Scottish High Court of Justiciary Decisons

Cunningham & Ors v. Procurator Fiscal [2002] ScotHC 34 (22 March 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Coulsfield Lord Weir	Appeal Nos: 1311/01 492/01 493/01 OPINION OF THE COURT delivered by LORD COULSFIELD in APPEALS by (1) P.F. ELGIN Appellant; against WILLIAM CUNNINGHAM Respondent: (2) P.F. AIRDRIE Appellant; against GERARD HOLMES Respondent: (3) P.F. AIRDRIE Appellant; against STEPHEN SARSFIELD Respondent: ______

 

 

Appellants: Miss Scott, Q.C.; Drummond Miller

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

22 March 2002

1. These three appeals raise similar issues and were heard on the same day. Each of them arises from a summary prosecution. In each case the accused raised a devolution issue which was upheld by the sheriff, who dismissed the complaint. In each case, the Crown appealed to this court and the Crown appeal was successful but the accused lodged a further devolution issue minute on the ground of delay in the hearing of the appeal. The issues in these three cases are closely similar and can conveniently be dealt with together. A further case, Procurator Fiscal, Inverness v. Gillian McLean, was also heard on the same day but we propose to issue a separate opinion in that case.

William Cunningham

2. The accused William Cunningham has been charged on a summary complaint with contravention of the Prevention of Corruption Act 1906, as amended. The narrative of the charge sets out certain inducements or rewards alleged to have been offered to and accepted by the accused. The period covered by the charge is from 1 August 1993 until 15 November 1997. The accused was interviewed under caution in regard to the allegations in July 1998. The complaint was subsequently served and the case was cited to the Sheriff Court for 9 August 1999. At that point, a preliminary plea was stated on behalf of the accused on the ground of the alleged inadequacy of the legal aid available to him under the Criminal Legal Aid (Fixed Payment)(Scotland) Regulations 1999. The sheriff upheld that plea and dismissed the complaint. The Crown appealed and that appeal was heard and sustained by this court on 19 February 2002.
3. The accused then lodged a further devolution issue minute and a supplementary ground of appeal founding on the delay in the appeal process as leading to a breach of Article 6 of the European Convention on Human Rights. The relevant chronology is as follows: the sheriff sustained the accused's first plea on 11 April 2001: the reason for the delay from August 1999 to that date was that parties had hoped that the final decision in Buchanan v. McLean would be available before the plea had to be dealt with. In fact the final decision of the Judicial Committee of the Privy Council was not available until May 2001. The Crown appeal was lodged within two days of the sheriff sustaining the accused's plea and the report from the sheriff was available on 1 May 2001. The critical delay, therefore, is the delay from 1 May 2001 until 19 February 2002 in hearing the appeal.
4. In the arguments advanced to us, questions were raised as to the role of the Lord Advocate in relation to appeals and as to the appropriate remedy, if it were found that there were undue delay. We have, however, come to the conclusion that it cannot be said that there was such delay as to infer a breach of Article 6 of the Convention and, in these circumstances, we do not propose to enter into those arguments.
5. It was submitted on behalf of the accused that the delay, particularly taken against the whole background of the case, was excessive. Regard should be had, it was submitted, to the whole period from July 1998, although the critical delay was the delay in the appeal stage itself. There was nothing complex about the appeal and no explanation for the delay: it was submitted that there was a "marked lack of expedition" in dealing with the appeal, notwithstanding that the question raised was a pre-trial one.
6. Notwithstanding these arguments, we do not, as we have said, consider that there is any breach of Article 6. The delay is certainly longer, indeed substantially longer, than we would wish to see in bringing forward a pre-trial issue for determination. It can, however, be taken into account that a substantial part of the overall delay was the result of the accused raising a plea based on the non-availability of legal aid which turned out to be ill-founded. It is also true that there is no specific explanation for the time taken to bring forward this appeal. We are well aware, however, that there is very substantial pressure upon the timetable of the appeal court, contributed to by the number of devolution issue minutes based on alleged delay which have been raised. Overall, we do not think that the period is such, in the present circumstances, as to cause real and substantial concern and in these circumstances the absence of a specific explanation is not sufficient to persuade us that the delay should be regarded as leading to a breach of Article 6. We therefore propose to refuse the accused's minute and remit the case to the sheriff to proceed.

Stephen Sarsfield

7. The relevant circumstances in this case are set out in the Opinion of the Court dated 19 February 2002 which dealt with the Crown appeal against the sheriff's dismissal of a summary complaint against the accused. The accused had taken a plea based upon alleged delay in the prosecution of the case against him. That plea was upheld by the sheriff and the Crown appealed. The sheriff's report was available on 20 April 2001 and the appeal was heard on 19 February 2002. The critical delay was, therefore, very similar to that in the case of William Cunningham and, for the same reasons as we have set out above, we think that there was no such delay in disposing of the Crown appeal as to lead to a breach of Article 6.

Gerard Holmes

8. This is another case in which the accused pled that there had been excessive delay and persuaded the sheriff to dismiss the complaint against him. The Crown appealed successfully. The sheriff's report was available on 17 May 2001 and the appeal was heard on 19 February 2002. Again, therefore, the case is very similar to that of Cunningham above and for the same reasons we shall refuse the minute and remit the case to the sheriff to proceed.
9. In the course of the argument in these cases, a question also arose as to whether it is relevant to take into account any failure on the part of an accused person to take such steps as may be open to him to try to expedite the hearing of the appeal. It is not necessary to discuss that question in these cases, but some consideration may have to be given to it at some time.