Scottish High Court of Justiciary Decisons

Gillespie v. Her Majesty's Advocate [2002] ScotHC 325 (29 November 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Osborne	Appeal No: C714/96 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION by STEWART GILLESPIE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Bell, QC, Gilchrist; Balfour & Manson

Respondent: Di Rollo, QC, AD; Crown Agent

29 November 2002

Introduction

1. On 18 October 1996 at Glasgow High Court the appellant was convicted of murder and of three other offences, one of which was an attempted murder involving the use of a firearm. He was sentenced to life imprisonment on the murder charge and to a total of 10 years imprisonment, backdated to 7 June 1996, on the other charges. He appealed against his conviction on the murder charge.

History of the appeal

2. In setting out the following history, we have noted each procedural step to which counsel for the appellant has referred. To give a fuller picture, we have supplemented this with references to other events and orders that are recorded in the appeal papers.
3. On 17 December 1996 the note of appeal was lodged. On 6 March 1997 leave to appeal against conviction was granted. On 23 May 1997 the court allowed amended grounds of appeal to be received. The amended grounds were based on Anderson v HM Adv (1996 JC 29). They were to the effect that there had been a miscarriage of justice caused by the allegedly defective representation of the appellant by his then solicitor, Mr Denis Coffield. At the same hearing the court directed that a copy of the amended grounds should be intimated to Mr Coffield and to Mr H A Kerrigan, QC, the appellant's senior counsel at the trial, Mr D Nicol, advocate, his junior counsel, and Mr R Watson, advocate, his counsel at the pre-trial stage. The court "invited" comments from each of them on the grounds of appeal. The court also granted authority for the extension of the evidence of the appellant and two witnesses. The appeal was continued to a date to be fixed.
4. By letter dated 10 June 1997 Mr Watson replied to the court. By letter dated 8 July 1997 Mr Coffield replied to the effect that his comments would include confidential material from the files of the appellant and two of the witnesses. Mr Coffield requested the court to issue an order protecting him from any claim of breach of confidentiality. On 5 August 1997 the court continued the appeal to 23 September 1997 to enable the appellant and the Crown to consider the terms of Mr Coffield's letter. On 23 September 1997 the court continued the appeal to a date to be fixed and directed the clerk of court to write to Mr Coffield requesting him, if so advised, to report to the court on the grounds of appeal on the basis that the appellant had, through his counsel, waived confidentiality. On 25 November 1997 a letter was received from Mr Coffield setting out his response to the amended grounds of appeal.
5. On 23 September 1998 the court continued the appeal to the sitting of the court to be held on 8 October 1998. On 8 October the court appointed that written submissions on behalf of the appellant in relation to disputed factual matters should be lodged within two weeks. A further two weeks were allowed for the Crown to consider any such submissions and to lodge submissions in answer. The court appointed the appeal to be put out for a further procedural hearing and continued the appeal to a date to be fixed. On 22 October 1998 written submissions were lodged on behalf of the appellant. On 5 November 1998 written submissions were lodged on behalf of the Crown.
6. On 16 December 1998 there was a further hearing which, because of pressure of court business, had to be continued to 7 January 1999. At this hearing it was noted that no response had been received from Mr Kerrigan. The court ordered that a reminder should be sent to him.
7. On 7 January 1999 the appeal was again continued to a date to be fixed to allow Mr Kerrigan further time to respond to the written submissions. On 8 January 1999 the clerk of court intimated that decision to Mr. Kerrigan. The records of the court show that on 3 March 1999 a letter was received from the appellant's agents intimating a change of agency and requesting that the court intimate a date for a hearing in early course.
8. On 6 October 1999 the case was again continued to a date to be fixed so that Mr Kerrigan could be asked whether or not he intended to comment on the grounds of appeal and on the written submissions.
9. According to the supplementary grounds of appeal, and to the representation made to us by senior counsel, the continued hearing was thereafter fixed for 4 November 1999, but was later withdrawn from the rolls for that date on the instructions of the then Lord Justice General. The Crown do not dispute this. We have been given no explanation why this decision was made.
10. On 21 March 2000 the case came before the court and had to be continued to 7 April 2000 because senior and junior counsel for the appellant were not available. On the same day, the clerk of court once again wrote to Mr Kerrigan to indicate the court's concern at the delay in the appeal and to afford him a final opportunity to comment. Mr Kerrigan was asked to reply in writing on or before 4 April, either submitting his comments or intimating that he had none to make. By letter dated 30 March 2000 Mr Kerrigan stated that in a reply to an earlier letter he had enquired if transcripts had been extended and had asked for any further details to be forwarded to him to refresh his memory of the case. He said that he was not aware of having received any such information. He requested that this information and the original papers should be sent to him. He said that he would not be able to make comments by 4 April and thought that he might be able to reply by mid-April. He apologised for the delay and explained that he thought that the appeal had been abandoned.
11. On 7 April 2000 there was a further procedural hearing. On the morning of that day the court received Mr Kerrigan's comments by fax. On the motion of the appellant the procedural hearing was continued until 11 April.
12. On 11 April submissions were heard on the question whether evidence was required in support of the amended grounds of appeal. The court ordered counsel for the appellant to lodge a minute identifying the key issues and the names of the witnesses who were to be called. On 30 May 2000 the appellant's agents lodged this information. It is accepted that this period of delay was not the fault of the court.
13. The case next came before the court on 19 December 2000. On this occasion the Crown did not oppose a motion on behalf of the appellant for a hearing of evidence in relation to the grounds of appeal. Six witnesses were to be heard by a bench of three judges of the court. On 9 January 2001 the appellant's agents wrote to the court requesting a copy of the interlocutor of 19 December 2000, and requesting that the clerk of court should liaise with them in order to fix dates. The letter intimated that one of the proposed witnesses, Mr Nicol, advocate, was no longer in practice and was abroad. The letter noted that senior counsel had pointed out to the agents that it was now over four years since the appeal was lodged and that the proceedings should therefore be determined within a reasonable time. On 9 March 2001 the agents again wrote to the court to enquire whether or not there were any proposed dates in relation to the appeal.
14. On 30 and 31 August 2001 the court heard the evidence of four witnesses, namely the appellant himself, Mr Kerrigan, Mr Coffield, and a witness named George Kerr, who had been called by the Crown at the trial. Kerr's evidence was important because in the Anderson ground it was alleged that Mr Coffield had advised the appellant not to lodge a special defence of incrimination against Kerr and because, unknown to the appellant, Mr Coffield had been acting for the appellant and two Crown witnesses, one of whom was Kerr, at the material time. The court, on the motion of the advocate depute, authorised the transcription of the evidence of certain Crown witnesses. The court also authorised the transcription of the speeches to the jury by the advocate depute and counsel for the appellant and requested the trial judge to make available to the court any notes that he had on these matters. The evidence was not concluded at this hearing. The hearing was continued to 22 October 2001. The court expressed its anxiety that the hearing should go ahead on that date.
15. On 16 October the appellant's agents were advised by the court that the appeal could not proceed on 22 October because one of the judges, Lord Osborne, had another court commitment. When the case called on 22 October 2001, it was agreed by all concerned that every effort should be made to fix an early diet. The case was continued to 17 December 2001.
16. On 17 December 2001 the court heard the evidence of Miss Janice Green, who had been Mr Coffield's qualified assistant at the time. The court also received and refused a ground of appeal based on alleged misdirection and received the present ground of appeal relating to delay. On 10 January 2002 the hearing was concluded with the submissions of counsel. On that date the court announced that the appeal, so far as based on the Anderson ground, was refused for reasons that would be given later. The court continued consideration of the present ground of appeal to await the decision of the Privy Council in Mills v HM Adv (No 2). The court issued its opinion on the Anderson ground in April 2002. The Privy Council issued its decision in Mills v HM Adv (No. 2) (supra) on 22 July 2002 (cf. 2002 SLT 939).

The appellant's present circumstances

17. Along with the life sentence, the appellant continues to serve the concurrent sentence of 10 years. He would not yet be eligible for release on that sentence even if he had not received the life sentence. In consequence of Part 1 of the Schedule to the Convention Rights (Compliance) (Scotland) Act 2001, the punishment part of the life sentence has been fixed at a period of 11 years.

Statutory provisions

18. Section 6 of the Human Rights Act 1998 (the 1998 Act) provides inter alia as follows:

"6.-(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right ...

(3) In this section 'public authority' includes-

1. a court or tribunal, ...

(6) 'An act' includes a failure to act ... "

Section 8 of the 1998 Act provides inter alia as follows:

"8.-(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings ...

1. In this section-

... 'damages' means damages for an unlawful act of a public authority; and

'unlawful' means unlawful under section 6(1)."

The 1998 Act came into force on 2 October 2000.

19. Article 6 of the European Convention on Human Rights (the Convention) provides inter alia as follows:

"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

 

The submissions for the parties

For the appellant

20. Counsel for the appellant submitted that the first relevant date was 23 May 1997 when the appellant's grounds of appeal based on Anderson (supra) were lodged. He founded on the delay in the period from then until 17 December 2001 when the appeal hearing was concluded. When the 1998 Act came into force the court was bound to consider whether or not there had been undue delay at that date in the hearing of the appeal. By then there had been a delay of about three years and five months. The eventual period of delay came to be about four and a half years. This delay was unreasonable.
21. Counsel for the appellant accepted that if there had been undue delay in this case, that did not justify the quashing of the conviction (Mills v HM Adv (No. 2), supra, Lord Hope at para. [53]), since the delay had not affected the outcome of the appeal. The appropriate remedy was for the court to allow a reduction in the appellant's sentence.
22. Although the appellant was still serving the sentence of 10 years, against which he had not appealed, the delay in the present appeal had been prejudicial to him. He had been kept in suspense unnecessarily (Stögmüller v Austria (1969) 1 EHRR 155). He had had the stress of being repeatedly brought to court for inconclusive hearings. In addition, the quality of the evidence that he eventually led in support of the Anderson ground was affected by the delay since the recollection of the witnesses Mr Coffield, and his assistant, Miss Green, had been adversely affected. In recognition of these considerations, the punishment part of the life sentence should be reduced.

For the Crown

23. The advocate depute submitted that while the delay in this case was regrettable, the delay had not been unreasonable. The appeal could not have proceeded without responses from trial counsel. The delay occasioned by that was outwith the control of the court (Hoekstra v HM Adv (No. 6) 2002 SCCR 135, at paras. [171] to [176]) and was not its responsibility. The court had been powerless to compel counsel to respond. The present case, like any Anderson appeal, was complex. It was accepted that the appellant bore no material responsibility for the delay complained of; but the delay was not undue in all the circumstances. In any event, the appellant was serving a 10-year sentence. The delay had had no drastic effect on him. The Crown conceded that the court was entitled to moderate the punishment part of the appellant's life sentence, if so advised. Alternatively, the court could decline to reduce the punishment part and simply make a declaration that the appellant's Convention rights had been breached (1998 Act, s. 8(1); Mills v HM Adv (No. 2), supra, Lord Steyn at para. [16]). The appellant himself had the option of suing for damages (1998 Act, s. 8(2)).

Decision

1. Does the period of delay complained of give grounds, on the face of it, for real concern?
24. In our opinion, the overall delay in this case is on the face of it unreasonable. The decision on such a question must depend in every case on the facts and circumstances. It is largely a matter of impression. The court should be able to recognise an apparently unreasonable delay when it sees it. In a modern system of criminal jurisprudence, the expeditious disposal of appeals, administratively and judicially, should be a priority. The court has already commented on the long and unsatisfactory history of this appeal (Gillespie v HM Adv, 10 January 2002, unrepd., at para. [2]) in which there have been seventeen diets. In our view, even at 2 October 2000 when the 1998 Act came into force, the delay in this appeal would, on the face of it and without more, have given grounds for real concern (cf. Dyer v Watson, 2002 SC (PC) 89, Lord Bingham of Cornhill at para. [52]). That delay was thereafter prolonged by a further year and two months. The delay in this case would have seemed unreasonable in an appeal against conviction on any charge; but there was a particular need for expedition, in our view, in an appeal against a conviction for murder. On the view that we have taken, the next question is therefore whether the delay is excusable.
2. Is the delay excusable?
25. In answering this question the court has to consider three particular matters: the complexity of the case, the conduct of the accused and the manner in which the case has been dealt with by the administrative and judicial authorities (Dyer v Watson, supra, Lord Bingham of Cornhill at paras. [53] - [55]).
26. As to the first consideration, we think that the nature of the appeal presented no difficulty so unusual as to require a prolonged appeal process running into years. The Crown has not identified any specific difficulty in the nature of the appeal, in the legal issue as to the allowance of new evidence, or in the practical question of arranging the hearing of it, that would provide even a colourable excuse for the delay.
27. As to the second consideration, we are of the opinion that any delays for which the appellant's advisers were responsible were insignificant when seen against the delay overall.
28. As to the third, and in this case decisive, consideration, we hold that the predominant responsibility for the delay in the period complained of lies with the court. In a case like this it is helpful to stand back from the details of the numerous procedural steps and decisions, for each of which there was no doubt a good reason at the time, and look at the overall picture. Having done that, we can see no cogent reason or set of reasons that could justify the failure of the court to conclude this appeal until more than 41/2 years after the relevant ground of appeal was tabled and more than five years after the appeal itself was lodged. The failure of the appellant's solicitors to exert greater pressure than they did on the court administration, though not irrelevant, cannot of itself relieve the court of its own responsibility (Mills v HM Adv (No. 2), supra, Lord Hope of Craighead at para. [54]).
29. When we go on to examine the detailed history, there are, in our view, two obvious areas of delay: the delay in the obtaining of comments from Mr Kerrigan and the series of intervals in the later history during which little progress was made.
30. The court invited comments from Mr Kerrigan in May 1997 and received them from him in April 2000. Within that period there is a period of one year, from 23 September 1997 to 23 September 1998, during which no procedural steps were taken at all. That gap in the history remains unexplained. Thereafter, the court's first reminder to Mr Kerrigan was not ordered until 16 December 1998. In our opinion, Mr Kerrigan's inaction is as much the responsibility of the court as is its own handling of the appeal in other respects.
31. In Anderson (supra) on the subject of fairness to the counsel or solicitor complained against, the court said the following:

"Difficult questions of professional practice may arise where allegations of this kind are made against counsel or a solicitor. It is essential therefore that those against whom the allegations are made are given a fair opportunity to respond in writing to these allegations before the court hears the appeal. The advocate or solicitor may, if he feels able to do so, provide a statement to the solicitor acting for the appellant to assist him and counsel in the drafting of the grounds of appeal. But he is under no obligation to provide any such statement. He may, if he prefers to do this, wait until the appeal is lodged and then lodge his statement with the Clerk of Justiciary. In all cases where a complaint is made against counsel or the solicitor who represented the appellant at his trial for which leave to appeal has been granted, the Clerk of Justiciary will provide him with a copy of the ground of appeal so that he may respond to the allegation if he has not already done so. Once again we emphasise that he is under no obligation to respond at this stage to the allegations. But the court is likely to find it helpful to know whether the complaint is disputed, and if so on what grounds, before it reaches a decision as to whether an inquiry into the facts will be necessary to enable it to decide the appeal" (at p. 45).

32. With that statement in view it has been the practice of the court in Anderson appeals merely to invite the trial counsel and solicitor to submit comments on the grounds of appeal. In the light of this case we think that in Anderson appeals from now on the court should invite counsel and solicitor, having in mind their responsibilities as officers of the court, to submit such comments as they may wish to make no later than a specified date. Such a practice would not place either counsel or solicitor under any obligation to comment (cf. Anderson, supra); but it would enable the court to have a definite indication of their positions without delay.
33. As to the remainder of the delay, we cannot measure precisely the duration of that part of it that could reasonably have been avoided. It is sufficient to say that it is obvious to us that the appeal could have been disposed of with greater urgency and expedition, and that the periods of time during which little progress was made, amounting to a substantial delay overall, are for the most part unexplained. We have in mind, in particular, the period between 23 May 2000 and 19 December 2000, during which the question of the court's receiving new evidence remained undecided, and the period between then and 30 August 2001, when the hearing of evidence began. While we consider that the period between 30 August 2001 and 10 January 2002 that was taken up with the hearing of additional evidence and the disposal of the Anderson ground of appeal would not normally have given cause for concern, that period of delay, much of it caused by administrative difficulties, is a matter for considerable concern when it is viewed in the light of the previous history.
34. We conclude therefore that the court, by its failure to conclude the appeal within a reasonable time, has denied the appellant his right under article 6 of the Convention and has thereby contravened section 6 of the 1998 Act.

(iii) What remedy, if any, should the court grant?

35. In our view, the choice in this case is either to allow a reduction in the sentence to mark the breach of the appellant's Convention rights or merely to make a declaration that the appellant's Convention rights have been infringed (Mills v HM Adv (No. 2), supra, Lord Steyn at [16]). A declaration would be an appropriate remedy in a case where the breach had been trivial in itself or had not resulted in any significant prejudice. In this case, however, the breach has been material and, in our view, has resulted in perceptible prejudice to the appellant. He has had to wait for almost four and a half years without having his appeal disposed of. We do not, however, accept that there was any significant prejudice to him in respect of the recollections of the witnesses Mr Coffield and Miss Green. Counsel for the appellant has not specified this ground of complaint by reference to any of the evidence and we think it unlikely since the attention of those witnesses must have been alerted to the appellant's grounds of appeal soon after May 1997 when the grounds were lodged.
36. We do not see how it would have been possible to reduce a life sentence before 2001; but with the introduction of a punishment part in every life sentence (Convention Rights Compliance (Scotland) Act 2001, s. 1), there is now a finite element in the sentence that is capable of being reduced. The advocate depute has conceded that it would be competent for us to reduce the punishment part. We have decided to do so. In view of the appellant's other sentence of 10 years, on which he is not yet eligible for release, the only prejudice sustained by him lies in the occurrence of four and a half years of delay in the conclusion of what was in the event an unmerited appeal, and in such feelings of uncertainty as he experienced during that time.

Decision

37. We consider that a just and sufficient remedy in the circumstances would be to allow the appeal to the extent of reducing the punishment part of the appellant's life sentence by a period of six months.

Postscript

38. Since the history of this appeal may well cause concern in the minds of readers of this judgment, we wish to say that this appeal was dealt with during a period when the volume of criminal appeals in this court increased substantially, when the administrative and judicial resources of the court were stretched beyond reasonable limits, and when there was no system in place for the routine monitoring of the progress of outstanding appeals. During that period, the court relied to a great extent on the parties to initiate procedural steps. In the course of 2002 new systems have been introduced to prevent any recurrence of the problems that this case has highlighted. Additional resources have been committed to criminal appeals; new procedures have been introduced (cf. Act of Adjournal (Criminal Appeals) 2002 (SSI 2002 No. 387), and criminal appeals have been placed from the outset under active management by the court administration.