Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ELGIN

Judgement

Of

Sheriff Philip Mann

In causa

Procurator Fiscal, Elgin

Against

Clive Arthur Burton

1. Introduction

1.1 This is a summary prosecution involving a devolution minute alleging a breach of the accused's rights under Article 6 of the European Convention on Human Rights and Fundamental Freedoms.

1.2 Clive Arthur Burton is charged that:

"(001) on or between 25 April 2008 and 7 July 2009 both dates inclusive at Vimy Ridge, Stewart Street, Portgordon, Buckie, Moray, you Clive Arthur Burton did take or permit to be taken or make indecent photographs or pseudo-photographs of children:

CONTRARY to the Civic Government (Scotland) Act 1982 Section 52(1)(a) as amended

 

Or alternatively

 

On or between 25 April 2008 and 7 July 2009 both dates inclusive at Vimy Ridge, Stewart Street, Portgordon, Buckie, Moray, you Clive Arthur Burton did have in your possession indecent photographs or pseudo-photographs of children:

CONTRARY to the Civic Government (Scotland) Act 1982 Section 52A(1)"

 

2. The Background

2.1 The complaint first called in this court on 27 October 2011 when a warrant was issued for the accused's apprehension due to his failure to appear to answer his citation. The case called again on 21 November 2011 when the accused was present and when it was continued without plea on defence motion. The case was further continued without plea on defence motion on 1 December 2011, 22 December 2011 and 19 January 2012. The reason for these continuations was that the accused's agents were reluctant to state a plea on the accused's behalf in the absence of an explanation from the Crown for what the agents perceived to be a delay in bringing the prosecution. The defence agents had written to the Procurator Fiscal on two occasions prior to 19 January seeking an explanation but had received no response.

2.2 The court minutes reveal that on 9 February 2012 the accused "raised a preliminary plea in relation to the delay in the proceedings being raised". I now take this to be a plea in bar of trial at common law on the basis of oppression due to delay in prosecuting the case. The matter was set down for debate on 27 February 2012. On 27 February 2012 the matter was continued to 23 April 2012, the accused having "made a plea as previously tendered" and having lodged a devolution minute complaining about a breach of his Article 6 rights. Between 31 January 2012 and 20 April 2012 the accused's agents had written to the Procurator Fiscal on four further occasions seeking an explanation for the delay in proceedings but had received no response.

2.3 The case called before me on 20 July 2012, having been further adjourned when it called on 23 April 2012. At the hearing on 20 July 2012 the accused was represented by Mr Adam, Advocate and the Crown was represented by Mr Warburton, procurator fiscal depute. During submissions it was agreed by parties that I should be provided with a transcript of an interview of the accused by the police which took place on 20 August 2009 and that I should take account of this in making my judgement.

3. Submissions for the Defence

3.1 In opening his submissions Mr Adam indicated that, principally, he would be concentrating on the devolution minute. In fact, he made no serious challenge on the basis of the common law plea of oppression. A plea on this basis will only succeed in the most exceptional circumstances and only where it can be shown that the delay has been such as to prejudice the prospect of a fair trial of the accused - see Renton and Brown's Criminal Procedure paragraph 9.23. I am in no doubt that the circumstances adverted to in the course of the debate before me, as hereinafter referred to, fall far short of what would be necessary for that plea to be sustained.

3.2 Turning to the devolution minute Mr Adam submitted, under reference to Renton and Brown at paragraph 9-26.9, that the starting point for considering the question of delay was the date when the accused could be considered to have been effectually charged with the offence. The case of Eckle v Federal Republic of Germany (1983) 5 E.H.R.R.1 held that this was the date of official notification by the competent authority to the accused that he has committed an offence. This was not necessarily the date of the formal charge. It could be a much earlier date, such as the date of the initial interview of the accused by the police.

3.3 Mr Adam compared this case to the case of Burns v HMA 2009 SLT 2. In Burns, the date of "charge" was taken to be the date when the accused was interviewed by police in England. By that date, the accused's home had been searched and his computer examined. He had been detained for more than 24 hours and interviewed under caution. He had been told that the interviewing officers would recommend that proceedings be brought against him. This had amounted to the accused having been officially notified that he was facing a real threat of criminal proceedings, from which point on he was in a state of uncertainty about his fate and would be bound to be subject to stress. So, too, in this case the accused had been interviewed under caution. His home had been searched. Items had been taken possession of. The accused had been made fully aware of the allegations against him and as to the evidence which was held by the police concerning images stored on a computer memory stick. He had been asked what his position was as regards these allegations and evidence. He had been asked about other allegations. The accused had made admissions and had been left in no doubt that there was sufficient evidence to proceed against him so far as the police were concerned. Mr Adam accepted that in this case, unlike Burns, there had been no express reference within the police interview to the accused being prosecuted but, just as in Burns, the interview of the accused had been under caution and had been audio taped, video taped and noted. In cumulo, he maintained, this met the test in Eckle.

3.4 Mr Adam submitted that if the starting point was to be taken to be the date of the police interview, which was on 20 August 2009, then the interval between that date and October 2011 when the accused received the formal complaint against him gave rise to the assertion that, prima facie, there was an unreasonable delay which called for an explanation from the Crown. In this case the delay had been 25 months. In the case of Burns, which was more complex, a delay of 22 months had been held to be in breach of the accused's rights under Article 6. The situation in this case had been exacerbated by the fact that the Crown had ignored repeated requests made by the accused's agents since service of the complaint for an explanation for the delay in bringing the prosecution. This amounted to the Crown having renounced their right to prosecute.

4. Submissions for the Crown

4.1 For the Crown, Mr Warburton acknowledged the accused's rights under Article 6 but maintained that these rights had not been breached. In this case the accused had not been formally cautioned and charged at the conclusion of the police interview.

4.2 Mr Warburton explained that the matter came to light on 7 July 2009 when the police received a report from witnesses who had handed over a computer memory stick containing certain images. A search warrant was obtained and was executed on 20 August 2009. The police seized the accused's computer and some compact discs. These needed to be forensically examined. On that same date the police interviewed the accused. They had certain information that they were able to put to the accused in the course of the interview, during which they were asking the accused if he could give further assistance. At that stage, the investigating officers did not know the extent of what they were dealing with and there was still a lot of investigative work to be done.

4.3 Mr Warburton maintained that this case could be distinguished from Burns. There, the accused had been told during his interview that prosecution would be recommended. Accordingly, Mr Burns had been left in no uncertainty that he was facing the real threat of criminal prosecution. In this case the police had an element of evidence but it may have been the tip of the iceberg. The police were not in a position to charge the accused and they did not do so.

4.4 Mr Warburton relied on the case of O'Neill v HMA 2010 S.C.C.R 357 which held that the starting point for a consideration whether the accused's Article 6 rights have been breached is the date when the accused is charged, not the date when the accused is interviewed by the police. In this case, not unusually, there had been no formal charge and so the starting point was the date of service of the summary complaint on the accused. The matter was marked for summary prosecution on 5 August 2011 with 8 September 2011 being set as a pleading diet. The case was deserted pro loco et tempore due to lack of service. It was re-raised with a pleading diet on 27 October 2011 when a warrant for apprehension of the accused was granted due to his non appearance. Accordingly, time began to run in relation to the accused's Article 6 rights on or about 27 October 2011.

4.5 Mr Warburton agreed that if I found against him as regards the starting date for consideration of the accused's Article 6 rights then, prima facie, the delay was such that there ought to be a satisfactory explanation for the delay; otherwise the accused's Article 6 rights would have been breached. He gave the following "timeline":

20 August 2009 Interview of accused by the police

24 August 2009 Formal request to the laboratory for forensic examination of a significant number of items seized during the search of the accused's home under warrant on 20 August 2009

26 August 2010 Forensic examination of the various items commenced.

14 February 2011 Forensic examination completed and Crown notified of results.

16 February 2011 Forensic report provided to police.

15 April 2011 Full police report submitted to the procurator fiscal, Elgin.

9 May 2011 Case initially assessed by procurator fiscal, Elgin and sent for review to the District Procurator Fiscal.

10 May 2011 Case reported to Crown Counsel.

26 May 2011 Instruction received from Crown Counsel that the case should be re-reported after further enquiry.

4 August 2011 Second instruction received from Crown Counsel that a prosecution should proceed by way of summary complaint.

5 August 2011 Case marked for summary proceedings.

8 September 2011 Case first called in court when the accused was neither present nor represented. Case continued without plea for personal service.

22 September 2011 Case called again in court when the accused was again not present and case deserted pro loco et tempore for the purpose of re-raising proceedings.

27 October 2011 Case called with accused again not present and warrant for apprehension granted.

21 November 2011 Accused appeared from custody and case continued without plea.

4.6 Mr Warburton maintained that the delay which had occurred since the initial interview by the police was reasonable. In particular, a period of eighteen months was reasonable for the forensic examination to be completed given that a significant amount of items had to be examined and also given that the case attracted a low priority having regard to the relatively mild nature of the images on the memory stick.

4.7 Mr Warburton referred to the case of Farrell v HMA 2002 J.C. 50. This was a case involving delay and its effect on an application for extension of the 110 day rule. I did not find this case to be particularly helpful.

5. The Defence Response

5.1 Mr Adam sought to distinguish the case of O'Neill. In that case the allegation had been one of murder. Prior to the charging of the accused there had been insufficient evidence without his admission. The interview in that case had been in 1998 and he had not been served with a petition until 2005 and even then that prosecution had been aborted because of a perceived insufficiency of evidence. In the present case the accused had been left in no doubt that there was sufficient evidence to proceed even though he had not been formally charged.

5.2 Under reference to the case of Spiers v Ruddy [2007] UKPC D2 (also reported at 2008 SLT 39) Mr Adam accepted that if I held that the accused's Article 6 rights had been breached that did not necessarily mean that the current prosecution had to be brought to an end. The breach of the accused's rights could be reflected in, and thus compensated for by, a reduced sentence in the event of conviction.

6. Discussion and Decision

6.1 The starting point for a consideration of the question whether the accused's Article 6 rights have been breached has to be the case of O'Neill. In that case, after explaining what normally happens when a person is formally charged by the police Lord Clarke, in delivering the opinion of the court, went on to say at paragraph 42:-

"If there has been no such procedure, then the service of a complaint or indictment as the case may be on the person will be the official notification to him of the allegation that he has committed a criminal offence."

 

And then at paragraph 43:-

"Uncertainty or vagueness in the law, particularly when it relates to matters such as dates or starting-points for the running of time, are clearly undesirable. While the definitions provided by the ECHR require to be worded in such a way as being [sic] capable of being applied in all the relevant jurisdictions, with appropriate effect, when it comes to their application to particular domestic contexts some certainty should be aimed for. In that connection we agree that, as in England and Wales, in Scotland a clear line requires to be drawn between investigations, started by the police, to enable a decision to be made as to whether or not the person should be charged and the charging of a person on completion of that exercise. Just, however, as uncertainty in such matters is undesirable so, too, the law should, in general, prefer substance over form, particularly when the question arises in the field of human rights. That is why, in our respectful opinion, the Privy Council reached its decision in the case of Burns, the reasoning in which we fully understand and accept. Accordingly, we recognise that notwithstanding what we have said about when, in our criminal procedure, it can be said that a person is being charged, one has to have regard to the substance of the matter to deal with situations like that which arose in the case of Burns. We venture to suggest that such cases will be somewhat rare."

 

And then at paragraph 44:-

"......we, too, are not seeking to establish an absolutely inflexible rule rather than what should ordinarily be held to be the position in Scotland."

 

6.2 In Burns the police had the results of the examination of the accused's computer before interviewing him. It seems that in that respect their investigations were complete. In this case, the accused's computer was seized on the day of the interview and had yet to be examined as at the time of the interview. It is true that the police had possession of the memory stick containing the offending images which gave rise to the charges that were eventually brought. But it is clear that the interview marked only the start of the police investigation into the conduct of the accused. There was still further investigation to be carried out at that time to establish the extent of any alleged wrongdoing. It is nothing to the point that the further investigations, including the forensic examination of the accused's computer and other items, apparently threw up no further evidence of wrongdoing and that the charges that were brought were informed by the contents of the memory stick which the police had, and referred to, during the interview. The police did not charge the accused at the conclusion of the interview. Whereas in Burns a decision to charge had been taken and indicated to the accused at the conclusion of the interview and had not been implemented only because of uncertainty as to jurisdiction, in this case it is clear from the transcript that no indication was given to the accused as at the date of the interview that he was to be charged. The decision to charge and prosecute was taken by Crown Counsel at a much later date. It is interesting to note that the complaint which was eventually served on the accused contains charges which are stated in the alternative. This indicates a degree of uncertainty on the part of the Crown as to what can be proved. This seems to me to lend further weight to the assertion that the police were not in a position to charge the accused at the time of the interview at the very start of their investigations. I observe that at the end of the transcript under a heading "4.2.5 Caution and Charge/Reply" it is stated:

"Due to accused's work patterns, it has not been possible to formally caution and charge him"

 

That indicates to me that the police had concluded at some point after the interview that there was sufficient evidence to report the matter to the procurator fiscal and that they were explaining the reason for being unable to formally charge him having come to that conclusion. If they had thought it appropriate, or had wanted, to charge him at the end of the interview they would not have been prevented from doing so for the reason stated. For all of the foregoing reasons I am of the view that this case is not the rarity that Burns was. It is not out of the ordinary in the sense suggested by the case of O'Neill. Accordingly, I hold that the date of the "charge" in this case, that is the date of official notification by the competent authority to the accused that he had committed an offence, was not the date of the interview but, rather, the date of service of the complaint in October 2011. It follows that there has been no delay in prosecuting the case such as would potentially involve a breach of the accused's Article 6 rights.

6.3 It also follows that there can be nothing in Mr Adam's assertion that by failing to respond to requests for an explanation for delay the Crown have renounced their right to prosecute the accused. Clearly, whatever might be made of the Crown's apparent discourtesy in failing to respond to the repeated requests by, at least, maintaining the position which they have now adopted, if there was no delay then no explanation need have been given.

6.4 That is sufficient for the disposal of this matter. I need not consider the explanation and timeline provided by Mr Warburton but since it was given to me it is right, I think, that I should express a view. Had the date of charge been the date of the accused's interview I would have been inclined to hold that there had been unreasonable delay in prosecuting this case such that the accused's Article 6 rights would have been breached. Most of the delay was caused at the forensic laboratory. It seems to me that a period of eighteen months, during which time the Crown apparently took no steps to chase on the matter, is an inordinate length of time to undertake the forensic examination of the accused's computer and other items, even bearing in mind the question of resources and the need for the laboratory to prioritise their work. I would have followed the course adopted in the case of Spiers v Ruddy.

6.5 In the event, I will repel the common law plea in bar of trial and will dismiss the devolution minute. It follows that the accused will now require to plead.