Scottish High Court of Justiciary Decisons

Smith v. Procurator Fiscal [2002] ScotHC 91 (04 July 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kirkwood Lord Abernethy Sheriff Principal Bowen	Appeal No: 1637/01 OPINION OF THE COURT delivered by LORD KIRKWOOD in NOTE OF APPEAL TO COMPETENCY AND RELEVANCY by DONALD SMITH Appellant; against PROCURATOR FISCAL, Aberdeen Respondent: _______

 

 

Appellant: A. Brown; George Mathers & Co.

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

4 July 2002

1. The appellant was charged on summary complaint at the instance of the Procurator Fiscal, Aberdeen. The charge narrated that on 14 October 1998 at 52F Kings Crescent, Aberdeen the appellant, whilst acting with William Tait, used lewd, indecent and libidinous practices and behaviour towards Stanley George Clark, who was born on 2 July 1989. The appellant, together with William Tait, originally appeared on petition on 5 September 2000 and was released on bail. The case against the appellant was subsequently reduced to summary procedure and the complaint called on 23 February 2001 when the solicitor for the appellant intimated a plea in bar of trial on the ground that there had been a failure to bring the appellant to trial within a reasonable time in breach of his rights under Article 6(1) of the European Convention on Human Rights. On 12 April 2001 the sheriff heard submissions from the parties. He repelled the plea, adjourned the case for trial until 29 June 2001 and assigned 14 June 2001 as an intermediate diet, and he also granted leave to appeal.
2. Article 6(1) provides inter alia as follows:

"In the determination...of any criminal charge against him, everyone is entitled to a...hearing within a reasonable time...".

3. There was no dispute about the facts and the parties agreed the following chronology of events:

28^th May 1999 Accused Donald Smith interviewed and cautioned and

charged.

3^rd 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.

27^th July 1999 Case considered and initially marked by Procurator

Fiscal Depute, noting an insufficiency against Smith and asking for full statements.

30^th July 1999 Letter sent to Reporting Officer asking for full

statements and details of Smith's interview. Review date of 21 days hence set.

19^th August 1999 Full statements received from Reporting Officer and

placed in 'BU System' in Summary Case Marking Room.

7^th 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.

6^th 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).

15^th 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).

25^th 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 8^th November 1999.

9^th November 1999 Letters from agents received with signed Mandate to

release hospital records.

11^th November 1999 Letter sent to Royal Liff Hospital requesting reports and

indication of medical fitness of Tait. Papers marked to be reviewed on 3^rd December 1999.

11^th November 1999 Agents request information regarding client and told

'under consideration'.

25^th November 1999 Medical records including Psychiatric Report received

from Dundee and placed in 'BU System' for Summary Team Leader, following normal practice.

14^th 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.

Early April

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!

Early April

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).

1^st June 2000 Case reported to Crown Office together with case

against Andrew Goodfellow. Precognition attached recognises insufficiency against Smith and insufficiency against Goodfellow.

13^th 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.

27^th 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 21^st July 2000.

21^st July 2000 Complainer precognosced.

28^th July 2000 Petition Warrant typed and sent to Sheriff Clerk.

3^rd August 2000 Request sent to precognsoce (sic) Reporting Officer,

received productions and requesting Police interview tape for Tait to be transcribed.

17^th August 2000 Crown Office updated regarding awaiting transcript and

Reporting Officer to be precognosced who was currently on annual leave.

18^th August 2000 Petition Warrant signed by Sheriff in respect of both

accused. One source in respect of Smith for CFE - no sufficiency.

21^st August 2000 Petition Warrant received from Clerks.

22^nd August 2000 Letter sent to Smith and Tait inviting them to attend to

answer Warrant.

29^th August 2000 Matter re-reported in accordance with instruction of 13^th

June and updated Crown Office re potential Petition appearance. (Stressing no sufficiency re Smith whilst Tait was an accused).

5^th September 2000 Both appearing on Petition, committed for further

examination and released on bail.

21^st 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.

3^rd October 2000 Case against Tait reduced to Summary with a Pleading

Diet of 31^st October. Complaint served 10^th October 2000.

31^st October 2000 Tait pled guilty to amended charge - sentence deferred

to 28^th November 2000.

15^th November 2000 Letter sent to Tait's agents requesting views on him

giving evidence and requesting up-to-date address for precognition.

28^th November 2000 Tait sentenced to 240 hours Community Service.

9^th 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.

12^th January 2001 Crown Counsel's instructions - reduce Smith to

summary on one charge capable of corroboration.

15^th January 2001 Case reduced to summary and complaint typed for

service with a Pleading Diet of 23^rd February 2001. Complaint served 26^th January 2001.

23^rd February 2001 Case calls and Article 6 point taken.

4. The sheriff took the view that it was reasonable for the Crown to consider the position of Tait and the complainer. While there had been a period of inactivity from the end of January 2000 to the beginning of April 2000, the sheriff felt that it was excusable on an overall view of the case.
5. Before us, counsel for the appellant submitted that the sheriff had been wrong to repel the plea in bar of trial. The advocate depute, on the other hand, submitted that the case had been capable of being brought to trial within a reasonable time, and that there had not been a contravention of Article 6(1). It was common ground that the starting date was 28 May 1999 when the appellant was arrested and cautioned and charged. The intention of the Crown was to prosecute the appellant on two charges, namely, the charge which he is now facing on the summary complaint and a more serious charge which involved the same type of behaviour towards the same complainer, again while acting with William Tait, but over an extended period. The position appeared to be that the present charge could proceed to trial without the evidence of Tait but that, so far as the other charge was concerned, there was an insufficiency of evidence against the appellant unless Tait could be led as a Crown witness to provide the necessary corroboration. Counsel for the appellant stated that, if the appellant had tendered a plea of not guilty when the case eventually called on 23 February 2001, the trial on the summary complaint would have taken place on 29 June 2001. There was thus a delay in bringing the case to trial of some 25 months. Counsel referred to Dyer v. Watson and K. v. H.M. Advocate 2002 SCCR 220 in which the Judicial Committee of the Privy Council had stated that in a case of this nature the court should adopt a two stage approach. The first step was to consider the period of time which had elapsed and, unless that period was one which, on its face and without more, gave ground for real concern, then it was almost certainly unnecessary to go further. If, however, it did give ground for real concern, then it would be necessary for the court to look into the detailed facts and circumstances of the particular case, it being for the Crown to explain and justify any lapse of time which appeared to be excessive. In the present case counsel submitted that, having regard to the delay of 25 months, there was ground for real concern about the time taken for the case to be prosecuted, particularly as it involved a complainer who was 9 years of age when the offence was alleged to have been committed in 1998. In the circumstances this was a case which should have been treated with particular expedition. The agreed chronology demonstrated inactivity and error on the part of the Crown which had not been satisfactorily explained, and the sheriff had erred in his decision to repel the plea in bar of trial. Counsel submitted that there had been an initial delay of almost two months from 3 June to 27 July 1999 and another month's delay from 7 September to 6 October 1999. There had been a delay of over six weeks from 25 November 1999 to 14 January 2000. The papers, having been passed to the Solemn Team in January 2000, were then "lost track of" until early April. They were then allocated to a precognoscer but not reported to Crown Office until 1 June 2000. Accordingly, between 25 November 1999 and 1 June 2000 there was very little activity. In June and July 2000 there was a delay of several weeks due to the fact that the letter giving notice of an appointment for the taking of a precognition from the complainer had been sent in error to the complainer's old address. In September 2000 a decision was taken to proceed against Tait by way of summary complaint, and on 31 October 2000 Tait had pled guilty to an amended charge and sentence had been deferred until 28 November 2000, when he was sentenced to 240 hours community service. At that stage the Crown must have been aware of Tait's address, and he had appeared in court on two occasions, but by January 2001 it was stated that it had not been possible to precognosce him. Counsel submitted that the Crown had not treated the case with proper expedition. The case was not a complex one and there were only five Crown witnesses. The accused had not been responsible for any of the delay and he had, in fact, been seeking information from the Crown as to how the prosecution was proceeding and endeavouring to expedite the case. The involvement of Tait complicated it to some extent but not to such a degree as to justify the inordinate delay which had taken place. The principal reason for the delay was unexplained inactivity on the part of the Crown, particularly in the later stages when Tait should have been precognosced. The sheriff had erred when he had concluded that the delay was excusable on an overall view of the case. This was a case which, due to the age of the complainer, should have been prioritised from the start and the overall delay of 25 months had been unreasonable. The plea in bar of trial should be sustained and the complaint dismissed.
6. The Advocate Depute submitted that the delay had not been so unreasonable as to amount to a breach of Article 6(1). Three factors had had a significant bearing on the progress of this particular prosecution. In the first place, there had been significant pressure of business in the procurator fiscal's office and as at 3 June 1999 there was a backlog of approximately 500 cases. In the circumstances the appellant was not justified in founding on short periods of delay of only a few weeks. A counsel of perfection was not required. In the second place, it was important to appreciate that there was originally insufficient evidence against the appellant and that, in relation to the more serious charge, a prosecution could be mounted against him only if Tait's evidence became available. Reference was made to H M Advocate v. Workman 2000 J.C. 383. The Crown had been entitled to prosecute Tait before deciding if the appellant should be prosecuted. In the third place, some of the delay had been due to the fact that initially Tait was not mentally fit to be prosecuted, and it took time to have his mental condition investigated. As Lord Bingham had observed in Dyer, supra (at para. 52), the threshold of proving a breach of the reasonable time requirement is a high one and is not easily crossed. It was accepted by the Crown that, having regard to the age of the complainer, this case should have been prioritised but a delay of two years was, on the face of it, not unreasonable and did not give rise to real concern. In the circumstances the appellant had not succeeded in getting over the first hurdle. The Advocate Depute went on to submit that, if the period of 25 months did give rise to real concern, the delay had been satisfactorily explained. Initially there had not been sufficient evidence against the appellant, and the prosecution on the more serious charge could only proceed if Tait could be led as a witness by the Crown. Accordingly, it was necessary first to consider the prosecution of Tait, but it had taken time (from 7 September to 25 November 1999) to determine whether he was mentally fit to stand trial. Once it had been decided to prosecute Tait on summary complaint, the case against him had proceeded relatively speedily, although in the event it did not prove possible to precognosce him and his evidence did not become available, causing the prosecution of the appellant to be reduced to the one charge on summary complaint for which the evidence of Tait was not necessary. The Advocate Depute stated that he was not sure why the evidence of Tait did not become available but it might have been because he was unwilling to give evidence. It was accepted that there had been a period of relative inactivity between 14 January and 1 June 2000, when not very much had happened. However, looked at overall, the delay was not unreasonable and the appeal should be refused.
7. In Dyer, Lord Bingham of Cornhill observed (at para. 52):

"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.

8. The complainer was aged 9 at the time of the alleged offence and it was conceded by the Crown that this was a case which should have been accorded priority. It was agreed that the starting date was 28 May 1999 and if the case had proceeded to trial on 29 June 2001 25 months would have elapsed. There is no doubt that delay is particularly undesirable when a child is the complainer, and in our opinion the period with which we are dealing in this case is one which, on the face of it, gives rise to real concern, particularly having regard to the nature of the charge. In these circumstances it is necessary to pass to the stage of considering the reasons which have been placed before us by the Crown in seeking to explain and justify the delay which has taken place. In the first place, it is clear that the appellant cannot be said to have been to any extent responsible for the delay. In the second place, the case cannot properly be described as a complex one. We were told that the Crown proposed to lead the evidence of five witnesses. There was only one potential complication in respect that we were told that, so far as the more serious charge that the Crown proposed to proceed with against the appellant, it was necessary that the evidence of Tait should be available, as without his evidence there was an insufficiency of evidence against the appellant. However, it is, in our opinion, significant that, according to the agreed chronology, the Crown recognised at the outset that there was an insufficiency of evidence against the appellant. While information was received in September 1999 that Tait was detained in hospital in Dundee in terms of the Mental Health Act, medical records received on 25 November 1999 apparently showed that he was sane and fit to plead. Between November 1999 and 1 June 2000 there was very little activity, the papers having apparently been "lost track of" between mid-January and early April. In the event it was not until September 2000, shortly after Tait had appeared on petition, that instructions were received to proceed against him by way of summary complaint. Tait pled guilty on 31 October 2000 and was sentenced to a period of community service on 28 November. It was in January 2001 that the papers were submitted to Crown Office, the entry in the chronology stating that the prosecution had been unable to precognosce Tait. As Tait had appeared in court on two occasions and had been sentenced to a period of community service, it is difficult to understand why he was not able to be precognosced and all that the advocate depute was able to tell us was that the explanation might have been that he was unwilling to give evidence.
9. As we have said, it was accepted by the Crown that this case, involving as it does a complainer who was 9 years of age at the time of the alleged offence, should have been given priority. We have considered the submissions of the parties in light of the agreed chronology. The case was not inherently complex, the principal difficulty facing the Crown being the need to make the evidence of Tait available to provide the necessary corroboration in the case of the more serious charge facing the appellant. While the Crown cannot be criticised for deciding to prosecute Tait first, the fact that there was an insufficiency of evidence against the appellant, unless Tait gave evidence, had been known from the outset. Although the case should have been treated with expedition, there were periods of relative inactivity. In particular, the advocate depute conceded that there was about six months of Crown inactivity from 14 January 2000 until early April and from then until 1 June. Indeed, very little happened between November 1999 and June 2000. On examination of the chronology we have been struck by what appears to be a lack of urgency throughout on the part of the prosecution. Further, as time went on, there was no indication that significant action was taken to remedy the situation and bring the case to trial at an early date. It is not apparent that the case was subject to a prioritisation process at any stage. In our opinion, no satisfactory explanation has been given for the lapse of a period of 25 months which, in the particular circumstances of this case, we regard as unreasonable. We shall therefore allow the appeal, sustain the plea in bar of trial and dismiss the complaint.