APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: XC901/06
OPINION OF THE COURT
delivered by LORD OSBORNE
NOTE OF APPEAL UNDER SECTION 74 OF THE CRIMINAL
In the cases of
(First) MOHAMMED SARFRAZ SATTAR and
(Second) RONNIE ABIMBOLA DECKER
HER MAJESTY'S ADVOCATE
Act: Forbes; Balfour & Manson, Edinburgh - for Sattar;
Shead; Pinsent Masons,
Alt: McNeill, A.D.; Crown Agent
15 May 2007
The Background Circumstances
 The appellants have been indicted on a charge of contravention of section 72(1) of the Value Added Tax Act 1994, involving the fraudulent evasion of payment of Value Added Tax in cumulo in the sum of £37,060,178.04. Each appellant has lodged a devolution minute in which he avers that his right to a "fair and public hearing within a reasonable time", under Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms has been infringed. It is contended in these devolution minutes that the taking of the indictment served upon the appellants to trial would be ultra vires of the Lord Advocate, by virtue of section 57 of the Scotland Act 1998.
chronology of the criminal proceedings against the appellants has been set out
in detail in document A in the folder of documents furnished by the
Crown. The dates of the relevant events
were not controversial. The principal
features of that chronology are that on
 The case came
before the Judge of First Instance on
 As the Judge
of First Instance observes, in his Report to this court, in the course of the
hearing on 23 August 2006, it became clear to him that certain of the
information being provided by the Crown as to the history of the case was vague
and unsatisfactory. That situation was
not corrected following an adjournment to
Submissions for the
First Named Appellant
 At the outset of the hearing before us, counsel for the first named appellant drew attention to the grounds of appeal tabled on behalf of his client. These grounds are in the following terms:
"(a) It is respectfully submitted that the learned Judge erred in attaching too much weight to the complexity of this case. Whilst it is accepted that the case against the appellant involves a significant number of witnesses and to date 239 productions, with more added by the Crown by way of further section 67 Notices on 18 December 2006, it is nonetheless submitted that this case, whilst complex, is not exceptional in the scheme of offences of this type. In Dyer v Watson 2002 SC (PC) 89, at paragraph 53, Lord Bingham states: 'But with any case, however complex, there comes a time when the passage of time becomes excessive and unacceptable.'
(b) It is respectfully submitted that the learned Judge erred in failing to take into consideration a relevant factor namely the absence of explanation by the administrative and judicial authorities as to why the case was not accorded the necessary priority given the passage of time which elapsed during their investigations. The affidavits produced to the Court by the Crown demonstrate that the Crown were in control of the case from an early stage and as a result were directing the investigations by HM Customs and Excise. However, none of the said affidavits indicate that there was any recognition by those involved that 'the clock was ticking'. In the said case of Dyer v Watson at paragraph 55, Lord Bingham states: 'But a marked lack of expedition, if unjustified, will point towards a breach of the reasonable time requirement....'".
 Counsel went on to draw our attention to the observations of Lord Bingham of Cornhill in Dyer v Watson at paragraphs 52 to 55. There was no dispute concerning the legal criteria which had to be applied in a case such as this.
counsel alluded to document A, setting out the detailed chronology of the
case. He pointed out that the appellants
had been charged as long ago as
submitted that the period between 15 January and
 Turning to consider the terms of the Report of the Judge of First Instance, counsel submitted that he had given too much weight to the alleged complexity of the case. It was what was known as a "carousel fraud". The Crown Office had had previous experience of such cases, which were not novel in any respect. While it was accepted that a sum of £35m was involved, that there were 290 documentary productions extending to 6000 pages, that there was a foreign element and that forensic accountants had been involved, these features did not make the case exceptional. It was not contended that the Judge of First Instance had misdirected himself in any particular respect; the submission was that he had given undue weight to certain features of the case. Counsel accepted that there was no other period than that specified by him that showed lack of appropriate expedition.
Submissions on behalf
of the Second Named Appellant
 Counsel moved the Court to allow the appeal. He drew attention to a passage in the speech of Lord Rodger of Earlsferry in Dyer v Watson, at paragraph 161. Albeit that that passage indicated that an Appeal Court would not disturb a decision by a Judge of First Instance in a matter such as this because it might have itself reached a different view, in the present case there were grounds to disturb that decision. He invited the Court to examine the whole period of time that had elapsed since
 Counsel drew attention to the grounds of appeal for the second named appellant. There was no dispute that the period of time which had elapsed since the appellants had been charged was such that the Crown required to provide an explanation. There was no suggestion that the conduct of the appellants themselves had contributed to the delay. Certain parts of the grounds of appeal had to be emphasised:
"It is accepted that the case was complex and that of necessity would take some time to prepare for trial. Nevertheless, it is submitted that the period viewed as a whole was one which represented a breach of the right referred to.
Affidavits lodged by the Crown served to demonstrate that from the earliest stage of the case it was being directed by Crown officials. Notwithstanding their involvement, it is submitted that the case was not progressed with the necessary expedition and such information as was provided to the Court about the progress of the case was insufficient to explain satisfactorily the lapse of time."
Those grounds reflected the second named appellant's position.
 As regards the
conclusion of the proceedings, the prediction was that the trial diet would
take place towards the end of 2007, or possibly early in 2008. Recognition of that exacerbated the
situation. One of the particular
difficulties that the second named appellant's advisers had faced had been
created by the remodelling of the Crown case.
The Crown did not appear to know what its case should be. The Bondhouse
ruling was a "red herring". There would
have been no difficulty from the first in formulating the charge against the
appellants as one of common law fraud.
It had to be recognised that the Crown Accountant's Report itself had
been remodelled, causing further delay.
Counsel drew our attention to Her
Majesty's Advocate v Morton &
Others 2003 S.C.C.R. 305 at page 308, paragraph 11; also Mellors
v The United Kingdom 2003 S.C.C.R.
407, a decision of the European Court of Human Rights. It was evident from this latter case and
particularly paragraphs 34 and 35 at page 427 that that court was prepared
to isolate particular periods during the history of proceedings which
themselves might be productive of a breach of the obligation created by
Article 6(1). It was not
appropriate to ignore the need for some time to devoted to the preparation of
the defence case. The Judge of First
Instance had misdirected himself, particularly in regard to the period since
Submissions on behalf
of the Crown
 The Advocate depute moved the Court to refuse the appeals. The Judge of First Instance had reached the correct decision. It was proposed to deal with the case of the two appellants separately. Dealing first with the appeal of the first named appellant, counsel had founded on a very limited period from
 The Bondhouse decision had been a matter of importance to the Revenue and Customs and to the Crown in this case. The issues arising in this case had had to be clarified before a final decision could be reached as to appropriate charges in the present one. Quite apart from that, the present case was a complex one; difficulties arising in it had to be dealt with as they arose.
 The Advocate depute relied on Reilly v Her Majesty's Advocate 2000 S.C.C.R. 879, a case involving embezzlement. In that case a period of inactivity had been identified from June to October, but that had not been seen as fatal to the position of the Crown. In the present case there was no basis for saying that the Judge of First Instance had overestimated the complexity of the case. It was truly a complex case for the reasons given by him in his report at pages 4, 7 and 8. It was the complexity of the case that explained the undoubtedly long time which it had taken to reach the stage of final preparation.
 The Advocate depute
turned next to deal with the appeal of the second named appellant. Counsel for the second named appellant had
focussed upon the period from April 2004 to the anticipated date of the
trial. In principle, there was no
difficulty about considering that period of time. It was entirely justified for the Judge of
First Instance to conclude that the most substantial period of time between
April 2004 and the contemplated trial date had been occupied by the making of
arrangements for the defence. None of
the procedure which had followed
 Before us there was no dispute as to the legal principles to be applied to these appeals. They were to be gleaned from Dyer v Watson. In paragraphs 52 to 55 of the judgment of Lord Bingham of Cornhill, the relevant principles were explained. In paragraphs 52 and 53 he said this:
"In any case in which it is said that
the reasonable time requirement (to which I will henceforwards 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 infringement 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. The
first is that it is necessary for the Court to look into the detailed facts and
circumstances of the particular case.
53 The Court has identified three areas as calling for particular inquiry. The first of these is the complexity of the case. It is recognised, realistically enough, that the more complex the case, the greater the number of witnesses the heavier the burden of documentation, the longer the time which must necessarily be taken to prepare it adequately for trial and for any appellate hearing. But with any case, however complex, there comes a time when the passage of time becomes excessive and unacceptable."
 In paragraphs 54 and 55 of his judgment Lord Bingham dealt with the second and third matter to which he referred in paragraph 53. The second was the conduct of the defendant. He expressed the view that a defendant could not properly complain of delay of which he was the author. In paragraph 55, he dealt with the third matter routinely considered by the Court in such cases, the matter of resources. A shortage of resources could not be blamed by contracting states for unacceptable delays, however, a court system and a prosecutor were entitled to prioritise the business with which they had to deal.
 In the context of an appeal in relation to an issue arising out of Article 6(1) of the Convention, it is also appropriate to mention the observations of Lord Rodger of Earlsferry in paragraph 161 of the same case. There he said:
"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
 It was a matter of agreement before us and had been before the Judge of First Instance that the period of time which had elapsed in this case was indeed a cause of "real concern". Accordingly, it was necessary for an examination of the circumstances of the case to be conducted in detail with a view to seeing whether the reasonable time requirement had or had not been breached. The Judge of First Instance took the unusual course of obtaining several detailed affidavits from individuals who had been intimately connected with the preparation of the case with a view to reaching conclusions as to what had occurred. We feel able to rely upon his factual findings arrived at in that way.
 While the time which has elapsed since the starting point of 21 March 2001 has been long and plainly did require an explanation, having considered the detailed chronology which has been prepared by the Crown and the material in the affidavits obtained by them, we consider that the Judge of First Instance had material before him which was quite capable of explaining and justifying the lapse of time which had occurred. Had we ourselves been in his position, we do not consider that we would have reached any conclusion different from that which he reached. In particular, we are in complete agreement with his observations in the last paragraph on page 4 of his Report concerning the complexity of the case and its significance.
 Before us
counsel for the first named appellant focused particularly on the period
 Turning to the
position of the second named appellant, the criticism advanced on his behalf
was of a more general nature. As we have
already indicated, having examined the events which occurred during the
undoubtedly prolonged period of time during which these proceedings have been
live, we are not persuaded that the delay which has taken place is unreasonable
in terms of Article 6(1). In
connection with that appellant, we do not consider that the Judge of First
Instance has erred. It cannot be said
that he has ignored the period from
"It seemed to me that the sequence of event after the appellants appeared on petition was largely dictated by defence preparation and that the desertion in order to reconsider the charges was reasonable."
We do not think that that observation can be impugned. In all these circumstances the appeals are refused.