APPEAL COURT, HIGH COURT OF JUSTICIARY
Sheriff Principal Bowen
Appeal No: 1637/01
OPINION OF THE COURT
delivered by LORD KIRKWOOD
NOTE OF APPEAL TO COMPETENCY AND RELEVANCY
PROCURATOR FISCAL, Aberdeen
Appellant: A. Brown; George Mathers & Co.
Respondent: I. Armstrong, Q.C., A.D.; Crown Agent
4 July 2002
"In the determination...of any criminal charge against him, everyone is entitled to a...hearing within a reasonable time...".
28th May 1999 Accused Donald Smith interviewed and cautioned and
3rd June 1999 Standard Police Report received in connection with
Smith and Tait. Case received in normal e-mail system and not specifically brought to anyone's attention. Case also intimated separate disclosure by complainer in related case against Andrew Goodfellow (see Precognition). Aberdeen facing backlog of marking of approximately 500 cases at that time.
27th July 1999 Case considered and initially marked by Procurator
Fiscal Depute, noting an insufficiency against Smith and asking for full statements.
30th July 1999 Letter sent to Reporting Officer asking for full
statements and details of Smith's interview. Review date of 21 days hence set.
19th August 1999 Full statements received from Reporting Officer and
placed in 'BU System' in Summary Case Marking Room.
7th September 1999 Information received that William Tait (against whom
there was a sufficiency) was currently detained in Liff Hospital in Dundee in terms of the Mental Health Act.
6th October 1999 Tait's position considered by Principal Depute in charge
of Case Marking and letter sent to agents to discover exactly his medical position and to clarify competency as accused or later as a witness (clear at this point that it was inappropriate to proceed until careful examination made of this matter, recognising Crown's duty to enquire into mental illness of accused).
15th October 1999 Information received in form of letter from Tait's agents
basically stating that the Crown should contact hospital direct (papers marked by Principal Depute to consider competency of Tait as a witness and thereafter to consider him providing a sufficiency against Smith. However, noting that no sufficiency at this time existed).
25th October 1999 Further letter sent to Tait's agent and to accused Tait
asking for consent to obtain medical records. Papers marked for review - receipt on 8th November 1999.
9th November 1999 Letters from agents received with signed Mandate to
release hospital records.
11th November 1999 Letter sent to Royal Liff Hospital requesting reports and
indication of medical fitness of Tait. Papers marked to be reviewed on 3rd December 1999.
11th November 1999 Agents request information regarding client and told
25th November 1999 Medical records including Psychiatric Report received
from Dundee and placed in 'BU System' for Summary Team Leader, following normal practice.
14th January 2000 Papers passed to Solemn Team by Summary Team
Leader to consider pre-precognition. (Noted that Tait was sane and fit to plead and has in the past suffered from paedophilic tendencies. Considered appropriate to consider prosecution against him in the public interest due to the nature of the charge and the information contained in the medical records). Noting again no sufficiency at all against Smith.
Papers recovered having been 'lost track of' in Solemn Unit. (As explained in precognition, attached, no explanation available apart from sheer workload and priority given to custody cases and ongoing High Court cases). Crown Counsel should note that the Solemn Unit was in effect one person!
Papers allocated to precognoscer to consider and report to Crown Office. Precognoscer had at that time taken over as Regional Resource for Child and Sex Abuse cases. (Former resource had now gone on long-term sick following a period of compassionate leave. This further aggravated chronic staff shortages in Aberdeen Office).
1st June 2000 Case reported to Crown Office together with case
against Andrew Goodfellow. Precognition attached recognises insufficiency against Smith and insufficiency against Goodfellow.
13th June 2000 Crown Office instructions received noting disturbing
information regarding Tait and noting sufficiency against Tait and an apparent sufficiency against Smith in later proceedings only if Tait was used as a witness. Instructions to precognosce complainer, place on Petition and re-report.
27th June 2000 Precognition appointment sent to old address in error.
Start of July (no exact date)
Police asked to trace new address for complainer and mother.
Second week of July
Address found and precognition appointment sent out for 21st July 2000.
21st July 2000 Complainer precognosced.
28th July 2000 Petition Warrant typed and sent to Sheriff Clerk.
3rd August 2000 Request sent to precognsoce (sic) Reporting Officer,
received productions and requesting Police interview tape for Tait to be transcribed.
17th August 2000 Crown Office updated regarding awaiting transcript and
Reporting Officer to be precognosced who was currently on annual leave.
18th August 2000 Petition Warrant signed by Sheriff in respect of both
accused. One source in respect of Smith for CFE - no sufficiency.
21st August 2000 Petition Warrant received from Clerks.
22nd August 2000 Letter sent to Smith and Tait inviting them to attend to
29th August 2000 Matter re-reported in accordance with instruction of 13th
June and updated Crown Office re potential Petition appearance. (Stressing no sufficiency re Smith whilst Tait was an accused).
5th September 2000 Both appearing on Petition, committed for further
examination and released on bail.
21st September 2000 Crown Counsel's instructions received to proceed
summary complaint against Tait and precognition to be prepared and to re-submit as soon as Tait available as a witness.
3rd October 2000 Case against Tait reduced to Summary with a Pleading
Diet of 31st October. Complaint served 10th October 2000.
31st October 2000 Tait pled guilty to amended charge - sentence deferred
to 28th November 2000.
15th November 2000 Letter sent to Tait's agents requesting views on him
giving evidence and requesting up-to-date address for precognition.
28th November 2000 Tait sentenced to 240 hours Community Service.
9th January 2001 Precognition submitted to Crown Office - having been
unable to precognosce Tait or get information from his whereabouts as the agents had ignored the 3 letters.
12th January 2001 Crown Counsel's instructions - reduce Smith to
summary on one charge capable of corroboration.
15th January 2001 Case reduced to summary and complaint typed for
service with a Pleading Diet of 23rd February 2001. Complaint served 26th January 2001.
23rd February 2001 Case calls and Article 6 point taken.
"In any case in which it is said that the reasonable time requirement (to which I will henceforward confine myself) has been or will be violated, the first step is to consider the period of time which has elapsed. Unless that period is one which, on its face and without more, gives grounds for real concern it is almost certainly unnecessary to go further, since the Convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. But if the period which has elapsed is one which, on its face and without more, gives ground for real 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 shows 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."
He went on to observe (in paras 53, 54 and 55) that the Court has identified three areas as calling for particular enquiry, namely (1) the complexity of the case, (2) the conduct of the accused and (3) the manner in which the case has been dealt with by the administrative and judicial authorities.