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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Mills v Her Majesty's Advocate & Anor (Scotland) [2002] UKPC D2 (22 July 2002)
URL: http://www.bailii.org/uk/cases/UKPC/2002/D2.html
Cite as: [2002] 3 WLR 1597, 13 BHRC 549, [2002] UKPC D 2, [2002] UKPC D2, [2004] 1 AC 441, 2003 SC (PC) 1, 2002 SLT 939, [2002] UKHRR 1074, 2002 GWD 26-886, [2004] AC 441, 2002 SCCR 860, [2002] HRLR 44
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ADVANCE COPY
Privy Council DRA. No. 1 of 2002
Kenneth Anthony Paton Mills Appellant
v.
(1) Her Majesty’s Advocate and
(2) The Advocate General for Scotland Respondents
FROM
THE HIGH COURT OF JUSTICIARY
SCOTLAND
---------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 22nd July 2002
------------------
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Mackay of Clashfern
Lord Steyn
Lord Hope of Craighead
Lord Scott of Foscote
Lord Hope of Craighead, with which I agree, I would dismiss this
Lord Mackay of Clashfern
and learned friend Lord Hope of Craighead. I agree that this appeal
should be dismissed for the reasons he has given.
__________________________
European Convention for the protection of Human Rights and
Fundamental Freedoms. The answer to it is of great importance for
the sensible and orderly application of the principles of article 6(1).
Having already given a judgment on this point I feel diffident about
doing so again. There are, however, developments of importance to
be taken into account, and threads to be brought together. I fear I
must return to the point.
proceedings there has been a breach of the guarantee of a hearing
within a reasonable time under article 6(1) of the European
Convention on Human Rights, the only and inevitable remedy is to
quash the conviction. For this proposition he relies on the decision
of the Privy Council in Darmalingum v The State [2000] 1 WLR
2303. In that case the Privy Council considered section 10(1) of
the Constitution of Mauritius which is modelled on article 6(1) and
is to the same effect. In Flowers v The Queen [2000] 1 WLR 2396
the Privy Council considered section 20(1) of the Constitution of
Jamaica which is also modelled on article 6(1) and is to the same
effect. The Privy Council departed from Darmalingum.
Subsequently the Privy Council has taken the view that, although the
outcomes of both cases were correct, there were important
principled differences between Darmalingum and Flowers: Dyer v
Watson [2002] SLT 229, per Lord Bingham of Cornhill, at para 29.
Counsel for the appellant has invited the Privy Council to attempt
to resolve the problem created by the conflicting dicta. In order to
do so it is necessary to attempt to identify the differences in
reasoning in Darmalingum and Flowers.
Convention. The relevant part of article 6(1) reads as follows:
“In the determination of his civil rights and obligations or ofThe object and purpose of article 6(1) is “to enshrine the
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent
and impartial tribunal established by law.”
fundamental principle of the rule of law”: Salabiaku v France
(1988) 13 EHRR 379, 388, para. 28. In Darmalingum the Privy
Council considered article 6(1) in the light of European
jurisprudence. Giving the judgment of the Board I said, at pp
2307H-2308B:
“It will be observed that section 10(1) contains three separateThe reference to the ordinary law was, of course, a reference to the
guarantees, namely (1) a right to a fair hearing; (2) within a
reasonable time; (3) by an independent and impartial court
established by law. Hence, if a defendant is convicted after a
fair hearing by a proper court, this is no answer to a
complaint that there was a breach of the guarantee of a
disposal within a reasonable time. And, even if his guilt is
manifest, this factor cannot justify or excuse a breach of the
guarantee of a disposal within a reasonable time. Moreover,
the independence of the ‘reasonable time’ guarantee is
relevant to its reach. It may, of course, be applicable where
by reason of inordinate delay a defendant is prejudiced in the
deployment of his defence. But its reach is wider. It may be
applicable in any case where the delay has been inordinate
and oppressive. Furthermore, the position must be
distinguished from cases where there is no such constitutional
guarantee but the question arises whether under the ordinary
law a prosecution should be stayed on the grounds of
inordinate delay. It is a matter of fundamental importance
that the rights contained in section 10(1) were considered
important enough by the people of Mauritius, through their
representatives, to be enshrined in their Constitution. The
stamp of constitutionality is an indication of the higher
normative force which is attached to the relevant rights: see
Mohammed v The State [1999] 2 AC 111, 123H.” (Emphasis
added)
common law rule as stated in Attorney-General’s Reference (No 1
of 1990) [1992] QB 630, 643-644, that no stay will be imposed for
inordinate delay unless the defendant shows on a balance of
probabilities that owing to the delay he will suffer serious prejudice
to the extent that no fair trial can be held. In Darmalingum it was
held that the scope of article 6(1) is wider.
the matter differently. The Board followed an earlier decision of the
Privy Council in Bell v Director of Public Prosecutions [1985] AC
937, which had not been referred to in Darmalingum. In Bell the
Privy Council had relied on Barker v Wingo, (1972) 407 US 514
and enunciated the following proposition, at p 950:
“Their Lordships agree with the respondents that the threeIn Bell the Privy Council had not been referred to article 6(1) or to
elements of section 20, namely a fair hearing within a
reasonable time by an independent and impartial court
established by law, form part of one embracing form of
protection afforded to the individual.” (Emphasis added)
any European jurisprudence on it. In Flowers too there was no
reference to European case law.
whether article 6(1) incorporates three separate guarantees Lord
Hutton, who gave the judgment, observed at pp 2414H–2415A:
“The judgment of the Board does not refer to the passage inRelying on Bell the Privy Council in Flowers rejected the idea that
the judgment of the Board in Bell v Director of Public
Prosecutions [1985] AC 937 which recognises that the right
given by section 20 of the Constitution of Jamaica must be
balanced against the public interest in the attainment of justice
or to the passage which states that the right to a trial within a
reasonable time is not a separate guarantee but, rather, that
the three elements of section 20(1) form part of one
embracing form of protection afforded to the individual.”
(Emphasis added)
there are three separate guarantees. This ruling enabled the Privy
Council in Flowers to consider the question of breach (as opposed
to remedy) by weighing against a lengthy period of delay,
countervailing matters which were plainly considered to be
justifying, excusing or balancing factors. Those factors were the
gravity of the crime, its prevalence in Jamaica and the guilt of the
appellant: p 2415B. If this approach is correct the interpretation of
article 6 in Darmalingum was wrong.
is important. The point was examined by the House of Lords in
Porter v Magill [2002] 2 WLR 37. In a speech delivered by Lord
Hope of Craighead with the agreement of all the Law Lords he said,
at p 78, para 87, that article 6(1):
“creates a number of rights which, although closely related,Later in his speech he continued at p 86, paras 108-109:
can and should be considered separately. The rights to a fair
hearing, to a public hearing and to a hearing within a
reasonable time are separate and distinct rights from the right
to a hearing before an independent and impartial tribunal
established by law. This means that a complaint that one of
these rights was breached cannot be answered by showing
that the other rights were not breached. Although the
overriding question is whether there was a fair trial, it is no
answer to a complaint that the tribunal was not independent
or was not impartial to show that it conducted a fair hearing
within a reasonable time and that the hearing took place in
public: see Millar v Dickson 2001 SLT 988, 994D-E per
Lord Bingham of Cornhill and my own observations in that
case, at p 1003C-F.”
“108 I would also hold that the right in article 6(1) to aThe agreement of the Law Lords, who sat in the case, are recorded
determination within a reasonable time is an independent
right, and that it is to be distinguished from the article 6(1)
right to a fair trial. As I have already indicated, that seems to
me to follow from the wording of the first sentence of the
article which creates a number of rights which, although
closely related, can and should be considered separately.
This means that it is no answer to a complaint that one of
these rights was breached that the other rights were not. To
take a simple example, the fact that the hearing took place in
public does not deprive the applicant of his right to a hearing
before an independent and impartial tribunal established by
law.109 I would respectfully follow Lord Steyn’s observation in
Darmalingum v The State [2000] 1 WLR 2303 about the
effect of section 10(1) of the Constitution of Mauritius when
he said that the reasonable time requirement is a separate
guarantee. It is not to be seen simply as part of the
overriding right to a fair trial, nor does it require the person
concerned to show that he has been prejudiced by the delay.
In Flowers v The Queen [2000] 1 WLR 2396 a differently
constituted Board, following Bell v Director of Public
Prosecutions [1985] AC 937, held that prejudice was one of
four factors to be taken into account in considering the right
to a fair hearing within a reasonable time in section 20(1) of
the Constitution of Jamaica. In the context of article 6(1) of
the Convention however the way this right was construed in
Darmalingum v The State seems to me to be preferable. In
Crummock (Scotland) Ltd v HM Advocate 2000 SLT 677,
679A-B, Lord Weir, delivering the opinion of the High Court
of Justiciary, said that under article 6(1) it was not necessary
for an accused to show that prejudice has been, or is likely to
be, caused, as a result of delay. The article 6(1) guarantee of
a hearing within a reasonable time is not subject to any words
of limitation, nor is this a case where other rights than those
expressly stated are being read into the article as implied
rights which are capable of modification on grounds of
proportionality: see Brown v Stott [2001] 2 WLR 817, 851BE;
R (Pretty) v Director of Public Prosecutions [2001] 3
WLR 1598, para 90. The only question is whether, having
regard to all the circumstances of the case, the time taken to
determine the person’s rights and obligations was
unreasonable.”
as follows: Lord Bingham of Cornhill, p 70, para 57; my speech, p
70, para 59; Lord Hobhouse of Woodborough, p 92, para 131; and
Lord Scott of Foscote, p 100, para 161 and 163.
speech because they explain the structure of article 6(1) more fully
than I had done in Darmalingum. The decision of the House of
Lords in Porter v Magill is not binding on the Privy Council. But I
would wish to adopt Lord Hope’s analysis. Subsequently in Dyer
v Watson 2002 SLT 229 the Privy Council considered the point
again. Four of the Law Lords sitting stated in express terms or by
concurrence with others the view that Darmalingum more closely
reflects European jurisprudence than Flowers: see Lord Bingham of
Cornhill, p 237, para 29; Lord Hope of Craighead, p 247, para 94;
Lord Millett, p 251, para 123; and Lord Rodger of Earlsferry, p
252, para 134. Lord Hutton gave a short separate judgment on the
issue of remedies to which I will return. The language of article
6(1), the human rights context, and European jurisprudence, suggest
that the best interpretation is that, although the three elements of
article 6(1) are closely related, they are nevertheless in law distinct
and independent guarantees.
6(1) could be read as envisaged in Flowers, how should the matter
be approached? On this hypothesis it is important to bear in mind
that we are interpreting a core provision in a bill of rights. A broad
purposive approach is necessary: Delcourt v Belgium (1970) 1
EHRR 355, p 367, paras 25-26. This is a classic case calling for
what in Minister of Home Affairs v Fisher [1980] AC 319, 328,
Lord Wilberforce described as “a generous interpretation ...
suitable to give to individuals the full measure of the fundamental
rights and freedoms referred to”. With great respect I have to say
that the view which prevailed in Bell [1985] AC 937 and Flowers
[2000] 1 WLR 2396 would seriously emasculate the value and
effectiveness of rights conferred by article 6(1). For example, it
would be possible in the face of a case of inordinate and oppressive
delay, to hold that the delay is excused by the fact that the guilt of
the defendant in respect of a serious crime was demonstrated at a
fair hearing by a competent court. Such a view sits uneasily with
the human rights context.
International Covenant on Civil and Political Rights (1966), which
has been ratified by the United Kingdom but not incorporated into
our law. So far as material it reads as follows:
“Article 14There cannot even be a linguistic argument in favour of a
1. All persons shall be equal before the courts and tribunals.
In the determination of any criminal charge against him, or of
his rights and obligations in a suit at law, everyone shall be
entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law …
2. ...
3. In the determination of any criminal charge against him,
everyone shall be entitled to the following minimum
guarantees, in full equality:
...
(c) To be tried without undue delay;”
construction that there is a single guarantee. Unquestionably, article
14.3 enshrines a separate and independent guarantee. It would be
strange if article 6(1) of the European Convention, admittedly earlier
in date, has on this point a different and more restrictive meaning.
can compendiously be called the fair trial guarantees under article
6(1) must in application be considered separately. First, it is well
established that the fair hearing guarantee is separate and absolute in
character: Brown v Stott 2001 SC PC 43, at p 60; R v Forbes
[2001] 1 AC 473, p 487, para 24. The only degree of flexibility is in
regard to the content of a fair trial: in that respect the triangulation of
the interests of the defendant, the victim and his family, and society,
do arise, eg measures to protect victims: Doorson v Netherlands
(1996) 22 EHRR 330. Once it is established that a defendant has
not had a fair hearing at trial the conviction must be quashed:
Brown v Stott and R v Forbes. Secondly, it is settled law that the
guarantee of a hearing before an independent and impartial tribunal
is separate and absolute in character: Millar v Dickson [2002] 1
WLR 1615, 1639-1642, paras 61-70; Porter v Magill [2002] 2
WLR 37, at p 78, para 87. If it is established that at trial there was a
breach of this guarantee, the conviction must be quashed: Millar v
Dickson and Porter v Magill. The third guarantee must now be
considered. It is of fundamental importance to distinguish clearly
between two matters, namely (a) the scope the guarantee and breach
of it and (b) the question of remedy. This distinction is explicit in
Darmalingum but not in Flowers.
distinct rights or guarantees, it follows that the views expressed in
Bell and Flowers on the scope of “one embracing form of
protection” is not correct. In these circumstances I would
respectfully follow the analysis of Lord Hope in paragraphs 108-
109 of his speech in Porter v Magill which I have set out in extenso
in paragraph 8 above. It is to be noted that prejudice, although a
relevant factor, is not a prerequisite under the reasonable time
guarantee. This is in accord with the approach of the European
Court of Justice to this guarantee: Eckle v Federal Republic of
Germany (1982) 5 EHRR 1, 24, para 66; Corigliano v Italy (1982)
5 EHRR 334, 341, para 31; Howarth v United Kingdom,
Application No 38081/97, (21 September 2000) [2001] Cr LR 229.
Purposively construed article 6(1) may in principle be invoked by a
defendant, who has been acquitted, or by a defendant whose guilt
of a serious crime has been conclusively determined at trial and by
the dismissal of an unmeritorious appeal. It may be applicable in
any case where the delay has been inordinate and oppressive:
Flowers [2000] 1 WLR, 2303, 2308A-B: see also Alistair Webster
QC, “Delay and Article 6(1): An End to the requirement of
Prejudice” [2001] Cr LR 786.
guarantee as described in the European jurisprudence. Three
themes can be identified. First, “in criminal matters, especially, it is
designed to avoid that a person charged could remain too long in a
state of uncertainty about his fate”: Stögmüller v Austria (1969) 1
EHRR 155, 191, para 5. Secondly it is recognised that lapse of
time may result in the loss of exculpatory evidence or in a
deterioration in the quality of evidence generally. Thirdly, it has
been said that “the safety of a verdict reached a considerable time
after the offence often become[s] the subject of controversy, [and]
undermine[s] public confidence in the criminal justice system”: S.
Stavros, The Guarantees for Accused Persons Under Article 6 of
the European Convention on Human Rights, (1993), p 77. Even if
not exhaustive these underlying themes have a bearing on a proper
disposal when there has been a breach of the “reasonable time”
guarantee.
breach of the guarantee of a hearing within a reasonable time must
now be considered. The court is entitled to be informed of all
factors logically relevant to the appropriateness of the remedy. In a
post conviction case, for example, the fact that the accused’s guilt
was established at trial and that an unmeritorious appeal was
dismissed, is undoubtedly a relevant factor in considering what
remedy, if any, to grant.
discontinuance of a prosecution, quashing of the conviction,
reduction of the sentence, monetary compensation or a declaration.
A finding of a violation of a guarantee may itself sometimes be a
sufficient vindication of the right: Eckle v Germany (Just
Satisfaction) (1983) 13 EHRR 556, 560, para 24. It is not necessary
to discuss the appropriateness of particular remedies over the
infinite range of cases which can come before the courts.
on remedies in Darmalingum, which was pointed out by Lord
Hutton in Dyer v Watson 2002 SLT 229, 251, para 121.
Darmalingum was viewed by their Lordships sitting in that case as
an extreme case involving proceedings hanging over a defendant for
fifteen years. I said at p 2310D-F):
“The normal remedy for a failure of this particular guarantee,
viz the reasonable time guarantee, would be to quash the
conviction. That is, of course, the remedy for a breach of
the two other requirements of section 10(1), viz (1) a fair
hearing and (2) a trial before an independent and impartial
court. Counsel for the prosecution argued however that the
appropriate remedy in this case is to affirm the conviction
and to remit the matter of sentence to the Supreme Court so
that it may substitute a non-custodial sentence in view of the
delay. The basis of this submission was that the guilt of the
defendant is obvious and that it would therefore be wrong to
allow him to escape conviction. This argument largely
overlooks the importance of the constitutional guarantee as
already explained. Their Lordships do not wish to be overly
prescriptive on this point. They do not suggest that there may
not be circumstances in which it might arguably be
appropriate to affirm the conviction but substitute a noncustodial
sentence, eg in a case where there had been a plea
of guilty or where the inexcusable delay affected convictions
on some counts but not others. But their Lordships are quite
satisfied that the only disposal which will properly vindicate
the constitutional rights of the defendant in the present case
would be the quashing of the convictions.”
Given that there are words of qualification in this paragraph, I am
satisfied that the statement that “the normal remedy” for breach of
this guarantee is a quashing of the conviction was not warranted.
explained:
“The judgments of the European Court, as I read them,
suggest that where there has been unreasonable delay in
breach of article 6(1) the court does not take the view that a
conviction after such delay must automatically be quashed. In
Bunkate v The Netherlands [(1993) 19 EHRR 477] the court
found that there had been unreasonable delay in violation of
article 6(1) and then stated (p 484, para 25):‘The applicant’s claims are based on the assumption that a
finding by the Court that a criminal charge was not decided
within a reasonable time automatically results in the
extinction of the right to execute the sentence and that
consequently, if the sentence has already been executed
when the Court gives judgment, such execution becomes
unlawful with retroactive effect.‘That assumption is, however, incorrect. The Court is
unable to discern any other basis for the claims and will
therefore dismiss them.‘And in X v Federal Republic of Germany the Commission
stated (1980) 25 DR 144, para 2 in respect of a claim to stay
the proceedings:‘Insofar as the applicant claims a right to discontinuance of
the criminal proceedings in view of the long delays which
had occurred, the Commission considers that such a right,
if it could at all be deduced from the terms of article 6(1)
would only apply in very exceptional circumstances. Such
circumstances did not exist in the applicant’s case’.”
Lord Hutton is right: it was wrong to say that the normal remedy is
the quashing of the conviction.
Council have been asked to revisit the conflict of authority in Taito
v The Queen (unreported) 19 March 2002. Under the heading
Remedy the Privy Council observed, at para 22:
“In respect of Bennett, Boyd, Donaldson, Savelio, and Taito,
counsel invited the Board to allow their appeals and to enter
acquittals. For this ambitious submission counsel relied on
Darmalingum v The State [2000] 1 WLR 2303. Counsel
emphasised that in the cases of Bennett, Savelio and Taito the
appeals were lodged 5 to 6 years ago. Taito has already
served his sentence and Bennett and Savelio are nearing the
completion of their sentences. Boyd and Donaldson received
minor non-custodial sentences which have been completed.
In these circumstances counsel said that the only effective
remedy for a breach of the appellants’ constitutional rights is
the entering of acquittals. The reliance on Darmalingum is
misplaced. Delay for which the state is not responsible,
present in varying degrees in all the relevant cases, cannot be
prayed in aid by the appellants. Moreover, Darmalingum
was a case where the defendant ‘had the shadow of the
proceedings hanging over him for about 15 years’: at 2310C.
It was a wholly exceptional case. This argument must be
rejected. And their Lordships are satisfied that the Court of
Appeal should not be troubled with it on a rehearing of the
appeals.”
It is clear from this passage that the Privy Council took the view
that quashing of a conviction is not the only remedy for a breach of
the particular guarantee. On the contrary, it is clear that
Darmalingum, and its disposal, was regarded as an exceptional
case. The holding in Taito is inconsistent with the proposition that
the normal remedy for such a breach is the quashing of the
conviction.
have indicated.
General's Reference (No. 2 of 2001) [2001] 1 WLR 1869, the
implications of the judgment of the Court of Appeal do not require
examination in the present case.
Justiciary was carefully considered and reasoned: Mills (No 2) v H
M Advocate [2001] SLT 1359. A reduction of the sentence by nine
months was a just disposal in the spirit of article 6(1).
proposes and with his reasons on all aspects of the case.
___________________________
Lord Hope of Craighead
Scotland Act 1998. The sole issue which it raises relates to the
remedy which may be given to an appellant for a breach of his right
to a hearing within a reasonable time under article 6(1) of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms, where there was a delay in the hearing of
his appeal which was due to an act of the prosecutor.
the High Court of Justiciary at Edinburgh of the theft of a motor car
and of assaulting a police officer by driving a car at him, causing it
to strike him and then driving it at an excessive speed along certain
roads and in such a manner as to cause him to be thrown from the
car against a wall to his injury and to the danger of his life. The
charge narrated that he was on bail at the time of the offence of
assaulting the police officer. On 7 November 1996 he was
sentenced to detention in a young offender institution for eight years
and six months, six months of that period being attributable to the
fact that he committed the offence while on bail.
was only against sentence. But on 8 May 1997 he sought to appeal
against his conviction on the ground of fresh evidence. He had
maintained at his trial that he was not the driver of the car which
struck and injured the police officer. Fresh evidence was now said
to be available which supported his claim that the car was being
driven by someone else at the time. On 9 June 1998 the court
allowed supplementary grounds of appeal against conviction to be
received. On 23 February 1999, having heard argument and in the
light of a concession by the Advocate Depute, it decided to allow
the evidence of one witness, and of a number of other witnesses in
so far as their testimony might have a bearing on his credibility and
reliability, to be heard on a later date: Mills v HM Advocate 1999 JC
At the commencement of the hearing on that date the Crown asked
for the diet to be continued to a later date for further preparation.
This motion was opposed by the appellant, but it was granted by
the court. The appellant was then admitted to bail. By the time of
his release he had served just under three years of his sentence. It
has not been suggested that there was any question of undue delay
in the proceedings at any stage prior to this date.
when the court heard the fresh evidence. On 10 May 2001 it
refused the appeal on the ground that the fresh evidence was not
capable of being regarded by a reasonable jury as credible. But on
the same date the appellant was allowed to lodge a further ground
of appeal in which he alleged that there had been a breach of his
rights under article 6(1) because of the delay in the hearing of the
appeal. The court heard his appeal on this further ground on 31
July 2001. On 1 August 2001 it held that the appellant had
established that there had been a breach of his article 6(1) right by
the Lord Advocate which fell within section 57(2) of the Scotland
Act 1998. His appeal was allowed, and his original sentence of
detention was reduced by a period of nine months. The reasons for
this decision were given in the opinion of the court which was
delivered by Lord Coulsfield: Mills (No 2) v HM Advocate 2001
SLT 1359. On 7 November 2001 the High Court of Justiciary
granted the appellant leave to appeal against this decision to the
Judicial Committee. The appellant was once again granted bail.
Lord Advocate has not appealed against the decision by the High
Court of Justiciary that there was an unexplained delay in the
hearing of the appeal which could not be said to have been
reasonable. Nor has he appealed against its decision that the
appellant had established a breach of his article 6(1) right by the
Lord Advocate which fell with section 57(2) of the Scotland Act.
Committee on 12 December 2001 of the appeal in Dyer v Watson,
K v HM Advocate 2002 SLT 229 and without the benefit of the
observations which were set out in that judgment. In that case it
was said that, although the case law of the European Court
provided domestic courts with no specific norm against which they
could judge the reasonableness of the length of the proceedings, the
decisions indicated that a relatively high threshold had to be crossed
before it could be said in any particular case that a period of delay
was unreasonable and that the period which has elapsed gives
grounds for real concern that the Convention right has been
violated: see Lord Bingham of Cornhill at p 241J-K, para 52, my
own opinion at p245J-K, para 80, Lord Rodger of Earlsferry at p
256C-J, para 152. I shall have to return to facts which were relied
upon in this case at a later stage in this judgment. But for the
present I should like simply to suggest, in the light of the opinions
that were expressed in Dyer v Watson, that the decision that there
was an unreasonable delay in this case should not be regarded as
anything other than a decision on its own facts.
what is to be taken to be an “act” of the Lord Advocate for the
purposes of section 57(2) of the Scotland Act. That question is for
another day: see HM Advocate v R 2001 SLT 1366; R v HM
Advocate (Appeal No 817/01), (unreported) 31 May 2002. All that
needs to be said about it at this stage is that it should be borne in
mind that the position of the prosecutor is not the same at the stage
of an appeal as it was during the trial: Howitt v HM Advocate 2000
SCCR 195, 200B per the Lord Justice Clerk (Cullen). During the
trial he is the master of the instance: Alison, Practice of the
Criminal Law of Scotland (1833), pp 88-90. What happens to a
conviction thereafter is the responsibility of the court. It may be
more difficult in these circumstances to identify an “act” of the
Lord Advocate which can be said to have caused delay in the
hearing of an appeal.
Committee to hear this appeal. Although it was not suggested that
your Lordships should not hear this appeal, it is important to
understand the basis on which the jurisdiction is being exercised in
this case.
an appeal shall lie to the Judicial Committee “against a determination
of a devolution issue”. The expression “devolution issue” is
defined in paragraph 1 of Schedule 6. The definition which is in
point where an issue is raised with reference to section 57(2) in
regard to an act by the Lord Advocate is in these terms: “a question
whether a purported or proposed exercise of a function by a
member of the Scottish Executive is, or would be, incompatible
with any of the Convention rights or with Community law”:
paragraph 1(d) of Schedule 6. There is no doubt that the decision
of the High Court of Justiciary which was given on 1 August 2001
was a determination of a devolution issue within the meaning of that
paragraph. The question which it had been asked to decide was
whether there had been an act by the Lord Advocate which resulted
in a breach of the appellant’s right to a hearing within a reasonable
time under article 6(1). But that question is no longer in issue, as
the Lord Advocate has accepted the court’s decision on this point.
The only question which has been brought before the Judicial
Committee, with the leave of the High Court, relates to the
consequences of that finding.
Judicial Committee by paragraph 13 of Schedule 6 is not confined
to answering the single question which the definition of the
expression “devolution issue” in paragraph 1(d) has identified. It
extends also to any other matter which may reasonably be said to
be incidental to the determination of a devolution issue. For
example, section 100(1) of the Scotland Act provides that a person
is not entitled to bring any proceedings in a court or tribunal on the
ground that an act is incompatible with the Convention rights unless
he would be a victim for the purposes of article 34 of the
Convention if proceedings in respect of the act were to be brought
in the European Court. This raises a preliminary question which, if
it is put in issue, it would be open to the Judicial Committee to
determine under paragraph 13 of Schedule 6. So too are questions
which are consequential upon the determination of a devolution
issue, such as the question as to the appropriate remedy for breach
of a Convention right which has been raised by this case. The fact
that the principal question is no longer in dispute does not deprive
the Judicial Committee of its jurisdiction to examine the question
whether the appropriate remedy for the breach which has been
established in this case is the quashing of the conviction. As I said
in Dyer v Watson 2002 SLT 229, 249L, para 109, the question of
remedy forms part of the devolution issue.
The facts
this case, I must say a little more about the facts. No complaint has
been made in this case about pre-trial delay. Nor is there any
complaint about delay in the appeal process up to the date of the
diet of 6 May 1999 which had been originally fixed for the hearing
of the fresh evidence. It is the delay which occurred during the
period after that date that has been criticised.
the appeal to a date to be afterwards fixed pending further
preparations by the Crown. These preparations were to include the
precognition of the appellant’s witnesses, the recovery of certain
productions used during the trial and an application to the Deputy
Principal Clerk of Justiciary for the extension of the whole of the
evidence in the trial including the speeches to the jury by both the
Advocate Depute and counsel for the accused. Transcripts of the
evidence at the trial were obtained and received in the Justiciary
Office on 13 August 1999. On 19 August 1999 the Deputy
Principal Clerk of Justiciary wrote to the Crown Office saying that,
due to a misunderstanding, only the evidence and not the speeches
had been extended. He said that some delay might be anticipated in
obtaining a transcript of the speeches as the shorthand writer
responsible for taking notes of part of the trial had left the
employment of the firm of shorthand writers. He had already written
to the firm of shorthand writers asking for the speeches to be
transcribed as a matter of urgency. The precise date when a
transcript of the speeches reached the Justiciary Office has not been
identified, but it appears that they became available in December
1999. That date marks the beginning of the period which is under
scrutiny on the ground that there was a delay which was
unreasonable. It ends on 9 May 2001 when the court began hearing
the fresh evidence.
the court to hear the fresh evidence as soon as the transcript of the
speeches became available. The Crown was entitled to a little more
time to complete its preparations for the appeal. A fresh diet then
required to be fixed by the court, in accordance with the direction
to this effect in the interlocutor of 6 May 1999. But, as Lord
Coulsfield has explained, it would ordinarily have been expected
that the hearing on the fresh evidence would take place within two
or three months of the date of the request for a fresh diet: 2001 SLT
1359, 1362F, para 6. So the case has been argued on the basis that
there was a delay of about twelve months prior to the hearing of the
appeal for which the Crown was unable to give any explanation.
The court held that a breach of article 6 by the Lord Advocate had
been established because there had been a failure by the Crown to
intimate when its preparations were complete: p 1362K-L, para 8.
following facts also into account. The appellant was admitted to
bail on 6 May 1999. He was not recalled to custody to serve the
remainder of his sentence until the court disposed of his remaining
grounds of appeal on 1 August 2001. In the event his appeal
against sentence was rejected on the ground that it was not
excessive having regard to the serious nature of the offence: 2001
SLT 1359, 1363K-L, para 14. His appeal against conviction on the
ground of fresh evidence was held to have been entirely without
merit: 1363L, para 15. No other grounds have been put forward for
suggesting that his conviction for the offences of which he was
found guilty at his trial was a miscarriage of justice, nor has it been
suggested that the result of the appeal would have been any
different but for the delay. The effect of the breach of his article
6(1) right to a hearing within a reasonable time must be measured
against the fact that, had there been no delay, he would have known
that his appeal would be refused approximately one year earlier.
Remedy
the conviction should be quashed in the jurisprudence of the
European Court. He relied instead on the decision of Privy Council
in Darmalingum v The State [2000] 1 WLR 2303. But it is
necessary first to examine the jurisprudence of the European Court
on the question of remedy, as the breach which has been
established in this case is a breach of the reasonable time guarantee
in article 6(1) of the European Convention for the protection of
Human Rights and Fundamental Freedoms. A convenient starting
point for this examination is to be found in article 50 of the
Convention. It is in these terms:
“If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the obligations
arising from the present Convention, and if the internal law of
the said Party allows only partial reparation to be made for
the consequences of this decision or measure, the decision of
the Court shall, if necessary, afford just satisfaction to the
injured party.”
are to be found in the jurisprudence of the European Commission
on Human Rights and the European Court of Human Rights on this
issue. The Convention leaves it to each contracting state, in the first
place, to secure the enjoyment of the rights and freedoms which it
enshrines. The machinery of protection established by the
Convention is of a subsidiary character: Eckle v Federal Republic
of Germany (1982) 5 EHRR 1, 24, para 66. The court observed in
that case, at the end of paragraph 66, that the subsidiary character is
all the more pronounced in the case of states which have
incorporated the Convention into their domestic legal order and
which treat the rules of the Convention as directly applicable. It is,
of course, open to the victim of a breach found by the court first to
seek compensation within the domestic legal order: Eckle v
Germany (Just Satisfaction) (1983) 13 EHRR 556, 557, para 14.
Measures taken in the domestic legal order, such as a reduction of
his sentence by the domestic court or a discontinuance of the
prosecution, will then be taken into consideration by the European
Court for the purpose of assessing the extent of the damage which
he has suffered. The question for decision by the European Court
is whether, after taking account of such reparation as may have
been obtained in the domestic legal order, an award of just
satisfaction should be made under article 50.
length of the proceedings is the setting aside of his conviction. But
in none of the cases in which alleged or admitted breaches of the
right to a trial within a reasonable time have been considered by
European Commission and the European Court has it been held that
this is a necessary consequence of a breach of this guarantee. On
the contrary, in Bunkate v The Netherlands (1993) 19 EHRR 477,
where it was held that no satisfactory explanation had been offered
by the government for a period of delay between the filing by the
appellant of his appeal against the judgment of the Court of Appeal
and the receipt of the case file fifteen and a half months later by the
registry of the Supreme Court, the claim for just satisfaction was
dismissed. The appellant had been sentenced to sixteen months
imprisonment for forgery. His claim was for non-pecuniary
damages for each of the days that he served his sentence, for the
cost of proceedings in which he had sought an injunction
prohibiting execution of the prison sentence pending the
proceedings in Strasbourg and for travel expenses incurred during
home leave from prison. At p 484, para 25, the court said:
“The applicant’s claims are based on the assumption that a
finding by the court that a criminal charge was not decided
within a reasonable time automatically results in the extinction
of the right to execute the sentence and that consequently, if
the sentence has already been executed when the court gives
judgment, such execution becomes unlawful with retroactive
effect.
That assumption is, however, incorrect. The court is unable to
discern any other basis for the claims and will therefore
dismiss them.”
June 2001, the applicant complained that criminal proceedings
against him, which had lasted for seven years and seven months,
had not been concluded within a reasonable time as required by
article 6(1) of the Convention. The court noted that it did not
appear that there was any period of inactivity between the date when
the criminal proceedings against him were instituted in the City
Court and the rejection of his appeal by the Supreme Court. The
period of delay for which there was no satisfactory explanation
occurred between the issue of the indictment and the institution of
the proceedings in the City Court. But the City Court took account
of the length of the proceedings as a mitigating circumstance when
it sentenced the applicant to a period of imprisonment which was at
the lower end of the scale of punishment which had been authorised
for the offences. The European Court noted in paragraph 28 of its
judgment that the City Court had expressly upheld the substance of
the applicant’s complaint under article 6(1) of the Convention that
the proceedings had exceeded a reasonable time and had said that it
was satisfied that he had been afforded adequate redress for the
alleged violation of article 6(1) by the reduction in sentence. This
decision shows that the European Court is likely to find that just
satisfaction has already been afforded where, as in the present case,
the domestic court has expressly recognised that there was a breach
of the applicant’s right to a trial within a reasonable time under
article 6(1) and has reduced the length of his sentence appropriately
in order to give effect to his right to be compensated for the effects
of the delay. It is wholly inconsistent with the appellant’s argument
that the remedy to which he is entitled is the quashing of his
conviction.
Darmalingum
following passage in the judgment of the Board in Darmalingum v
The State [2000] 1 WLR 2303, 2310D:
“The normal remedy for a failure of this particular guarantee,
viz the reasonable time guarantee, would be to quash the
conviction.”
He has invited the Judicial Committee to depart from the decision of
the Privy Council in Flowers v The Queen [2000] 1 WLR 2396 in
so far as the decision in that case is not compatible with the
authority of the European Court and the decision in Darmalingum.
with each other in two respects. This fact has attracted the attention
of various commentators: see Alistair Webster QC “Delay and
Article 6(1): an end to the requirement of prejudice?” [2001] Crim
L R 786; P W Fergusson, Advocate, “Trial without a Reasonable
Time”, 2001 SLT (News) 141. The first inconsistency relates to the
question whether it is necessary for the person who complains that
there has been a breach of his right to a trial within a reasonable time
to show that he has been prejudiced by the delay. In
Darmalingum the Board held that section 10(1) of the Constitution
of Mauritius, which is the equivalent of article 6(1) of the European
Convention, contained three separate guarantees. It also held that,
while the reasonable time guarantee may be applicable where a
defendant has been prejudiced by inordinate delay, its reach is
much wider as it may be applicable in any case where the delay has
been inordinate and oppressive, and that a breach of the guarantee
cannot be justified even if the defendant’s guilt is manifest: [2000] 1
WLR 2303, 2307G-2308A. In Flowers a differently constituted
Board held, with reference to the right given by the equivalent
provision in section 20(1) of the Constitution of Jamaica, that one
of the factors to be taken into account was prejudice to the
defendant and that the strength of the case against the appellant was
such that the possibility of prejudice to him due to the delay could
be substantially discounted: [2000] 1 WLR 2396, 2411H-2413A.
At p 2414H-2415A the Board said that the right given by section
20(1) of the Constitution must be balanced against the public
interest in the attainment of justice and that the right to a trial within
a reasonable time is not a separate guarantee but rather, with the
other elements of section 20(1), forms part of one embracing form
of protection afforded to the individual.
Darmalingum, in the passage which I have already quoted, the
Board said that the normal remedy for a failure of the reasonable
time guarantee would be to quash the conviction: [2000] 1 WLR
2303, 2310D. Lord Steyn went on to say in the judgment which he
delivered for the Board, of which I too was a member, at p 2310EF
that their Lordships did not wish to be overly prescriptive on this
point and that they did not suggest that that there might not be
circumstances in which it might arguably be appropriate to affirm
the conviction but substitute a non-custodial sentence. But these
qualifications did not contradict the proposition that the normal
remedy would be to quash the conviction. In Flowers, on the other
hand, the Board held that it was right to take into account the fact
that the public interest in Jamaica required that persons convicted of
the crime of murder in the course of a robbery should be convicted
and punished: [2000] 1 WLR 2396, 2413B-C. It was pointed out
that the defendant had been proved on strong evidence to be guilty
of murder in the course of an armed robbery, that that type of
offence was very prevalent in Jamaica and that it posed a serious
threat to the lives of innocent persons: p 2415B. The Board held
that, taking account of these various factors, the defendant’s
conviction should not be quashed by reason of the delay: p 2415EF.
context of article 6(1), the way in which the reasonable time
guarantee was construed in Darmalingum is preferable: Porter v
Magill [2002] 2 WLR 37, 86D, para 109; Dyer v Watson 2002 SLT
229, 247H-J, para 94. I do not wish to say any more on this point,
except that I agree with all that Lord Steyn has said on this issue in
his judgment. The point which requires further examination in the
present case relates to the second inconsistency.
been found guilty of embezzlement and forgery and had been
sentenced to a total term of four years’ imprisonment, had had the
shadow of the proceedings hanging over him for a period of about
15 years. There had been a flagrant breach of the reasonable time
guarantee. The Board was invited to hold that the appropriate
remedy was to affirm the conviction and to remit the matter of
sentence to the Supreme Court so that it might substitute a noncustodial
sentence. It was not suggested that a sufficient remedy
for the delay would be for his sentence of imprisonment to be
reduced. The Board did not find it necessary to examine the
decisions of the European Court on the question of the appropriate
remedy. It was, of course, exercising its jurisdiction as the court of
final appeal from the Supreme Court of Mauritius.
remedy, on the other hand, was heavily influenced by its view that
the right to be tried within a reasonable time was not an absolute
right but must be balanced against the public interest in the
attainment of justice: [2000] 1 WLR 2396, 2413C-D. Here again the
question of a reduction in sentence was not in issue. The appellant
asked for his conviction to be quashed, but he had been convicted
of murder. For reasons which were unconnected to the breach of
the reasonable time guarantee his conviction of capital murder was
set aside, a verdict of non-capital murder was substituted and the
case was remitted to the Court of Appeal to pass a custodial
sentence for non-capital murder. It was not suggested that the
custodial sentence should be reduced to any extent to take account
of the breach of the guarantee. The breach was recognised, but the
appellant was left without any other remedy.
these two decisions in the present context. For the reasons which I
have already indicated, I consider that the proposition in Flowers
that the choice of remedy should be influenced by balancing the
interests of the defendant against the public interest is inconsistent
with the jurisprudence of the European Court. On the other hand,
the proposition in Darmalingum that the normal remedy is to quash
the conviction goes too far. This has already been recognised by
the Board in Taito v The Queen, 19 March 2002, para 22, in which
Darmalingum was described as a wholly exceptional case. It
would be more accurate to say that it is one of a variety of possible
remedies, the choice between which must depend on the
circumstances of each case.
a breach of the right to a fair hearing. While a conviction which was
obtained in breach of the right to a fair trial must be quashed, the
position is different where the breach occurs at the stage of an
appeal. This can be demonstrated by what happened in Hoekstra v
HM Advocate (No 2) 2000 JC 387. In that case it was held that one
of the judges who sat to hear the appellants’ appeals on grounds
alleging that their rights under articles 6 and 8 of the Convention had
been violated at their trial could not properly be regarded as
impartial. The remedy which was regarded as appropriate in these
circumstances was to set aside the interlocutor of the court which
heard the appeals so that these grounds of appeal could be dealt
with again by a differently constituted court. It was not suggested
that, once the breach of the appellant’s right to a fair hearing of their
appeal had been established, the remedy to which they were entitled
was to have their convictions quashed. That would plainly have
been an extravagant and unnecessary remedy. The proceedings in
which the appellants were convicted were not affected in any way
by the fact that the appellants did not receive a fair hearing at the
stage of the appeal.
Conclusion
been raised in this appeal is first to identify the remedy which would
ordinarily be thought to be appropriate in domestic law for a breach
of the kind which has taken place, and then to consider whether the
remedy which has thus been identified would achieve just
satisfaction for the breach as indicated by the jurisprudence of the
European Court. I think that it is important to start with the position
in domestic law because, as was emphasised in Eckle v Federal
Republic of Germany 5 EHRR 1, 24, para 66, the Convention
leaves to each contracting state, in the first place, the task of
securing the enjoyment of the rights and freedoms which it
enshrines. The machinery of protection established by the
Convention, of which article 50 forms part, is of a subsidiary
character.
which is available in domestic law is to uphold the accused’s plea in
bar of trial. This was familiar ground long before the coming into
effect of the Scotland Act 1998. It is available under the common
law where there is such a grave risk of prejudice at the trial due to
undue delay that no direction by the trial judge can be expected to
remove it; see McFadyen v Annan 1992 JC 53; Normand v Rooney
1992 JC 93. It is available also where the point is taken as a
devolution issue under the Scotland Act, for which purpose it is not
necessary for the person charged to show that he has suffered, or
will suffer, any actual prejudice: Dyer v Watson, K v HM Advocate
2002 SLT 229, 245I-J, para 79. In K v HM Advocate, where a
breach of the article 6 guarantee was established, the Board held
that to dismiss the indictment was the only appropriate course in the
circumstances. As Lord Rodger of Earlsferry said, at p 262K, para
182, it was, in the circumstances of that case, the only effective
remedy. But different considerations apply where the delay has
occurred between the date of a conviction and an appeal. There is
no precedent in domestic law for the setting aside of a conviction
which has been upheld on appeal as a sound conviction on the
ground that there was an unreasonable delay between the date of the
conviction and the hearing of the appeal.
of a situation where the setting aside of the conviction would be
regarded in domestic law as both unjustified and unnecessary. It
would be regarded as unjustified because the appellant’s appeal
against his conviction was, as the High Court of Justiciary said in
this case, at p 1363L, para 15, wholly without merit. No grounds
exist for regarding the conviction itself as unsound, nor is there any
question of its having been affected in any way by the delay. And
the setting aside of the conviction would be regarded as
unnecessary, because the effects of the delay can be recognised
perfectly well by a reduction in the appellant’s sentence. Here again
we are on familiar ground, as delay in bringing the accused to
justice is widely recognised as a mitigating factor that can be taken
into account when he is being sentenced.
is plain in the present case. The purpose of the reasonable time
guarantee is to avoid a person charged remaining too long in a state
of uncertainty about his fate: Stögmüller v Austria (1969) 1 EHRR
155, 191, para 5. It has been held that article 6 does not require the
person charged to co-operate with the judicial authorities: Eckle v
Federal Republic of Germany 5 EHRR 1, 30, para 82. The
appellant was under no obligation to take steps to obtain an earlier
hearing of his appeal, and it cannot be held against him that if he
was concerned about the delay he should have made an application
to the court. So the only matter that needs to be examined is the
extent to which the appellant has been prejudiced by the delay. As
Lord Coulsfield observed, it might perhaps be said that the delay
involved two elements of prejudice to him: 2000 SLT 1359, 1363L-
1364A, para 15. One was the anxiety resulting from prolongation of
the proceedings. The other was that his life had changed during the
period of the delay. This could lead to additional problems and
possibly hardships for himself and his family if he had to return to
prison. Taking account of all these factors the court held that a
reduction in sentence of nine months, leaving him with about six
months of the original sentence to serve before he became eligible
for parole, would produce an equitable result.
jurisprudence of the European Court which suggests that the
reduction in sentence which was held to be appropriate in domestic
law would be regarded as providing the appellant with less than just
satisfaction for the purposes of article 50 of the Convention. The
jurisprudence of the European Court indicates very clearly that the
fact that an appeal against conviction on a criminal charge has been
held not to have been decided within a reasonable time does not
mean that the execution of the sentence has become unlawful:
Bunkate v The Netherlands 19 EHRR 477, 484, para 25. On the
other hand, it has been held that a person may be deprived of his
status as a victim within the meaning of article 34 of the Convention
if the national authorities have acknowledged in a sufficiently clear
way the failure to observe the reasonable time requirement and have
afforded redress by reducing the sentence in an express and
reasonable manner: Eckle v Federal Republic of Germany 5 EHRR
1, 24, para 66; Beck v Norway, Application No 26390/95, 26 June
2001, para 27. It seems to me that these two requirements have
been fully satisfied in this case.
Justiciary to reduce the appellant’s sentence by nine months in
order to compensate him for the effects of the delay was an
appropriate and sufficient remedy. It meets with the requirements
indicated by the jurisprudence of the European Court. I would
dismiss the appeal.
_____________________________
Lord Scott of Foscote
and learned friends Lord Steyn and Lord Hope of Craighead. I
agree with them and that for the reasons they have given this appeal
should be dismissed.