Scottish High Court of Justiciary Decisons

For the Minuter: W McVicar Solicitor Advocate, John Henderson & Sons

For the Crown: Kennedy AD; Crown Agent

13 August 2007

[1] The Minuter is D P. He is 52 years of age. On 29 June 2007 he appeared at a preliminary hearing at Glasgow to answer an indictment in which there are four charges. The charges are as follows:

[2] At the preliminary hearing the solicitor advocate acting for the Minuter lodged a special defence of alibi in relation to charge (4). It is there stated that he left Dumfries in December 1985 and did not return to Dumfries at any time until after the end of the period in the libel. The solicitor advocate also intimated that he wished to raise preliminary issues within the meaning of section 79(2)(b) of the Criminal Procedure (Scotland) Act 1995 and a devolution issue within the meaning of schedule 6 to the Scotland Act 1998. The preliminary issues are canvassed in a Minute dated 21 June 2007. Put shortly, in that Minute the Minuter objects to the latitude of time taken by the prosecutor in the drafting of charges (1), (3) and (4). The contention is that the failure to give greater specification deprives the Minuter of fair notice and "deprives him of the ability to rely on a special defence of alibi". It is further contended that charges should be separated with a view to trying charges (1) and (3) in a separate trial from that in which charges (2) and (4) are tried. The devolution issue is raised in a Minute dated 7 June 2007. The contention there is that it would be unlawful for the Lord Advocate to proceed with charge (3) given that it relates to alleged conduct between 27 June 1982 and 7 August 1984 and that the Minuter was interviewed under caution by police officers in England during the course of 1996 in connection with the subject matter of the allegation contained in that charge. To allow the proceedings to continue in respect of that charge after a delay of 11 years would result in a contravention of the Minuter's human rights as guaranteed by Article 6(1) of the European Convention.

[3] The preliminary hearing was continued until 6 August 2007 in order that the issues raised in the Minutes to be disposed of.

[4] The continued hearing called before me. The issues were dealt with in the following order: delay, specification, separation of charges. I shall discuss them in the same order.

[5] I began by inquiring whether parties were in agreement as to what had occurred in 1996. It transpired that they were. The Advocate Depute provided an account and Mr McVicar, on behalf of the Minuter, confirmed that the account was accepted by him as being accurate. The Advocate Depute stated that on 27 September 1996 the complainer in charge (3) made a complaint to the police in Dumfries about the behaviour of her father on one occasion when she was a child. The police noted her statement. The police interviewed other family members, including the Minuter's former wife, the mother of the complainer in charge (3). The Advocate Depute could not say whether the police interviewed or attempted to interview the complainer in charge (1). At any event, no complaint was elicited from her. As the Minuter was then living in England the police in Scotland asked the police in Lancashire to interview the Minuter under caution in relation to the allegations made by the complainer in charge (3). The Lancashire police did so. In the course of that interview the allegation which now forms the substance of charge (3) was put to the Minuter. He denied the allegation. The Minuter was not formally charged. Any record of that interview has been destroyed but the Minuter's denial was reported back to the police in Dumfries. As all that was then available was the allegation by the complainer in charge (3), the police in Dumfries formed the view that there was insufficient evidence to proceed and did not report the matter to the Procurator Fiscal. No review was carried out until 2005 when (on 3 August 2005) the complainer in charge (1) made the allegation now found in that charge.

[6] As matters developed, the parties came to be at one as to the relevant law. An accused is entitled by virtue of Article 6(1) of the European Convention on Human Rights, in the determination of any criminal charge against him, to a fair and public hearing within a reasonable time. The right to a hearing within a reasonable time is independent from the rights to a fair and public hearing: Mills v HMA 2003 SC (PC) 1. The question therefore arises: a reasonable time from what date? The European Court of Human Rights answered that question in Eckle v Germany (1983) 5 EHRR 1 where, at paragraph 73 of the judgment, it defined the date from which the reasonable time in Article 6(1) begins to run in these terms:

"In criminal matters, the 'reasonable time' referred to in Article 6 (1) begins to run as soon as a person is 'charged'; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened. 'Charge' for the purposes of Article 6 (1) may be defined as 'the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence', a definition that also corresponds to the test whether 'the situation of the [suspect] has been substantially affected.'"

The concept of "charge" for the purposes of Article 6(1) is accordingly autonomous in the sense that it is distinct from a charge as that would be understood in terms of our domestic law. As appears from the discussion and citation of authority in Clayton and Tomlinson The Law of Human Rights (2000) at paragraphs 11.181 the mere fact that the police are investigating an offence is not tantamount to the existence of a criminal charge. Clayton and Tomlinson note however, at paragraph 11.182, the possibility of arguing that questioning of an individual as a suspect might be the equivalent of a charge. The Crown conceded the soundness of such an argument in Robb v HMA 2000 JC 368 (with the approval of the court: supra at 377C; and see also Reilly v HMA 2000 SLT 1330 at 1332A). Thus, while something might turn on the content of the interview, police questioning during which an allegation of having committed a criminal offence in relation to a specific complainer can amount to a charge in a Convention sense and thus set the relevant reasonable time period running. While there may be a question as to whether, as a matter of generality, police in England can be regarded as a competent authority for the purpose of a Scottish prosecution (cf Unterschutz v HMA 2003 SLT 702 at 706C, and HMA v Shell UK Ltd 2003 SLT 1296 at 1299I) in the present case the Lancashire police questioned the Minuter at the specific request of the police in Dumfries and therefore would appear to have been acting as their agents. The Advocate Depute accordingly conceded, correctly in my opinion, that the relevant period ran from the 1996 interview and that it therefore now extended to some 11 years.

[7] The question then is whether this lapse of time of the order of 11 years has had the result that the Minuter is being denied his right to a hearing within a reasonable time. The approach to be adopted by the court in considering such a question is set out in the judgment of Lord Bingham in Dyer v Watson 2002 SC (PC) 89 at 108E:

"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."

[8] In my opinion a period of 11 years from what is to be regarded as a charge "on its face and without more" gives grounds for real concern that the Minuter may be denied the fair and public hearing "within a reasonable time" to which he is entitled. That the Minuter does not in fact want such a hearing is neither here nor there. That he is one of these accused, identified by Lord Rodger in Dyer v Watson supra at 135C, whose interest in invoking their Article 6 right is not to benefit from its fulfilment but to benefit from its breach is of no consequence. As the Advocate Depute came to concede after a short excursion into the decision of the House of Lords in Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72, unless the Crown can justify this lapse of time the Minuter cannot be tried on charge (3). This is because in terms of section 57 (1) of the Scotland Act the Lord Advocate, as a member of the Scottish Government, has no power to do any act which is incompatible with the Convention. To continue with a prosecution the inevitable consequence of which will be that the accused is not brought to trial within a reasonable period of time would be incompatible with the accused's Convention rights. The Lord Advocate therefore does not have the power to continue such a prosecution and the court may so declare. Thus in any case when it becomes clear that there is no prospect of the accused being tried within a reasonable time the result of the inter-relationship as between section 57(2) of Scotland Act 1998 and the Convention means that effectively he becomes entitled not to be tried at all: Dyer v Watson supra at 135H; HMA v R 2003 SLT 4.

[9] However, before finally concluding that there has been unreasonable delay the court must look into all the facts and circumstances in detail and require the contracting state, through its representative, the prosecutor, to explain and justify any lapse of time which appears to be excessive. In determining what it should make of the state's explanation and justification, the court will pay attention to the three areas indicated by Lord Bingham on the basis of his review of the European jurisprudence as calling for particular inquiry: the complexity of the case, the conduct of the accused, and the manner in which the case has been dealt with by the administrative and judicial authorities: Dyer v Watson supra at 108G to 109E. The court will bear in mind that the right to a trial within a reasonable period of time is an important one. It will also bear in mind that the threshold of unreasonable or excessive delay is a "relatively high threshold": Dyer v Watson supra, Lord Hope at 115C. Importantly, it will bear in mind that "the only norm applied by the [European Court of Human Rights] is its conception of what is reasonable in the particular circumstances of the case": Dyer v Watson supra, Lord Rodger at 132D, the question being whether there has been excessive delay, not whether the performance of the prosecution has been optimal: Dyer v Watson supra Lord Rodger at 132G. There may be an infringement of the reasonable time requirement in the absence of specific prejudice but absence of prejudice is a relevant consideration: Dyer v Watson supra, Lord Rodger at 131C adopting what was said by the Court in Gibson v HMA 2001 JC 125 at 129F.

[10] Here what was relied on by the Advocate Depute as explaining and justifying the lapse of time came within a short compass. In 1996 the police in Dumfries had investigated the complaint made by the complainer in charge (3). They had interviewed family members. This had given rise to a number of allegations about the behaviour of the Minuter but had not produced corroboration for the complaint made by the complainer in charge (3). No further action was taken. This was entirely reasonable in the circumstances. In response Mr McVicar did not dispute that the reasonableness of the period fell to be judged, inter alia, by reference to the way in which the matter was dealt with by the relevant authorities but he focused on the Advocate Depute's inability to say whether the complainer in charge (1) had been interviewed as part of the investigation by the Dumfries police. It was for the Crown to explain the delay here. They were unable to do so or at least unable to do so in a way that demonstrated that the relevant authorities had acted reasonably.

[11] The Advocate Depute did not dispute that it was for the Crown to explain and justify the delay. It therefore appears to me that when the Crown is unable to say what happened at a particular stage of events, it is appropriate to proceed on the basis of the factual assumption which is most favourable to the accused. Here the Advocate Depute did not know whether the police had interviewed the complainer in charge (1) in 1996. I therefore considered it appropriate to assume that they did not. Mr McVicar agreed that this was the more favourable assumption from the perspective of the Minuter. He argued that it would have been only common sense for the police when faced with an allegation of sexual abuse from one female family member to seek out and interview other females in the family who were of a similar age to that of the complainer in charge (3). They are to be assumed not to have done so and therefore they had not acted reasonably.

[12] What I took to be the common approach as between the Advocate Depute and Mr McVicar was that a lapse of time as between an allegation being intimated to an individual and the institution of criminal proceedings against him will not be regarded as delay, let alone unreasonable delay, where there has not been a sufficiency of evidence available to the relevant authorities such as to justify the institution of proceedings. However, that will be so only where the relevant authorities have acted with proper diligence to make inquiry when advised of the original allegation. If there has been a failure to make diligent inquiry then the relevant authorities will not have acted reasonably and the lapse of time will fall to be regarded as delay for which these authorities are responsible. The only authority to which I was referred was Stewart v HMA 2005 SCCR 635 where Lord Nimmo Smith, giving the opinion of the Court observed, at 652F: "Delay on the part of complainers is not relevant for the purposes of Article 6 (1)." However, the way in which the matter was approached by parties would seem to be correct. It is consistent with the way the issue was dealt with in Stewart (supra at 643D to F). The Convention gives rights which the citizen can assert against the state. In terms of Article 6(1) the citizen is entitled to require from the state a fair and public hearing of any criminal charge against him. An aspect of that may be an entitlement to a reasonably diligent investigation of any allegation that might form the basis of a criminal charge but once there has been an investigation which has failed to produce sufficient evidence to justify proceedings it is difficult to see how Article 6 can require more of the state. No further action would seem to be the only reasonable course until circumstances change. I did not understand Mr McVicar to dispute that as matter of principle but he argued that this was a case where the Crown had failed to show that the relevant authorities had acted reasonably. Interview of the complainer in charge (1) might have elicited an allegation from her in 1996. Therefore the subsequent delay which was the result of the absence of such an allegation until 2005 was to be attributed to the relevant authorities. I do not agree. As I have already indicated, I assume that the police did not interview the complainer in charge (1). Why they did not do so was not explained. It is not known whether her existence was known to the police. She was the cousin of the complainer in charge (3). From the information provided by Mr McVicar it would appear that the Minuter is one of seven or eight siblings. The complainer in charge (3) had a number of cousins of differing ages. I was provided with no information to suggest that the police should have been particularly directed to the complainer in charge (1). In the circumstances, while bearing in mind that it is for the Crown to explain and, if necessary, justify, I am unable to conclude that the police acted with other than reasonable diligence in investigating the original allegation. Accordingly, I do not consider that there has been unreasonable delay and I shall dismiss the devolution minute.

[13] The contention here is that the Minuter has been deprived of fair notice by reason of the latitude of time taken by the prosecutor in charges (1), (3) and (4). He submits that the periods selected by the prosecutor deprive him of the ability to rely on a special defence of alibi. In each of these charges what is alleged is a single act. In each of the charges one location is specified. However the date upon which the act is said to have been committed is specified by reference to a period of time. In charge (1) the period is a little over three years and four months beginning on the complainer's sixth birthday and ending when she was not yet nine and a half. In charge (3) the period is a little over two years when the complainer was between the age of five and seven. In charge (4) the period is one of two months. The complainer was adult. As is evident from a consideration of the dates, these allegations are "historic" in the sense that they have been brought to the attention of the prosecuting authorities long after they are said to have occurred.

[14] A complaint of undue latitude as to time may be developed as an attack on the relevancy of the indictment: eg HMA v Hastings 1985 SCCR 128. That was not the case here. Having referred me to Ogg v HMA 1938 JC 152 at 154 and Renton & Brown Criminal Procedure at paragraph 8-12 for the relevant principle, Mr McVicar explained that his concern was whether the Crown had shown due diligence in identifying the most accurate specification of time in the indictment as was possible. Mr McVicar acknowledged that in considering the notice given by the Crown regard had to be had to what appeared in disclosed statements but his complaint was that from a consideration of these statements the periods during which the incidents which were the subject of the three charges were said to have taken place did not correspond with what appeared in the indictment. The Advocate replied shortly. The dates which appeared in charges (1) and (4) reflected information that had emerged on precognition. That was so in respect of charge (3) subject to the observation that there had been a clerical error in drafting the charge: "27 July" should have read "27 April". He sought leave to amend. This was not opposed by Mr McVicar and I granted the Crown motion. Mr McVicar was content with the explanations provided by the Advocate Depute and made no further motion in relation to the specification provided by the indictment.

[15] The issue here is whether it is fair to the Minuter that he be required to face all charges on the present indictment at one trial, his concern, as articulated by Mr McVicar on his behalf, being that it would be unfair if a jury which is required to consider the allegations of lewd and libidinous behaviour were to hear of the allegations of rape, and vice versa. In reply the Advocate Deputed argued that no unfairness, properly understood, was involved. The accumulation of outstanding charges in one indictment is usual. Charges will be separated very rarely and only in exceptional circumstances where a very strong and special reason is shown: HMA v Bickerstaff 1926 JC 65 at 80. The Advocate Depute also referred to the opinion of Lord Justice General Emslie in Reid v HMA 1984 SLT 391.

[16] It is normally assumed that it is in the public interest that analogous matters should be tried together where possible: Johnston v HMA 1996 SCCR 808 at 816C. A motion to separate charges will only be granted if there is a material risk of real prejudice: Reid v HMA supra, Jackson v HMA 1992 SLT 370 at 373, Toner v HMA 1995 SCCR 697. In Reid v HMA supra, which has been consistently followed, Lord Justice General Emslie put the matter this way, at 392:

[17] As the Minute recognises, charges (1) and (3) will be presented to the jury as forming part of a course of criminal conduct, albeit consisting of only two instances, with a view to evoking the doctrine of mutual corroboration associated with the decision in Moorov v HMA 1930 JC 68. The Minute indicates that the same can be said for charges (2) and (4). That may be less evident but that is not something which I am called upon to decide. At all events, Mr McVicar did not call for separation of charges (2) and (4). That implies a concession, which is inevitable given what was said in Bickerstaff and Reid and is familiar from daily practice, that an indictment may contain a number of charges libelling separate offences allegedly committed at different times one from the other and in different circumstances. It is not the rule that charges in an indictment must exhibit similarities, whether in time of commission or nature of offence. I accept that it may be a disadvantage to an accused to be required to face a greater number of charges at one trial rather than a smaller number and I can see why the Minuter would prefer not to be facing rape charges at the same trial as he faces the lewd and libidinous behaviour charges. It is true that if these charges are not separated the jury will have to be directed that the charges must be considered separately and (probably) that evidence led in support of charges (1) and (3) cannot be used to support charges (2) and (4). However, that of itself does not amount to a material risk of real prejudice as that expression is used by Lord Emslie. Mr McVicar argued that significant prejudice would arise if he was compelled to deploy in defence of charge (2) the affidavit sworn by the complainer in that charge in connection with divorce proceedings against the Minuter. In that affidavit the complainer alleged violence on the part of the Minuter but not sexual violence of the sort libelled in charge (2). Putting this inconsistent statement of complainer before the jury in the course of cross-examination would have the result of

allowing the complainer to confirm that the Minuter had been guilty of violence during the time when he was living with her which was when it was alleged that the Minuter committed the offences alleged in charges (1) and (3). With charges separated, the jury at the trial relating to lewd and libidinous behaviour would not hear about the Minuter's alleged violence. I do not consider that this introduces a relevant speciality. Mr McVicar did not explain what exactly appeared in the affidavit. He did not explain whether the Minuter's position was that what was alleged in the affidavit had indeed happened. However, whatever the position, if Mr McVicar chooses to include this chapter of evidence in the case it is no more than a further allegation (possibly admitted) of discreditable behaviour on the part of the Minuter such as might occur with an accumulation of charges in one indictment. The situation is no different than if the Crown had chosen to include a simple assault charge on this indictment. Such a charge, even if admitted, could not prejudice the Minuter in relation to charges (1) and (3) in the manner contemplated by the authorities. I do not propose to separate the charges here and will dismiss the Minute which raises the issue.