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Cite as: 2009 SLT 2, 2009 SCCR 127, [2009] 1 AC 720, [2008] UKPC 63, [2009] 2 WLR 935, 2010 SC (PC) 26, [2009] AC 720, [2009] UKHRR 603

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Burns v. Her Majesty's Advocate (Scotland) [2008] UKPC 63 (15 December 2008)

Privy Council Appeal No 13 of 2008

George Francis Burns Appellant

v.

Her Majesty's Advocate Respondent

FROM

THE HIGH COURT OF JUSTICIARY

SCOTLAND

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 15^th December 2008

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Present at the hearing:-

Lord Hope of Craighead

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Neuberger of Abbotsbury

Lady Cosgrove

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Lord Hope of Craighead

I have had the advantage of reading in draft the opinions of Lord Rodger of Earlsferry and Lady Cosgrove. I entirely agree with them. For the reasons they give I would allow the appeal, recall the sheriff's order and remit to the sheriff to proceed as accords.

____________________

Lord Rodger of Earlsferry

This appeal concerns the application of the article 6(1) guarantee of a fair trial within a reasonable time to the situation where an accused, who was originally arrested, interviewed and released on bail in England in February 2003, appeared on petition in relation to the same matter in Scotland in December 2004 and has been indicted to stand trial in Scotland. Does the time run from February 2003, as the appellant argues, or from December 2004, as the Crown argues and the courts below have held?

In January 2003 the United States authorities arrested an American male and charged him with crossing a State boundary with the intention of engaging in sexual activity with a 13 year old girl. They recovered and examined certain computer equipment belonging to the man. This suggested that he was a member of an online paedophile group with a significant worldwide membership. Another member of the group appeared to be an individual who used the name "Kuna" and had given a Glasgow telephone number on the website. As part of the investigation of the group, the United States authorities contacted the National Hi-Tech Crime Unit ("the Hi Tech Unit") based in London. The unit specialised in crimes involving the use of computers. Two officers from the unit travelled to Denver and there carried out a further analysis of the information. On their return to London, they continued their investigation of various matters, including the identity of "Kuna". Since the telephone number on the website related to the appellant's home in Glasgow, the officers of the Hi Tech Unit suspected that "Kuna" was the appellant. Enquiries revealed that from time to time he stayed with his sister in Luton.

Officers of the Hi Tech Unit contacted officers of Strathclyde Police, whose area includes Glasgow. The Advocate Depute accepted that there was a considerable degree of co-operation between the English and Scottish officers. By 10 February 2003 DC Stephen Adams, of the Hi Tech Unit, had obtained, from a magistrate in Carlisle, a warrant under the Protection of Children Act 1978 to search the appellant's house in Glasgow. On 14 February 2003 the warrant was backed by a sheriff at Glasgow, who authorised DC Adams and all constables of Strathclyde Police to serve and execute the warrant. The assumption is that a representative of the Procurator Fiscal's Office in Glasgow would have been involved in the application to the sheriff to back the warrant.

At about 12.25 pm on 18 February 2003 the appellant was arrested at a service station in Luton. The stated basis for his arrest was "conspiracy to distribute child pornography". He was cautioned and made no reply. His sister's house in Luton was searched. Simultaneously, the warrant for the search of the appellant's home in Glasgow was executed. DC Adams and other officers seized and examined a computer, with an internet connection, which they found there. By 19 February information about the results of the examination of the computer had been passed to officers of the Hi Tech Unit who were to interview the appellant in Luton Police Station. The appellant was interviewed, in the presence of a solicitor, on four separate occasions, starting at 2.47 pm on 19 February and ending at 8.21 pm the same day.

Towards the end of the last of these interviews DS Paul Wright of the Hi Tech Unit said this to the appellant:

"Now once this interview finishes a final decision will be made as to what happens. I don't see it changing from what I've already mentioned to your legal representative. And what I'm going to recommend to the Custody Sergeant is that you be bailed from here, because I don't know which jurisdiction to charge you in. Yeah. I will be recommending that you are charged with offences in the future and they will either be in England and Wales or in Scotland. And, unless circumstances change drastically, I don't see you having another opportunity in relation to these offences, which is conspiracy to distribute, yeah, being made available to you. You fully understand the consequences?"

The appellant replied, "Yes."

The appellant had, of course, been cautioned - in accordance with the proper English procedure - that it might harm his defence if he relied in court on something which he had not mentioned when questioned. As can be seen from the transcript of the interviews, the appellant said relatively little in reply to questions. So in this passage DS Wright was, in effect, warning him that he was not going to have a further opportunity to give any explanation in reply to the allegations.

DC Shaun Reardon, the other officer present at this interview, then warned the appellant against interfering with witnesses. In the course of doing so, he said to the appellant that "the two that I've just mentioned, certainly there's sufficient evidence in my mind ready to charge and remand in custody." After that, the appellant agreed to authorise the police to access his bank accounts and his credit card details. He was told that enquiries would continue to see whether he had done anything for financial gain.

The appellant was released on police bail that same evening. It is common ground that, at that date, the Lord Advocate was unaware both of the appellant's arrest and of the interviews.

The officers of the Hi Tech Unit subsequently consulted the Crown Prosecution Service, which advised that the Scottish courts had jurisdiction. The papers were passed to Strathclyde Police who made an initial report to the procurator fiscal in October 2003. A full report was made a year later, in October 2004. On 3 November 2004 a warrant for the appellant's arrest was granted by a sheriff at Glasgow, on a petition at the instance of the procurator fiscal. By invitation, the appellant appeared in answer to the warrant on 17 December 2004. He was committed for further examination and released on bail.

An indictment was subsequently prepared and served on the appellant, but it was deserted pro loco et tempore for reasons associated with the preparation of the defence. The same happened with two further indictments. With the agreement of the defence, extensions of the twelve-month period for bringing the case to trial were granted. Eventually, the appellant was served with the present (fourth) indictment, with a first diet on 21 May 2007 and a trial diet in Glasgow Sheriff Court on 4 June 2007. The trial diet was subsequently adjourned.

In terms of that indictment the appellant is to stand trial at Glasgow Sheriff Court on five charges under the Civic Government (Scotland) Act 1982 and one common law charge, all relating to photographs or pseudo-photographs of children. In each case the locus is the appellant's home in Glasgow. Charge 1 relates to the simple possession of this material on 18 February 2003. Charge 4 relates to possession with a view to the material being distributed or shown to others, also on 18 February 2003. The three remaining statutory charges cover the period from 1 January 2000 to 18 February 2003. Charge 2 relates to the taking or making of indecent photographs or pseudo-photographs of children; charge 3 to distributing or showing such material. Charge 5 relates to publishing an advertisement likely to be understood as conveying that the advertiser distributes or shows, or intends to distribute or show, such material. Charge 6 is a common law charge of breach of the peace. More specifically, the allegation is that the appellant did "by means of communications over the internet, encourage others to commit indecent acts with children and distribute images depicting said indecent acts by means of the internet...."

The appellant lodged a devolution minute to the effect that, because of delays on their part, by bringing the appellant to trial the Crown would be acting incompatibly with his article 6(1) Convention right to a fair and public hearing within a reasonable time. At the hearing before Sheriff Mitchell counsel for the appellant contended that, for purposes of article 6(1), time had begun to run when the appellant was "charged" on 18 February 2003, while the procurator fiscal submitted that the starting point was 17 December 2004 when the appellant first appeared in answer to the charges brought by the competent authority in Scotland.

In a judgment dated 22 June 2007 Sheriff Mitchell upheld the argument for the Crown and refused the minute. He granted leave to appeal to the High Court. On 22 November 2007 the High Court (the Lord Justice General (Lord Hamilton), Lord Nimmo Smith and Lord Wheatley) dismissed the appellant's appeal on substantially the same basis. On 18 April 2008 the Board granted the appellant special leave to appeal.

So far as relevant for present purposes, article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides:

"In the determination of his civil rights and obligations or of 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…."

In Eckle v Federal Republic of Germany (1982) 5 EHRR 1, 27, para 73, the European Court of Human Rights observed:

"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'."

Commenting on this passage in Attorney General's Reference (No 2 of 2001) [2003] UKHL 68; [2004] 2 AC 72, 91, paras 27-28, Lord Bingham of Cornhill said this:

"27. As a general rule, the relevant period will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him. This formulation gives effect to the Strasbourg jurisprudence but may (it is hoped) prove easier to apply in this country. In applying it, regard must be had to the purposes of the reasonable time requirement: to ensure that criminal proceedings, once initiated, are prosecuted without undue delay; and to preserve defendants from the trauma of awaiting trial for inordinate periods. The Court of Appeal correctly held ([[2001] 1 WLR 1869, ] at p 1872, para 10 of its judgment) that the period will ordinarily begin when a defendant is formally charged or served with a summons, but it wisely forbore (pp 1872-1873, paras 11-13) to lay down any inflexible rule.

28. The interviewing of a person for purposes of a regulatory inquiry in England and Wales will not meet the test laid down above: Fayed v United Kingdom (1994) 18 EHRR 393, 427-428, para 61; IJL, GMR and AKP v United Kingdom (2001) 33 EHRR 11 , 258-259, para 131. Nor, ordinarily, will time begin to run until after a suspect has been interviewed under caution, since Code C made under section 66 of the Police and Criminal Evidence Act 1984 generally requires the charging process to be set in train once an interviewing officer considers that there is sufficient evidence to prosecute a detained person and that there is sufficient evidence for a prosecution to succeed. In Howarth v United Kingdom (2001) 31 EHRR 37 the European Court held that the period had begun with the first police interview of the defendant, but only 4½ months separated that interview from the charge and attention was largely focused (p 865, para 20) on the passage of time between sentence and final determination of a reference by the Attorney General under section 36 of the Criminal Justice Act 1988. Arrest will not ordinarily mark the beginning of the period. An official indication that a person will be reported with a view to prosecution may, depending on all the circumstances, do so."

It is common ground that these passages encapsulate the approach which is to be followed. The dispute is as to its application in the circumstances of this case.

On behalf of the Crown, the Advocate Depute stressed that, in the words of Lord Hope of Craighead in R v Manchester Stipendiary Magistrate, Ex p Granada Television Ltd [2001] 1 AC 300, 304G-H, in matters of criminal law the English and Scottish systems "are as distinct from each other as if they were two foreign countries." The present proceedings were Scottish criminal proceedings which had been initiated on behalf of the Lord Advocate. The relevant period under article 6(1) therefore began when the appellant was "charged" by the "competent authority" for the purposes of the Scottish criminal proceedings. This could not have been when the appellant was arrested and interviewed by the officers of the Hi Tech Unit in Luton on 19 February 2003, since they were members of an English force, following English procedures. They had not acted at the behest of the Lord Advocate, who had indeed been unaware of what was going on in Luton. In any event, the Lord Advocate would have been unable to give any instructions to the English officers under section 17 of the Police (Scotland) Act 1967 since that section is not part of the law of England. It followed that, for purposes of article 6(1), the appellant was "charged" when he appeared in answer to the charges brought on behalf of the Lord Advocate, as the competent authority in Scotland, in December 2004.

I have come to the view that the argument for the Crown should be rejected.

The Advocate Depute was right, of course, to draw attention to the separate jurisdictions of the Scottish and English courts and prosecuting authorities. But these have to be seen in their real, practical, context within the United Kingdom.

After 1707 the different English and Scottish systems of criminal law and procedure continued to apply in their respective jurisdictions. For the most part, this caused no problems since the aim of suppressing crime and punishing criminals throughout the United Kingdom could be achieved by the two systems working in parallel. But that aim would have been frustrated if criminals had been able to evade apprehension and trial by moving from one jurisdiction to the other. By 1772, Parliament was concerned that this was happening. In the preamble to the Criminal Law Act 1772, 13 Geo III c 31, Parliament recorded: "Whereas it frequently happens that felons and malefactors in that part of Great Britain called England, make their escape into that part of Great Britain called Scotland, and also that felons and other malefactors in that part of Great Britain called Scotland make their escape into that part of Great Britain called England, whereby their offences often remain unpunished...." In section 1 of the Act, Parliament dealt with the problem by providing that arrest warrants issued by English magistrates were to be endorsed by Scottish sheriffs etc and executed in Scotland. The wanted man was then to be taken to England to stand trial. Section 2 provided for the converse case of someone in England being returned for trial in Scotland. (Different provision was made for cases of theft.)

This cross-border system was introduced within the United Kingdom at a time when Hume, for example, could scarcely conceive of the idea of people being sent from Scotland for trial in a foreign country, except in the most exceptional circumstances: Commentaries on the Law of Scotland respecting Crimes (fourth edition, 1844) vol 2, pp 56-57. Significantly, it is only within the last few years that the European arrest warrant has come to operate in a way that is even remotely comparable to the way in which arrest warrants have been enforced throughout the United Kingdom since 1772. In the intervening centuries many other legislative and administrative steps have been taken to ensure that the two systems of criminal law work together efficiently, as and when required. The need is all the greater today, when travel within the United Kingdom is much easier and faster.

So, while Lord Hope was right, in R v Manchester Stipendiary Magistrate, Ex p Granada Television Ltd [2001] 1 AC 300, 304G-H, to draw attention to the separate nature of the systems of criminal procedure in Scotland and England, he was equally right when he went on to observe, at p 306A, that

"it has for a long time been recognised that the public interest requires that the authorities on either side of the border within the United Kingdom should co-operate with each other as much as possible, and with the minimum of formality, in the investigation and prosecution of crime."

The present case affords an excellent example of the kind of co-operation which Lord Hope had in mind. The information which prompted the investigation came from the United States authorities. They got in touch with the specialist National Hi-Tech Crime Unit, an obvious point of contact in the United Kingdom. Officers of that Unit used their expertise to analyse the material and this led to suspicion, in relation to one matter, falling on the appellant, who had an address in Glasgow but sometimes stayed with his sister in Luton. The Hi Tech Unit officers contacted the Strathclyde Police. Search warrants were obtained and the one for the appellant's home in Glasgow was backed by the Sheriff. The premises in Glasgow and Luton were searched and the appellant was arrested and interviewed in Luton. The transcript of the interviews shows that the police were interested in contacts which the appellant might have had with other people in England, including his nephew. At that stage it was unclear where any prosecution should take place. But, eventually, on the advice of the Crown Prosecution Service, the papers were passed to the Strathclyde police. They, in turn, reported the matter to the procurator fiscal and this ultimately led to the appellant appearing on petition and being indicted.

In that situation, it would, on any view, be highly artificial to treat the actions of the prosecuting authorities in Scotland as if they could be divorced from all that went before and, in particular, from the actions of the Hi Tech Unit officers in February 2003. This is particularly so when the prosecution relies on those actions. According to the list of witnesses, leaving aside another eight officers from the National Crime Squad or Hi Tech Unit, the Crown intends to call DS Wright and DC Reardon, who interviewed the appellant in Luton, and DC Adams, the Hi Tech Unit officer who searched the appellant's home and examined his computer. The appellant's nephew and his wife, both of whom live in Luton and were mentioned during the interviews, are also on the list.

So far, therefore, from there being any kind of complete break in December 2004, the sequence of events is, in effect, a continuum. When it began, no-one knew where it would end up. The officers of the Hi Tech Unit were fully entitled to carry out the investigations which they did, to obtain the warrants and to arrest and interview the appellant. In all these respects they were acting in accordance with the powers given to them by the Protection of Children Act 1978 and the Police and Criminal Evidence Act 1984. And DS Wright and DC Reardon were acting in exercise of their official powers under the 1984 Act when, at the end of the final interview, they indicated that, in their view, there was enough evidence to charge the appellant and that they would be recommending that he should be charged. For all these purposes, as the Advocate Depute accepted, the police officers concerned were indeed "the competent authority" under English law.

In summary, by the evening of 19 February 2003, the appellant's home had been searched and his computer had been examined by the police; he himself had been arrested, detained for more than twenty-four hours, and interviewed under caution on four occasions, with the officers making use of material recovered in the search of his home. Finally, he had been told that the officers would recommend that proceedings should be brought against him. Combining all these elements and applying the approach in Eckle v Federal Republic of Germany (1982) 5 EHRR 1, 27, para 73, quoted above, I have no doubt that, if the subsequent prosecution had been in England, the appellant would have been "charged" for the purposes of article 6(1). The Advocate Depute indeed conceded as much.

Are all these events in February 2003 to be ignored, however, because - as it turns out - the appellant's trial is to take place in Scotland, at the instance of the Lord Advocate and on charges which are framed under Scots rather than English law? For purposes of the article 6(1) guarantee, surely not. In the rather stilted language of the English version of the European Court's judgment in Stögmüller v Austria (1979-80) 1 EHRR 155 , 191, para 5, the guarantee "is designed to avoid that a person charged should remain too long in a state of uncertainty about his fate." The passage was quoted with approval in Dyer v Watson 2002 SC (PC) 89, 107G-H and 132F; [2004] 1 AC 379, 401D-E and 428E. The guarantee must therefore be interpreted and applied in a manner which will tend to achieve this purpose. Here, after all the events of 18 and 19 February 2003, the appellant was left with the indication from the police officers who had interviewed him that, in their view, they had enough evidence. They would accordingly be recommending that he should be charged, either in England or in Scotland. This substantially affected the appellant's situation: he had been officially notified that he was facing a real threat of criminal proceedings. From then on, he was in a state of uncertainty about his fate. From his point of view, whether the charges were to be in England or in Scotland was a legal technicality which could not possibly have reduced his anxiety or uncertainty. In my view, the appellant required the protection of the article 6(1) guarantee from that time onwards. He was accordingly "charged" for the purposes of article 6(1) on 19 February 2003.

This is consistent with wider considerations. The United Kingdom, rather than Scotland or England, is the party to the European Convention. In terms of article 1, the United Kingdom has undertaken to secure to everyone within its jurisdiction, inter alia, the rights defined in article 6. Of course, the United Kingdom is free to make what internal constitutional arrangements it pleases, but, whatever arrangements it adopts, it remains bound to fulfil that obligation. Suppose a case where someone is "charged" in Scotland for article 6(1) purposes and his trial in Scotland is then delayed for a period which is unreasonable. The United Kingdom will be in breach of article 6(1). Suppose, instead, that he is "charged" in Scotland and his trial in England on substantially the same matter is then delayed for the same period. The same result must follow. In other words, the way that the United Kingdom has chosen to distribute its criminal jurisdiction cannot impair or defeat an accused's right to be tried on a criminal charge within a reasonable time. In a case like the present, therefore, when applying article 6(1), it is appropriate to look at the sum total of the actions of the competent English and Scottish authorities.

For these reasons, as well as for those to be given by Lady Cosgrove, with which I agree, I would allow the appeal and recall the sheriff's order dismissing the devolution minute. In the light of Spiers v Ruddy [2007] UKPC D2; 2008 SLT 39; [2008] AC 873, however, an unreasonable delay does not prevent the Crown from proceeding to trial. The decisions, as to whether there has been any such delay by the Crown in this case and, if so, as to the appropriate remedy, should therefore be left until the trial has taken place. In the meantime I would remit to the sheriff to proceed as accords.

____________________

Lord Walker of Gestingthorpe

I have had the advantage of reading in draft the opinions of Lord Rodger of Earlsferry and Lady Cosgrove. I am in full agreement with them and I would allow the appeal and dispose of the matter as they propose.

____________________

Lord Neuberger of Abbostbury

I have had the advantage of reading in draft the opinions of Lord Rodger of Earlsferry and Lady Cosgrove. I am in full agreement with them and would allow the appeal and dispose of the matter as they propose.

____________________

Lady Cosgrove

The appellant has been charged on indictment and is to stand trial at Glasgow Sheriff Court on five charges under the Civic Government (Scotland) Act 1982 and one common law charge, all relating to indecent photographs or pseudo-photographs of children. The locus in respect of all the charges is the appellant's home in Glasgow.

The appellant lodged a devolution minute in which he asserted that his right to a fair trial within a reasonable time guaranteed by article 6(1) of the Convention had been breached in that he had been "charged" in respect of the proceedings against him on or about 18 February 2003. The sheriff dismissed the minute but granted leave to appeal against his decision. The High Court refused the appeal. On 18 April 2008 the Board granted the appellant special leave to appeal.

The sheriff decided the matter on the basis that English police officers could not be regarded as an integral part of the Scottish criminal justice system and was therefore not "the competent authority" to "charge" the appellant. The High Court attached significance to the fact that in its definition of "charge" in Eckle v Federal Republic of Germany (1982) 5 EHRR 1, 27, para 73 the European Court used the definite article ("the competent authority") and refused the appeal on essentially the same basis.

The facts

The background to the matter is that information was received from the authorities in the United States of America about an online paedophilic group, believed to have a worldwide membership. Contact was made with the National Hi-Tech Crime Unit ("the Hi -Tech Unit") based in London, a unit that specialises in computer related crime. Analysis of available information suggested that the appellant was a member of the group, the telephone number of his Glasgow home being provided on its website. Investigation revealed that from time to time the appellant stayed with his sister in Luton.

On 10 February 2003 an officer of the Hi- Tech Unit obtained a warrant from English Magistrates to search the appellant's house in Glasgow. On 14 February 2003 the warrant was backed by the sheriff at Glasgow.

On 18 February 2003 the appellant was arrested by English police officers at a service station at Luton. The basis for his arrest was "conspiracy to distribute child pornography". He was cautioned and made no reply. He was then taken to a local police station where he was again cautioned. He was detained and interviewed on four separate occasions.

By the time of his arrest, simultaneous searches were being carried out at the appellant's home in Glasgow and the home of his sister in Luton. A computer with an internet connection and two computer discs containing a large number of indecent images of children were seized from the Glasgow address. These items were examined and the results of the examination were passed to the officers of the Hi- Tech Unit who interviewed the appellant.

It is a reasonable inference from what occurred and what was said to the appellant at the conclusion of the interview process that, had there been no cross - border element, he would have been formally charged at that stage; and it was conceded on behalf of the Crown that, had the subsequent prosecution been in England, time would have begun to run for article 6(1) purposes at that point.

In the event, the appellant was not charged. What was said to him by one of the interviewing officers towards the end of the final interview was:

"Now once this interview finishes a final decision will be made as to what happens. I don't see it changing from what I've already mentioned to your legal representative. And what I'm going to recommend to the Custody Sergeant is that you be bailed from here, because I don't know what jurisdiction to charge you in. Yeah. I will be recommending that you are charged with offences in the future and they will either be in England and Wales or in Scotland. And, unless circumstances change drastically, I don't see you having another opportunity in relation to these offences, which is conspiracy to distribute, yeah, being made available to you. You fully understand the consequences?"

The appellant replied, "Yes."

The other officer present at this interview then warned the appellant against interfering with witnesses and, in the course of doing so, said to him "certainly there's sufficient evidence in my mind ready to charge and remand in custody". Before being released on police bail later the same evening the appellant agreed to authorise the police to access his bank and credit card accounts.

The Lord Advocate was unaware both of the appellant's arrest and the interviews.

The advice subsequently given by the Crown Prosecution Service to the officers of the Hi -Tech Unit was that the Scottish courts had jurisdiction. The papers were passed to Strathclyde police who reported the matter to the procurator fiscal and this led to the appellant appearing on petition and being indicted.

The issue

The requirement that a criminal charge be heard within a reasonable time poses the question: when, for article 6 (1) purposes, does a person become subject to a criminal charge? The issue for determination in this appeal is whether, as the appellant alleges, he was "charged" at Luton in February 2003.

The Crown contends that the starting point was not until 17 December 2004, the date when the appellant first appeared at the sheriff court in answer to the charges brought against him on behalf of the Lord Advocate, the competent authority in Scotland. In support of this contention, the Advocate Depute stressed the separate jurisdictions of the Scottish and English courts in criminal matters. The officers who arrested and interviewed the appellant at Luton were members of an English force acting under English procedures. They were not acting as instruments of the Scottish police and were not subject to the direction or instruction of the Lord Advocate.

The Test

In seeking to give an autonomous definition of "criminal charge" for Convention purposes the European Court has formulated a test in general terms. It is found in the court's judgment in Eckle at para. 73:

"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'".

It is apparent from the jurisprudence of the European Court that the cases in which the test set out in Eckle has been considered are fact sensitive. In seeking to apply the test to the facts of the present case some guidance can be found in the approach that has been taken by the Court to the interpretation of the reasonable time guarantee.

First, the reasonable time guarantee provided by article 6(1) is a core provision in a Treaty that is binding on the United Kingdom Government and to which the United Kingdom as a whole is one contracting party. A generous interpretation is called for to ensure that, in the light of their object and purpose, the safeguards which it provides are practical and effective: Loizidou v Turkey (1995) 20 EHRR 99,133-134, paras 72-73, quoted with approval in Attorney General's Reference (No 2 of 2001) [2003] UKHL 68; [2004] 2 AC 72, para 49).

Second, in the Court's judgment in Stögmüller v Austria (1969) 1EHRR 155,191, para 5, the purpose of the guarantee is said to be to prevent a person charged remaining too long in a state of uncertainty about his fate. This rationale was approved by the Privy Council in Dyer v Watson 2002 SC (PC) 89, 107G-H; [2004] 1 AC 379, 401D-E.

Third, the prominence of the right guaranteed by article 6 "prompts the Court to prefer a 'substantive,' rather than a 'formal,' conception of the 'charge' contemplated by Article 6(1). The Court is compelled to look behind the appearances and investigate the realities of the procedure in question." (Deweer v Belgium (1980) 2 EHRR 439, 458, para 44).

What then are the realities of the procedure in this case? In the first place, there is the significant degree of mutual co-operation between the English and Scottish police forces involved in the investigation of the criminal proceedings the appellant now faces.

In Rv Manchester Stipendiary Magistrate, Ex p Granada Television Ltd [2001] 1 AC 300, p304 G-H Lord Hope of Craighead drew attention to the fact that in matters of criminal law the English and Scottish systems "are as distinct from each other as if they were two foreign countries", but he went on to observe, at p306A, that

"it has for a long time been recognised that the public interest requires that the authorities on either side of the border within the United Kingdom should co-operate with each other as much as possible, and with the minimum of formality, in the investigation and prosecution of crime."

As Lord Rodger observes, the present case is an excellent example of such public interest co-operation. The Scottish and English authorities combined their efforts. They worked hand in hand with each other. A search warrant for the appellant's home in Glasgow was obtained at Carlisle Magistrates' Court on 10 February 2003. That warrant was backed by the sheriff at Glasgow on 14 February 2003. It was an officer of the Hi -Tech Unit who conducted the search there. The locus of the various charges on the indictment is the appellant's home in Glasgow and the charges reflect the material recovered from there. It is evident from the transcripts that the English officers conducting the interviews of the appellant had a detailed knowledge of the fruits of that search, and that they made use of the material recovered. In all that they did the English officers were acting in the exercise of their official powers under the English statutes and were "the competent authority" under English law.

Moreover, there is a clear link between the actions of the officers of the Hi- Tech Unit in February 2003 and the proceedings the appellant now faces. The prosecution of the appellant depends upon the actions of the officers who recovered and examined the computer material and who interviewed him. The names of no less than eleven English officers appear on the witness list attached to the indictment. The Scottish proceedings are, in reality, part of one and the same process that began in England with the obtaining of the warrants.

A step in that process was the clear indication given to the appellant by the officers interviewing him that they considered there was sufficient evidence on which to charge him. In the particular circumstances of this case to conclude that this was not an official notification by the competent authority on the basis that it was provided by English rather than Scottish officers is to focus unduly on form rather than substance and to deny the generous interpretation appropriate to a core provision of a Treaty binding on the United Kingdom as a single contracting party.

The reasonable time requirement must be interpreted and applied in a way that will tend to achieve its purpose. Since the purpose is to avoid undue uncertainty on the part of a person charged, the matter ought to be examined from the perspective of the individual concerned. What then would this suspect have thought? When the appellant was released on police bail in February 2003 he had been subject to intensive questioning by police officers over a period of many hours. He knew they had searched his home and seized his computer and that that had been examined by experts. He knew the police had also seized two computer discs containing a large quantity of indecent images. He also knew they were in possession of potentially incriminatory witness statements. He had given the officers authority to recover his bank and credit card accounts. He knew that the officer in charge considered that there was certainly sufficient evidence available to charge him at that stage.

As an ordinary member of the public, it is unlikely that the appellant would have anything more than a vague awareness of the separate nature of the two criminal justice systems. The ordinary citizen of either country would not appreciate the subtleties of the situation, such as the fact that an English officer could not formally charge him with a Scottish offence. He would have no conception that the interviewing officers were other than a competent authority within the United Kingdom in respect of conduct that is undoubtedly criminal in both jurisdictions. On being informed that he was going to be charged in England and Wales or Scotland the English officers would have been perceived by him as a competent authority to provide such official notification. From his point of view, whether he was ultimately charged in Scotland or England would be of little consequence. In short, the appellant would be bound to be subject to stress as from 20 February 2003. It is unimaginable that what took place in Luton did not trigger feelings of anxiety and concern as to his future. His situation was substantially affected by what occurred. He was, in the words of Lord Bingham of Cornhill "officially alerted to the likelihood of criminal proceedings against him" (Attorney General's Reference (No2 of 2001), para 27). To suggest otherwise is to deny the reality of what occurred.

For these reasons, as well as the fuller reasons given by Lord Rodger of Earlsferry, I too would allow the appeal, recall the sheriff's order dismissing the devolution minute and remit the case to the sheriff to proceed as accords.