Scottish Sheriff Court Decisions

CRAIG GARRY COOK v. HER MAJESTY'S ADVOCATE [2000] ScotSC 21 (21st August, 2000)

Cook v H.M. Advocate

2000047830

Sheriff A.L. Stewart, Q.C.

21 August 2000

Was editing necessary? (insert yes or no): No

Judgment has been edited as required (insert yes or not):

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The judgment should be recorded under the following category/ies:-

Criminal law - Devolution issue - European Convention on Human Rights, art. 6(1) - Trial within reasonable time - Accused child at time crime committed

Ref 2000047830

JUDGMENT OF SHERIFF A.L. STEWART, Q.C.

in causa

CRAIG GARRY COOK

against

H.M. ADVOCATE

_______________________________

The minuter seeks to raise a devolution issue in the form of a plea in bar of trial on the ground that the Lord Advocate, by having the indictment called for trial would be exercising his function in prosecuting the minuter in a way which is incompatible with the minuter's human rights and would thus be acting contrary to the provisions of the Scotland Act 1998, section 57(2).

The particular provision of the European Convention on Human Rights which the minuter alleges the Lord Advocate would contravene is Article 6(1). This provides inter alia, "In the determination ... of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time ..."

The minuter was born on 25 February 1984.

The minuter has been charged on indictment along with a co-accused who is younger than the minuter but who has not sought to raise any devolution issue. The charge against both is one of assault to severe injury and permanent disfigurement. The crime is alleged to have been committed on 6 November 1999.

The minuter was interviewed by police on 9 November 1999 and was then arrested. He appeared in court on petition on 10 November. The indictment in the present case was served on 5 July 2000, the minuter being called to appear at a first diet on 14 August 2000 and at a trial diet on 28 August. The indictment contains only the one charge. There is a list of thirteen productions and four labels appended thereto as well as a list of fourteen witnesses. The witnesses all have addresses in Dundee. There are seven civilians and one medical witness, the remaining seven witnesses being police officers.

Counsel for the minuter submitted that to bring him to trial on 28 August would be a contravention of Article 6(1) in respect that there had been unreasonable delay. The vital factor was that the minuter had been under sixteen years of age on the date when the crime was alleged to have been committed and had thus been, in law, a child. The starting point from which to measure any delay was the arrest of the minuter on 9 November 1999. If the trial started on 28 August, that would be more than nine months from that starting point. Counsel submitted that the case presented no complex or difficult features. He was not suggesting that the minuter could not receive a fair trial or that his ability to defend himself had been severely prejudiced. However, the Lord Advocate had acted unreasonably by not having regard to the age of the minuter at the time of the alleged offence and therefore expediting the progress of the case. Looked at another way, the Lord Advocate had failed to act to protect the rights of the minuter. The minuter's age required that the case should have been prepared and brought to trial more swiftly.

Counsel referred to certain provisions of the United Convention on the Rights of the Child. Article 3 of that Convention defined a child generally as a person under 18 years of age. Article 40 provided inter alia that a child charged with a criminal offence had a right to be brought to trial "without delay". Counsel conceded that the United Nations Convention was not part of the law of Scotland but submitted that account could be taken of its provisions.

Counsel reminded me that many provisions of the Children (Scotland) Act 1995 were based on the provisions of the United Nations Convention. The general ethos of that Act was that a court had to treat the welfare of the child as the paramount consideration in reaching any decision. Counsel also pointed out that child witnesses were given particular consideration by Scottish courts and that, in the case of summary criminal proceedings, provision was made for the public to be excluded from any trial where the accused was a child. All these factors, counsel submitted, made it reasonable to infer that in considering the prosecution of a child the Lord Advocate should take steps to bring the case to trial more quickly than in the case of an adult.

Counsel was unable to refer me to any authority directly in point because, as he said, we were here in "virgin territory". He did refer me to several cases which he suggested could be of some assistance. These were H.M. Advocate v Bryan Robb, an unreported decision of Lord Penrose, the date of which I was not given; H.M. Advocate v Little 1999 S.C.C.R. 625, especially at pp. 633G-634B and H.M. Advocate v Hynd an unreported decision of Lord Bonomy dated 9 May 2000. Counsel pointed out that one of the matters with which the court had been particularly concerned in these cases was that an accused person should not be left too long in a state of uncertainty about whether proceedings were to be taken against him. This was an especially important matter when the accused was a child. It was clear that the Lord Advocate had issued no instructions to deal swiftly with a case where a child was accused. On the whole matter counsel submitted that the delay here had been unreasonable and that I should sustain his plea in bar of trial.

In reply the procurator fiscal depute submitted that there had been no unreasonable delay in this case. He pointed out that Article 6(1) made no mention of a child. Its provisions in respect of bringing to trial within a reasonable time applied to "everyone". The criteria should therefore be no different for a child from what they were for an adult. It was necessary to weigh competing interests in deciding what was reasonable. Account had to be taken of the time limits for persons remanded in custody. Trials of such persons had to be given priority.

The procurator fiscal depute took me through the history of this case. The minuter had first appeared in court on 9 November 1999. On 12 November Crown Counsel had directed that the case should remain on petition. Between then and February 2000 the procurator fiscal in Dundee had conducted standard procedures of collating statements and examining evidence. A decision had been taken that no scientific examination of productions was necessary. The case had been allocated to a precognition officer in early March. At that stage it had been hoped that the case would be indicted to the assize commencing on 31 July. However, other cases had had to be given priority in that assize with the result that preparations had proceeded on the basis that the case would be indicted for the August assize. The case had been reported to Crown Counsel with precognition on 30 June. That was well ahead of the last day for reporting which was 19 July. Instructions were given to proceed with an indictment in the sheriff court and the indictment had been served on 5 July. It would have been very difficult if not impossible to bring the minuter to trial before his sixteenth birthday. To do so would have required him to appear at the jury assize in January 2000.

The procurator fiscal depute referred me to Docherty v H.M. Advocate, an unreported decision of the High Court of Justiciary sitting to hear an appeal against sentence dated 14 January 2000, and Reilly v H.M. Advocate, a decision of the High Court in an appeal against the decision of a sheriff in a devolution issue dated 25 July 2000.

The procurator fiscal depute submitted that the provisions of the United Nations Convention and of the Children (Scotland) Act were of no assistance in the context of a criminal prosecution on indictment. So far as uncertainty was concerned, there was no reason to think that this would weigh more heavily on a child than on an adult. In the present case the Crown authorities had acted as expeditiously as was practicable. The plea in bar of trial should be rejected.

The proper approach in a case such as this is, I think, quite clear. I respectfully adopt what was said by Lord Bonomy in Hynd.

Counsel virtually conceded that his submission would have been unstatable if the minuter had been an adult. The primary question which arises therefore is whether it is reasonable to read Article 6(1) as making special provision where the accused is a child. In my opinion, it does not. It uses the term "everyone". This suggests to me that age is not a crucial factor, although it may, depending on the circumstances of the particular case, be a factor to which weight must be given.

Looking to the facts of this case I am unable to accept that the age of the minuter is a factor of any great importance. It is not as if he were a very young child. At the date of the alleged commission of the crime he was less than four months away from his sixteenth birthday.

Counsel made no submission about any personal characteristic of the minuter which was likely to render him especially vulnerable because of his age. Indeed counsel conceded that the minuter would not suffer any prejudice by being brought to trial in August 2000. I accept that lack of prejudice is not in itself fatal to a submission based on Article 6(1) (see for example the comments of Lord Kingarth in H.M. Advocate v Little, 1999 S.C.C.R. 625 at 637A-C). However, a concession that no prejudice is likely to be suffered is something which is, in my opinion, relevant to the question of whether a delay is reasonable or unreasonable.

Counsel made mention of the United Convention on the Rights of the Child and of the Children (Scotland) Act 1995. So far as the Convention is concerned, as counsel conceded, its provisions are not part of Scots law. In any event, I do not consider that the provisions of Article 40 of that Convention anent bringing an accused to trial without delay are radically different from the provisions of Article 6(1) of the European Convention on Human Rights with which this application is concerned. The Children (Scotland) Act 1995 is, in my opinion, of no relevance to a criminal prosecution.

Having considered all the circumstances, I am satisfied that the delay in this case can not be described as unreasonable. In an ideal world it would certainly be desirable to bring any accused, whether an adult or child, to trial in less than nine months. However, I consider that it is necessary to consider the practicalities and accept the unpalatable realities of the way in which the criminal justice system is presently administered. Looking to these considerations, there is nothing exceptional about the way in which this case has been processed. The minuter is, in my opinion, being brought to trial in what may properly be described as a reasonable time. The plea in bar of trial must therefore be rejected.