Scottish High Court of Justiciary Decisons

Workman v. Her Majesty's Advocate [2002] ScotHC 319 (07 November 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Cameron of Lochbroom Lord Marnoch	Appeal No: C188/00 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in NOTE OF APPEAL AGAINST CONVICTION by DONNA WORKMAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: P. Ferguson; Wheatley & Co.

Respondent: S. Di. Rollo, Q.C., A.D.; Crown Agent

7 November 2002

1. The appellant has appealed against her conviction for a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 and the sentence pronounced by the trial judge at a diet on 14 March 2000. The indictment on which the appellant was brought before the court contained two charges. The conviction proceeded on a plea of guilty tendered by the appellant in respect of charge one on the indictment under deletion of the date "1 August 1995" and the substitution therefor of the date "21 March 1996". The charge as so amended libelled that between 21 March 1996 and 21 June 1996 at a house at 29 Horndean Crescent and a house at 34 Horndean Crescent, both in Queenslie, Glasgow and elsewhere the appellant was concerned in the supplying of diamorphine to another or others and in particular to Mark Aitken and Margaret Ann Collins. The appellant pleaded not guilty to the second charge, which was one of possession of diazepam with intent to supply it to another or others. These pleas were accepted for the Crown. The advocate depute then moved for sentence and produced a schedule containing one previous conviction. This was a conviction in the High Court on 4 March 1996 for an analogous offence. Having heard counsel for the appellant in mitigation, the court sentenced the appellant to five years imprisonment.
2. It is convenient at this point to set out certain proceedings that took place before the trial diet. Following service of the indictment at the instance of Her Majesty's Advocate upon the appellant, the indictment was originally set down for trial at the High Court in Glasgow to proceed at a sitting commencing on 22 November 1999. On 23 November 1999 a minute intimating an intention to raise a devolution issue within the meaning of Schedule 6 to the Scotland Act 1998 came before the High Court. It was allowed to be received and a preliminary diet was ordered to be held on 14 January 2000. This diet was discharged because the appellant was pregnant and about to give birth. On 29 February 2000 Lord Coulsfield heard submissions for the appellant and for the Crown. In the meantime appropriate orders for extension of time had been made. On 1 March 2000 Lord Coulsfield refused the prayer of the minute. He issued an opinion giving his reasons for doing so. He continued consideration of the appellant's motion for leave to appeal until 3 March 2000. On that date he refused leave to appeal.
3. Before Lord Coulsfield the appellant maintained that the Lord Advocate's proposed calling of the indictment against her for trial was an act which would be incompatible with her rights under Article 6.1 of the European Convention of Human Rights and that the Lord Advocate accordingly had no power to do that. The ground on which it was so maintained was that there had been a breach of Article 6.1 because the indictment had not been brought to trial within a reasonable time. In his opinion delivered on 1 March 2000 Lord Coulsfield set out the reasons which led him to conclude that the delay which had taken place had not been so serious as to amount to a breach of the appellant's rights under Article 6.1. He rejected the submission that the Lord Advocate had no power to proceed with the indictment. Thereafter the indictment called for trial before Lord Philip on 14 March 2000 when the appellant pleaded guilty.
4. Following her conviction and sentence, the appellant lodged the present note of appeal on 15 March 2000. This contained two grounds of appeal. The first ground is directed to conviction and the second ground is that the sentence of imprisonment was excessive. The first ground asserts that there has been a miscarriage of justice in respect that the conviction was a fundamental nullity. In particular, after setting out the circumstances leading up to Lord Coulsfield's decision on 1 March 2000 and his subsequent decision to refuse leave to appeal, the ground continues as follows:

"It is submitted that the presiding judge erred in law in holding that the Crown's explanation (that there was initially insufficient evidence for prosecution and it was necessary first to proceed against other persons in respect of the same charge) was adequate explanation for the delay. Two persons (Margaret Ann Collins and Mark Aitken) were prosecuted in 1998 and on 16th February 1998 the Crown accepted a not guilty plea from Collins and Aitken pled guilty. There was, as at 21st June 1996, sufficient evidence against the appellant (in terms of her detailed admissions to the police while detained (Crown production No. 12), her possession of a significant quantity of heroin when detained, her conduct during the search of 29 Horndean Crescent and the recovery of further quantities of heroin at 34 Horndean Crescent) to render it unreasonable for the Crown to require to prosecute other persons first. Further and in any event, there was no satisfactory explanation for the delay in proceeding against the appellant after 16 February 1998 when Aitken was convicted in terms of his own confession and Collins' plea of not guilty was accepted. In particular, the delay which occurred after Aitken was convicted was explained by the Crown as being due to "normal pressure of business". Said explanation was insufficient to explain the delay. From 23 September 1996 until 31 March 1998 the appellant was in prison serving sentences imposed in respect of separate offences. By letter dated 19 January 1997, in response to the appellant's solicitors' inquiry as to whether there were outstanding charges against the appellant, the procurator fiscal at Glasgow replied that there were no charges outstanding. Said assurance was inconsistent with the Crown's explanation for the delay in bringing proceedings against the appellant. The appellant's conviction was in terms of her plea of guilty. It is submitted that that is no bar to an appeal against conviction where the contention on appeal is that the appellant's right to a trial within a reasonable time has been breached...... In such circumstances the conviction is a fundamental nullity."

5. The appeal was originally set down to be heard by an appeal court on 22 November 2000. At that hearing the court, having partly heard counsel for the appellant, continued the appeal to a date to be afterwards fixed. This was done to await a decision in a number of related cases on appeal, which were due to be heard on 5 December 2000 and in which it was anticipated that the issue concerning the remedy available where there had been delay which amounted to breach of an appellant's rights under Article 6.1, would be determined by the appeal court. In the event the appeals were decided without any determination of that issue. See Gibson v. H.M. Advocate 2001 SCCR 51. We were informed that after the decisions in the foregoing appeals were known, this appeal was then allocated a provisional place on the appeal court roll for 1 February 2001. However the court authorities were informed by the appellant's agents that the appeal would take longer than the time allocated. Accordingly the court authorities removed the appeal from the roll for that date. The issue referred to above was however determined at first instance in March 2001 in the case of H.M. Advocate v. R 2001 SCCR 943. The decision of Lord Reed was then appealed to this court. The appeal was heard on 12 and 15 March 2002. On 7 March 2002 the court authorities intimated to the appellant's agents that this appeal had been set down for hearing on an appeal court roll for 9 April 2002. In the absence of the decision of the appeal court following the hearing in March 2002, the appellant's agents declined the offer and the appeal was removed from the roll. The decision of this court, now reported as R. v. H.M. Advocate 2002 SCCR 1, was issued on 31 May 2002. Thereafter this appeal was set down for hearing on 25 September 2002.
6. At the outset of the hearing the appellant was allowed to lodge an additional ground of appeal as follows:

"3. Further, there has occurred additional delay since the date of conviction (14 March 2000) prior to the hearing of the appeal. The appeal was put out for hearing on 22 November 2000 but was continued by the court because it was then anticipated that a group of appeal cases, scheduled to be heard together in December 2000, would decide whether the only appropriate remedy for a breach of Article 6.1 in respect of unreasonable delay was dismissal of charges before trial. It is submitted that the delay since the date of charge to final conclusion of the proceedings on appeal is in breach of Article 6.1 and that the only appropriate remedy for said breach is now quashing of the conviction.........."

7. For the appellant, Mr. Ferguson presented the questions arising from the first and third grounds of appeal as follows. Firstly, was the delay from the date of charge until 1 March 2000 in breach of the appellant's right to a fair trial under Article 6.1 of the Convention? If so, the only appropriate remedy, having regard to the state of the law existing at that date, was to dismiss the indictment and such should remain the remedy notwithstanding the recent decision of this court in R. v. H.M. Advocate. Secondly, did the whole delay to date breach that right and in that event what was the appropriate remedy to be granted by the court? Mr. Ferguson accepted that in the light of the Board's decision in Mills v. H.M. Advocate (No. 2) 2002 SLT (PC) 939 dismissal of the indictment was not the only remedy available if the unreasonable delay arose from and was occasioned by the time taken in the appeal proceedings.
8. Before considering his submissions further, it is convenient to record that in his criticism of the decision of Lord Coulsfield, Mr Ferguson drew attention to the terms of Lord Philip's report and to the material that had been placed before Lord Philip by the Crown when moving for sentence. He was informed that on 21 June 1996 police officers, acting on information received, searched the two flats at 29 and 34 Horndean Crescent. At No. 29 the appellant opened the door and admitted the police officers. In the house were two children, two men and a woman, Sharon Collins. The police officers searched the appellant's person and found a bag containing 11 paper folds of diamorphine, "tenner bags". The appellant also had £91 on her. While the officers were in the house, a man came to the door and asked to buy a tenner bag. Shortly thereafter, 34 Horndean Crescent was searched. There were two people in the house, Mark Aitken and Margaret Ann Collins, the sister of Sharon Collins. That search revealed £480 in cash, which was said to belong to Sharon Collins. At his own instigation, Aitken took a key from a place of concealment and opened a cellar attached to the flat from which he took two bags of powder which he gave to police officers. One bag contained 20.47 grams of diamorphine and the other 83 separate tenner bags. Aitken and Margaret Ann Collins gave statements implicating Sharon Collins and the appellant. The appellant was taken to the police office where she confirmed that she abused heroin and that she bought quantities and divided it up into deals for onward sale. She eventually admitted that her supplier was Sharon Collins. She confirmed that the money found by the officers came from selling drugs. Aitken and Margaret Ann Collins said that they had given 22 tenner bags to the appellant that day, and that they were simply holding the drugs for her, until she took them for onward sale and some for personal consumption. The appellant and Sharon Collins had each consumed one bag that day. Of the remaining 20, 11 bags were found on the appellant and the £91 found on the appellant's person accounted for the sale of the remaining 9. At interview the appellant admitted that she frequently engaged in this level of dealing. Lord Philip was also informed that Mark Aitken and Margaret Ann Collins had been indicted in the High Court. Aitken had pleaded guilty and was made the subject of a community service order while Collins' plea of not guilty was accepted by the Crown.
9. Mr Ferguson also drew attention to the terms of the report from Lord Coulsfield in relation to the Note of Appeal. In it he explains that he refused leave to appeal on the view that it would be better that the case should proceed and that any matters which required to be heard on appeal should be considered together. He also stated that he had considered the grounds of appeal and had seen Lord Philip's report. In that regard he commented that the Crown position before him was that the view was initially taken that there was insufficient evidence to proceed against the appellant. He noted from Lord Philip's report that it appeared that police officers had found a bag containing 11 paper folds of diamorphine on the appellant's person. He observed that, so far as he could recollect, that circumstance had not been referred to in the discussion before him, although he was aware that the appellant had made certain admissions and that statements incriminating her had been obtained from the other persons involved.
10. Mr Ferguson went on to consider the manner in which Lord Coulsfield had approached the issue which he was deciding. Lord Coulsfield accepted that the delay which had occurred between 24 June 1996, the date when the appellant was charged with drug offences by the police, and 24 November 1998, the date when she first appeared on petition in respect of the charges contained in the indictment, was sufficient to call for an explanation from the Crown. He then set out the information which had been placed before him by the advocate depute as follows:

"The advocate depute informed me that the accused was present on 21 June 1996, when the drugs were found and that Aitken and Collins had incriminated a third person who in turn had incriminated the panel. At that time, the view had been taken that there was insufficient evidence to proceed against the panel and that proceedings should be taken against Aitken and Collins who were householders at the addresses in question and who admitted possession of the drugs."

Lord Coulsfield then went on to set out the sequence of events thereafter. The salient matters were that on 24 June 1996 a police report was submitted to the procurator fiscal, that on 11 December 1996 a forensic report on the drugs found was received by the procurator fiscal, that on 11 February 1997 Collins and Aitken were placed on petition and allowed bail on 28 February, that on 29 August 1997 a report was submitted to Crown Office with a recommendation to proceed against Aitken and Collins and re-report the present case after those proceedings, that on 16 February 1998 Aitken pleaded guilty, sentence being deferred, that on 19 February 1998 Crown Office instructed a further report against the appellant and another but that there was a delay until 30 July 1998 when the procurator fiscal replied to Crown Office after a reminder and that on 7 September 1998 a full precognition against the appellant was submitted and Crown counsel instructed proceedings on 20 September 1998, the appellant being placed on petition on 23 November 1998. On that information the Crown had contended that the delay between 21 June 1996 to November 1998 was accounted for by the decision to proceed in the first instance against Aitken and the view taken that Aitken's evidence should be available against the appellant.

11. Mr. Ferguson made no substantial complaint as to the reasons for delay after 24 November 1998 other than that they contributed to the overall delay. Lord Coulsfield recorded that the case against the appellant had been provisionally set down for the High Court in May 1999 but had been reallocated to the sitting of 2 August 1999 and thereafter adjourned to a sitting of 22 November 1999 because of pressure of business. It was at this point that the devolution issue was raised. However, just as was contended before Lord Coulsfield, Mr. Ferguson submitted that, given the state of evidence known to the Crown shortly after the appellant had been charged, there was then a sufficiency of evidence such as would have entitled the Crown to proceed straightway to place the appellant on petition, and that whether account was taken of the information put before Lord Coulsfield or whether account was taken in addition of the information placed before Lord Philip when the Crown moved for sentence against the appellant. On either the original information or that information as supplemented at the time of sentence, the Crown could not show that it had been reasonable or indeed necessary to defer proceedings against the appellant until the prosecutions of Aitken and Margaret Ann Collins had been determined. Accordingly the delay overall had been excessive and constituted a breach of the appellant's rights under Article 6.1. Mr. Ferguson pointed out that in his opinion Lord Coulsfield had considered the submission made before him on the appellant's behalf that there had been no necessity to wait to proceed against the appellant and that, overall, the delay was excessive, under reference to the principles explained and applied in H.M. Advocate v. McGlinchey and Renicks 2000 SCCR 593. Lord Coulsfield had agreed that there was a period of delay between 16 February 1998 and 7 September 1998 which was unexplained or not satisfactorily explained and that it could fairly be said that there had been a lack of urgency in making progress with the case since September 1998. The salient part of Lord Coulsfield's reasoning was contained in the following passage:

"In my view the question whether there has been a breach of Article 6.1 is one to be considered on the whole circumstances of the case. It seems to me that it is legitimate for the Crown to choose to proceed against one potential accused and postpone proceedings against another, even at the cost of some delay in the proceedings against the second potential accused, provided that there is a proper regard for the rights of the person against whom proceedings are taken in the second place. Looking at the whole history of this case, it seems to me that while there has been a greater delay than would have been ideal in proceeding with the charge against the (appellant), the delay has not been so serious as to amount to a breach of her rights under Article 6.1."

Mr Ferguson contended that it was here that Lord Coulsfield had fallen into error. He referred to what was said by this court about sufficiency of evidence in the case of Robb v. H.M. Advocate 2000 SCCR 354. In the appellant's case the Crown had taken an unreasonable view of the state of the evidence and consequently an unreasonably long time had elapsed before the appellant was brought to trial. It was not enough for the Crown to endeavour to strengthen or bolster the case against the appellant by delaying until the conclusion of proceedings taken against Aitken and Margaret Ann Collins. In these circumstances this court should hold that there had been unreasonable delay and should declare that there had been a breach of the appellant's rights under Article 6.1.

12. In that event, this court should apply the law as it existed at the time at which the challenge was made by way of the minute. But for the erroneous determination made by Lord Coulsfield in refusing the prayer of the minute, he would have been bound to have held that the Lord Advocate was not entitled to proceed with the indictment to trial and to have dismissed the indictment. By refusing leave to appeal at that stage, he deprived the appellant of the opportunity to have his determination challenged on appeal in advance of any trial. In these circumstances the appropriate remedy to be given for unreasonable pre-trial delay was the sole remedy which the court had been in use to grant prior to the decision of this court in R. v. H.M. Advocate, namely dismissal of the indictment. See, for example, Robb v. H.M. Advocate and Smith v. Angiolini 2002 SLT 934. Reference was also made to the judgment of Lord Hope of Craighead in Mills v. H.M. Advocate (No. 2) at para. 52. In that regard, there was no difference in real terms between the remedy to be granted where the matter came before the court as a devolution issue challenging an act of the Lord Advocate in proposing to bring the indictment before the court for trial and the case where redress was sought in terms of the Human Rights Act 1998 in advance of a trial.
13. In reply, the advocate depute accepted that the plea tendered was to only one of the two charges on the indictment and that the libel was restricted to a period of three months. However he pointed out that the averments relating to both the addresses at Horndean Crescent and to the supplying of the controlled drug, diamorphine, to both Aitken and Margaret Ann Collins as well as to others remained in the libel. (We also observe that the list of witnesses appended to the indictment contained the names of both named individuals). The advocate depute informed us that at the conclusion of the police interview of the appellant, to which reference had been made before Lord Coulsfield, she had been charged with six offences. The first was a charge that on 21 June 1996 within the house of Collins at 29 Horndean Crescent, she had been unlawfully concerned in the supply of a controlled drug, namely diamorphine, in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. The second was that on the same date and at the same locus she was in possession of diamorphine with intent to unlawfully supply it to another in contravention of section 5(3) of the 1971 Act. The third charge related to the same date and locus and to the unlawful supply of diazepam in contravention of section 4(3)(b) of the 1971 Act. The fourth charge was that on the same date and at the same locus she was in possession of diazepam with intent to unlawfully supply it to another in contravention of section 5(3) of the 1971 Act. The fifth charge was that on the same date and at the same locus she was unlawfully in possession of diamorphine in contravention of section 5(2) of the 1971 Act. The sixth charge was that on 21 June 1996 within the house of Collins at 34 Horndean Crescent she was unlawfully concerned in the supply of diamorphine in contravention of the section 4(3)(b) of the 1971 Act. It was explained to the appellant that the address was that of Margaret Ann Collins, the sister of Sharon Collins, and the allegation was that "you transfer drugs to and from that address so you are concerned". These charges were to be contrasted with the first charge on the indictment. The impression of her role in the supplying of drugs given by the appellant at interview related to only one day. However this was at odds with the information given by both Aitken and Margaret Ann Collins, which suggested that the role of the appellant went much further than she was admitting. It involved drugs being brought by the appellant to one house and transferred to the other and to taking drugs from there and dealing with them on the street over a substantial period of time. It was not until February 1997 that the laboratory report on the drugs found by the police after search was available. This arose because of a hold up in the preparation of the report within the laboratory. Until then there was in fact insufficient evidence to satisfy the requirements for proof of an offence of unlawfully supplying controlled drugs. The Crown were entitled to decide to prosecute Aitken and Margaret Ann Collins in advance of any proceedings against the appellant. The part played by these individuals in the unlawful supplying of drugs was a minor one as compared with the role which was undertaken by the appellant. The Crown's assessment of the appellant's role was that she had over a period of time acted as a 'runner' in collecting and delivering drugs and had been handling considerable sums of money and that she and Sharon Collins played major roles in drug dealing as compared with the other two individuals. In particular, Aitken was only holding drugs for the appellant. The decision to proceed with an indictment against Aitken and Margaret Ann Collins was not simply to bolster the case which was already in existence against the appellant. It was to secure that there would be placed before the court at any trial of the appellant evidence which was not otherwise available but which fully supported the Crown's assessment of her role in drug dealing. In these circumstances the decision to await the conclusion of proceedings against Aitken and Collins until the determination of proceedings against the appellant was a reasonable one. Reference was made to Valentine v. H.M. Advocate 2001 SCCR 732 and the judgment of Lord Justice General Rodger at para. 14. It was proper to look closely at the facts of the particular case, as was said by Lord Bingham of Cornhill in Dyer v. Watson 2002 SCCR 220 at para. 52. Reference was also made to Boddaert v. Belgium (1992)16 EHHR 242. An explanation for the delay that had taken place prior to the trial diet had been given by the Crown before Lord Coulsfield. That explanation was of a reasonable decision on the part of the Crown upon a reasonable assessment of the whole case against the appellant as it stood prior to proceedings being concluded against Aitken and Margaret Ann Collins. It provided an explanation for the most substantial part of the delay that had occurred pre-trial. It entitled Lord Coulsfield to hold, as he did, that there had been no breach of the reasonable time guarantee in terms of Article 6.1. That conclusion was reinforced by a consideration of the whole circumstances that had now been placed before this court, insofar as these circumstances might not have been fully ventilated before Lord Coulsfield. In relation to the period that had passed since the note of appeal was lodged, there was a full explanation available to the court. Looking to the whole period that had passed since the appellant was charged to date, it could not be said to be such as to jeopardise the effectiveness or credibility of the criminal justice system in this country. Reference was made to the judgment of Lord Bingham in Dyer v. Watson at para. 51. In any event, it was relevant to the assessment of unreasonable delay to take into account that when called upon to plead to the indictment, the appellant had admitted guilt in relation to the substance of the first and more serious charge of drug dealing. If, following upon being placed on petition, she intended to plead guilty and had desired to have her case disposed of at once, it would have been open to her at any time prior to service of the indictment to have given notice to that effect in terms of section 76 of the Criminal Procedure (Scotland) Act 1995. It could be said that she herself had contributed to the delay that occurred in the present case.
14. In the end of the day, each of the questions posed on behalf of the appellant depends on the proposition that Lord Coulsfield erred in law in his determination that the delay was not unreasonable. As Lord Bingham said in Dyer v. Watson at para 52:

"The threshold of proving a breach of the reasonable time requirement is a high one, and not easily crossed. But if the period which has elapsed is one which, on its face and without more, gives ground for concern, two consequences follow. First, it is necessary for the court to look into the detailed facts and circumstances of the particular case. The Strasbourg case-law show very clearly that the outcome is closely dependent on the facts of each case. Secondly, it is necessary for the contracting state to explain and justify any lapse of time which appears to be excessive."

When we look at Lord Coulsfield's decision, we find that he did consider that the period which had elapsed was one which on the face of it gave ground for concern. Insofar as the advocate depute appeared to challenge this conclusion, it is sufficient to say that we can find no warrant for criticism of Lord Coulsfield's conclusion in this regard. Next, Lord Coulsfield had available to him much of the material which has now been placed before us. It may be said that it was probably going too far on the part of the Crown to suggest that there was insufficient evidence to take any proceedings against the appellant, at least once the laboratory report was available to the Crown. What is important is that at the outset all that the initial charges related to was drug dealing in diamorphine or diazepam restricted to one day only. Moreover the admission of the appellant did not extend to cover all the other material which suggested to the Crown that the appellant had played a far greater role in drug dealing than that to which she admitted, a role which she had played over a substantial period of time prior to 21 June 1996. It might have been possible to proceed with a charge of a contravention of section 4(3)(b) of the 1971 Act related to a single day. But a contravention of section 4(3)(b) of the 1971 Act involving a Class A drug, which encompassed the role which, on the material available to them, the Crown considered the appellant to have played, was a very serious one. In our opinion, that assessment of the appellant's role was one which in the circumstances was a reasonable one for the Crown to make. Plainly the evidence of Aitken and Margaret Ann Collins would be an important component of the whole evidence required to prove such a charge. As Lord Prosser pointed out in Robb v. H.M. Advocate at p. 364D-E, in considering the sufficiency of evidence one may of course be talking in a quite strict sense, of minimal legal sufficiency. But in deciding whether to proceed with charges or prosecution, police and prosecutors must ask themselves whether there is sufficient evidence, in a much wider sense, to make it proper to take these serious steps. He went on to observe that when considering the sufficiency of evidence in its more formal legal sense, even that will be a question for assessment, and that in judging reasonableness in the context of article 6.1 what will matter is not the court's retrospective view of whether there was, on the information available to it, technically sufficient evidence. Rather it is the views and decisions of the authorities at the time which are important and the question must be whether they took unreasonable views or reached unreasonable decisions. This same approach is reflected in the judgment of Lord Justice General Rodger in Valentine v. H.M. Advocate at para. 14, referred to by Lord Hope in Dyer v. Watson at para. 83. Lord Coulsfield was concerned to determine whether it could be said that the Crown had reached a reasonable decision in deciding to proceed against Aitken with a view to securing that Aitken's evidence was available against the appellant, for that was the substantial explanation put forward on the Crown's part to explain the delay. In our opinion, Lord Coulsfield correctly identified the question whether there had been a breach of Article 6.1 as one to be considered on the whole circumstances of the case. That is precisely the approach to which Lord Bingham referred in Dyer v. Watson. On the information put before him Lord Coulsfield was fully entitled to be satisfied that it was legitimate for the Crown to choose to proceed against Aitken and on conclusion of proceedings against him to proceed thereafter against the appellant. We should add that insofar as this information was supplemented before us, it served only to fortify the correctness of the conclusions reached by Lord Coulsfield and of his determination that the delay had not been so serious as to amount to a breach of the appellant's rights under Article 6.1. In reaching that determination Lord Coulsfield was correct to approach that question without looking in too much detail at particular periods of delay by themselves. That again was wholly consistent with what was said in H.M. Advocate v. McGlinchy and Renicks. In our opinion, it has not been demonstrated that Lord Coulsfield failed to apply the proper tests to the facts before him in determining the question before him. Moreover, the essential facts remain the same whether consideration is given to the information which appears to have been put before Lord Coulsfield or as that information is supplemented by the further material derived from Lord Philip's report. In the circumstances of the present case, it cannot be said that Lord Coulsfield exercised the discretion given to him under any error as to law or fact. That being so, there is no basis for interfering with his decision that in the light of the explanations put before him by the Crown the delay between 21 June 1996 and March 2000 was not so excessive as to constitute a breach of the appellant's rights in terms of Article 6.1.

15. So far as the period of time from March 2000 to date is concerned, we are satisfied that there are good reasons why this delay has occurred, having regard to the uncertainties that have existed in relation to the question of appropriate remedy where there has been a breach of the reasonable time guarantee prior to trial. We are also satisfied that even when consideration is given to the whole period of time that has elapsed from the date of charge to the present, it has not been shown that the delay is excessive and such as would jeopardise the effectiveness or credibility of the criminal justice system in this country.
16. In the circumstances we do not find it necessary to decide the further questions raised, namely, what would be the appropriate remedy if a breach of article 6.1 had now been made out by the appellant and, in particular, if it had been established that the earlier determination of Lord Coulsfield was flawed. We would reserve our opinion as to the correctness or otherwise of the appellant's submissions about the appropriate remedy for pre-trial delay in circumstances where an appellant has been convicted on his own confession, whether that be in respect of the whole indictment or on a restricted plea.
17. In the result, we will refuse the appeal against conviction so far as it is laid on the first and third grounds of appeal. Likewise we reject the appeal against sentence so far as it proceeded on Mr. Ferguson's alternative submission that if this court declared that there had been a breach of article 6.1, the appropriate remedy was to make a reduction in the sentence already imposed.
18. The appeal against sentence, however, is also based on the general proposition that it is excessive. The factors relied upon in the second ground of appeal are as follows. Firstly, Aitken was sentenced to community service for the offence to which he pleaded guilty. Secondly, the appellant's lifestyle has changed following her release from her previous sentences of imprisonment. She appeared before the High Court on 4 March 1996 when she was convicted of a contravention of section 4(3)(b) of the 1971 Act. Sentence was then deferred until 22 March 1996 when she placed on probation for a period of two years on condition that she carried out 240 hours of unpaid work. She was subsequently found to have been in breach of the probation order. On 7 October 1996 she was sentenced to 18 months' imprisonment for the original offence and on 4 December 1996 received a further sentence of two years' imprisonment for the breach of probation. This latter sentence was made consecutive to the earlier sentence. She was released on licence on 31 March 1998. At the time of the offence she had been a heroin addict. Her third child was born on 18 January 2000. It was because of her pregnancy that the preliminary diet on the devolution issue was postponed. She was in custody following sentence until she was granted interim liberation in June 2000. She requires to care for her three children. It was submitted that in these circumstances she does not now pose any significant danger to the public. Thirdly, the circumstances of the offence indicated that the appellant on a frequent basis divided up heroin and carried it to the nearby houses of Aitken and Margaret Ann Collins where they kept it for Sharon Collins, who resided at 29 Horndean Crescent, and on whose instructions the appellant was acting in return for a personal supply of heroin. Fourthly, the pre-trial social enquiry report dated 16 November 1999 which was placed before Lord Philip recorded that the writer believed that the appellant was then co-operative and might once more be considered as a suitable candidate for a community-based disposal, subject to a further assessment if such an option was to be considered by the court. In the whole circumstances, the period of imprisonment selected by Lord Philip was said to be excessive.
19. Lord Philip explains that he took the view that the appellant was a persistent drug dealer who had conspicuously failed to take advantage of the opportunity for reform afforded by the earlier probation order. She had returned to regular drug dealing. He considered that it was necessary to deter participation in the drug trade and that that factor outweighed any factors, such as the appellant's domestic situation, which might have militated against a substantial custodial sentence. He noted what he termed a degree of scepticism on the part of the social worker as to the suggestion made by counsel for the appellant that the appellant had broken her drug habit when urging the court to deal with the appellant by way of a community service order. He fixed upon the sentence of five years' imprisonment having regard to the appellant's record and the nature of the crime to which she pleaded guilty. He did not have any information as to the details of the crime to which Aitken pleaded guilty.
20. We fully appreciate why Lord Philip took a serious view of the appellant's offence over a period between 21 March 1996 and 21 June 1996 against the background of her conviction in the High Court for a directly analogous offence on 4 March 1996. Moreover it is clear that she embarked on the subsequent offence while still awaiting sentence. In relation to the prior conviction the probation order was pronounced on 22 March 1996. However she went on to serve a sentence of three and half years' imprisonment for the prior offence from which she was released in March 1998. We do not consider that there is any merit in seeking to make a comparison between the appellant and Aitken. Indeed we were given no information as to the nature or extent of the offence to which he pleaded guilty or as to any prior offending on his part. Nevertheless we take into account that since the appeal was lodged, the appellant has, apart from a short period of custody from the date of sentence until she was granted interim liberation, been on bail and at liberty. The principal reason for the delay since the date of sentence has related to the uncertainty of the law in relation to the matter of remedy for pre-trial delay. At this stage, and before considering the matter of sentence further, we consider it proper to seek a full up-to-date social enquiry report on the appellant's present circumstances, including her circumstances since the birth of her third child and, in particular, her abstinence from drug abuse, and whether she has remained out of trouble since March 2000. We shall therefore continue the appeal against sentence for that purpose.