Scottish High Court of Justiciary Decisons

Unterschutz v. Her Majesty's Advocate [2003] ScotHC 27 (28 February 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kirkwood Lord Marnoch Lord Macfadyen	Appeal No: XC213/03 OPINION OF THE COURT delivered by LORD MACFADYEN in NOTE OF APPEAL in terms of section 74 of the Criminal Procedure (Scotland) Act 1995 by RONALD UNTERSCHUTZ Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: J Hamilton; Balfour & Manson

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

28 February 2003

Introduction

1. The appellant, Ronald Unterschutz, was indicted at the instance of the respondent for trial at Perth Sheriff Court on a charge of fraud. The libel related to income tax returns submitted by him between 1992 and 1998 in connection with the business which he carries on under the name Perth Removals and Transport. The appellant lodged a Minute in which he raised a devolution issue alleging that delay on the part of the Crown in proceeding with his case contravened his right under Article 6(1) of the European Convention on Human Rights ("the Convention") to a hearing within a reasonable time.
2. In terms of Article 6(1) the appellant's right to a hearing within a reasonable time arises inter alia "in the determination of any criminal charge against him". Its purpose in that context is to protect him from excessive procedural delays between the bringing of the charge and its determination; to avoid his remaining too long in a state of uncertainty about his fate (Stögmüller v Austria (1969) 1 EHRR 155 at 191, paragraph 5; McLean v HM Advocate 2000 JC 140 at 143B; Dyer v Watson 2002 SC (PC) 89 per Lord Bingham of Cornhill at paragraph [50]). It is concerned with delay after charge, and not with delay before charge. Time starts to run only when the accused person is charged (Eckle v Germany (1982) 5 EHRR 1, paragraph 73; Dyer v Watson, per Lord Rodger of Earlsferry at paragraph [139].
3. The appellant was interviewed under caution by officers of the Inland Revenue on 10 December 1998. His contention was that that constituted the bringing of a criminal charge against him. If that was correct, a little over four years had elapsed after the date on which the charge was brought, without a hearing having taken place. The appellant submitted that that period exceeded a reasonable time. He accepted that, if he was wrong in contending that a criminal charge had been brought against him at the time of the interview on 10 December 1998, the next stage at which it might be said that a charge had been brought was when a petition warrant was granted against him on 24 December 2001. He accepted that if that was when a charge was first brought against him, he could not maintain that the charge had not been brought to a hearing within a reasonable time.
4. A hearing in respect of the Minute took place before the Sheriff at a preliminary diet on 13 and 15 January 2003. The Sheriff held that the interview which took place on 10 December 1998 did not involve the bringing of a criminal charge against the appellant. He therefore declined to hold that the appellant's Convention rights had been infringed. He granted leave to appeal under section 74(1) of the Criminal Procedure (Scotland) Act 1995. We have now heard the appeal.
5. In submitting that the appeal should be allowed, Mr Hamilton for the appellant first addressed the authorities on the meaning of "a criminal charge" in the Convention, secondly sought to apply those authorities to the circumstances of the present case as they had been laid before the Sheriff, then thirdly argued that, if the Sheriff had been right on the basis of the circumstances laid before him, certain additional material which he laid before us justified a different conclusion.

The meaning of "criminal charge"

6. Mr Hamilton began his submissions on the meaning of "criminal charge" by referring to Reilly v HM Advocate 2000 JC 632, 2000 SCCR 879. In that case the court, applying a definition of "criminal charge" derived from Eckle, held that, although the appellant had admitted embezzlement in 1992 when she was dismissed from her employment, and a police investigation had then begun, she had not been the subject of a criminal charge until 1996, when she was first interviewed by the police. He then turned to Eckle, and founded on the following passage in the judgment of the European Court of Human Rights:

"73. In criminal matters, the 'reasonable time' referred to in Article 6(1) begins to run as soon as a person is 'charged'; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened. 'Charge', for the purposes of Article 6(1), may be defined as 'the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence', a definition that also corresponds to the test whether 'the situation of the [suspect] has been substantially affected'."

Mr Hamilton also referred to Deweer v Belgium (1980) 2 EHRR 439, which appears to have been the source of the observations contained in paragraph 73 in Eckle. In Deweer the question was not when but whether the applicant had been made the subject of a criminal charge. Mr Hamilton referred us to paragraph 42 of the judgment, in which the Court indicated that the concept embodied in the phrase "criminal charge" (in the French text "accusation en matière pénale"), is "autonomous"; it has to be understood "within the meaning of the Convention". The Court then gave the examples which are also given in the first sentence of paragraph 73 of the judgment in Eckle. At paragraph 46, the Court formulated the definition of "criminal charge" which is repeated in the second sentence of paragraph 73 of the judgment in Eckle. Mr Hamilton's position, ultimately, was that that definition provided the test by which the court should judge when the appellant had been made the subject of a criminal charge. The Advocate depute, for his part, also submitted that that was the test which should be applied.

7. There was thus in the end no dispute as to the test to be applied in determining when the appellant had been made the subject of a criminal charge for the purposes of Article 6(1). The test is the definition set out in the first part of the second sentence of paragraph 73 of the judgment in Eckle. The word "charge" is not necessarily to be given the meaning familiar in domestic Scots law, but is to be treated as an autonomous concept for the purpose of the Convention. It is defined as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence".
8. In our view it is necessary to distinguish between the part of paragraph 73 of the judgment in Eckle that formulates a definition of "charge" and the part that gives illustrative examples. In the first sentence the court makes the point that a person may be "charged" before the case comes before the trial court. There then follow illustrations: a person may be charged when he is arrested (as in Wemhoff v Germany (1968) 1 EHRR 55, paragraph 19); he may be charged when officially notified that he will be prosecuted; he may be charged when preliminary investigations are opened (Neumeister v Austria (1968) 1 EHRR 91, page 130, paragraph 18, read with page 96, paragraph 7; Ringeisen v Austria (1971) 1 EHRR 455, page 495, paragraph 110, read with page 464, paragraph 25). These illustrative examples were not, in our view, intended as definitions, and care must be taken not to misunderstand them where they derive from other legal systems. In particular, it is in our opinion necessary to note that the cases in which it was held that a charge was laid when preliminary investigations were opened arose in a system in which the opening of preliminary investigations involves a formal request from the public prosecutor resulting in the applicant's interrogation before an investigating judge. It cannot, however, be said in a legal system, such as ours, which does not involve investigation by an examining magistrate, that the commencement of anything that might be described in ordinary language as a preliminary investigation will on that account constitute for Convention purposes the bringing of a criminal charge. The proper course, in our view, is to adopt and apply, in the context of our own criminal justice system, the definition formulated by the European Court of Human Rights and set out in the second sentence of paragraph 46 in Deweer and repeated in the second sentence of paragraph 73 in Eckle.
9. No detailed submissions were addressed to us on the alternative formulation mentioned at the end of paragraph 73 in Eckle, namely that "the situation of the [suspect] has been substantially affected". As is indicated in Deweer at paragraph 46, that formulation was adopted by the Commission in Neumeister v Austria, Series B, No. 6, at page 81, and repeated in Huber v Austria (1975) 18 Yearbook of the European Convention on Human Rights 324 at 356, paragraph 67, and (in slightly different language) in Hätti v Germany (1976) 19 Yearbook 1025 at 1064, paragraph 50; and it is instructive to see how that test was applied in these cases. In Neumeister, the Commission stated that it had arrived at the general conclusion that:

"the relevant stage [at which the period of reasonable time referred to in Article 6(1) begins] is that at which the situation of the person concerned has been substantially affected as a result of a suspicion against him."

The starting point in that case was taken to be the date when the applicant "was first heard by the investigating judge as being suspected of the offences concerned". In Huber the circumstances appear to have borne some similarity to those of the present case. At paragraph 69 the Commission noted that the view had been taken in other cases that "the interrogation of the applicant ... alone is not sufficient to hold that the applicant is faced with a criminal charge within the meaning of Article 6(1)"; at paragraph 70 it noted that in the case before it "there had been enquiries into the applicant's business by the taxation authorities even before the opening of the preliminary investigation against him"; but at paragraph 71 concluded that "prior to the opening ... of the preliminary investigations against him, the applicant's situation has not been substantially affected as a result of a suspicion against him". In Hätti, the Commission held that the period to be taken into consideration was that which began when the suspicion resting on the applicant had an important effect on his situation, i.e. the date of his arrest. Consideration of these cases confirms, in our view, that the test adopted by the Commission corresponds in practical effect with the one formulated in Deweer and Eckle, and reinforces our conclusion that it is appropriate for us to apply the latter test.

10. The question in the present appeal therefore in our opinion comes to be: when was the appellant first given official notification by a competent authority of an allegation that he had committed a criminal offence?

The circumstances laid before the Sheriff

11. Before the Sheriff the submission made on the appellant's behalf was based on the transcript of the interview which took place on 10 December 1998, together with a document of the same date which bears to be a "Notice to Person whose Interview has been Tape Recorded". The interview was conducted by two officers of the Inland Revenue Special Compliance Office. It had been pre-arranged, and the appellant was accompanied by his wife and his solicitor, Mr Hunter. After introductory matter, the substance of the interview began with one of the officers saying:

"Thank you. Okay Mr Williamson [the other officer] is now going to ask you some questions about your business/income tax affairs and other related matters. You are not bound to answer if you do your answers will be noted and may be given in evidence. Do you understand that?"

The appellant answered in the affirmative, and was then advised that he was not under arrest, was free to leave at any time, and entitled to speak to his solicitor, whose attendance was noted. Mr Williamson then said:

"Just by way of introduction ... we're from the Inland Revenue, Special Compliance Office in Edinburgh and our job is to look at ... serious irregularities ... within the Inland Revenue. Perhaps if you could give me some background as to how your business started."

It was accepted that the syntax of the first sentence of that statement was unfortunate, and that what the officer meant to say was: "... our job within the Inland Revenue is to look at serious irregularities". At all events, at that point Mr Hunter intervened and stated that the appellant and his wife had obtained advice from him to the effect that they were not going to answer any questions at all. That effectively brought the interview to an end.

12. The Notice to which we have referred was in inter alia the following terms:

	"2.	The interview has been recorded on tape. One of these tapes ...will be kept securely in case it is needed in court. ...
	3.	If you are informed that you will be prosecuted a copy of the tape will be supplied to you or your solicitor as soon as it is practicable.
	4.	If you have a solicitor, a copy of the tape will be sent to him or her to assist in the preparation of your defence before the case comes to trial. ..."
The Notice then contained a declaration in the following terms:
	"I UNDERSTAND THAT IF I AM PROSECUTED BY THE INLAND REVENUE I AM ENTITLED TO A COPY OF THE TAPE(S)."
The appellant signed that declaration.

13. Mr Hamilton submitted that it could be inferred from that material that at the interview an allegation was being made to the appellant that he had committed a criminal offence. That prosecution was in contemplation was evident from the terms of the caution, the formality of the interview and the fact that the appellant's solicitor was in attendance. That was reinforced by the terms of the notice, which clearly contemplated criminal proceedings. It was accepted that, in Scotland, the appellant could not be "prosecuted by the Inland Revenue" as suggested in the Notice, but it was submitted that that was not fatal to the contention. Although no specific offence was identified, the substance of the allegation was to be inferred from the references to "your business/income tax affairs" and "serious irregularities".
14. In response, the Advocate depute submitted that at the interview there was nothing that could be regarded as an official notification of an allegation that the appellant had committed a criminal offence. Moreover, he submitted that the officers of the Inland Revenue, at least in Scotland where the Inland Revenue has no independent power to institute criminal proceedings, did not represent a "competent authority". He submitted that to be a competent authority, the body in question required to be a part of the criminal justice system, with power to affect the liberty of the citizen and prefer criminal charges in a formal way. The Inland Revenue officers had no power of arrest. The Inland Revenue has no power to institute criminal proceedings, or even to charge a person with a criminal offence in the way that the police can do. Its procedure was simply to report its investigations to the procurator fiscal, and it was for him to decide whether criminal charges should be preferred.
15. In our opinion the Advocate depute's submission that the Inland Revenue is not a competent authority for the purpose of charging a person with a criminal offence is well founded. We note that in McLean v HM Advocate at 143D the court recognised that all the possible starting points envisaged in Eckle related to the start of activities by criminal justice authorities of some kind. In our opinion, the concept of a "competent authority" must in this context imply an authority which is an integral part of the criminal justice system. While it may not be essential that a competent authority should have power itself to institute criminal proceedings, we consider that more is required than power to investigate and (without arresting or charging - in the domestic sense - the suspect) to pass the results of such investigation to another authority for a decision on whether criminal proceedings should be taken. The Inland Revenue is, in our opinion, in a materially different position from the police, who may act under the direction of the public prosecutor.
16. Moreover, we are of opinion that there was nothing said or done in the course of the interview that can properly be regarded as official notification of an allegation that the appellant had committed a criminal offence. At the highest, what took place was an indication that an investigation was being undertaken with a view to ascertaining whether the appellant had committed some form of criminal offence in connection with his business tax affairs. The Inland Revenue had not, at that stage, committed itself to a positive or specific allegation.
17. For these reasons we are of opinion that the Sheriff reached the correct result on the information which was placed before him.

The additional circumstances

18. Mr Hamilton sought, in the course of the appeal, to rely on material which had not been placed before the Sheriff. He explained that it had not been appreciated at the time of the hearing before the Sheriff that there was to be a dispute as to the date when the appellant was first charged in the Convention sense. The Advocate depute did not object to Mr Hamilton's reliance on the additional material. We allowed reference to be made to it.
19. The first additional item was a letter dated 2 December 1998 from the Inland Revenue to the appellant. It began:

"As an employer you have a responsibility to complete certain documents such as forms P35 and P14. There is information in the hands of the Department to suggest that these forms may be incorrect and I would like to speak to you regarding this and your own tax affairs."

The letter went on to propose the meeting on 10 December, to advise that the interview would be conducted under caution, and to suggest that the appellant might wish to have his solicitor present. In a further letter of 6 January 1999, addressed to the appellant's solicitors, the Inland Revenue added:

"The main thrust of the investigation concerns the employers Annual Returns in relation to PAYE Income Tax and National Insurance Contributions. These Returns carry a warning that 'you may be penalised or prosecuted if you make false statements'.

From enquiries made to date it is alleged that overtime has been paid to employees without the deduction of PAYE Income Tax and National Insurance Contributions and these wages have been disguised as 'extra' night away money and inflated expenses.

Obviously questions need to be put to your clients regarding these alleged serious matters ...".

20. Mr Hamilton also sought to rely on file notes kept by the appellant's solicitor. In one, dated 12 January 1999, it is noted that Mr Williamson confirmed that a civil penalty was an available option. However, the next one, dated 18 January 1999, contained the following passage:

"In particular noting from [Mr Williamson] that there was now no way of avoiding this matter being reported to the Inland Revenue Solicitor for the consideration of prosecution."

It then addressed what might happen, on the one hand, if a prosecution were to follow, and on the other, if there was no prosecution. It ended with a paragraph summarising "their [i.e. the Inland Revenue's] main allegation". A further note of a meeting with Mr Williamson on 18 January 1999 described the alleged irregularities in some detail and noted:

"The prosecution was out of the investigation officers' hands. They would out (sic) the facts to the Inland Revenue Solicitor Scotland who would decide whether to refer to the PF Perth or not."

21. Mr Hamilton submitted that that material clarified that the Inland Revenue had criminal proceedings in mind, contained allegations that ultimately were allegations formulated by, rather than merely reported to, the Inland Revenue, and bore the inference that these allegations had been communicated to the appellant through his solicitors. It was confirmed to us that Mr Hunter had communicated the substance of his discussions with Mr Williamson, as recorded in the correspondence and file notes, to the appellant.
22. In our opinion the additional material does not alter the result. We accept that by 18 January 1999 it was clear that the Inland Revenue were not merely considering allegations of irregularities in the appellant's tax affairs reported to them, but were themselves advancing allegations of criminal conduct on his part. The terms of the new material, however, confirm us in our view that there had been no official notification to the appellant by a competent authority. It is clear that the special compliance officers had by 18 January formed a view on the allegation against the appellant, but it is in our opinion significant that they had taken no formal step to give official notification to the appellant. All they had done was engage in informal discussion and correspondence with his solicitor. Moreover, although they had decided to report to the Inland Revenue Solicitor for Scotland, it clearly remained for him to decide whether or not the matter should be reported to the procurator fiscal at Perth for consideration of the prosecution of the appellant. It is implicit in that, that it then remained for the procurator fiscal and Crown Office to decide whether there should in fact be criminal proceedings.
23. In all these circumstances we are satisfied that consideration of the new material laid before us in the course of the appeal does not lead to the conclusion that on 10 December 1998 (or for that matter by 18 January 1999) there had been official notification to the appellant by a competent authority of an allegation that he had committed a criminal offence.

Result

24. We are therefore of opinion that the submission that time began to run, for the purpose of Article 6(1), at the end of 1998 or the beginning of 1999 fails. As we have said above, Mr Hamilton accepted that the appeal stood or fell with that submission. The appeal is accordingly refused.