as to how to give effect to the breach of the appellant's Convention rights in such a situation. It may perhaps be said that the delay involved two elements of prejudice to the appellant. One is the anxiety which results from prolongation of the proceedings. The second is the fact that the appellant's life has changed in ways which will lead to additional problems and possibly hardships for himself and his family if he has to return to prison. It was submitted that one way of remedying the breach would be to deduct from the appellant's sentence the whole amount of the delay which has occurred. In a case like the present, where the appellant has had the advantage of being at liberty for some time, it would, however, be going too far to allow the full amount of the delay as a reduction in sentence. In the particular circumstances, a reduction in sentence of nine months would leave the appellant without about six months of the original sentence to serve before becoming entitled to parole and, in our view, that would be an equitable result.

[16] The Advocate General appeared in this appeal in order to obtain guidance from the court as to the proper manner of proceeding when an issue arises under the Convention and the Human Rights Act, now that the latter Act is fully in force. She said that questions had arisen as to whether an issue under section 6 of the Act could now be raised directly without recourse to the mechanism of lodging a devolution minute, even though the question at issue might relate to the powers of the Lord Advocate. Her argument was simply that an issue as to whether an act of the Lord Advocate is incompatible with any Convention right is a devolution issue in terms of Schedule 6 paragraph 1(d) to the Scotland Act and therefore that there must be intimation in terms of paragraph 5 of the Schedule. She submitted that the coming into force of the Human Rights Act did not create a new route for the raising of such questions which could avoid the necessity for intimation to the Advocate General. She referred to Brown v Stott supra and to the article "Relationship between the Scotland Act and the Human Rights Act" by Iain Jamieson in 2001 S.L.T. (News) 43. In support of the argument, she submitted that the terms of the Scotland Act represent a constitutional settlement and that the requirement of intimation to the Advocate General was designed inter alia, to ensure that the Advocate General was in a position to see that the settlement was observed. She indicated that it would only be in rare cases that the Advocate General would be inclined to intervene and that arrangements were in force which could ensure that an intimation would be acted upon without delay. For the purposes of this argument, it was not necessary to define what was a devolution issue. That could be left to be worked out as cases arose. It was accepted that in the present case the question was academic in the sense that a minute had been lodged and intimation made; and also that this was not a case in which she sought to intervene in relation to the merits or the consequences of the particular issue raised. This was, however, an opportunity to obtain guidance on a point which seemed to be causing uncertainty in practice and it would be unfortunate if that uncertainty had to persist until a case arose in which the issue was not, in one way or another, academic by the time the case came to be heard.

[17] There were two contrary arguments. The first was that under the Human Rights Act, and in particular section 7, there is a right to challenge an unlawful act "directly". The Act required the court to take account of the provisions of the Convention, irrespective of any procedure which might be laid down under domestic law. The second contrary argument was that it was necessary to bear in mind not only the requirement of intimation to the Advocate General but also the effect of the provisions in regard to appeals. The effect of the Advocate General's submission would be that appeals to the Privy Council would be open on a wide range of issues of the criminal law of Scotland in relation to which the High Court had hitherto been the final court of appeal. There was no reason and no need to place issues as to individual Convention rights in the constitutional strait-jacket of the devolution issue procedure: reference was to Montgomery v The Lord Advocate 2001 SC (PC) 1.

[18] Devolution issues are defined in paragraph 1 of the Schedule 6 to the Scotland Act 1998. By paragraph 1(d), devolution issues include "a question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention Rights or with community law". Paragraph 1(e) is in similar terms in relation to failures to act by members of the Scottish Executive. Paragraph 5 of Schedule 6 provides:

[19] On the terms of these provisions, it does appear that, if a question arises in any proceedings as to whether any act or failure to act on the part of the Lord Advocate is in breach of the Convention, then that automatically raises a devolution issue and brings into play the requirement to intimate. It might be argued that an accused person could make a challenge to the court proceedings on the ground that they were incompatible with his Convention rights without stating a challenge to the powers of the Lord Advocate to proceed. However, on the view hitherto taken, a challenge to the court proceedings in any form implies a challenge to the powers of the Lord Advocate, at least up to the stage of conviction. If so, we can see no reason to hold that the coming into force of the Human Rights Act has altered that situation and, therefore, no reason to treat the coming into force of the Act as having modified the requirement to intimate to the Advocate General. Indeed there are a number of reasons why it should be regarded as not having removed that requirement. The Human Rights Act and the Scotland Act were passed at much the same time and the legislature must been taken to have had both Acts in mind while they were passing through the legislative process. Most surprisingly, none of the counsel addressed us on the authorities relating to the principles of statutory construction to be applied in these circumstances. In our view, however, it would be quite inappropriate to read either set of provisions as superseding the other. There is no necessary contradiction or inconsistency between section 6 of the Human Rights Act and paragraph 5 of Schedule 6 to the Scotland Act. If it could be said that the requirement to intimate did constitute a restriction or burden on the Convention right then there might be room for an argument that the requirement was itself inconsistent with the Convention. But we were not given any authority for holding that a mere requirement to intimate might be held unlawful on such a ground. There is also, in our view, force in the argument that the particular and detailed provisions dealing with devolution issues are part of the constitutional settlement embodied in the Scotland Act and that requirement should not therefore be avoided or circumvented. If the effect of the provisions is that appeals are open to the Privy Council on matters involving questions of Scots criminal law, that, in our view, must simply be accepted. It does not provide any reason to reject the argument based on the plain terms of the legislation. In any case, the Privy Council would be involved in any such question in its role as a constitutional court and would doubtless approach any issues on that basis only, without entering further than necessary into questions of substantive criminal law.

[20] Further, as the Advocate General submitted, the question in the present case can be answered without deciding what issues are and are not included under the definition of devolution issues. That is a matter which can be left to be worked out on a case by case basis. The present issue is a procedural one only. Having said that, however, we should add that the Scotland Act and the Human Rights Act, separately and together, pose novel questions and that further experience of those questions may require revision of some of the views which have been expressed. As is pointed out in the article by Jamieson referred to above, intriguing issues may arise as to the interrelationship between the duty imposed on the court under the Convention - which does not raise any kind of devolution issue - and the duty or duties imposed on the Lord Advocate. That interrelationship may have to be examined and might give rise to further consideration of the view to be taken as to what is comprised in actings of the Lord Advocate. The possibility of some limitation on the circumstances in which the Lord Advocate can be said to be acting in proceeding with a prosecution was hinted at in the speech of Lord Nicholls of Birkenhead in Montgomery 2001 S.C. (P.C.) at pp. 5-6 and the problem of relevancy of allegations of breach of a Convention right in relation to Article 6 and devolution issues is mentioned by Lord Clyde in the same case (2001 S.C. (P.C.) at p. 34). Given that issues under the Convention can arise at any stage in a prosecution we would not be surprised to see arguments designed to limit the scope of the issues which must be classed as devolution issues being presented in future cases. As we have said, on the view hitherto taken, a challenge to any part of the court proceedings implies a challenge to the power of the Lord Advocate: but there may be room, for instance, for an argument that that does not necessarily extend to challenges to incidental steps in the proceedings, such as a decision to lead or not lead particular evidence. We were assured by the Advocate General that steps had been taken to ensure that any intimation of a devolution issue would be responded to without delay. Nevertheless, a requirement to intimate on every occasion on which an incidental question of the kind indicated above arises could be burdensome and disruptive to the process of justice. For the present purpose, however, it is enough to say that we accept the Advocate General's simple argument that if, as here, an issue which falls within the scope of the definition of "devolution issue" in paragraph 1 of Schedule 6 to the Scotland Act, arises, then there must be intimation in accordance with Schedule 6.

[21] The argument in this case in relation to the impact of the Convention followed very similar lines to that in the case of Kenneth Mills and we have taken account of the arguments advanced in Cochrane's case in the foregoing opinion. The appellant Cochrane was tried along with a co-accused on a charge alleging that on 28 February 1998, in a house in Coatbridge, they assaulted and robbed a 61 year old lady. The assault included repeatedly striking her on the head with a candlestick and robbing her of a purse containing £70 and a number of items of property. The co-accused was convicted of the charge as libelled. The appellant was also convicted but the jury added a rider that he acted under pressure. This was apparently a response to a defence put forward on the appellant's behalf that he had been coerced by his co-accused. The verdict was returned on 28 July 1998 and on 17 August 1998 the appellant was sentenced to two years detention. He served two months detention before obtaining interim liberation on his appeal. We might add at this point that the co-accused appealed against conviction and his appeal was partially successful.

[22] The appellant's Note of Appeal against Conviction and Sentence was lodged on 29 September 1998 and leave to proceed was granted on 5 November 1998. The appeal was called in June 1999 but was continued on the defence motion. It called again on 6 October 1999 and was continued in order to enable transcripts of defence evidence and a further report to be obtained. There was, we were informed, a fairly full submission heard on that date and the issue of the need for transcripts arose during that submission, indeed during the Advocate Depute's address. Transcripts were ordered and were received on 1 December 1999. Thereafter the defence agents wrote, in all, four letters asking for a hearing. The appeal was not, however, heard until 2001 and the decision on it was issued on 13 June 2001. The appeal on the merits failed but, it must be said, it raised a serious issue of some general importance. There was a partial explanation for the delay in that efforts were made to convene the same bench as had heard the submissions on 6 October 1999, but that was never achieved and in fact the final hearing took place before a different bench and with a different Advocate Depute. In all the circumstances, we have no difficulty in accepting that in this case, as in the case of Mills, there was undue delay and that some remedy should be provided to the appellant.

[23] The position, we were informed, is that the appellant has not been involved in any further trouble and has no outstanding cases. He has obtained a tenancy of a property for himself and has been periodically employed during his time on interim liberation. He had no previous convictions. Although his defence of coercion failed, the jury did accept that he had acted under the influence of his co-accused and there is information in the shape of a psychological report to indicate that the accused is a person who has suffered various mental difficulties. In the circumstances, although the crime was a serious one, we are prepared to extend some leniency to the appellant. In our view, the appropriate course is to allow him a further chance and to continue the appeal until the last Friday in September 2002 before determining the question of sentence. If he continues to be of good behaviour, he can expect the court to quash the existing sentence and substitute a non-custodial disposal.