Scottish High Court of Justiciary Decisons

McLean v. Procurator Fiscal [2002] ScotHC 33 (22 March 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Coulsfield Lord Weir	Appeal No: 2598/00 OPINION OF THE COURT delivered by LORD COULSFIELD in CROWN NOTE OF APPEAL TO COMPETENCY by PROCURATOR FISCAL, Inverness Appellant; against GILLIAN MacLEAN Respondent: _______

 

 

Appellant: Shead; Balfour & Manson

Respondent: Armstrong, Q.C., A.D.; Crown Agent

22 March 2002

1. The respondent has been charged on a summary complaint alleging various instances of shameless indecency committed, allegedly, between 19 November 1998 and 5 January 1999. The respondent is a teacher and the charge involves alleged actings towards a pupil. The allegations were first disclosed to the school rector on 29 January 1999 and reported to the police on 2 February 1999. The complainer was interviewed and a search warrant for the respondent's home was obtained on 10 March 1999. The warrant was executed on 19 March 1999. The respondent was detained and interviewed on 27 May 1999. She was not charged at that time but was informed that extensive enquiries required to be carried out. Those enquiries involved examination of handwriting samples and DNA analysis. The respondent provided a sample for DNA analysis on 27 May 1999. She refused, so it is said, to provide handwriting samples but samples were obtained from documents known to have been written by her in the course of her employment. According to the information given by the Crown, a police report, following the investigations, was received by the procurator fiscal on 10 March 2000. Full statements were instructed but there was a delay of about a month in obtaining them, due to some misunderstanding. In any event, statements were received on 11 May 2000 and, after instructions had been sought from the Crown Office, a complaint was framed and sent for service on 20 July 2000. The pleading diet was held on 21 August 2000.
2. The solicitor acting for the respondent lodged a devolution issue minute raising two points. One was the effect of the delay which had taken place, which was alleged to give rise to a breach of Article 6 of the European Convention on Human Rights. The other concerned the nature of the charge of shameless indecency and in that connection reference was made to Articles 7 and 8 of the Convention. The sheriff heard the parties in debate on 20 September, 4 October and 1 November 2000 and issued his decision on 29 November 2000. By his decision, he sustained the respondent's plea under Article 6 but repelled the plea in terms of Articles 7 and 8 of the Convention. The Crown have appealed against the dismissal of the complaint. The respondent has also lodged an appeal against the refusal of her minute, in so far as based on Articles 7 and 8 of the Convention. The respondent's appeal remains to be heard.
3. In giving his decision in relation to delay, the sheriff first observed that the case was not one of such unreasonable delay that, in the absence of a clear explanation, breach of Article 6 was the obvious inference. He thought, however, that the time taken was such as to make it appropriate that there should be an explanation for the delay and he focused in particular on the period between the obtaining of the DNA sample on 27 May 1999 and the presentation of the report on 14 February 2000. He also took account of the overall time taken from the date of the search warrant, which was accepted as the appropriate commencement date for the relevant period under Article 6, but although he recognised that the case was an anxious one for the respondent he did not give particular emphasis to the overall period. Essentially, his decision proceeded on the unexplained delay during the period just mentioned.
4. In presenting the Crown appeal the advocate depute made reference to a number of matters relating to the examination of productions and the investigations which had taken place during the critical period. These were, however, explanations which were not put before the sheriff and we do not think that we can properly take account of them. The advocate depute also explained, in general terms, that there had been ongoing work in preparation of the case during the critical period but his explanation was somewhat short of any detail in explaining what that work had been. He submitted, nevertheless, that in the light of the more recent authorities, as the sheriff himself had recognised in his note, the whole circumstances were not such as to point to a breach of Article 6. For the respondent, it was submitted that while this was a case which required investigation, because, apparently, there was a question as to whether any corroboration for the complainer's accounts of what had occurred could be obtained, nevertheless the Crown were required to monitor the position constantly and to bear in mind that this was an anxious case for the respondent and for others. The complainer in this case was 14 at the relevant time and therefore a child, and to that extent there was some similarity with the position in the case of K., recently considered by the Privy Council (29 January 2002).
5. We have come to the conclusion that the sheriff did err in dismissing this complaint on the ground of delay. The period taken overall is greater than this court would normally wish to see but the delay was not such as to demand an explanation from the Crown, in the sense in which that expression has been explained in the more recent authorities (see P.F. v. Watson & Bennion Privy Council 29 January 2002). It was, also, in our view, unfortunate that the Crown did not have available a more detailed explanation of what had occurred to cause the delay to put before the sheriff. We should stress that in any such case it is important that the information should be available to place before the sheriff who must take the initial decision. Nevertheless, for the reasons which we have indicated, we do not think that overall the delay was such as to infer a breach of Article 6 and we shall therefore sustain the Crown appeal. The respondent's appeal, of course, remains to be dealt with.