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Cite as: [2003] ScotHC 46
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Her Majesty's Advocate v. Morren, [2003] ScotHC 46 (20 March 2003)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord MacLean Lord Osborne
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Appeal No: XC278/03 XC281/03 XC282/03 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTES OF APPEAL by HER MAJESTY'S ADVOCATE Appellant; against ALLAN STUART MORTON, ANDREW GORDON MORREN AND DAVID DUNCAN ORR Respondents: _______ |
Appellant: S. Di Rollo, Q.C., A.D.; Crown Agent
First Respondent: Ferguson; A.G. Malcolm, Kinross
Second Respondent: Renucci; Ward & Co., Perth
Third Respondent: Shead; Drummond Miller, W.S.
20 March 2003
[1] The Crown has appealed against the decision in the Sheriff Court at Perth on 15 January 2003, in which the sheriff dismissed proceedings against the respondents in respect that they were in breach of their rights under Article 6(1) of the European Convention on Human Rights to the determination of the charges against them within a reasonable time.
[2] The proceedings against the respondents were in respect of alleged contraventions of section 13(3) and 13(3)(a) of the Hydrocarbon Oil Duties Act 1979 and section 170(2) of the Customs and Excise Management Act 1979. The charges related to occasions between 1 August 1997 and 31 July 1998 and concerned the alleged misuse of fuel on which a rebate had been allowed for domestic use, and fraudulent evasion of excise duty in respect of such fuel. A fourth accused was Road Movement Services (Scotland) Limited, but no appearance had been made on behalf of that company which was in liquidation.
[3] On 31 July 1998, following a search of the premises of the company, the respondents were interviewed. They were again interviewed on 23 September 1998 when they were charged by the police. It is common ground that the latter date is the starting point for the purposes of determining a reasonable time for the purposes of Article 6(1).
[4] The charges against the respondents were investigated by Customs and Excise until 27 September 1999, when they submitted a report to the Procurator Fiscal at Perth. On 13 October 2000 the respondents appeared on petition in respect of these charges. An indictment was served on them in June 2001, with a first diet on 9 July and a trial diet on 6 August. In early July the respondents lodged devolution minutes challenging, under reference to Article 6(1), the continuance of proceedings against them. Thereafter the trial diet was continued on a number of occasions until 2 October 2002, when the instance fell owing to the fact that there was not a sitting at which the indictment could be called. A second indictment was served on the respondents, with a first diet on 30 October and a trial diet on 11 November. The trial diet was in due course continued to 27 January 2003. The twelve month time limit under section 65(1) of the Criminal Procedure (Scotland) Act 1995 had been extended on a number of occasions, latterly to 1 May 2003.
[5] In his report the sheriff sets out submissions which were presented to him on behalf of the respondents and the Crown. He concluded that the period of four years and four months which had elapsed since 23 September 1998 gave grounds for real concern, and hence called for an explanation. He did not express dissatisfaction with the time which the Customs and Excise had taken for the investigation of the case. He also noted that the period which had elapsed since the service of the first indictment could be explained by the fact that both the Crown and the defence wanted to await the decision of the Privy Council in Dyer 2002 SC (PC) 89 and R v Her Majesty's Advocate 2003 SCCR 19, which were decided on 29 January and 28 November 2002 respectively. On the other hand, it seemed to the sheriff that there were two periods in which problems had arisen.
[6] The first was from the end of September 1999 until March 2000. During that period, in his words, "nothing was done by the Crown to advance the matter, this against a background that a year had already elapsed from the respondents being charged". The sheriff was informed that following the receipt of the report by the Customs and Excise, the precognition of the case was allocated to the Regional Precognition Unit of the Regional Procurator Fiscal's office in Dundee. The Procurator Fiscal Depute to whom the case was allocated met representatives of the Customs and Excise on 26 October 1999. The purpose of the meeting was to appraise her of the case, so that she could assess the work and time which would be involved. However, in early March 2000 she indicated that, arising from the pressure created by her workload, she could not adequately deal with the matter. On 22 March 2000 the case was allocated to another Procurator Fiscal Depute, who thereafter proceeded with the necessary enquiry and precognition.
[7] The second was the period which elapsed between the respondents' appearance on petition on 13 October 2000, and 6 August 2001 when they had been due to come to trial on the first indictment. The sheriff observed that the Crown had shown no urgency to remedy the position.
[8] Before coming to the main submissions which were presented in this court, we should mention a preliminary submission which was made by Mr Ferguson on behalf of the respondent Morton. He pointed out that the notes of appeal, which were hand-written, were devoid of any specification of the respects in which the sheriff had fallen into error. The ground of appeal was stated to be simply "that at no time during the period from charge of the accused until 15 January 2003 was there such lapse of time as constituted an unreasonable delay in proceeding with the case to trial and that the entire period from charge until said date was in the circumstances pertaining to it not unreasonable". In view of the absence of specification, Mr Ferguson invited the court to refuse to entertain the appeals. At the same time he accepted that he was not prejudiced by any lack of notice. For this reason we are prepared to entertain the appeals. However, this should not be taken as a mark of approval of the terms in which the notes of appeal were drawn. It is plainly very important, as well as in accordance with good practice, that specific grounds of appeal should be stated. The substance of what is stated in the Practice Direction dated 29 March 1985 in regard to criminal appeals, applies also to appeals under section 74 of the 1995 Act.
[9] We turn now to the main submissions which were presented by the Advocate depute. He submitted that the sheriff had fallen into error in directing his attention to the period of four years and four months. The correct period, he submitted, was from 23 November 1998 to 6 August 2001. He pointed out that, had it not been for the devolution minutes, the case would have gone to trial at the latter date. The delay since that date had been due to the desire of all parties to await the decisions of the Privy Council. The elapsing of some two years eleven months until 6 August 2001 was not unreasonable. Had the case been one involving a child, it might have called for an explanation.
[10] The Advocate depute went on to submit that in any event there was a satisfactory explanation for two periods to which the sheriff had directed criticism. As regards the first, the Advocate depute accepted that, following the meeting on 26 October 1999, there had been inactivity on the part of the Crown. It was not until March 2000 that the Procurator Fiscal Depute had indicated her inability to deal with the case. This was how the problem had come to light. However, a relatively short period had elapsed. While the Advocate depute stated that the work of such officials was generally supervised, he was unable to say whether there was any system for indicating a time which the preparation of cases should take. He emphasised that the case was a complex one, although it was not of the most complex type. It involved 39 witnesses, 201 documentary productions and 32 label productions. It had been necessary to investigate previous suppliers of diesel, going through considerable documentation and preparing a circumstantial case. Large quantities of fuel had been obtained and used. It was not a straightforward matter. He accepted, however, that these remarks applied to the whole investigation which began with the work done by the Customs and Excise. The Advocate depute accepted that he was not able to make a comparison of the product of the Custom and Excise investigation with what was required by the Procurator Fiscal. However, he said, it should not be assumed that the papers supplied by the Customs and Excise were close to a state which would enable the case to be taken straight into court. The Procurator Fiscal had had to precognosce the case, and to consider the relationship of various persons to the company, the method of payment over a period of time and the identification of the persons responsible for seeing that the tanks were filled up with fuel. During the relevant period the respondents were a director, a manager and a driver.
[11] We are satisfied that the sheriff was correct in considering the whole period which had elapsed by 15 January 2003. At that date the charges which had been brought against the respondents were due to be determined within a relatively short period. We see no reason why the relevant time should be treated as ending when the charges might have been, but were not in fact, determined. It does not follow from the fact, if it be the fact, that there is a satisfactory explanation for part of the time that this affects the overall time which has to be considered. It is relevant if the overall time calls for an explanation. In Dyer v Watson 2002 SC (PC) 89 Lord Bingham of Cornhill stated at para.52:
"In any case in which it is said that the reasonable time requirement... 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."
[12] The question then is whether there are grounds for this court to interfere with the conclusion which the sheriff reached that, having considered the explanations which were given for the elapsing of four years and four months, it was a breach of the respondents' rights under Article 6(1) that the charges had not been determined within that period. There was no suggestion that the sheriff failed to take into account any relevant factor. As we have already narrated, in this court there was some reference to the priority that should be accorded to one type of case as compared with another. We can readily understand that it would be reasonable to distinguish cases according to factors such as the age of the complainer or some particular consideration indicating the need for urgency. However, it is entirely a matter of speculation whether such considerations have any connection with the history of the present case. It does not appear to have been submitted to the sheriff that there was any system to this effect, let alone that its operation had a practical effect on the progress of this case. When asked about such a system, the Advocate depute was unable to shed any light on this.
[13] The Advocate depute submitted, as we have noted, that the sheriff had not attached sufficient importance to the complexity of the present case. However, it is clear from his report that the sheriff took the matter of complexity into account, no doubt in the light of the description of the case which was given to him. The Advocate depute's complaint on this score therefore comes to be one about the weight which the sheriff should have given to this factor. There was no suggestion that the view which the sheriff had taken about this was unreasonable. Lastly, the Advocate depute expressed resistance to the criticism that, in the light of the earlier delay, the prosecutor should have sought to compensate for this. In our view, the sheriff was entitled to take account of the fact that he did not appear to have done so.
[14] In Dyer v Watson Lord Rodger of Earlsferry at paragraph 161 observed:
"In concluding these general observations and turning to the two cases under appeal by the Crown, I would note once more that the exercise which a court has to carry out when considering the reasonable time requirement in Article 6(1) involves ascertaining the relevant facts and applying the test described by the European Court to those facts. That exercise will require the judge to weigh and balance a number of different factors in coming to his conclusion. Where a judge has ascertained the facts and has applied the proper test, his decision will not be open to challenge, even where the judges in any appeal court might themselves have reached a different decision."
These comments appear to us to apply to the present case. We are satisfied that the sheriff applied the correct test and, having ascertained the relevant facts, his decision is not one with which it is appropriate for us to interfere, even if we had been of the view that we would have reached a different conclusion on those facts. In these circumstances the appeals will be refused.
[15] Before parting with this case, we would add this comment. It is important for the prosecutor to bear in mind not only that the elapsing of time may cause a case to fall foul of the reasonable time requirement of Article 6(1) if satisfactory steps are not taken in order to maintain progress, but also that, if there is a reasoned and reasonable explanation for the actual progress of a case - whether it relates to the system and order of priorities which were in operation, or to its particular circumstances - it should be clearly and adequately set out before the court of first instance. If this is not done, it may prove difficult, if not impossible, to make good the deficiency at the stage of an appeal.