HER MAJESTY'S ADVOCATE v. D.P. AND S.M. [2001] ScotHC 115 (16th February, 2001) HIGH COURT OF JUSTICIARY OPINION OF LORD REED in the cause HER MAJESTY'S ADVOCATE against D P and S M For the Crown: S E Woolman, AD For the First Accused: McLeod, Advocate;, Banks Devlin & Co, Paisley For the Second Accused: Quinn, Solicitor-Advocate; Ross Partnership, Paisley 16 February 2001 [1] At this preliminary diet I have been invited on behalf of each of the accused to dismiss the indictment against them. The submission made on their behalf is that by virtue of section 57(2) of the Scotland Act 1998 the Lord Advocate has no power to prosecute the case against them since to do so would be incompatible with their right under Article 6(1) of the European Convention on Human Rights: "In the determination... of any criminal charge against him, everyone is entitled to a... hearing within a reasonable time..." The Advocate Depute on the other hand maintains that the case is capable of being brought to trial within a reasonable time in terms of Article 6(1).
[2] The material facts are not in dispute. The indictment charges the accused jointly with the rape of the complainer on 11 March 1999. There is also a separate charge against the second accused, alleging a separate assault upon the same complainer on the same date and at the same locus. No mention however was made in argument of that charge. At the time of the alleged offences, the first accused was aged 13 years and five months. The second accused was aged 13 years. The complainer was aged 14 years and four months. [3] As I have mentioned, the date of the alleged offence was 11 March 1999. On 13 March 1999 the complainer made a statement to a relative as a result of which the police were contacted. The complainer reported the same matter to the police later the same day. She was interviewed by police officers on 14 March 1999. A civilian witness was also interviewed by police on 14 March 1999. The complainer underwent a medical examination by a police surgeon the same day. On 15 March 1999 two other civilian witnesses were interviewed by the police. These were the relative, and another person, who had been present when the complainer first made mention of the subject matter of the complaint. On 16 March 1999 each of the accused was interviewed by police officers, under tape-recorded conditions, and under caution. During the interview, the first accused made statements indicating that he had been at the locus in question, and in contact with the complainer, at the time in question, and that he had been at the door of a bedroom there at a time when the second accused and the complainer had been inside the bedroom. The second accused, in his interview, made a statement which could be construed as an admission of having had sexual intercourse with the complainer during the incident in question. Each of the accused were cautioned and charged by police officers at the end of their interview. The charge was one of rape. The police submitted their report to the procurator fiscal on 16 March 1999. [4] On 30 March 1999 the procurator fiscal reported the case to Crown Office. The procurator fiscal's report mentioned that the complainer had learning difficulties. On 7 April 1999 Crown counsel instructed the procurator fiscal to re-report when the complainer had been assessed in respect of her learning difficulties and precognosced. At some point in June 1999 the case was allocated to a precognition officer, working in the procurator fiscal's office in Paisley, for precognition. During July 1999 the same precognition officer was allocated a complex murder case for precognition. I was informed by the Crown that this was a case in which six persons had been placed on petition, and that it took eight weeks for the precognition officer to prepare it. [5] In September 1999 the complainer and her mother were contacted, and gave their permission for a psychiatric report to be prepared. In October 1999 the procurator fiscal contacted Dr Jones, a psychiatrist at Dykebar Hospital, with a view to her preparing such a report. According to the Advocate Depute, it had taken the procurator fiscal some time to find an appropriately qualified psychiatrist. After being contacted, Dr Jones did not respond. Several reminders had to be sent. On 22 November Dr Jones informed the procurator fiscal that she was not qualified to undertake the assessment. She suggested that it should be done by Dr Kerr, a consultant in child and adolescent psychiatry. On 9 December 1999 the procurator fiscal contacted Dr Kerr. Dr Kerr's report was received on 13 January 2000. The complainer was thereafter precognosced on 21 January and 1 February 2000. The procurator fiscal depute had taken the view that the complainer should only be
precognosced once the extent of her learning difficulties had been investigated. On 7 February 2000 the procurator fiscal re-reported the case to Crown Office, enclosing the psychiatric report and the precognition of the complainer. [6] On 15 February 2000 Crown counsel instructed that the case be fully precognosced. On 21 March 2000 the procurator fiscal sought Crown counsel's instruction to place the accused on petition in order to facilitate precognition. The Advocate Depute was unable to explain the thinking behind seeking this instruction. Be that as it may, on 24 March 2000 Crown counsel instructed that the accused be placed on petition. Petition warrants were granted by the sheriff on 13 April 2000. On 16 May 2000, the accused appeared on petition at Paisley Sheriff Court, and were granted bail. There is no suggestion that the accused were responsible for the time that elapsed between 13 April and 16 May. On 31 May 2000 the case was allocated by the procurator fiscal to a precognition officer for precognition. Precognition was thereafter carried out. On 27 July 2000 the procurator fiscal re-reported the case to Crown Office. On 31 July Crown counsel instructed that the case be re-reported when a forensic report was available, concerning vaginal swabs taken from the complainer by the police surgeon on 14 March 1999. The report was obtained on 8 August 2000. On 24 August 2000 the procurator fiscal re-reported the case to Crown Office with the forensic report, which was negative. On 30 August 2000 Crown counsel instructed that proceedings be taken against the accused in the High Court. The case was provisionally allocated to the High Court sitting at Glasgow due to begin on 20 November 2000. On 26 October, however, a decision was taken that because of the pressure of business anticipated in that sitting, the case should instead be allocated to a sitting at Paisley due to begin on 19 February 2001. On 18 January 2001 the present indictment was served on the accused, indicting them for trial at the High Court sitting in Paisley on 19 February 2001. The case is listed as case No 7 in that sitting. If it were to proceed to trial in that sitting, the first accused would then be aged 15 years and five months; the second accused would be aged 15 years; and the complainer would be aged 16 years and three months. [7] Addressing me on behalf of the first accused, Mr McLeod pointed out that the period of time between the accused being charged and the date of the trial was one of 23 months. A period of 14 months had elapsed prior to the accused's first appearance on petition. Both the period prior to their being placed on petition, and the period since then, had been marked by delay. The overall period was, on its face, unduly long. Mr McLeod submitted that the present case was not complex; there was only one complainer; and there was no expert witness on the Crown List of Witnesses. The police had dealt with the case, prior to reporting to the procurator fiscal, with the expedition which was required in a case involving children. The same could not however be said of the Crown. In that connection, Mr McLeod submitted that the passage of a period of almost two years between the date of being charged and the date of being tried was particularly serious in the case of a child of 13. A period of two years was a significant part of a person's childhood; and the passage of such a period could result in major changes in the individual's personality. Mr McLeod referred to HMA v Hynd, 2000 SCCR 644, and to the Opinion of the Sheriff in Cook v HMA, 2000 SCCR 922, in which reference had been made to the UN Convention on the Rights of the Child. Counsel submitted that Article 40 of the UN Convention, and Article 20 of the UN Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules") illustrated the importance of avoiding unnecessary delay
in proceedings against children. I return to the UN Convention and the Beijing Rules below. [8] On behalf of the second accused, Mr Quinn adopted the submissions made on behalf of the first accused. He added that, on its face, this appeared to be a relatively straightforward case. Eighteen witnesses were listed on the Crown List of Witnesses. There were two photographers; the complainer and six other civilian witnesses; a police surgeon; and eight police officers. Mr Quinn also referred to the Opinion of the Sheriff in Cook v HMA, in which the Sheriff had taken the view that the age of the accused could not be regarded as a factor of any great importance. Mr Quinn observed that, in that case, the accused was a much older boy (just under 16 years of age), and the period of time involved in that case (of 9 months) had been far shorter. Mr Quinn also referred to Docherty v HMA, 2000 SCR 717, as demonstrating that pressure of work was not necessarily an acceptable explanation for delay. [9] Addressing me on behalf of the Crown, the Advocate Depute said that it was accepted by the Crown that a child could suffer prejudice as a result of a delay in proceedings, whether the child were a complainer, a witness or an accused. Crown Office attached importance to dealing expeditiously with cases involving children. Procurators fiscal were under standing instructions to prioritise cases involving children as accused or as complainers. The difficulty in the present case had arisen partly from the need for a psychiatric report, and partly from the burden of work upon the Paisley office at the relevant time, which had included other cases (notably cases of murder) which required to be given a degree of priority. [10] Article 6(1) of the European Convention requires a hearing "within a reasonable time" (dans un délai raisonnable). As the Lord Justice General (Lord Rodger of Earlsferry) observed in HMA v McGlinchey 2000 SCCR 593, 606, under reference to certain judgments of the European Court of Human Rights, the aim of the guarantee of a hearing within a reasonable time is to avoid that a person charged should remain too long in a state of uncertainty about his fate. The provision also underlines the importance of rendering justice without delays which might jeopardise its effectiveness and credibility. Although a variety of factors have been taken into account in cases concerned with the "reasonable time" requirement (such as the exact period to be taken into consideration, the degree of complexity of the case and the parties' conduct), the case law of the European Court of Human Rights is based on the fundamental principle that the reasonableness of the length of proceedings is to be determined by reference to the particular circumstances of the case (Obermeier v Austria, A179, para.72). Particular characteristics of the individual affected by the delay can be a relevant factor, insofar as they render the delay particularly prejudicial (Obermeier, para 72; X v France, A234-C, para 32). The High Court of Justiciary has equally recognised, in its application of Article 6(1), that particular cases may call for special expedition. In McNab v HMA, 1999 SCCR 930, for example, the Lord Justice Clerk (Lord Cullen) observed (at page 940): "As a matter of common-sense and ordinary experience it is unrealistic to expect that all cases should progress towards trial at the same speed. Each makes its own particular demands in regard to preparation. Some cases are subject to the imperative created by the fact that the accused is remanded in custody. Others have features which call for special
expedition. Pressure of business may lead to proceedings taking longer than they would otherwise have done". In Gibson v HMA, 5 December 2000, unreported, Lord Prosser similarly observed: "In deciding upon priorities, a wide discretion is inevitable. Almost every case will have some feature which can be said to be point to its being given priority. But all such features must be weighed in what will be quite imprecise but practical processes of 'prioritisation'. That implies no unreasonableness. We would add one specific comment. While prejudice is not an essential element in breach of Article 6(1), it is in our opinion obvious that if the passage of time is likely to be prejudicial to the accused in a given case, that will weigh heavily in favour of giving that case priority over others where such prejudice is not regarded as likely." [11] So far as proceedings against children are concerned, it is recognised by Crown Office, as the Advocate Depute explained, that such proceedings call for particular expedition, whether the child is an accused or a complainer or, as in this case, both. That approach is in my opinion in accordance with the requirements imposed in this particular context by Article 6(1). Such an approach is also in accordance with the requirements of the UN Convention on the Rights of the Child and the Beijing Rules, each of which the European Court of Human Rights has used as a source of guidance as to the requirements imposed by the European Convention in relation to proceedings involving juvenile offenders: see in particular V v The United Kingdom (2000) 30 EHRR 121, paras. 72-73, 76-77 and 97. Article 40(2)b of the UN Convention provides: "Every child alleged as or accused of having infringed the penal law has at least the following guarantees:... (ii) to have the matter determined without delay...". Rule 20 of the Beijing Rules provides: "Each case shall from the outset be handled expeditiously, without any unnecessary delay." These requirements reflect the general approach adopted in the UN Convention and the Beijing Rules, that children accused of committing crimes should be treated in a manner which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society. [12] Where a child of 13 is accused of committing a serious offence, it is plainly desirable that the child should be brought to trial (if criminal proceedings are considered appropriate) as quickly as is consistent with the proper preparation and consideration of the case. For a period of two years to elapse between the child's being charged with the offence and the child's being placed on trial has a number of undesirable consequences. Without attempting to list them exhaustively, the following may be mentioned. A child of 13 may be very different from the same child when he
or she is 15 years old, both in terms of physical development and in terms of maturity and understanding. If the trial is to be held before a jury, as in the present case, the jury may have a very different impression if a 15 year old boy is in the dock, from the impression which they would have had if they had seen the same individual when he was 13. It may be much more difficult to assess the state of a child's understanding, when he was 13, of sexual matters and sexual relationships, if the child is not placed on trial, and is not able to give evidence, until he is two years older. For the child himself (or herself), a period of two years awaiting trial will form a significant part of childhood, and more particularly of the period of secondary schooling, which cannot be compared with the significance of a two year period to an adult. If the 13 year old child is in fact guilty of an offence, and requires the sort of reformative measures which disposals in respect of child offenders are intended to include, then again it is undesirable that the initiation of such measures should be delayed by a period of years. Reverting to the aims of the "reasonable time" requirement, for a period of two years to elapse before justice is rendered in a case involving a child of 13 is for these reasons liable to jeopardise its effectiveness and credibility; and for the child to remain for that period in a state of uncertainty about his fate may have especially harmful consequences. I have mentioned matters which relate to the child accused, because such matters are particularly relevant in the context of Article 6(1); it is scarcely necessary to add that prolonged delay in bringing a case to trial may also have seriously harmful effects upon a child complainer, especially (as in the present case) in a case of alleged rape. [13] Nevertheless, it is necessary to consider whether there may have been specific reasons, in the present case, which render the period of delay a reasonable time in its particular circumstances. Although the period is considerably longer than one would normally expect to find in Scottish proceedings in a case of rape, that is far from being a conclusive consideration. In the first place, it is important to remember, as the Lord Justice General pointed out in HMA v McGlinchey (at 6 10), that the Convention sets an international standard: if the court were simply to concentrate on the standards ordinarily to be expected in the Scottish system of criminal procedure, then this would lead to Article 6(1) being applied differently in different Contracting States. In the particular context of juvenile justice, however, it is difficult to draw comparisons between the Scottish system and that existing in other jurisdictions, and no such comparison was attempted by those appearing before me. In particular, in almost all other European jurisdictions a child of 13 accused of an offence would be dealt with under a special procedure for juveniles. The significance of delay in dealing with a child offender (having regard to its consequences as described above) is liable to be somewhat less in most European systems than under one where the child is dealt with under the same form of procedure as an adult offender. [14] It is also necessary to consider carefully the explanations for the delay which were put forward by the Advocate Depute. The fact that the complainer was considered to have learning difficulties, such as necessitated a psychiatric assessment, is a material factor. In deciding what amounts to a reasonable time, it is necessary to bear in mind the time required to be taken in order to obtain such an assessment. Any other approach would result in Article 6(1) subverting the protection which requires to be given to complainers with learning difficulties in order to secure compliance with Article 3 of the Convention: it is always necessary to remember that the Convention is designed to protect victims of crime, as well as to guarantee minimum rights to those
accused of having committed crimes, and that it must be interpreted and applied with both those objectives in mind. It is also essential to bear in mind that a busy procurator fiscal's office will inevitably have a number of cases with features which can be regarded as pointing towards their being given priority. Discretion has to be exercised in the process of "prioritisation"; and the Court's concern is to assess whether the period in the particular case is reasonable or not, rather than to attempt to second-guess the way in which discretion was exercised by the procurator fiscal on the basis of the resources available to him to her. [15] In the present case, however, there are a number of aspects of the history of the case which, particularly when considered cumulatively, leave me with the impression that this case was not dealt with with the urgency it required: indeed that it was not in reality dealt with with any degree of priority or urgency by reason of the involvement of children. A few examples can be given. Although the procurator fiscal was instructed on 7 April 1999 to have the complainer assessed by a psychiatrist, five months elapsed before the complainer and her mother were even requested for permission for the undertaking of such an assessment. Although swabs had been taken from the complainer on 14 March 1999, a forensic report concerning the swabs was not obtained until 8 August 2000. Although the procurator fiscal was instructed on 7 April 1999 to have the complainer assessed and precognosced, two months elapsed before the case was allocated for precognition; and it was then allocated to a precognition officer who was also given an unusually involved murder case which was bound to take several weeks to prepare and which, it was suggested by the Advocate Depute, had held up the precognition of the complainer. It is not clear to me why it should have done so, given the procurator fiscal depute's decision that the complainer should not be precognosced until a psychiatric report had been obtained. If the preparation of the murder case did hold matters up, however, then it must have been apparent that it would do so when it was allocated to the same precognition officer who had already been allocated the present case. As I have mentioned, it took five months for the complainer to be approached for permission for a psychiatric report. After the psychiatric report had been obtained, and the complainer precognosced, there were further delays due to the way in which the procurator fiscal responded to Crown counsel's instruction, on 15 February 2000, that the case be fully precognosced. More than a month after that instruction had been issued, the procurator fiscal sought an instruction to place the accused on petition in order to facilitate precognition. The Advocate Depute was unable to explain why that instruction had been sought. The result was to delay matters until 31 May 2000, when the case was finally re-allocated for precognition. Even then, a further delay ensued because of the absence of the forensic report. It is also unfortunate that the instructions issued by Crown counsel in this case on each occasion led the procurator fiscal to undertake particular action before re-reporting to Crown counsel, only to be told that some further action was required. Thus Crown counsel initially instructed the procurator fiscal to re-report when the complainer had been assessed and precognosced. It took the procurator fiscal 10 months to comply with that instruction. Crown counsel's next instruction was that the case be fully precognosced. It took the procurator fiscal five months to comply with that instruction. Crown counsel then instructed that the case be re-reported when the forensic report was available, resulting in a delay of another month. The fact that the case was originally allocated by Crown Office to a sitting in November 2000, but was re-allocated in October 2000 to a sitting in February 2001 because of anticipated "pressure of business" in the
earlier sitting, is a further indication of the absence of commitment towards treating this case as a matter of priority. The fact that the case has been listed seventh in the list of cases for the sitting on 19 February 2001 illustrates the same attitude. [16] Making an overall assessment of the case, as I have to do, I have come to the conclusion that the period of time which has elapsed in this case since the accused were charged is much longer than would be customary under Scottish procedure in a rape case of this nature, even where the complainer suffered learning difficulties; that the delay is particularly unusual in a case involving children, since the Crown introduced its practice of treating such cases as a matter of priority; and that no satisfactory explanation has been given of why this case has taken such a long time to come to trial. [17] In these circumstances, considering the period which has elapsed in the light of the requirement embodied in Article 6(1) and the objectives of that requirement, and having regard above all to the age of the accused and to the particular need for the avoidance of delay in proceedings involving children, I have come to the conclusion that the charges against them have not been brought to trial within a reasonable time. I must accordingly sustain their pleas in bar of trial and dismiss the indictment as incompetent.