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Haston & Ors v. Her Majesty's Advocate [2003] ScotHC 51 (15 October 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Kirkwood

Lord MacLean

Lord Osborne

Appeal No: XC898/03

XC899/03

XC900/03

OPINION OF THE COURT

delivered by LORD KIRKWOOD

NOTES OF APPEAL

in terms of section 74 of the Criminal Procedure (Scotland) Act 1995

(1) DARYLL HUGH JOSEPH HASTON, (2) ROBERT HARRY PATERSON and (3) DALE DAVID PRICE

Appellants;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: P. Ferguson; McClure Collins: S. Collins, Solicitor Advocate; Gilfedder McInnes: P. Wheatley, Solicitor Advocate; Fairbairns

Respondent: S. Murphy, A.D.; Crown Agent

15 October 2003

[1] The three appellants, Daryll Haston, Robert Paterson and Dale Price were charged on indictment with assault. The charge narrated that on 28 January 2002, at Calder View, Edinburgh, they assaulted William Scott Watt, and struck him on the head with a stick or similar instrument, repeatedly punched him on the head, knocked him to the ground, jumped on his head and body and repeatedly kicked him on the head and body to his severe injury and permanent disfigurement. The first appellant appeared on petition on 13 May 2003 and the second and third appellants appeared on petition on 17 April 2003, and each of them was released on bail. The indictment was then served for the trial sitting at Edinburgh Sheriff Court commencing on 4 August 2003. Each appellant gave notice of a devolution issue within the meaning of Schedule 6 to the Scotland Act 1998 claiming that there had been such delay in bringing proceedings against him as to breach the reasonable time requirement contained in Article 6(1) of the European Convention on Human Rights. On 29 July 2003 the sheriff heard submissions from the parties, and on 1 August 2003 he repelled each plea in bar of trial and 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] The material facts are not in dispute. The date of the alleged offence was 28 January 2002, at which time the first appellant was aged fifteen years and six months, the second appellant was aged fifteen years and one month and the third appellant was aged fifteen years and eight months. The first appellant was detained and charged by the police on 22 April 2002, when he was fifteen years and nine months old. The second and third appellants were both charged on 24 April 2002 when they were aged fifteen years four months and fifteen years eleven months respectively. It was agreed that 22 and 24 April 2002 were the starting dates from which time began to run for the purposes of the reasonable time requirement contained in Article 6(1).

[4] A police report was first received in the office of the procurator fiscal on 13 June 2002 and was placed in a box pending a discussion between the procurator fiscal and the Reporter to the Children's Panel at their next regular meeting which was due to be held on 25 June 2002. The report covered four accused (including the three appellants) and contained details of five charges which had been preferred. Regular meetings are held between the procurator fiscal and the Reporter to deal with all cases of serious crime allegedly committed by persons under sixteen years of age, so that a decision can be made on whether a child is to be prosecuted in a criminal court or is to be made the subject of proceedings before the Panel. However, no such decision was made at the meeting on 25 June 2002 and instead it was agreed that the procurator fiscal would obtain full police statements so that the precise role of each accused in the alleged crime could be ascertained, with a view to making a decision as to further procedure at the next joint meeting on 17 July 2002. It was initially thought that if criminal proceedings were to be taken, the persons accused might be put on petition. On 11 July 2002 the procurator fiscal sent a memo to the reporting police officer seeking the police statements on an urgent basis. They were expected to be received in time for the meeting on 17 July 2002, but they were not received by then and the police report was simply replaced in the appropriate box. By 18 October 2002 the procurator fiscal's office had apparently still not received the statements and again the reporting officer was requested in writing to lodge full statements. The file was once more replaced in the same box, and on 30 October 2002 a third written request for the statements was made by the procurator fiscal. This elicited a response from the police to the effect that the statements had, in fact, been submitted on 5 September 2002. The sheriff was told that the procurator fiscal's office had still not located these statements at the date of the hearing before him. Another set was, however, forwarded on 13 November 2002 and the case was set aside for discussion at the next joint meeting with the Reporter which was due to be held on 9 December 2002.

[5] On that date a decision was made that the three appellants would be prosecuted on petition, while the fourth person charged by the police would be referred to the Reporter. On 20 December 2002 criminal proceedings against the appellants were instructed in the form of a petition warrant and the case was passed to the procurator fiscal's warrants office. However, it was not until March 2003 that the warrant was typed, and it was eventually passed to the sheriff clerk and signed by a sheriff on 2 April 2003. On its return to the procurator fiscal's office, it was sent on 10 April 2003 to the police for enforcement. The second and third appellants were duly arrested and appeared from custody on 17 April 2003, while the first appellant appeared in court on 13 May 2003. Each was released on bail. The current indictment was then served for the trial sitting commencing on 4 August 2003. As at that date, the first appellant would be seventeen years of age, the second appellant sixteen years and seven months and the third appellant seventeen years and two months. Further, a period of almost fifteen and a half months would have elapsed since the dates on which the respective appellants were charged by the police.

[6] Before the sheriff submissions were made on behalf of the appellants to the effect that the lapse of time in the present case was of such a length as to require an explanation to be given by the Crown. In particular, emphasis was placed on three periods of alleged delay, namely (1) from the receipt of the police report on 13 June 2002 until 17 July 2002 when it was anticipated that a decision on prosecution would be made; (2) from 17 July until 18 October 2002 and (3) from December 2002 until March 2003. The procurator fiscal accepted that the total period of almost fifteen and a half months gave grounds for real concern, but she did not concede that there had been a breach of the reasonable time requirement contained in Article 6(1). The sheriff tells us that the procurator fiscal depute could give him no real explanation as to why her office had not taken more urgent steps to obtain the police statements. Nor was she able to give any explanation as to why there should have been a delay between 20 December 2002, when proceedings were instructed, and the issue of the warrant in March 2003.

[7] The sheriff observed that no satisfactory explanations had been given for the various periods of delay. However, he took the view, under reference to the decision in H.M. Advocate v. D.P. 2001 S.C.C.R. 210, that the impression that youths such as the appellants would be likely to make on a jury if they were tried in August 2003 would not be very different from the impression they would have made if they had been tried about seven months earlier, that being the period of unnecessary delay which was founded upon in the present case. He also observed that the period of delay in this case was by no means unusual in cases of assault, taken either on indictment or on summary complaint, when an adult is the accused. The sheriff also considered it significant, in assessing the reasonableness of the whole period in question, that all the appellants were to stand trial within four months of their respective appearances on petition, well within the time limit set down by our domestic law by section 65(1) of the Criminal Procedure (Scotland) Act 1995, and he stated that once proceedings had been formally commenced a great deal of expedition had been evident. He stated that he was not satisfied, looking at the whole matter overall and taking into account all the facts and circumstances as he was required to do, that the time between the date of charge and the prospective trial date was so unreasonable that none of the appellants could receive a fair trial. He took the view that this case was clearly distinguishable from H.M. Advocate v. D.P., supra. On the whole matter he reached the conclusion that, even allowing for the ages of the appellants and the other factors to which he had referred, the high threshold of proving a breach of the reasonable time requirement contained in Article 6(1) had not been crossed, and in the case of each of the appellants he repelled the plea in bar of trial.

[8] Counsel for the first appellant, Daryll Haston, submitted that the two-stage test set out by Lord Bingham of Cornhill in Dyer v. Watson 2002 SCCR 220 at para. 52 fell to be applied. The Crown had conceded that the period of time which had elapsed gave ground for real concern. The sheriff had held that no satisfactory explanation had been given for the three periods of delay founded on by the appellants and in these circumstances, it was submitted, there was inevitably a breach of Article 6(1). The present case was not a complex one, there were not many witnesses and no criticism had been made of the behaviour of any of the appellants. The sheriff had erred in two respects. In the first place, having decided that there was no reasonable explanation for the periods of delay founded on by the appellants, he should have held that that had automatically resulted in a violation of the reasonable time requirement contained in Article 6(1). In the second place, the issue was whether the trial was to take place within a reasonable time, not whether it was now possible to have a fair trial. The sheriff had erred, and had applied the wrong test, when he had stated that he was not satisfied that the time between the date of the charge and the prospective trial date was so unreasonable that none of the appellants could now receive a fair trial. The plea in bar of trial should be upheld and the indictment against the first appellant should be dismissed.

[9] Mr. Collins, who appeared for the second appellant, Robert Paterson, referred to the two-stage test set out in Dyer v. Watson. The Crown had conceded before the sheriff that the period in question had given ground for real concern, so that the delays which had occurred required to be explained by the Crown, particularly having regard to the fact that all three appellants were children, being under sixteen years of age, when they were charged. In terms of the United Nations Convention on the Rights of the Child, they were entitled to trial "without delay" and the Beijing Rules required that criminal cases involving children should be dealt with without any unnecessary delay. In the present case there were two periods of lack of activity for which no satisfactory explanation had been given, namely (1) from 17 July to 18 October 2002 and (2) from 20 December 2002 to some date in March 2003. Counsel submitted that, as those periods of delay were unexplained, the appellant must inevitably succeed in his plea in bar of trial. In any event, after 17 July no steps were taken to follow up the initial request when the police statements had not been received and, indeed, no further steps at all were taken until 18 October, so that there was an unexplained delay of some three months. A decision to seek a petition warrant had been taken on 20 December, but it had apparently lain for three months waiting to be typed. It was clear that the Crown had failed to give any priority to this prosecution even though the accused were all children. Mr. Collins accepted that the total period in question in this case, namely almost fifteen and a half months, would not be regarded as unreasonable in the case of an accused who was an adult. However, where children were involved, the period was unreasonable. A child accused of a criminal offence was entitled to the protection of the European Convention and the Beijing Rules, and in that connection the law did not distinguish between a nine year old and a fifteen year old. There was no sliding scale and each of them was entitled to the same degree of protection. In the circumstances of this case the lapse of time had not been reasonable and the second appellant's plea in bar of trial should be upheld.

[10] Mr. Wheatley, who appeared for the third appellant, Dale Price, submitted that a child accused was entitled to the full protection of the European Convention and the Beijing Rules, whether he was eight or nine years old or almost sixteen. He accepted that, if the appellants had not been children when they were charged, it would have been difficult to argue that a period of almost fifteen and a half months breached the reasonable time requirement. In this case it had been conceded that the lapse of time gave rise to real concern and, once the sheriff had held that there was no reasonable explanation for any of the delays founded on by the appellants, it was submitted that he was obliged to hold that the period in question had been unreasonable. The case was not a complex one, and there were few witnesses. The delay of almost fifteen and a half months had not been justified and the fact that some of the delay may have been able to be explained was not material. It was necessary to look at the whole picture. In the circumstances, as the third appellant was a child when charged and no reasonable explanation had been given for the periods of delay complained of, the plea in bar of trial should be upheld.

[11] In reply, the advocate depute submitted that the sheriff had reached the correct conclusion. It was accepted that the procurator fiscal depute had conceded before the sheriff that the lapse of time, on the face of it, gave rise to real concern, and she had then laid the full facts of the case before the court. However, she had not admitted that there had been a breach of the reasonable time requirement contained in Article 6(1). Once the Crown had given its explanation of the facts and circumstances of the case, it was necessary for the court to take into account all the relevant information placed before it and decide if there had been a breach of the reasonable time requirement. The test was whether the lapse of time had been excessive, inordinate and unacceptable (R. v. H.M. Advocate 2003 SCCR 19, per Lord Clyde at para. 92). Even though there are periods of delay that are not explained, it does not necessarily follow that the whole lapse of time between charge and trial has to be taken to be unreasonable. In the conduct of any prosecution, errors were liable to be made. What the appellants were urging was a counsel of perfection. In the present case it was accepted that the delay relating to the petition warrant from December 2002 until March 2003 was wholly unexplained. For the earlier period commencing on 17 July 2002 there had been some sort of explanation, although in many ways it was not satisfactory. However, these delays had to be seen in the context of all the other circumstances of the case. Even with these two periods of unexplained delay, the overall lapse of time had not been unreasonable. It was conceded that the absence of any allegations of prejudice by the appellants did not strengthen the Crown case. With regard to the age of the appellants, it was accepted that they were all under sixteen years of age when they were charged and that each of them had come under the definition of "child". It was also accepted that the reasonable time requirement may be different in a case where children are accused as opposed to a case involving an adult. However, it was submitted that the approach to the reasonable time requirement, and the comparable provisions of the European Convention and the Beijing Rules, had to take into account the age of the child. The approach in the case of a child of eight or nine years old would not be the same as in the case of a child who was nearly sixteen. There had to be a sliding scale. The rules constituted guidance and should be applied flexibly, and not rigidly. The fact that there were two young witnesses, who were not complainers, was more relevant to a debate on whether there could be a fair trial, rather than the issue of reasonable time, and in the circumstances of this case was not a relevant consideration. The advocate depute accepted that the question was whether, in the particular circumstances of this case, there had been excessive, inordinate and unacceptable delay. He submitted that the sheriff's references to whether a fair trial would be possible had not been appropriate. It might be that he had applied the wrong test, but he had considered the factors which were relevant, weighed them in the balance and reached the correct conclusion. The advocate depute submitted that the sheriff had not been shown to have erred in law, although it was accepted that the reasons which he gave for reaching his conclusion were badly expressed.

[12] Article 40(2)(b) of the United Nations Convention on the Rights of the Child 1989 provides:

"Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

...

(iii) To have the matter determined without delay ... ".

Rule 20 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 ("the Beijing Rules") provides:

"Each case shall from the outset be handled expeditiously, without any unnecessary delay".

Decision
[13] The proper approach of the court, where it is alleged that there has been a breach of the reasonable time requirement contained in Article 6(1), was set out in Dyer v. Watson, supra. Lord Bingham of Cornhill made the following observations (at para. 52):

"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."

[14] In the present case it was accepted by the advocate depute that at the hearing before the sheriff the procurator fiscal depute had conceded that the lapse of time between each appellant being charged and the date when the trial was due to commence, a period of just under fifteen and a half months, did give grounds for real concern, although she did not concede that the threshold of proving a breach of the reasonable time requirement had been crossed. The procurator fiscal depute gave such explanations as she was able to give, particularly in relation to the three particular periods of delay which were founded on by the appellants. The sheriff, in light of all the information before him and the submissions of the parties, had then to decide whether or not there had been a breach of the reasonable time requirement.

[15] The sheriff sets out in his Note the submissions of the parties and the factors which he took into account. He stated that no satisfactory explanation had been given for the various periods of delay, but he went on to observe that he was not satisfied that "the time between the date of charge and the prospective trial diet is so unreasonable that none of the (appellants) can now receive a fair trial." Later in his Note he stated that he did not read the authorities as holding that failure to justify delay is fatal in every case to a fair trial. In the course of submissions made to us it was submitted that the sheriff had erred in law in the way in which he had approached the present case. There is no doubt that the right to a hearing within a reasonable time and the right to a fair hearing are separate and distinct rights. As Lord Hope of Craighead observed in Dyer v. Watson (at para. 73(a)), it is no answer to a complaint that the right to a hearing within a reasonable time has been violated for the Crown to say that the accused can nevertheless expect to receive a fair hearing. In the circumstances we have reached the conclusion that the sheriff did, in fact, err in the way he approached this case, and the test which he sought to apply. That being so, we are satisfied that the issue as to whether or not there was a breach of the reasonable time requirement is now at large for this court.

[16] As we have said, the facts of the case are not in dispute. The lapse of time with which we are concerned amounts to just under fifteen and a half months, namely from 22 or 24 April 2002 until 4 August 2003. Submissions were made on behalf of the appellants in relation to three periods of allegedly unexplained delay. So far as the period from 13 June to 17 July 2002 is concerned, the police report was received on 13 June, and the decision was taken at the meeting on 25 June to call for full police statements to be made available at the next joint meeting on 17 July. An urgent request was made for the police statements on 11 July and they were expected to be received in time for the meeting on 17 July. In our opinion there was no significant unexplained delay prior to 17 July. However, the same cannot be said of the period from 17 July to 18 October when a further belated request was made for the police statements. That request elicited a response from the police to the effect that the statements had, in fact, been submitted on 5 September. These were apparently not able to be found in the procurator fiscal's office and another set of statements was forwarded on 13 November 2002. This narrative appears to demonstrate a lack of urgency on the part of the procurator fiscal and a period, at least from 17 July until 18 October, when no action was taken at all. The third period, from 20 December 2002 until a date in March 2003, appears to have occurred when the warrant was apparently waiting to be typed and there is no satisfactory explanation for the delay which occurred at that time. In the circumstances we are satisfied that there was unexplained delay in progressing the case which amounted in total to 5 or 6 months.

[17] It was submitted to us on behalf of certain of the appellants that once it was established that there had been a period of delay, for which there was no satisfactory explanation, the total lapse of time must inevitably be regarded as unreasonable. Indeed, it was submitted at one stage that an unexplained delay of even a few weeks would entitle an accused to succeed in a plea in bar of trial based on a breach of the reasonable time requirement. Such an argument is based on a misconception of the issue which is before the court. Once the Crown has conceded that the overall lapse of time, on its face and without more, gives ground for real concern, and has advanced such explanations as it is able to provide, the court must then decide whether the threshold of proving a breach of the reasonable time requirement has, in fact, been crossed, always bearing in mind that that threshold is a high one and that each case must depend on its own particular facts. At that stage the court is not concerned simply with the question whether, within the overall lapse of time, there has been a period, or periods, of unexplained delay. The court must view the whole picture and decide whether the total lapse of time has been shown, in all the circumstances, to constitute a breach of the reasonable time requirement.

[18] The present case does not appear to be a complex one and there were only ten witnesses. There is no criticism of the conduct of the appellants. While it appears that two of the witnesses are only 10 years of age, they would presumably simply be speaking to events which they had witnessed. The factors which were heavily founded on by the appellants related to their respective ages and the manner in which the case had been dealt with by the Crown. All three appellants were under the age of 16 when they were charged with assault, and they were thus all children according to Scots law. However, at the date of the proposed trial, the first appellant would have been 17 years of age, the second appellant 16 years and 7 months and the third appellant 17 years and 2 months. In other words, if the trial had proceeded on 4 August 2003, none of the appellants would at that stage have been children. Further, the trial would have been taking place within about four months of the appellants appearing on petition, and none of them has been detained in custody.

[19] The submissions made on behalf of the appellants generally proceeded on the basis that the total lapse of time would probably not be regarded as unreasonable in a case of adult accused, but was unreasonable in this case because the appellants were under 16 years of age when they were charged. In the case of a child who is charged with a serious criminal offence, it is to be expected that the Crown will seek to accord the case some priority with a view to ensuring that there is no inordinate and unacceptable delay before the trial takes place. It was submitted to us on behalf of the appellants that a case involving an accused child, or a complainer, who is almost 16 years of age should, in relation to the reasonable time requirement, be treated in precisely the same way, and be accorded the same degree of priority, as a case involving a child of 9 or 10 years of age. While we have no doubt that, in relation to a prosecution which involves a child who is either the accused or a complainer, the age of the child is a material consideration which has to be taken into account in relation to the reasonable time requirement, we are not persuaded that the same degree of priority must automatically be given, irrespective of the age of the child. Each case must be determined in light of its own particular circumstances. In this case we have taken into account all the circumstances and the submissions of the parties. In particular, we have had regard to the age of each of the appellants and the periods of delay for which no satisfactory explanation could be given by the Crown. The overall lapse of time in this case was just under fifteen and a half months and the appellants, who were all over 15 years of age when they were charged, have not been in custody. The fact that the trial would be taking place within about four months of the appellants' appearances on petition indicates that there was latterly a degree of expedition. While the procurator fiscal depute conceded that that period of time, on its face and without more, gave ground for real concern, the issue before us is whether, in light of the information now available, the overall lapse of time has crossed the threshold of proving a breach of the reasonable time requirement. On that matter no concession was made by the procurator fiscal depute. As Lord Bingham of Cornhill observed in Dyer v. Watson, supra (at para. 52), the Convention is directed not to departures from the ideal but to infringements of basic human rights. On the whole matter we have not been persuaded that the lapse of time in this case violated the reasonable time requirement contained in Article 6(1) and the appeals are refused.