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Cite as: [2003] ScotHC 66

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Clark v. Her Majesty's Advocate [2003] ScotHC 66 (28 November 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Kirkwood

Lord MacLean

Appeal No: XC1070/03

OPINION OF THE COURT

delivered by LORD KIRKWOOD

APPEAL

under section 74 of the Criminal Procedure (Scotland) Act 1995

HUGH CLARK

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Neil F. McPherson, Kilmarnock

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

28 November 2003

[1] The appellant, Hugh Clark, appeared at Kilmarnock Sheriff Court charged on indictment with assault to severe injury. The charge narrated that on 14 August 2001 at the Foregate, Kilmarnock he assaulted James Cormie, punched him on the face, knocked him to the ground and repeatedly kicked him on the face and body, all to his severe injury.

[2] So far as the procedural history of the case is concerned, the appellant was detained on 3 September 2001, and was interviewed, arrested and charged by the police. He was then released from custody. On 6 November 2002 he appeared on petition at Kilmarnock Sheriff Court in answer to a petition warrant. He was committed for further examination and granted bail. On or about 4 August 2003 he was served with a copy of the indictment citing him to a sheriff and jury sitting at Kilmarnock Sheriff Court on 6 October 2003. The appellant had given 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 25 September 2003 the sheriff heard submissions from the parties, and she refused the minute and granted leave to appeal.

[3] Article 6(1) provides inter alia as follows:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time ... ".

[4] In her report the sheriff has set out the chronology of events which was not in dispute. The offence was alleged to have taken place on 14 August 2001 and on 3 September 2001 the appellant was traced and detained under section 14 of the Criminal Procedure (Scotland) Act 1995. He was interviewed and then cautioned and charged with the offence. On 7 March 2002 the police report was received by the procurator fiscal and on 12 March the case was marked to proceed by way of petition warrant. On 21 March 2002 the petition warrant was passed to the police on the basis that the appellant should be invited to answer the warrant voluntarily at first instance. The police were requested to inform the procurator fiscal if the warrant had not been executed by 21 June 2002. On 22 August 2002, as no information had been received from the police, a letter was sent requesting clarification of the warrant position. On 29 October 2002, no response having been received, a further letter was sent to the police asking for a reply to the previous letter regarding the status of the warrant. On 6 November 2002 the appellant appeared voluntarily and answered the petition warrant. He was committed for further examination and granted bail. On 26 November 2002 the case was allocated to the precognoscer. In May 2003 the precognoscer began interviewing the witnesses and on 16 July 2003 the precognition was sent to Crown Office. On 21 July 2003 the precognition was returned from Crown Office with an instruction for trial before sheriff and jury, and on 5 August 2003 the indictment was served on the appellant with a first diet on 23 September and the trial diet on 6 October 2003. It was common ground that 3 September 2001, when the appellant had been detained, cautioned and charged, was the starting date from which time began to run for the purposes of the reasonable time requirement contained in Article 6(1). Accordingly, the lapse of time which was involved in this case was a period of 25 months.

[5] In the Note of Appeal the grounds for the appeal were stated as follows:

"The Crown having conceded that the overall period of some twenty five months from date of charge to trial diet was on the face of it unreasonable, the Sheriff failed to give due weight to the period between 21^st March 2002 when a Petition warrant was passed to the police and 6^th November 2002 when the said warrant was executed as forming a substantial part of the overall period and for which the Crown could give no satisfactory explanation."

[6] Before the sheriff the procurator fiscal depute accepted that the period of time which had elapsed gave grounds for real concern, and he accepted that there were three periods which required to be addressed, namely (1) from 3 September 2001 until 7 March 2002, (2) from 21 March 2002 until 6 November 2002 and (3) from 6 November 2002 until 5 August 2003. So far as the first period was concerned, the complainer had sustained a back injury which had involved crushed and detached vertebrae, and he had undergone surgery before being released from hospital and fitted with a spinal support. However, it had not been possible to ascertain the effect of the injury on the complainer until his condition had settled. It had not been until March 2002 that the police had been able to confirm that the injury was severe but had not been to the danger of life. The police had done all they could to progress the matter and had been in touch with the complainer's surgeon and consultant. With regard to the second period, it had been considered that the appellant should be invited to attend to answer the warrant voluntarily. When nothing had been heard from the police by 21 June 2002 two reminders had been sent. If there was any undue delay, it was submitted that it had been from 21 June until 29 October 2002. When the appellant had learned that the police were looking for him, he had surrendered to the warrant on 6 November 2002. So far as the third period was concerned, the case had been allocated to the precognoscer on 26 November 2002. There was a video recording of the alleged incident and the precognoscer wished, in accordance with good practice, to view the recording before precognoscing the witnesses. However, in December 2002 it was discovered that the videotape was not compatible with the court system and that it required to be reformatted. In January 2003 the defence had been provided with a list of the Crown witnesses, told of the problem with the videotape and asked if any evidence could be agreed. The defence was not willing to agree any evidence, and the videotape was then sent to be reformatted. This had not been able to be done until May 2000 as the firm involved was very busy, and the delay was outwith the control of the police and the procurator fiscal. The precognoscer began interviewing the witnesses in May 2003, and the precognition process took about three months.

[7] On behalf of the appellant, it was submitted to the sheriff that the lapse of time had been unreasonable. The case could not be described as a complex one, there being only thirteen witnesses, and it had not been suggested that the appellant had contributed in any way to the delay which had taken place. The police report should have been in the hands of the procurator fiscal in four to six weeks, and any aggravations could have been added at a later date. The delay in bringing the appellant to court in 2002 was inexcusable as he had always lived at the same address and worked at the same place. Further, once the appellant had appeared on petition, a further six months had elapsed before the case began to be precognosced.

[8] The sheriff held, so far as the first period was concerned, that the delay had not been unreasonable as the Crown had acted quite properly in waiting to ascertain the exact nature of the charge to be brought against the appellant. The sheriff regarded the second period of delay, from 12 March until 29 October 2002, as being not unreasonable, particularly in view of the fact that the case had not called for high prioritisation. She considered that the third period gave rise to more concern. However, the videotape required to be reformatted and shown to witnesses who had to be precognosced. The delay in serving the indictment had been explained by the Crown as due to prioritisation. On the whole matter the sheriff accepted the explanations given by the Crown for the 25 months lapse of time, and she concluded that the overall delay was not unreasonable. The sheriff also stated that, in reaching her conclusion, the prejudice or absence of prejudice to the appellant was a factor which she was entitled to take into account.

[9] Before us, counsel for the appellant submitted that the procurator fiscal depute had been right to concede that the 25 months lapse of time in this case gave grounds for real concern. Explanations had been given by the Crown for the unnecessary delays which had undoubtedly occurred, but the sheriff had erred in concluding that there had not been a breach of the reasonable time requirement contained in Article 6(1). This was not a complex case and it had not been alleged that the appellant had contributed to the delay. So far as the first period of delay was concerned, the essential nature of the charge had been obvious to the police at the outset and the appropriate aggravations or aggravations could have been added at a later date. With regard to the delay following the issue of the petition warrant, the appellant had not known that his presence was required until he met a police officer in the street and was stopped and asked for his name. He was then told that there might be a warrant for his apprehension, and he thereupon attended voluntarily at the police station. He had a fixed address and was in regular employment, and he could and should have been invited to attend at a much earlier date. There was no suggestion that the appellant had been hiding from the police. The fact that the police had been dilatory did not assist the Crown. Further, it had been unreasonable for the procurator fiscal to give the police three months to tell the appellant that he was required to attend voluntarily. In relation to the third period identified by the procurator fiscal depute, the precognition had taken well over six months to prepare. It was accepted that it was normally good practice to have a videotape of an incident reformatted, if that was required, before the witnesses were interviewed, but a balance had to be struck, particularly in view of the delays which had already taken place. This case had not shown any evidence of expedition on the part of the Crown. Counsel accepted, however, that so far as the issue of prioritisation was concerned, it was for the Crown to decide which cases should take priority.

[10] Counsel submitted that the sheriff had erred in deciding to refuse the minute. Counsel also criticised the way in which the sheriff had reached her decision and, in particular, the fact that she had taken into account whether or not the appellant had suffered prejudice, and had then balanced that consideration against the prejudice sustained by the complainer. The observations of Lord Nimmo Smith in H.M. Advocate v. McGlinchey 2000 J.C. 564 (at page 578-9) relating to the absence of prejudice to an accused were no longer valid. In these circumstances this court should consider the Article 6 issue de novo.

[11] The Advocate depute accepted that the procurator fiscal had been right to concede that the lapse of 25 months had given grounds for real concern. He also accepted that the sheriff had erred in taking into account the issue of prejudice so far as the appellant and complainer were concerned, and that the sheriff had been wrong in purporting to follow the observations of Lord Nimmo Smith in H.M. Advocate v. McGlinchey. While it was not altogether clear that she had, in fact, followed Lord Nimmo Smith's observations, the Advocate depute accepted that, if she had done so, she had erred in her approach to this case, and it would then be appropriate for this court to consider de novo whether the reasonable time requirement in Article 6 had been breached.

[12] It was submitted by the Advocate depute that the threshold of proving a breach of the reasonable time requirement was a high one which was not easily crossed (Dyer v. Watson 2002 SC (PC) 89 per Lord Bingham of Cornhill at para. [52]). An unreasonable time is one which is excessive, inordinate and unacceptable (R. v. H.M. Advocate 2003 SC (PC) 21 per Lord Clyde at para. [8]). With regard to the first period referred to by the procurator fiscal depute, the delay had been due to the need to investigate the extent of the complainer's injuries, and the fact that the surgeons who had been involved required to be interviewed in order to identify what aggravations to the charge should be libelled, and the eventual method of disposal of the case depended on those matters. Some of the delay was due to difficulties which the police had in arranging to interview the surgeons. So far as the period beginning with the issue of the petition warrant to the police was concerned, the initial period allowed by the procurator fiscal was in accordance with normal practice, but the Crown was unable to explain why so much time had elapsed before the appellant answered to the warrant early in November 2002. The delay in the preparation of the precognition was due to the need to have the videotape reformatted, and for that purpose it had to be sent away, the necessary technological services having been contracted out. The firm was extremely busy and at that stage the videotape was outwith the control of the procurator fiscal. The Advocate depute submitted that, after the delays which had been referred to, matters had proceeded expeditiously. Reference was made to Valentine v. H.M. Advocate 2001 S.C.C.R. 727. On the whole matter the reasonable time requirement of Article 6(1) had not been breached.

Decision
[13] As we have said, the sheriff stated that, viewing the matter as a whole, she accepted the Crown's explanations as to the reasons for the delay of 25 months in this case and, in light of the explanations given by the Crown, she was not prepared to hold that the lapse of time was unreasonable. However, at the end of her report she made the following observations:

"In coming to my conclusion I also considered the prejudice or the absence of prejudice to the Appellant as a factor which I was entitled to take into account in terms of Lord Nimmo Smith's observation in HMA V McGlinchey. Mr Muir accepted that there was no prejudice in the actual proceedings due to the fact that the video evidence has been preserved. Mr Muir was at pains to point out that the Appellant was, however, prejudiced in the conduct of his wider life. Whilst I accept this to a certain extent, I have to balance this against the rights of the victim should the case not proceed.

It must also be borne in mind, as Lord Bingham states in Dyer v Watson 2002 SCCR at page 222 that there are practicalities of litigation. I accept the explanation given by the Crown as to the reasons for the delay. I do not accept that the delay will prejudice the appellant in the conduct of this case and whilst it may be said it has prejudiced him in the wider conduct of his life when that is balanced against the victim's rights to have the matter proceed to trial, it is my view that the delay is not unreasonable. I therefor refused the Devolution Minute".

[14] In H.M. Advocate v. McGlinchey, Lord Nimmo Smith, referring to the subject of prejudice, stated inter alia that the absence of prejudice appeared to be a factor which may legitimately be taken into account in considering whether the proceedings had taken place within a reasonable time. However, in Dyer v. Watson, supra, Lord Hope of Craighead made the following observations (at paras. 78 and 79):

"[78] Prejudice has not been identified by the court as a specific factor to which regard must be had when considering whether the period of time was reasonable. But this does not mean that the question of prejudice has been ignored by the guarantees in art 6(1). On the contrary, the risk of prejudice if the guarantees are breached lies at the very heart of the article. The reason why the guarantee of a hearing within a reasonable time appears in art 6(1) is because prejudice is presumed to arise if the guarantee is violated ...

[79] Where significant prejudice due to a period of delay can be demonstrated, it can be taken into account in making the assessment ... But it is not necessary for a person charged who claims that his art 6(1) Convention right has been violated to show that he has suffered, or will suffer, any actual prejudice. The mere fact of inordinate or excessive delay is sufficient to raise a presumption in his favour that he will be prejudiced ... ".

As Lord Hope observed, where significant prejudice can be demonstrated, it can be taken into account when making the assessment. However, it is, in our opinion, quite inappropriate for the court, when considering whether there has been a breach of the reasonable time requirement, to embark on a balancing act in the course of which any prejudice sustained by the accused is balanced against "the rights of the victim" should the case not proceed. In the circumstances of this case we consider that the sheriff, having ascertained the facts, did not apply the correct test. 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.

[15] The lapse of time with which we are concerned amounts to 25 months, namely from 3 September 2001 until 6 October 2003. At the hearing before the sheriff, the procurator fiscal depute conceded that the lapse of time gave grounds for real concern, and for present purposes we shall proceed on the basis, as was conceded by the Advocate depute, that that was a concession which was properly made. Submissions were made to us in relation to the three periods of allegedly unexplained delay. The first related to the fact that the police report was not sent to the procurator fiscal until March 2002, some six months after the appellant had been detained, cautioned and charged. However, the complainer sustained a back injury which involved crushed and detached vertebrae and necessitated surgery. We were told that it was not possible to ascertain the overall effect of the injury on the complainer, and accordingly the aggravation or aggravations which should be libelled, until it had settled, and that the police encountered difficulties in trying to take statements from the surgeons involved. In the circumstances we are not satisfied that there was significant unexplained delay in the preparation of the police report. The second period of delay (which was the one principally founded on by the appellant in the Note of Appeal) related to the period from 21 March 2002, when the petition warrant was passed to the police with an instruction that the appellant should be invited to surrender to it voluntarily, until early in November when he did in fact attend at the police station in answer to the warrant. The police were asked to contact the procurator fiscal if they had been unable to effect service within three months, and we were advised by the Advocate depute that that period was in accordance with normal practice as the police did not give a high degree of priority to dealing with petition warrants where voluntary attendance was invited. However, after the three month period had expired it was two months before the procurator fiscal sent the police a reminder and, no reply having been received, a further two months elapsed before a second reminder was sent. In our opinion, there was in this connection a period of unexplained delay which amounted to some four months, namely from June until October. The third period of delay related to the time which was taken to prepare the Crown precognition. This delay was principally due to the videotape requiring to be reformatted which took about four months. We accept that in a case of this nature it was good practice to have the videotape reformatted before the witnesses were interviewed, and it does appear that the external organisation carrying out the work was very busy, and that for some months the matter was effectively out of the hands of the procurator fiscal and the police. In these circumstances we do not consider that the time taken to produce the precognition can be categorised as unreasonable. After the precognition was sent to Crown Office on 16 July 2003 arrangements were made for the trial to commence on 6 October 2003.

[16] Where it is alleged that there has been a breach of the reasonable time requirement contained in Article 6(1), each case must be considered in light of its own particular circumstances. In this case the accused was an adult and he was not in custody. We have taken into account all the circumstances and the submissions of the parties. While the procurator fiscal depute conceded that the lapse of time of 25 months gave grounds for real concern, the issue before us is whether, in light of the information now available, including the explanations tendered by the Crown, the overall lapse of time has crossed the threshold of proving a breach of the reasonable time requirement, a threshold which, as Lord Bingham of Cornhill observed in Dyer v. Watson, supra, (at para. [52]), is a high one, not easily crossed. 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. While it has taken longer than normal for this case to come to trial, we have not been persuaded, in light of the explanations given by the Crown, that the overall lapse of time violated the reasonable time requirement contained in Article 6(1). We shall answer both questions in the negative and refuse the appeal.