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Cite as: [2005] ScotHC HCJAC_58, [2005] HCJAC 58

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Her Majesty's Advocate v. Farrell [2005] ScotHC HCJAC_58 (11 May 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Penrose

Lord Macfadyen

[2005HCJAC58]

Appeal No: XC974/03

OPINION OF THE COURT

delivered by LORD MACFADYEN

NOTE OF APPEAL AGAINST CONVICTION

ANTHONY THOMAS WILLIAM FARRELL

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

Appellant: Shead; Burnett Christie

Respondent: Turnbull, Q.C., A.D.; Crown Agent

11 May 2005

Introduction
[1] The appellant was indicted at the instance of the respondent to stand trial at Edinburgh Sheriff Court on two charges of being concerned in the supplying of controlled drugs, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. Charge (1) related to the supplying of cannabis resin, a Class B drug, between 27 April and 27 July 2001. Charge (2) related to the supplying of ecstasy, a Class A drug, during the same period.

[2] The appellant was due to stand trial in the sitting commencing on 12 May 2003. However, he lodged a devolution minute alleging that in proceeding against him the respondent was acting in a way which was incompatible with his right to a fair trial within a reasonable time under Article 6 of the European Convention on Human Rights, and that the proceedings were therefore ultra vires of the respondent in terms of section 57(2) of the Scotland Act 1998. The sheriff heard debate on the devolution minute on 29 April and 1 May 2003, and on the latter date dismissed it. Having heard further submissions on the appellant's motion for leave to appeal against her decision in terms of section 74(1) of the Criminal Procedure (Scotland) Act 1995, she refused that motion.

[3] Subsequently, the trial diet was postponed until the sitting commencing on 28 July 2003. On 31 July the appellant pled not guilty to charge (1) and guilty to charge (2) in respect of a single day, namely 27 July 2001. Those pleas were accepted by the Crown. At an adjourned diet on 21 August the sheriff sentenced the appellant to twelve months detention.

[4] The appellant has lodged a Note of Appeal against conviction, in which he advances the following grounds in relation to the sheriff's decision to dismiss the devolution minute:

"a. that the Sheriff erred in refusing the said Devolution Minute and rejecting the submission on behalf of the Appellant that he could not receive a fair trial within a reasonable time

b. that it was incompatible with the Appellant's rights in terms of article 6(1) of the European Convention of (sic) Human Rights for the Lord Advocate to prosecute the Appellant."

[5] When the appeal called before us, Mr Shead, who appeared for the appellant, intimated that he understood that the Crown proposed to argue that the appellant had waived his right to trial within a reasonable time, and invited us therefore to hear the Advocate depute first. We did so, but it became evident that the Crown, while arguing waiver, did not concede that the lapse of time in bringing the appellant to trial had been such as to be incompatible with his right to trial within a reasonable time. It is therefore convenient to set out the chronology that was founded on by the appellant, before turning to consider whether there was any infringement of the appellant's Convention right, and, if necessary, whether the appellant has in the circumstances waived that right

Chronology
[6] The relevant chronology is not in dispute.

On 27 July 2001 the appellant was detained, arrested and charged with offences under the Misuse of Drugs Act 1971 (although not the offence to which he ultimately pled guilty).
On 29 July 2001 the substances which had been recovered at the time of the appellant's detention were sent to the forensic laboratory in Edinburgh for analysis.
On 1 August 2001 the laboratory acknowledged receipt of those substances.
At the end of March 2002 the police telephoned the laboratory to enquire about the analysis, and were informed that the laboratory was very busy and that the substances would require to be transferred to another laboratory in Middlesex for analysis.
The substances were received in the Middlesex laboratory on 19 April 2002.
The laboratory prepared a report dated 28 June 2002.
The report was received by the Crown on 15 July 2002.
A petition warrant was issued to the police on 16 September 2002.
The appellant appeared in court on petition on 10 October 2002.
The appellant was indicted for trial at a sitting commencing on 12 May 2003.
The debate on the devolution minute was heard on 28 April and 1 May.
The appellant pled guilty, to the extent previously noted, at a postponed trial diet on 31 July 2003.

Explanation of delay
[7] Before the sheriff the Crown offered an explanation of the apparent inactivity between July 2001 and July 2002. It was emphasised that the nature of the charges was such that the Crown could not properly proceed with an indictment without evidence of the analysis of the substances. Between August 2001 and March 2002 the prosecuting authorities knew that the substances were at the laboratory awaiting analysis. After a lapse of some eight months, the police reminded the laboratory that a report was awaited. The heavy burden of work placed on the forensic laboratory in Edinburgh was well known to the prosecuting authorities. Cases were prioritised at the laboratory by reference to such considerations as whether the accused was in custody and whether the substances were liable to degrade. A lapse of time of the order of six months was not unusual in cases that were not urgent. When it was found that by March 2002 the substances had not been analysed, steps were taken to have them passed to another laboratory. It was acknowledged that there was a delay of almost three weeks in achieving that. The laboratory in Middlesex reported to the police at the end of June. The police report was submitted to the procurator fiscal on 15 July. The case was marked for petition proceedings on 23 July. The petition warrant was obtained on 11 September, and issued to the police on 16 September. It was executed on 10 October, when the appellant first appeared in court. The report of a drugs expert was obtained by 19 December. Thereafter the appellant was served with an indictment, with a first diet on 29 April and a trial diet on 12 May.

Breach of the right to trial within a reasonable time
[8] In any case in which it is alleged that there has been breach of the accused's Convention right to trial within a reasonable time, the first step is to consider the period of time that has elapsed, or will elapse, between charge and trial. Unless that period is one which, on its face and without more, gives ground for real concern, the allegation can be rejected without further examination of the detailed circumstances. The threshold is a high one: the Convention is not directed at departures from the ideal. If, however, the lapse of time is prima facie unreasonable, it is necessary to examine the circumstances in detail to see if there is a reasonable explanation for the delay which rebuts the prima facie indication. (Dyer v Watson 2002 SC (PC) 89, Lord Bingham of Cornhill at 108E-G, paragraph [52]).

[9] In the present case, the sheriff followed that approach. As she indicates at page 7 of her report, she took the first step of considering whether the period of about 22 months between charge in July 2001 and the original trial diet in May 2003 appeared, without more, to be unreasonable. She pointed out that the prosecutor was entitled to carry out "essential preliminary testing and evidence gathering", and to prioritise cases within the prosecuting system, and concluded that the period was not unreasonable and that the reasonable time requirement had therefore not been breached. The sheriff recognised that in these circumstances she would not normally have had to undertake a detailed examination of the facts of the case, but noted that these facts had been presented to her, and were uncontroversial in the sense that the dates were not challenged. She noted that the lapse of time from August 2001 to June 2002 was the result of the time taken for the analysis of the substances to be carried out and reported upon. She noted the burden of work on the Edinburgh laboratory. She noted the propriety of requiring analysis of the substances before the case was reported for prosecution. She took the view that it was for the laboratory to prioritise cases according to the nature of the substances and the status of the suspect. She therefore rejected the notion that there was a set or standard time that would be reasonable for the completion of the analysis. She therefore concluded that, on a close examination of the circumstances, if that was required, there was a reasonable explanation for the time that had elapsed, and there was no breach of the reasonable time requirement.

[10] Before this court, the Advocate depute submitted that the sheriff's conclusion was correct. He referred to H. M. Advocate v Dodwell and McNee (27 September 2001, unreported) in which a period of 19 months between charge and trial was held not to be prima facie unreasonable. He submitted that that case was indistinguishable, and that it would be splitting hairs to differentiate between a lapse of 19 months and one of 22 months.

[11] Mr Shead submitted that by tendering a detailed explanation of the circumstances to the sheriff the Crown had accepted that the lapse of 22 months was prima facie unreasonable. The explanation tendered was not satisfactory. It showed a problem of systemic under-resourcing at the Edinburgh laboratory. He referred to O'Brien and Ryan v H. M. Advocate 2001 SCCR 542, in which that issue was discussed.

Waiver
[12] On the hypothesis, which he did not accept, that the lapse of time between charge and trial was such as would amount to an infringement of the appellant's right to a trial within a reasonable time, the Advocate depute submitted that the appellant had waived that aspect of his rights under Article 6. He pointed out that at all material times the appellant had the benefit of legal advice. The devolution minute had been lodged raising the allegation that the appellant's right to trial within a reasonable time had been infringed. When that allegation was rejected by the sheriff, leave to appeal had been sought. When leave to appeal was refused, the appellant was aware that the matter could be raised again on appeal after conviction, if he was convicted. In that situation, he had chosen to tender a plea of guilty to part of the indictment and otherwise not guilty. His pleas were accepted. By tendering those pleas, he had waived his right to maintain that the proceedings against him were ultra vires of the respondent by reason of incompatibility with his rights under Article 6. Waiver of an Article 6 right is competent (Millar v Dickson 2002 SC (PC) 30; Robertson v Frame 2005 SCCR). In the present case the intention to give up the right to maintain that the proceedings were ultra vires of the respondent (because the appellant's right to trial within a reasonable time had been infringed) was to be inferred from the acceptance of the respondent's power to bring the proceedings implicit in the tendering of a plea of guilty. No question of lack of requisite knowledge arose in the present case.

[13] Mr Shead submitted that the court should not be satisfied that the case of waiver had been made out. He submitted that, for that plea to succeed, it would require to be shown that the plea of guilty was tendered in the knowledge that to do so would amount to abandonment of the Article 6 point. There was no decision of the court settling the point that a plea of guilty precluded maintenance of the Article 6 point on appeal. The sheriff had refused to grant leave under section 74(1) in part "in order that the matter could proceed to trial reserving of course the appellant's right to appeal on the conclusion of proceedings" (Report, pages 8-9). It would be wrong to hold that in order to preserve the Article 6 point for reconsideration on appeal, the appellant had to withhold a plea of guilty in respect of an offence which he accepted he had committed. The plea of guilty was an acceptance that he had committed the offence, but not an acceptance that the respondent had power to prosecute him in respect of it.

Discussion
[14] In our opinion the sheriff reached the correct conclusion on the devolution minute. In considering whether the reasonable time requirement has been violated in the appellant's case, the first step is to consider whether the period of 22 months between charge and intended trial was one which, on its face and without more, gave ground for real concern (Dyer v Watson per Lord Bingham at paragraph [52]). Another way of expressing the point is to ask whether the period between charge and trial appears prima facie to be an unreasonable one (H. M. Advocate v Dodwell and McNee, paragraph [5]). In asking those questions, it is necessary to remember, as Lord Bingham pointed out in Dyer v Watson (loc. cit.), that the Convention is concerned with infringements of basic human rights, not with departures from the ideal, and that the threshold of establishing breach of the reasonable time requirement is therefore a high one, not easily crossed. In our opinion, it cannot be said that the lapse of 22 months in the present case, of itself and without more, gives rise to a prima facie conclusion that more than a reasonable time had elapsed between charge and trial. We do not consider that we are precluded from that conclusion by the fact that the respondent tendered to the sheriff a detailed explanation of the lapse of time. The offering of such an explanation does not, in our opinion, amount to a concession that such explanation is called for.

[15] It is appropriate, however, since we heard submissions on the detailed circumstances, for us to give consideration to those submissions. It is, in our opinion, right, when considering the lapse of time, to remember the nature of the case. The appellant was found in possession of certain substances. In order to have sufficient evidence to proceed against the appellant for contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971 in respect of those substances, it was necessary to subject them to laboratory analysis in order to confirm that they were controlled drugs. The submission of the substances to the laboratory for analysis was therefore not merely a reasonable, but a necessary step for the police to take. It is not reasonable to expect such a laboratory to be able to deal with each and every sample submitted to it immediately. It is reasonable for there to be prioritisation of the work of the laboratory. Mr Shead accepted that that was so. Since the appellant was not in custody, his case had low priority relative to those in which the accused was in custody pending trial. The indication was that for low priority cases, a waiting period of six months was not uncommon. In the present case, when results were not forthcoming after eight months, the police made inquiries of the laboratory. In light of the information then made available, a decision was at once taken to transfer the substances to another laboratory where the work could be done sooner. Results were then obtained within a few weeks, and matters then proceeded. The circumstances laid before us in this case fall, in our opinion, far short of indicating the sort of systemic failure mentioned in O'Brien and Ryan. We are of opinion that consideration of all the circumstances, if it were necessary and appropriate, would not justify the conclusion that the lapse of time in the appellant's case was unreasonable and amounted to infringement of his Convention right to trial within a reasonable time.

[16] In these circumstances we are of opinion that the sheriff was right to dismiss the devolution minute. That being so, we need not consider the issue of waiver raised by the Crown in the course of the appeal.

[17] The appeal is refused.