In the case of Beggs v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 16 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 25133/06) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British and Irish national, Mr William Frederick Ian Beggs
(“the applicant”), on 20 June 2006.
The applicant was
represented by Ms R. Cameron, a lawyer practising in Edinburgh. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J.
Grainger, of the Foreign and Commonwealth Office.
On 15 January 2009
the President of the Chamber decided to give notice of the application to the
Government. It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
On 14 April 2010 the Irish Government indicated that
they did not wish to exercise their right to intervene in the proceedings
before the Court (Article 36 § 1 of the Convention).
. The
applicant requested an oral hearing but the Chamber decided not to hold a
hearing in the case. It also decided not to admit to the file additional
submissions made by the applicant on 10 November 2009 and 5 December 2009
and by the Government on 14 January 2010.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1963 and is currently
serving a sentence of life imprisonment in HM Prison Peterhead.
A. Background
facts
In the early hours
of the morning of Sunday 5 December 1999, Mr Barry Wallace, then aged
eighteen years, disappeared following a Christmas function organised by his
employers. There was evidence that Mr Wallace had consumed a great deal of
alcohol and, after leaving the function, had had an altercation with a friend,
G.B., before the two youths made up and Mr Wallace left to go to a nightclub.
The last sighting of him was at the entrance to the nightclub at around
1.30 a.m.
. On
6 December 1999 members of the Central Scotland Police Underwater Search Unit
discovered severed parts of a human body while on a training exercise in Loch Lomond. Further body parts were discovered on 7, 8 and 10 December 1999. On 15
December 1999 a human head was discovered at Barassie Beach in Troon. Some
weeks later, on 8 January 2000, a human torso was recovered from Loch Lomond. DNA analysis revealed the body parts to be those of Mr Wallace.
9. On 17
December 1999 the police conducted a search of the applicant’s home while he
was absent and discovered quantities of Mr Wallace’s blood, as well as
other significant items. On the evening of 17 December 1999, upon hearing
of the search of his home via the media, the applicant left Scotland.
On 9 January 2001 the applicant was extradited from the Netherlands to the United Kingdom to stand trial. Further details of the extradition process are set
out in the Court’s decision in Beggs v. the United Kingdom (No. 2) (dec.),
no. 14599/10, 16 October 2012.
B. Domestic proceedings
1. Preliminary procedures
11. Details of
the various preliminary matters dealt with in the domestic courts are set out
in the Court’s decision in Beggs (No. 2), cited above. The following is
a brief summary of the relevant matters.
On 10 January 2001 the Sheriff granted an order
to prevent reporting of the case. On 12 January 2001 the British
Broadcasting Corporation (“BBC”) lodged a petition to the nobile officium
of the High Court of Justiciary (“the High Court”), an extraordinary remedy to
be granted only in exceptional circumstances (see paragraph 178 below). In its
petition, the BBC sought an order quashing the Sheriff’s decision to impose an
order preventing the reporting of the case.
On 15 January 2001 the High Court received the
report from the Sheriff on his order to prevent the reporting of the case. The
applicant’s agents lodged a petition to the nobile officium for an order
restricting reporting of the case.
On 17 January 2001, the applicant appeared
before the Sheriff Court and made no plea or declaration. He was fully
committed for trial and remanded in custody for 110 days. The applicant’s
agents advised the prosecution that they intended to abandon the nobile officium
application.
On 14 March 2001 the Lord Advocate indicted the
applicant for trial on a charge of murder in the High Court sitting in Edinburgh, to commence on 17 April 2001.
On 3 April 2001 the applicant lodged a minute of
postponement of the trial in order to seek preliminary hearings to determine
issues concerning pre-trial publicity and the competency of the indictment. The
trial was postponed until 14 May 2001.
On 10 May 2001 at a preliminary hearing, the
applicant sought a further adjournment of the trial. This was granted and a
trial date of 25 June 2001 was fixed. A preliminary hearing in respect of the
various minutes lodged was fixed for 4 June 2001.
On 4 June 2001 the preliminary hearing was
continued on the applicant’s motion.
At the
continued preliminary hearing on 29 June 2001, the applicant’s legal advisers
argued a plea in bar of trial on the grounds of the extensive media coverage
and the inclusion in the indictment of matters excluded from the Dutch terms of
extradition. This was refused by the High Court in a written opinion by Lord
Wheatley. Leave to appeal was granted.
The Appeal Court of the High Court of Justiciary (“the Appeal Court”) heard
the appeal on 7-8 August 2001 and, on 17 August 2001, refused the appeal and
issued a written opinion.
On 14
September 2001 the applicant pleaded not guilty to the charge. He was
represented by senior counsel. His counsel
subsequently made a request for an order under section 4(2) of the Contempt of
Court Act 1981 restricting the reporting of the trial. The request was refused
by Lord Osborne for reasons set out in his written opinion dated 17 September
2001.
2. The trial proceedings
Details of the trial are set out in full in the
Court’s decision in Beggs (No. 2), cited above. The following is a brief summary of the
relevant matters.
On 18 September 2001, the jury were called and
sworn and the applicant’s trial commenced before Lord Osborne.
On 21
September 2001 Lord Osborne refused the applicant’s motion for publishers of certain
material to be ordained to appear at the bar of the court to answer allegations
of contempt of court, for reasons set out in his second written opinion.
On 26
September 2001 Lord Osborne repelled the applicant’s objection to the
admissibility of certain statements, for reasons set out in his third written
opinion.
On 3
October 2001 Lord Osborne repelled the applicant’s objection to questioning at
trial regarding production no. 57 (a search warrant) for reasons set out in his
fourth written opinion.
On 12 October 2001,
the applicant was convicted of murder by majority verdict of the jury. He was
sentenced to life imprisonment with a tariff (punishment part) set at twenty
years, to run from 28 December 1999.
3. The application for leave to appeal
(a) Preparation of trial documents
On 17 October 2001, the applicant formally lodged his written intention to lodge
an appeal against conviction before the Appeal Court. He was required to lodge
a note of appeal within six weeks (see paragraph 172 below). According to the
applicant, on 22 October, he requested a copy of the Book of Adjournal, which
contained a record of the indictment and the minutes of the trial proceedings.
On 29 November 2001 the trial judge’s charge to the jury was lodged with the
Justiciary Office (court registry). Upon receipt, the Justiciary Office
intimated a copy to the applicant’s agents.
According to the applicant, by 3 December 2001, a
copy of the Book of Adjournal had not yet been received and his legal
advisers sent a reminder to the court.
On 4 December 2001 a note to the Parole Board was produced by Lord Osborne.
(b) Extensions of time for lodging note of appeal
On 13 December
2001, the applicant’s agents sought a first extension under section 110(2) of
the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act - see paragraph 174
below) of the time allowed for lodging the note of appeal. The application
stated:
“The Appellant was sentenced on 12th October 2001 following a
trial at Edinburgh High Court which lasted almost 5 weeks. The volume of
documentation in connection with preliminary matters which fall within the
scope of the appeal is now very great, and in the time available Senior Counsel
has not had time to examine the extensive documentation - there were 3 opinions
of the trial judge in relation to preliminary matters, and points of law raised
during the trial - along with the Charge to the jury to be considered.
An extension of 6 weeks is sought to enable the Note of Appeal
to be framed, as it is not in the interests of justice that the appellant’s
appeal be prejudiced because of pressure of work on Senior Counsel.”
The application
was received by the Justiciary Office on 20 December 2001 and the
following day, Lord Johnston granted the applicant a six-week extension of time
to lodge his note of appeal. The new time-limit was due to expire on 1 February
2002.
On 21 January
2002, the applicant sought authorisation from the Scottish Legal Aid Board
(“SLAB”) for transcription of the evidence and legal submissions at trial. On
23 January 2002, authorisation was granted and transcripts were ordered from
the court.
On 29 January
2002, the applicant’s agents sought a second extension of the six-week
time-limit. The application stated:
“1. The Appellant was sentenced on 12th October 2001 following
a trial at Edinburgh High Court which lasted almost 5 weeks. On examination of
the extensive documentation here, Senior Counsel has indicated that there is
additional information which he requires before the grounds can be framed.
2. Transcripts of the Advocate Depute’s speech to the jury, and
the evidence of certain of the forensic scientists and two witnesses will be
required.
3. Sanction was sought from the Scottish Legal Aid Board to
cover the cost of transcription and on 23rd January 2002 this was
granted.
4. The Justiciary Office has been asked to put in hand the
transcription of the required portions of the trial, using the express service,
and although it is hoped that the transcripts will be available within the next
10 days o[r] so, it is not anticipated that there will be sufficient time to
enable them to be examined in the detail required and the Grounds framed.
An extension of a further 6 weeks is sought to enable the Note
of Appeal to be framed, as it is not in the interests of justice that the
appellant’s appeal be prejudiced because additional extensive transcripts are
required before formulation of the Grounds of Appeal.”
On 30 January
2002 the applicant was granted a further six-week extension of time to lodge
his note of appeal. The new time-limit was due to expire on 13 March 2002.
On 7 February
2002, the applicant’s agents sought a third extension of the time-limit for
lodging the note of appeal. The application stated:
“The Appellant was sentenced on 12th October 2001 following a
trial at Edinburgh High Court which lasted almost 5 weeks. An extension of time
has been granted to lodge the Note of Appeal Against Conviction. That time
limit now expires on 13th March 2002. At consultation with the
client on 3rd February 2002, Senior Counsel took the view that an
Appeal Against Sentence would be required. This has been prompted by production
of the ‘Parole Report’ by the Judge, and the service on the appellant of the
extract conviction.
An extension of time to the 13th March 2002 is
sought to enable the Note of Appeal Against Sentence to be incorporated with
the Note of Appeal Against Convention.”
On 11 February
2002, Lady Paton granted the application, according a further five weeks from
that date for the lodging of the note of appeal.
On 8 March 2002
the applicant’s agents sought a fourth extension of the time-limit for lodging
the note of appeal. The application stated:
“1. The Appellant was sentenced on 12th October 2001 following
a trial at Edinburgh High Court which lasted almost 5 weeks. Extensive documentation
has been produced in the way of transcripts of certain evidence at the trial
and Opinions of the trial judge on certain preliminary matters. However it has
now become apparent that further transcript[s] of evidence heard at the
trial-within-a-trial is required because the Opinion produced contains factual
inaccuracies.
2. The Trial Judge did not produce a decision on the
preliminary point taken in relation to ‘crime not charged’ and in these
circumstances a transcript of the submissions made will be required. Sanction
will be required from SLAB for these further transcripts.
3. SLAB has only now granted Sanction to allow an Opinion to be
obtained from A Fulford QC who is a Silk at the English bar and an expert
on pre-trial publicity. There will be a ground of appeal specifically relating
to pre-trial publicity and in particular the influence of the internet.
4. One of the proposed Grounds of Appeal relates to speciality
in the extradition process. Sanction has recently been sought from SLAB to
enable the Opinion of an expert (Dr Clive) [to be obtained] ... This will be
required before the ground can be framed.
An extension of a further 6 weeks is sought to enable the Note
of Appeal to be framed, as it is not in the interests of justice that the
appellant’s appeal be prejudiced because additional transcripts and further
expert advice is required before formulation of the Grounds of Appeal.”
On 11 March 2002,
Lord Philip granted the application and allowed a further six-week extension of
time to lodge the note of appeal.
On 19 March
2002, a request for sanction for transcription of further evidence was received
by the SLAB. The request was granted the following day, 20 March 2002.
On 18 April
2002 the applicant’s agents sought a fifth extension of the time-limit for
lodging the note of appeal. The application stated:
“1. The Appellant was sentenced on 12th October 2001 following
a trial at Edinburgh High Court which lasted almost 5 weeks. Extensive
documentation has been produced in the way of transcripts of certain evidence
at the trial and opinions of the Trial Judge on certain preliminary matters. A
further transcript was required of the evidence heard at a trial within a
trial, because the opinion produced in that regard contained factual
inaccuracies.
2. Sanction was sought for transcription and was granted on 21st
March 2002. The Justiciary Clerk intimated on 21st March 2002 that
the transcribers had been instructed to extend the tapes to typed format.
However despite a request for express service, the transcripts were not
available until 8th April 2002, and there has been insufficient time
to have that portion of the grounds framed and considered by the client.
3. Sanction has now been obtained from SLAB to enable the
expert opinion of Dr Clive to be obtained but this is not yet to hand.
An extension of a further 6 weeks is sought to enable the Note
of Appeal to be framed, as it is not in the interests of justice that the
appellant’s appeal be prejudiced because detailed consideration of novel and
complex matters are required before the Grounds are formulated.”
On 23 April 2002,
Lord Philip granted the application and allowed a further six-week extension of
time to lodge the note of appeal.
On 20 May
2002 the applicant was transferred from HM Prison Edinburgh to HM Prison
Peterhead, some four hours’ drive north. The transfer was considered to be
beneficial to the applicant because, as the offence of which he was convicted
included a charge of sodomy against the victim, he was classified as a sex
offender, and HM Prison Peterhead was the prison normally used to house
long-term male prisoners who were sex offenders. The applicant subsequently
made repeated requests to the prison authorities to be transferred to a prison
in central Scotland, in order that he could communicate more readily with his
legal advisers. The requests were refused.
On 21 May 2002
the applicant’s agents sought a sixth extension of the time-limit for lodging
the note of appeal. The application stated:
“1. The Appellant was sentenced on 12th October 2001 following
a trial at Edinburgh High Court which lasted almost 5 weeks. Extensions of time
have been granted on various occasions since then. The last day for lodging the
note of appeal in terms of the most recent extension is 4 June 2002.
2. Draft grounds have been framed and are being actively
revised by senior and junior counsel. However on 20 May 2002 the Appellant was
moved from HM Prison Saughton [Edinburgh] to HM Prison Peterhead. The location
of the Appellant at HM Prison Peterhead renders the arrangements required
for Senior and Junior Counsel and agents to consult with him much more time
consuming and difficult to co-ordinate around Court attendances.
3. An extension of time of a further six weeks is sought to
enable the Appellant’s instructions on the final form of the grounds of appeal
to be taken and to enable the Note of Appeal to be lodged.”
On 22 May 2002
the applicant was granted a further six-week extension of time to lodge his
note of appeal.
On 24 May 2002
the SLAB received an application for sanction to cover the costs of a visit to
HM Prison Peterhead. After continuing the application for information, which
was received on 4 June 2002, authority was granted on 7 June 2002.
On 2 July
2002 the applicant’s legal advisers lodged a formal note of appeal against
conviction and sentence. The note contained eight grounds of appeal against
conviction, each ground being subdivided into a number of subparagraphs, and
one ground of appeal against the tariff part of his sentence. The grounds
referred to prejudicial publicity, extradition and the rule of specialty, the
admission of evidence, the conduct of the prosecutor at trial, the lack of
reasons from the jury, the trial judge’s directions to the jury and the length
of the tariff (the punishment part of the sentence) fixed by the trial judge
(c) Obtaining the trial judge’s report
On 16
August 2002, the applicant’s agents contacted the court to inquire after the trial
judge’s report on the note of appeal (see paragraph 176 below), which was
required in order for the court to consider whether to grant leave to appeal.
They were advised that the report had not yet been ordered on account of a
missing notebook which was in the process of being located. The report was
ordered that day and the trial judge was given one month to produce the report.
Between 16
August 2002 and 28 November 2002, Lord Osborne was on leave for three weeks,
was sitting in the Appeal Court for nine weeks and was presiding over criminal
trials for three weeks. On 18 September 2002 and 13 November 2002, the
applicant’s agents wrote to the Appeal Court regarding the delay in the
preparation of the report. Lord Osborne requested three writing days from 19-21
November 2002 in order to progress his report.
The trial
judge’s report on the note of appeal was issued on 28 November 2002 and
received by the applicant’s agents on 3 December 2002. It was twenty-eight
pages long and dealt with the preliminary matters addressed by Lord Wheatley
and on appeal, the controversial matters at trial, Lord Osborne’s four written
opinions and the grounds of appeal.
(d) The single sift
The application for
leave to appeal was considered by a “single sift” judge (see paragraph 177 below). On 20 December 2002, the
single sift judge, Lord Bonomy, restricted leave to appeal against conviction
and sentence to a limited number of the grounds specified by the applicant in
the note of appeal, under section 107(7) of the 1995 Act (see paragraph 177 below). The decision, together
with reasons, was set out in a letter to the applicant’s agents dated 6 January
2003. The letter advised that an appeal against the decision could be lodged
within fourteen days but did not indicate under what legislative provision such
an appeal should be made.
(e) The second sift
By letter
dated 17 January 2003 the applicant’s agents intimated their intention to have
the partial refusal reviewed by the “second sift” under section 107(4) of the
1995 Act (see paragraph 177
below). They sought an additional eight weeks to lodge further submissions
directed at the refused grounds of appeal on the basis that, due to the
applicant’s detention at HM Prison Peterhead, consultation with him was proving
difficult. On 7 February 2003 the applicant’s agents were advised
that the application for leave to appeal would not be placed before the High
Court before 18 March 2003.
On 17 March
2003 the applicant’s agents wrote to the court requesting a further two-week
extension of time to lodge the supplementary submissions and documents.
On 20 May 2003
the applicant’s agents sent submissions to the court in support of their
application to the second sift.
On 21 July
2003 the applicant’s agents sent further submissions to the court in support of
their application to the second sift. On the same day, the court
authorities advised that the papers had not yet been passed to the second sift
judges.
On 20 August
2003, the second sift judges refused the applicant’s appeal against the partial
refusal of leave to appeal. The reasons for refusal were that:
“For the reasons given by Lord Bonomy, and notwithstanding the
further representations made on behalf of the appellant, we consider the
grounds on which leave was refused are unstateable [unarguable].”
By letter
of 7 October 2003, the applicant sought further reasons for the refusal of the
second sift judges to uphold his appeal against the decision of the single sift
judge.
On 9
October 2003 the SLAB received an application from the applicant for legal aid
for a petition to the nobile officium jurisdiction of the High Court
(see paragraph 178 below) to overturn the decision of the second sift judges.
It continued the application for information on 10 and 21 October 2003.
On 27
October 2003 the SLAB received a copy of the decision taken at the second sift.
In a note
dated 1 November 2003 senior counsel for the applicant advised that it was not
possible to explain the second sift refusal in the absence of any reasons for
the refusal. By letter of 6 November 2003 the applicant’s agents sent
counsel’s note to the court and requested further reasons.
On 6 November 2003 the SLAB sought further information in support of the application
for legal aid for a petition to the nobile officium. On 12 November
2003 further papers were received by the SLAB from the applicant’s agents. On
27 November 2003 the SLAB once again continued the application for further
information.
By
letter of 4 December 2003 the clerk noted that in the reasons set out in the
decision of 20 August 2003, the second sift judges had stated that they had
taken into account the further representations by the applicant and he noted
that they had adhered to the reasons given by Lord Bonomy.
On 9 December 2003 further papers were received by the SLAB from the
applicant’s agents in respect of the application for legal aid for the nobile
officium petition.
On 29 December 2003, the SLAB authorised legal aid for a petition to the nobile
officium.
(f) The petition to the nobile officium
On 4 May
2004, the applicant’s request for a transfer to a central Scotland prison was granted on a temporary basis. He was transferred from HM Prison Peterhead to
HM Prison Edinburgh, for a four-week period in order to facilitate the
preparation of his appeal against conviction and sentence, including the nobile
officium proceedings.
On 14 June
2004, the applicant’s petition to the nobile officium to challenge the
decision of the second sift judges was lodged with the court. On 18
June 2004, the High Court granted warrant for the service of the nobile
officium petition.
On 7 July 2004,
a preliminary hearing on the petition to the nobile officium took place.
The court ordered that the prayer of the petition (i.e. what was being sought)
be amended within four weeks to provide greater specification of what was being
sought and that the applicant lodge a note of argument. The Crown was given
four weeks thereafter in which to lodge a note of argument. The petition was
continued to a date to be fixed.
On 4 August
2004 the applicant’s agents lodged a minute of amendment to the petition, along
with a full note of argument. A date for the hearing was fixed at the
convenience of the applicant’s counsel.
On 8 December
2004, the petition to the nobile officium was argued and granted. In a
written decision issued on 18 January 2005 the High Court set aside the
decision of the judges on the second sift on the basis that it was not
competent for the applicant to appeal to the second sift the decision of a
single sift judge to specify only certain grounds of appeal as arguable. That
being the case, the decision of the second sift judges was also incompetent.
The court further advised that in a case such as the applicant’s, an
application could be made to the court for leave to argue the refused grounds
“on cause shown” under section 107(8) of the 1995 Act (see paragraph 177 below). Such an application
would be considered in open court.
(g) The section 107(8) application to argue further grounds of
appeal on cause shown
On 25 January 2005 the applicant’s agents requested further transcripts of
proceedings at the trial. On 3 February 2005, the clerk authorised
the transcripts.
On 26 April
2005, the applicant lodged an application under section 107(8) of the 1995 Act
for an order to entitle applicant’s counsel to found upon those grounds of
appeal which Lord Bonomy had failed to specify as arguable in his decision of
20 December 2003. On 27 April 2005 the further transcripts were lodged with the
court.
On 13
May 2005, 29 June 2005, 12 July 2005 and 5 September 2005, the applicant’s
legal advisers wrote to the court seeking a hearing date. On 23 September 2005 the
applicant’s agents were advised that a hearing date of 28 October 2005 had been
fixed.
The section 107(8)
application was heard on 28 October 2005 and the Court made avizandum (reserved
its judgment).
On 25 November 2005,
the Appeal Court granted leave to appeal on all grounds set out in the note of
appeal lodged on 2 July 2002. The applicant was ordered to lodge reformulated
grounds of appeal within four weeks, i.e. by 23 December 2005.
4. The substantive appeal proceedings
On 16 January 2006 a reformulated note of appeal was lodged with the Appeal Court, taking into account the judgment of 25 November 2005.
On 20 March 2006 authorisation was sought from the SLAB for further
transcripts. This was partially granted. On 21 March 2006 the
applicant’s agents requested further transcript evidence from the trial
proceedings. On 29 March 2006 the request for further transcripts
was authorised by the clerk.
On 4
April 2006 a request by the applicant for interim liberation pending the
determination of his trial was refused by the single judge.
On 25 April 2006 a hearing of the applicant’s appeal against the refusal of
interim liberation was continued to 28 April 2006 on the applicant’s motion, as
his senior counsel was not available. On 28 April, the applicant’s
appeal against the refusal of interim liberation was refused.
On 12 May 2006, the applicant’s request for funding to allow transcripts to
be prepared on an expedited basis was refused by the SLAB on the ground that
this would not have any impact on the speed of the appeal procedure.
On 26 May 2006, the applicant’s agents sent letters to the Crown, the Foreign
and Commonwealth Office and Strathclyde Police requesting disclosure of
documents.
On 21 June 2006 the applicant’s agents requested further transcripts from the
trial, namely of eight separate legal submissions made by counsel. On
5 July 2006 the clerk authorised the request for further transcripts.
On 10 July 2010 the Crown replied to the request for disclosure of 26 May
2006 and refused disclosure in the terms requested.
On 11
July 2006 a procedural hearing in the appeal was heard before three judges. The
court decided to allow the applicant’s reformulated grounds of appeal to be
received and to be treated as the applicant’s grounds of appeal. It also
directed that any petition for recovery of documents should be lodged with the
court within three weeks, with answers lodged thereto, if so advised, within a
further three weeks. At that stage a procedural hearing was to be held before a
single judge to consider any further questions of procedure. The court remitted
the third ground of appeal (concerning the validity of the search warrant) to
the Sheriff inviting him to report to the court on the basis upon which the
warrant was granted, to advise what material he had had or still had before him
and to indicate what his usual practice would be in such situations. Finally,
the court refused the applicant’s motion for permission to have any future
appeal hearings tape recorded, on the basis that such a step would not be
directed to a more expeditious disposal of the appeal.
On 31 July 2006, the applicant lodged a first petition for recovery of
documents with the court. The annexed specifications of documents and property
were wide in their terms, covering in particular pathology reports, all witness
statements taken by the police during the investigation, information about
search warrants, information about the applicant’s travel to the Netherlands
and information about K.P., a deceased witness.
On 2
August 2006 the applicant’s agents lodged a devolution minute in the appeal
process (see paragraphs 187-188 below) arguing that the Lord Advocate’s failure
to disclose all the documents and property described was or would be
incompatible with the applicant’s rights under Article 6 § 1 of the Convention.
On 23 August 2006 the Crown and Strathclyde Police each lodged answers to the
applicant’s petition for recovery of documents. On the same day the Crown
provided the applicant’s agents with several documents referred to in the
specification of documents annexed to the petition.
On 26
September 2006 the applicant’s agents sent to the Crown an amended petition for
recovery of documents. On the same day a procedural hearing was held before a
single judge. The judge allowed the amended petition for recovery of documents
to be received and on the applicant’s motion continued the procedural hearing
to 10 October 2006 in order to allow counsel for the applicant an opportunity
to consider and review a decision of the SLAB regarding sanction for unusual
work or expenditure.
On 4 and 5 October 2006 the Crown wrote to the applicant’s agents asking that
they provide a copy of correspondence and media samples referred to in the
amended petition for recovery of documents.
On 10
October 2006 the continued procedural hearing took place before a single judge
in the petition for recovery of documents. The applicant’s counsel advised the
court that the legal aid issue had been resolved and that he was ready to
proceed to a full hearing on the petition. The Crown and Strathclyde Police
advised the court that they would need time to lodge amended answers, in light
of the amendments to the petition received on 26 September 2006. The court
allowed the parties fourteen days to lodge answers and continued the hearing to
31 October 2006.
On 10 October 2006 a second procedural hearing was held before three judges
in the applicant’s petition for review of interim liberation. The applicant’s
counsel advised the court that he had been unable to consult with the applicant
and that a further procedural hearing had been assigned in respect of other
matters. The court accordingly continued consideration of the petition for
review of interim release until 31 October 2006.
On 24 October 2006 the Crown lodged answers to the amended petition for
recovery of documents.
On 31
October 2006, further procedural hearings took place before three judges in the
petition for recovery of documents and the petition for interim release. The
court was informed that productive meetings regarding recovery of documents had
taken place and continued consideration of that petition to 28 November 2006.
On the applicant’s motion, the petition for review of interim release was
continued to the same date.
On 3 and 7 November 2006 the applicant’s agents wrote to the Crown requesting
disclosure of documents before 9 November 2006. On 23 November
2006 the Crown wrote to the applicant’s agents enclosing copies of police
statements for civilian witnesses who gave evidence at trial.
On 28
November 2006, the continued procedural hearings took place before three
judges. The court heard the parties and appointed the petition for recovery of
documents to a full three-day hearing before a bench of three judges on a date
to be fixed. The parties confirmed that steps would be taken to try and resolve
the issues without the need for a hearing. The court also allowed answers for
Strathclyde Police to be received.
As to the applicant’s petition for interim release, Lord Johnston, delivering
the opinion of the court, noted:
“3. We recognise that the length of time, as shown on the
chronology up to the present date, is lengthy but we are not prepared, on the
evidence before us, to classify this as unreasonable delay in terms of Article
6 of the ... Convention.
4. A number of factors have contributed to the delay, not least
Court procedures, albeit instigated to some extent by the [applicant], and, as
a result, the grounds of appeal now before this Court were only reformulated at
the beginning of this year. There has also been further delay still ongoing as
regards the disputed documents covered by a specification of documents which we
understand has undergone considerable alteration. We are not therefore prepared
to recognise that Article 6 has been breached at this stage of the process. In
any event the issue would be better considered when the whole appeal process is
complete.”
In the exercise of its discretion, taking into account the gravity of the
offence, the applicant’s history of violence and the risk to the public, the
court refused to grant the application for interim release.
On 11 December 2006 the applicant’s agents wrote to the Crown requesting disclosure of
documents not previously requested. On 21 December 2006 the
Crown replied.
On 7
January 2007, a procedural hearing before three judges took place in relation
to the petition for recovery of documents. On the motion of counsel for the
applicant, the court allowed the amended petition to be served upon the Sheriff
Clerk at Kilmarnock and the Scottish ministers and allowed these parties to
lodge answers within twenty-one days.
On 30 January 2007 the applicant’s agents wrote to the Crown seeking clarification of
matters relating to the precognition of (the taking of a statement from) K.P.,
the deceased witness. On 7 February 2007 the Crown replied.
By letter of 26 February 2007 to the Crown the applicant’s agents requested a meeting
that week and sought clarification of certain matters in relation to the
disclosure of documents. A meeting took place on 1 March 2007.
At a
hearing on 2 March 2007, in the absence of any opposition from the parties, the
court granted the petition in part and ordered the production and recovery of
property by the Sheriff Clerk at Kilmarnock and the Scottish ministers detailed
in certain calls in the specification of documents. On the applicant’s
unopposed motion, the petition was otherwise withdrawn.
On 12 March 2007 the Sheriff Clerk at Kilmarnock disclosed the property held
as ordered by the High Court.
On 14 March 2007 the applicant’s agents wrote to agents for Strathclyde Police and
the Crown requesting a timescale for disclosure of documents.
On 18 May 2007 the applicant’s agents wrote to
agents for Strathclyde Police in relation to intelligence and photographs
disclosed. On the same day they wrote to the Crown stating that the
petition for recovery of documents had been withdrawn on the undertaking that
the documentation still outstanding would be provided.
On 23
May 2007, at a procedural hearing before three judges in the appeal against
conviction and sentence, the court heard that information had been passed by
both the Crown and Strathclyde Police to the applicant’s agents. The parties
confirmed that further discussions would proceed and that eight days would be
required for the substantive appeal hearing. The court appointed the appeal to
a date to be fixed and directed that eight days should be reserved for the
hearing; and ordered the parties to lodge a note of outline arguments and a
note of relevant authorities no later than 21 days before the hearing. A
further procedural hearing before three judges was to be fixed on a date about
six weeks after the present hearing in order for the court to be addressed on
progress in relation to disclosure and any amendments to the grounds of appeal.
On 28 May 2007 the applicant’s agents wrote to the Crown requesting a meeting date
and providing a discussion document regarding disclosure. They also wrote to
agents for Strathclyde Police requesting permission to view the principal
copies of photographs and providing a discussion document regarding disclosure. On
29 May 2007 they wrote to the agents for Strathclyde Police requesting
information regarding the “tip-off” which led to the search of the
applicant’s house. On 15 June 2007 they requested from Strathclyde Police delivery
of documentation before 18 June 2007 and sight of an original photograph. On
19 June 2007 a disclosure meeting took place between agents and counsel for the
applicants, agents and counsel for Strathclyde Police and a representative of
the Crown. On 22 June 2007 the applicant’s agents wrote to the
agents for Strathclyde Police requesting reports of an incident involving the
applicant in 1983 and for disclosure of a surveillance log book.
On 25 June 2007, the applicant’s agents advised the Crown that an application to have
a procedural hearing in the case withdrawn from the court roll of 28 June 2007
and for a new date to be assigned in the week beginning 2 July 2007 because of
the applicant’s counsel’s absence on holiday had been granted by the court.
On 5
July 2007 a procedural hearing before three judges in the appeal against
sentence and conviction took place. The applicant’s counsel addressed the court
on progress made regarding disclosure and advised that issues of principle
might yet have to be considered by the court. The Crown confirmed that
disclosure would continue and noted that the subject of disclosure in appeals
was to be considered in appeals in several other cases before the court fixed
for late August 2007. The court allowed the applicant four weeks within which
to lodge any further petition for recovery of documents and four weeks
thereafter for answers, and continued the appeal to a further procedural
hearing to be held in the week beginning 24 September 2007.
On 19 July 2007, the applicant was granted a two-week extension of the time
allowed for lodging his new petition for recovery of documents.
On 24 August 2007 the applicant’s agents lodged a further petition for
recovery of documents.
On 11 September 2007 a meeting took place between the Crown, and agents and counsel
for Strathclyde Police to discuss the further petition for recovery. On 20
September 2007 the Crown lodged answers to the further petition for recovery.
On 25
September 2007 a procedural hearing before three judges was held in the appeal.
By this stage answers had been lodged by Strathclyde Police and the Police
Service of Northern Ireland. On the applicant’s motion and of consent the court
allowed a further four weeks to adjust the petition and answers. A further
procedural hearing was fixed for six weeks’ time.
On 17
October 2007 the applicant’s agents requested an extension of time for the
adjustment of the second petition for recovery of documents and answers to 6
November 2007. On 18 October 2007 the court granted the application.
On 26 October 2007 a meeting was held between the Crown, counsel for the applicant and
Strathclyde Police regarding the applicant’s petition for recovery of
documents.
On 6 November 2007 the applicant’s agents lodged an amended petition for
recovery of documents.
On 17
December 2007 the applicant’s agents lodged a second devolution minute arguing
that the applicant could not know whether the Crown had discharged its
disclosure obligations and indicating that there was reason to suppose that the
Lord Advocate had not discharged her obligation, without saying why.
On 17 and 18 December 2007 amended answers were lodged by Strathclyde
Police and by the Crown in the second petition for the recovery of documents.
On 19
December 2007 a procedural hearing took place before three judges. The
applicant’s counsel advised that there were outstanding issues relating to
disclosure in respect of Strathclyde Police. The court assigned a further
procedural hearing in January 2008 to afford the parties an opportunity to
consider the terms of the court’s pending opinion in McDonald and others v
HM Advocate, a case which dealt with the matter of disclosure. The court
continued the devolution minute to that hearing and directed that a hearing on
the petition and answers concerning recovery of documents be assigned on a date
afterwards fixed. Provisional dates in February and March 2008 were assigned.
On 21 December 2007 the Appeal Court issued its
opinion in McDonald and others v HM Advocate.
On 15
January 2008, at a procedural hearing before three judges, the applicant’s
counsel advised the court that discussions with the Crown had been suspended
pending the issue of the McDonald and others decision. The applicant’s
counsel moved for a continuation in order to consider fully the implications of
that case and to lodge a third petition for recovery of documents if so
advised. The court allowed the applicant a further fourteen days to lodge a
fresh or supplementary petition, with a further seven days thereafter for
answers from the Crown and Strathclyde Police. A full hearing on the petition
and answers was fixed for 11-14 March 2008. A procedural hearing in the
substantive appeal before three judges was assigned around four weeks after the
date of the present hearing to consider the need for written notes of argument
for the March 2008 hearing.
On 29 January 2008, the applicant’s agents lodged a further petition for
recovery of documents and a new associated devolution minute. On
5 February 2008 answers were lodged for the Crown and Strathclyde Police.
On 13
February 2008 a procedural hearing was held before three judges. The applicant’s
counsel indicated that both outstanding petitions would be argued at the
hearing fixed for 11-14 March 2008. The court intimated that Strathclyde Police
should remain as a party at that hearing and that it should no later than 4
March 2008 lodge details of an inventory of documents disclosed. The court
further directed that the applicant was to lodge a note of argument by 26
February 2008 and the Crown by 4 March 2008; and that the applicant was to
lodge an inventory detailing the extent of disclosure already made and the
issues in relation to material not disclosed. The consideration of the proposed
devolution minute was continued to the hearing of 11-14 March 2008.
On 26 February 2008 the applicant’s agents lodged outline submissions for
the March hearing. On 5 March 2008 the Crown lodged outline
submissions for the March hearing. It also intimated to the applicant’s agents
a Crown schedule of disclosure indicating which documents had been disclosed
and when, during the period from January 2001 to March 2008. The schedule showed
regular disclosure from 9 January 2001 to 17 September 2001. Disclosure
resumed on 23 August 2006 and was continuing.
On
11-14 March 2008 a full hearing took place before three judges on the petition
for recovery of documents and answers. The applicant’s counsel spoke for all
four available court days and did not conclude his submissions. The hearing was
continued to a further hearing to be fixed. In the absence of any inventory
from the applicant detailing the extent of disclosure already made and the
issues in relation to material not disclosed, the court requested that prior to
the next hearing the defence consider the Crown’s schedule of disclosure and
confirm in writing which documents, if any, had not been disclosed by the
Crown.
On 22
May 2008 a procedural hearing took place before three judges. The proceedings
were continued to await the outcome of the Privy Council’s decision in McDonald
and others. A two-day hearing set down for 12-13 June 2008 was discharged.
On 8 August 2008 the applicant’s agents wrote to the Crown indicating that they had
not received the Crown schedule of disclosure to which the court had referred
in its hearing of 11-14 March 2008 and requested a copy. On 18
September 2008 the Crown replied to the applicant’s agents that the relevant
schedule together with annexes was provided to them on 5 March 2008. A further
copy was provided.
The Privy
Council handed down its decision in McDonald and others on 16 October
2008.
On 28 October 2008 the Crown sent further documents to the applicant’s
agents, including a revised and updated Crown schedule of disclosure together
with papers under reference to various calls in the specification of documents
annexed to the applicant’s petition for recovery of documents.
On 22 January 2009 the Crown wrote to the clerk seeking to make progress in
the appeal proceedings. The clerk undertook to ask the applicant’s agents to
clarify whether they still wished to argue the petitions for recovery in whole
or in part. On 24 March 2009 the Crown wrote to the applicant’s
agents asking them how they intended to proceed with the appeal and advising
them that they were anxious that progress be made.
On 6
May 2009 a procedural hearing took place before three judges. The Crown advised
the court that all statements, previous convictions and outstanding charges in
relation to all witnesses at trial had been disclosed and calls in each of the
applicant’s petitions for recovery had been satisfied. The Crown moved for the
appeal to be assigned to a full hearing. The defence moved to withdraw the outstanding
petitions for recovery currently before the court and indicated that it was
content for a full hearing to be fixed, provided that it did not take place
before autumn 2009, to allow time for further inquiries. The court allowed the
petitions to be withdrawn and appointed the appeal to a full hearing of eight
days’ duration to be held no sooner than autumn 2009. It directed the applicant
to lodge outline written submissions no later than four weeks before the
hearing and the Crown to lodge outline written submissions no later than two
weeks before the hearing.
The
court assigned 29 September 2009 to 9 October 2009 as the dates for the
substantive hearing in the applicant’s appeal against conviction and sentence.
133. On 21 September
2009, following the disclosure process which had taken place, the applicant
lodged a ground of appeal regarding non-disclosure, in relation to a
police statement by I.C., a witness in the case.
The
appeal against conviction was heard between 29 September 2009 and 9 October
2009.
On 9 March 2010 the Appeal Court handed down its judgment refusing all the
grounds of appeal against conviction. The judgment was 128 pages long, and
was detailed and comprehensive. For full details of the court’s judgment, see
the summary in Beggs (No. 2), cited above.
As to the delay in the proceedings, the court noted the following:
“2. Given the time which has flowed since the appellant’s
conviction, it is appropriate to say something of the steps which have occurred
in this regrettably protracted appeal process.
3. In brief, on 2 July 2002 the appellant lodged a note of
appeal. Following the obtaining from the trial judge of the requisite report,
the matter was in due course considered by a single judge who, on
20 December 2002, granted leave to appeal but only as respects certain
grounds, which the single judge sought to identify by the exclusion of certain
paragraphs of the rather lengthy and discursive note of appeal. The appellant
then required the application for leave to be considered, as respects the
excluded paragraphs, by a triumvirate ‘second sift’ bench. That bench refused
to grant leave for any of the excluded grounds. The appellant thereafter
brought a petition to the nobile officium of the High Court of
Justiciary challenging that second sift decision. The decision in that petition -
issued on 8 December 2004 - identified that where an applicant for
leave to appeal is dissatisfied with a decision of a single judge allowing
some, but refusing other, grounds of appeal to be argued the correct procedure
to be followed is an application under Section 107(8) of the Criminal
Procedure (Scotland) Act 1995 and that the further application to the ‘second
sift’ followed in the present case, albeit no doubt common practice at the
time - was incompetent ...
4. Following that decision, the appellant duly lodged an
application in terms of Section 107(8) of the 1995 Act, which was
heard on 28 October 2005 and in consequence of which the court, on
25 November 2005, granted leave to argue certain additional grounds ...
The court then invited the submission of reformulated grounds of appeal framed
in light of the initial sift decision and its decision of 25 November 2005
and such reformulated grounds of appeal were duly lodged with the court on
16 January 2006. With the exception of an additional ground of appeal
tendered only at the opening of the hearing before us, to which we shall
subsequently refer - those reformulated terms are the grounds of appeal
which form the basis of this appeal. The formal interlocutor allowing those
reformulated grounds of appeal to be the grounds of appeal was pronounced on
11 July 2006.
5. Notwithstanding that the grounds of appeal had thus
eventually been reformulated and settled and allowed to be argued in
July 2006, those acting for the appellant then embarked upon a lengthy
process of seeking various orders for disclosure of documents and information
from the Crown. It would not be profitable to recount the details of this
exercise. It suffices to say that the insistence of those acting for the
appellant in that exercise has, so far as it is possible to tell, had little
significant result but it has substantially delayed the hearing of this appeal.
Only on 6 May 2009 did counsel for the appellant withdraw his applications
for orders for disclosure and for recovery of documents, thus enabling a
hearing of the appeal to be fixed. At a cost no doubt to the progress of the
cases of other appellants, the court was able to arrange for the appeal to be
heard over eight days in ...October 2009.”
On 27 May
2010 permission to appeal to the Supreme Court was refused by the Appeal Court. Further details of the decision are set out in Beggs (No. 2), cited
above.
On 29 July 2010 the
applicant lodged a devolution minute in which he contended that there had been
a breach of his right under Article 6 of the Convention to a hearing of
the criminal charges against him within a reasonable time. Particular criticism
was made in the minute of disclosure of information by the prosecution.
The applicant’s
appeal against sentence was due to be heard on 4 August 2010. On that day,
the applicant requested, and was granted, an adjournment of the hearing to
allow him to request leave to appeal against conviction from the Supreme Court.
On or around 21
October 2010, the applicant lodged an application for permission to appeal and
an extension of time with the Supreme Court. In his application, he explained
that the delay was caused by the need to await further information from the police,
which was received on 29 September 2010.
On 16 December 2010
the Supreme Court refused the applicant’s application for leave to appeal
against conviction.
On 22 February 2011 a
hearing took place before the Appeal Court in the applicant’s outstanding
appeal against sentence. His counsel intimated that he did not intend to pursue
the grounds stated in his note of appeal against sentence (that there had been
a miscarriage of justice in selecting a punishment part of twenty years). The
appeal against sentence was not, however, formally abandoned; nor was it then
refused for non-insistence. Given the existence of the devolution minute, it
was continued for fuller argument. Provision was made for written submissions
to be lodged by each party, which was duly done, and a hearing was fixed for 1
April 2011.
On 1 April 2011, pressure of business at the
court prevented a hearing taking place. The court therefore fixed 7 April for
hearing the matter.
On 7 April 2011 a
hearing took place in the case. The applicant’s counsel insisted that his
application was not an appeal against sentence under the 1995 Act, albeit the
remedy sought from the court was a reduction in the punishment part which had
been specified; it was an application to the court under the Human Rights Act
1998, independent of the 1995 Act.
On 12 May 2011 the Appeal Court issued its opinion. The court examined the provisions of the Human Rights Act
and considered it plain that the possibility of bringing proceedings under
section 7(1)(a) of the Act (see paragraph 191 below) was
limited to bringing proceedings in the civil courts. There was therefore no
possibility, under section 7(1)(a), of bringing proceedings in any criminal
court. The Court acknowledged that under the provisions in section 7(1)(b) of
the Act, a person claiming that a public authority had acted unlawfully could
rely on Convention rights in any legal proceedings, which could include
criminal proceedings. However, it continued:
“14. ... But they import that the legal proceedings in question
are still in dependence and that reliance is placed on the Convention right or
rights in those proceedings during their dependency.”
The court explained
that where a person who had been convicted in criminal proceedings complained
that his right to determination of the criminal charge or charges against him
within a reasonable time had been infringed, he could, in these proceedings,
seek a remedy. It referred to the case of Mills v HM Advocate,
where Lord Steyn had said that in criminal proceedings the remedies available
could include an order for discontinuance of a prosecution, quashing of the
conviction, reduction of the sentence, monetary compensation or a declaration (see
paragraphs 196-197 below). It noted that the complaint that there had been a
breach of that appellant’s Article 6 rights had been made in the form of a
further ground of appeal, in the context of an appeal against sentence. Other
relevant domestic case-law considered by the court provided evidence of the
same approach.
The court noted that
the applicant had also lodged a devolution minute, under the Scotland Act (see
paragraphs 187-189 below), addressing delay, but considered that there was
ample authority that a devolution issue did not have an existence separate from
the process in which it was taken. Indeed, it observed, the contrary was not
suggested by counsel for the applicant.
The court therefore
concluded:
“20. We are accordingly satisfied that, if an appellant in
criminal proceedings seeks to maintain that his right to a determination within
a reasonable time of the charge or charges against him has, in breach of
Article 6(1) of the Convention, been infringed and that a remedy should be
afforded to him by the criminal court, he should do so by focusing that
contention in a ground of appeal. Ordinarily that will be in a ground of appeal
against sentence - if reduction in sentence is the remedy sought. If the delay
complained of arises in, or mainly in, the appellate proceedings themselves, it
will not be practicable to submit such a ground at the outset of these
proceedings. But it will or should be evident to any person concerned about such
delay to identify and formulate it in good time before the proceedings are
otherwise concluded. Leave can then be sought to expand any existing ground of
appeal against sentence to include the complaint or, if there is otherwise no
appeal against sentence, leave can be sought to lodge such an appeal out of
time. There is no difficulty about the court affording a remedy of reduction of
sentence within its existing powers. The court is in use when dealing with
appeals against sentence to take into account relevant circumstances which have
occurred since sentence was passed. In appropriate circumstances the court can
award just satisfaction for any infringement of Article 6(1) by exercising
its power to reduce the sentence originally passed.
21. In these circumstances [counsel for the applicant’s]
argument founded on a supposed application under the Human Rights Act 1998
unrelated to the appellate provisions of the 1995 Act is misconceived. Although
encouraged to do so, he resisted the suggestion that his arguments on the
merits of delay might be presented in the form of an amended ground of appeal
against sentence or by seeking leave of the court under section 110(4) of
the 1995 Act to found his argument on an aspect not contained in any note of
appeal. In these circumstances we have no alternative but to refuse his
application as incompetent. His existing ground of appeal against sentence not
being insisted on, it also must be refused.”
The court considered,
however, that it would not be in the interest of justice to leave the case
without making some observations on the merits of the complaint of undue delay.
It indicated that, notwithstanding evidence of extensive communications between
the parties and hearings before the court throughout, the period until final
disposal of his appeal against conviction was such as to give grounds for real
concern.
The court noted that no
complaint was made regarding the period up until conviction and sentence. It
observed in any event that part of that period elapsed because the applicant
had fled to the Netherlands and resisted measures to extradite him to Scotland. Once he was returned to Scotland in January 2001, proceedings had moved
reasonably expeditiously having regard to the complexity of the issues,
including the issues raised by the applicant in defence. The length of the
trial had been, in the court’s view, commensurate with the nature of the issues
raised.
The court noted that the
applicant’s first complaint was in respect of delay arising in the proceedings
which ultimately resulted in leave being granted, on 25 November 2005, to
appeal against conviction and sentence without qualification. He did not rely
on the earlier part of that period, until 2 July 2002, when he finally lodged
grounds of appeal. The court continued:
“24. ... That time was largely the result of applications made
by the applicant for extensions of time, which given the complexity of the
issues may well have been justified. The complexities may also explain, at
least in part, the time taken by the trial judge to produce his report. Matters
thereafter proceeded reasonably expeditiously to a decision (on
21 December 2002) by the single judge on the application for leave to
appeal. It was thereafter that time passed, which, in retrospect, might have
been better occupied. The single judge had refused leave to appeal in respect
of certain of the stated grounds. The applicant was dissatisfied with that
decision and wished leave on all the grounds stated. But he set about seeking
to secure this by what turned out to be the wrong legislative route. He can
hardly be criticised for doing so, since the route which he took was that
generally regarded at that time by the legal profession as appropriate. The
judges who considered his application to the High Court under
section 107(4) of the 1995 Act fell into the same error. However, the
basic explanation for the error was the problematic character of the relevant
legislation. It was only after that had been addressed and elucidated on
8 December 2004 that matters could proceed on the right basis. This
two-year excursion was unfortunate but it was attributable to the state of the
legislation for which neither of the relevant public authorities, the Crown and
the court, is responsible.”
. The court then turned to the applicant’s second
complaint, in respect of the period which had elapsed between the
presentation of the applicant’s first petition for recovery of documents (on
31 July 2006) and the date (28 October 2008) when the Crown had
disclosed the final documents sought. In this respect, it noted:
“25. ... Over that period the applicant lodged three separate
petitions (each subsequently adjusted or amended) for recovery of materials
from the Crown and others. The substantive hearing on his appeal could not take
place until these petitions were disposed of or withdrawn. In the event all
these petitions were withdrawn, the only executive orders made under any of
them being those against the sheriff clerk at Kilmarnock and the Scottish ministers
on 2 March 2007. These orders were promptly complied with. It is no doubt true
that the bringing of these various petitions may to some extent have been
instrumental in the disclosure of information; but what is more material is
whether this exercise was in the event justified ... [T]he appeal court which
heard the applicant’s substantive appeal concluded that, in so far as it was
possible to tell, the recovery process had had little significant result.
Effectively, it caused only delay in disposal of the appeal. This delay can
thus be substantially attributed to the applicant and his advisers. [Counsel
for the applicant] said that the Crown was at fault in not producing certain
documentation until the decision of the Supreme Court was issued in the case of
McDonald and Others. But, while the principles of disclosure have been
clear since McLeod v HM Advocate 1998 SCCR 77, the practical
application of them was, as appears from Lord Hope’s judgment in McDonald
and Others ..., an evolving process ... Without attempting to demonstrate
their materiality to the issues in the appeal, [counsel for the applicant] made
a general assertion that the Crown had failed to disclose witness statements.
But it seems plain that by at least November 2006 (a few weeks after the
lodging of the first petition for recovery of documents) the Crown had, with
one exception, disclosed the police statements of all the civilian witnesses
who gave evidence at the trial. The exception was a police statement given in
December 1999 by [I.C.]. This was, it seems, disclosed only in July 2009. It
formed the basis of an additional ground of appeal. This ground was discussed ...
in the opinion of the court which heard the substantive appeal. That court
concluded ...:
‘We therefore have grave difficulties
in seeing how, realistically, disclosure of the police note of the interview
could have possibly affected the outcome of the trial or given a real
possibility of a different outcome. We are accordingly satisfied that the
absence from the defence file of the police note of the interview with [I.C.]
(an absence also shared, we understand, by the trial Advocate depute) did
not result in material prejudice to the appellant or in the trial being unfair.’
While the non-disclosure earlier of [I.C.’s] statement may have
been an oversight by the Crown, there is no reason to conclude that that
oversight caused or materially contributed to the time spent on the recovery
exercise. We are accordingly not persuaded that there was any material failure
of disclosure by the Crown which resulted in significant delay in the appellate
process.”
The court observed that
counsel for the applicant did not suggest that the Crown or the court had
otherwise significantly contributed to the delay in that process, which, it
noted, given the complexities involved would inevitably have taken a
substantial time to complete. It concluded:
“26. ... In these circumstances we are not persuaded that the
applicant’s Article 6 right to determination of the charges against him
within a reasonable time has been infringed. Much of the time was spent in
pursuing grounds of appeal which were unmeritorious. We would add that, in
contrast with other cases, there is no suggestion that the applicant had
suffered any anxiety or other adverse effect by reason of any delay.”
154. Finally, the court
explained, for the sake of completeness, that:
“[t]he hearing of this application was
scheduled for Friday 1 April 2011 but, because of pressure of other
business, was unable to proceed on that day. The court was anxious, given the
passage of time which had already occurred, that the hearing should not be
postponed longer than was essential. It fixed on the following Thursday,
7 April, for hearing the matter. There was originally some uncertainty as
to whether both preferred counsel would be available on that day, but that was
in due course resolved by accommodating the other commitments of the applicant’s
counsel. Both counsel were fully heard on the afternoon of 7 April, the
court sitting late to complete the hearing.”
On 21 March 2012 the
Supreme Court refused leave to appeal. The following reasons were provided:
“Permission to appeal refused because the Supreme Court does
not have jurisdiction to hear an appeal against a decision of the High Court of
Justiciary refusing to give the appellant a remedy under the Human Rights Act
1998 and because it does not have an original jurisdiction to deal with
devolution issues which have not been the subject of decision by the High Court
of Justiciary.”
3. Ancillary proceedings
(a) The judicial review proceedings regarding the
applicant’s correspondence
On a number
of occasions, starting in about February 2003, letters from the applicant’s
legal advisers were opened by prison officers at Peterhead. Although the
applicant received official apologies and assurances that it would not happen
again, the incidents continued.
In September 2003 the applicant lodged a
petition for judicial review in respect of the opening of his privileged
correspondence by prison staff, arguing a violation of Article 8 of the
Convention.
On 5 September 2003, in the context of the
judicial review proceedings, the Scottish ministers gave an undertaking not to
open, or have the applicant open in the presence of prison staff, the applicant’s
privileged correspondence or correspondence from the Complaints Commissioner
sent to HM Prison Peterhead. The judge refused the applicant’s motions for
interim interdict (injunction) and interim declarator, noting the terms of the
undertaking. The applicant appealed.
While the applicant was detained in HM Prison
Edinburgh, his letters were once again opened, the undertaking of the Scottish
ministers applying only to mail sent to HM Prison Peterhead. On 19 May 2004,
the Scottish ministers extended their undertaking to cover HM Prison Edinburgh.
On 26 November 2004 a prison officer at
Peterhead opened a letter from the Complaints Commissioner to the applicant in the
latter’s presence. It transpired that the staff responsible for sorting and
delivering mail did not understand that the undertaking applied to
correspondence with the Complaints Commissioner.
The applicant
sought a contempt of court order against the Scottish ministers for the breach
of the undertaking. On 15 March 2005, judgment was handed down in the appeal
and the court found the Scottish ministers in contempt of court.
(b) The judicial review proceedings regarding the
prison transfer
Following
the applicant’s transfer to HM Prison Edinburgh in May 2004 (see paragraph
66 above), he sought judicial review before the Court of Session of the
decision to return him to HM Prison Peterhead.
A hearing on a motion for an interim order in
the judicial review proceedings regarding the applicant’s prison transfer took
place on 2-3 June 2004. The applicant complained that interference with his
correspondence and the distance between HM Prison Peterhead and his chosen
counsel meant that preparation of his substantive criminal appeal against
conviction and sentence and of his application to the nobile officium was
being hampered.
The applicant was returned to HM Prison
Peterhead on 4 June 2004.
On 18
June 2004, Lord Drummond Young refused the applicant’s motion for an interim
order against his prison transfer. He noted that the applicant had had 33
visits from his legal representatives since the move to Peterhead and
concluded:
“I do not think that the difficulties involved in travelling to
Peterhead can reasonably be considered a material obstacle to the petitioner’s
preparations for his appeal and relative application to the nobile officium.”
Between the applicant’s return to Peterhead and
28 January 2005, the applicant made some 540 telephone calls to his legal
advisers and received some 111 privileged letters.
On 9
March 2005, following a full hearing on the judicial review petition in respect
of the prison transfer, Lord Carloway dismissed the petition. He issued his
opinion on 24 March 2005, holding that:
“the petitioner’s fundamental complaint is that his location at
Peterhead, pending the resolution of the petition to the nobile officium
and his criminal appeal, mean that his right to effective access to his legal
advisers is being denied. However, he has already been brought down to Edinburgh for a month to secure ready access to these advisers. He has also been brought to
Edinburgh on at least two occasions since then. The petition to the nobile
officium has been disposed of. Many months have now passed, during which
there must have been ample time in which to discuss his appeal by way of
telephone calls, written correspondence and consultation. A date for an appeal
has not yet been fixed, so there will be even further opportunity for such
discussion.”
The applicant appealed the decision.
On 10 March
2006, the applicant’s appeal in the judicial review proceedings against his
prison transfer was dismissed.
While in
Peterhead, the applicant made 2,916 private calls (other than to family and
friends) in 2004, 2,916 private calls in 2005, 2,626 private calls in
2006, 2,838 private calls in 2007, 3,145 private calls in 2008 and, between
January and April 2009, 928 private calls. During his time in Edinburgh, the
applicant made approximately 118 calls. Between 2002 and April 2009, he
received approximately 100 visits from solicitors and counsel regarding his
various legal proceedings. Between 2003 and April 2009, he received
approximately 1,121 privileged letters and packets.
B. Relevant law and practice
1. The Criminal Procedure (Scotland) Act 1995
(a) Right of appeal
171. Section
106 of the 1995 Act grants any convicted person the right to appeal against
conviction or sentence (where such sentence is not fixed by law), provided that
the leave of the court under section 107 of the Act has been obtained.
(b) The note of appeal and the written report
Section 110(1) of the 1995 Act, as in force at the material time, allowed six
weeks for the lodging of a written note of appeal. The note was required to
identify the proceedings; contain a full statement of all the grounds of
appeal; and be in as near as may be the form prescribed by the relevant rules.
The note of appeal is generally lodged on the basis of the issues at trial and
after consideration of the trial judge’s charge to the jury.
Section
110(4) provided that it was not competent for the applicant to found any aspect
of his appeal on a ground not contained in the note of appeal.
Section
110(2) provided that the six-week time limit for lodging the note of appeal could
be extended at any time before it expired.
Section 110(1) of the 1995 Act provides that when a convicted person lodges
a note of appeal with the clerk, the clerk must send a copy to the judge who
presided at trial.
Under
section 113 of the 1995 Act:
“(1) As soon as is reasonably practicable after receiving the
copy note of appeal sent to him under section 110(1) of this Act, the judge who
presided at the trial shall furnish the Clerk of Justiciary with a written
report giving the judge’s opinion on the case generally and on the grounds
contained in the note of appeal.
(2) The Clerk of Justiciary shall send a copy of the judge’s
report-
(a) to the convicted person or his solicitor;
(b) to the Crown Agent; ...
(3) Where the judge’s report is not furnished as mentioned in
subsection (1) above, the High Court may call for the report to be furnished
within such period as it may specify or, if it thinks fit, hear and determine
the appeal without the report.
...”
(c) The sift
177. Section
107 of the 1995 Act provides, insofar as relevant:
“(1) The decision whether to grant leave to appeal for the
purposes of section 106 (1) of this Act shall be made by a judge of the High
Court who shall-
(a) if he considers that the documents mentioned in subsection
(2) below disclose arguable grounds of appeal, grant leave to appeal and make
such comments in writing has he considers appropriate; and
(b) in any other case-
(i) refuse leave to
appeal and give reasons in writing for the refusal ...
(2) The documents
referred to in subsection (1) above are-
(a) the note of
appeal ...
...
(c) where the judge
who presided at the trial furnishes a report under section 113 of this Act,
that report; and
(d) where, by virtue
of section 94 (1) of this Act, a transcript of the charge to the jury of the
judge who presided at the trial is delivered to the Clerk of Justiciary, that
transcript.
...
(4) Where leave to
appeal is refused under subsection (1) above the appellant may, within 14 days ...,
apply to the High Court for leave to appeal.
(4A) The High Court
may, on cause shown, extend the period of 14 days mentioned in subsection (4)
above, or that period as extended under this subsection, whether or not the
period to be extended has expired ...
(5) In deciding an
application under subsection (4) above the High Court shall-
(a) if, after
considering the documents mentioned in subsection (2) above
and the reasons for
the refusal, the court is of the opinion that there are arguable grounds of
appeal, grant leave to appeal and make such comments in writing as the court
considers appropriate; and
(b) in any other
case-
(i) refuse leave to
appeal and give reasons in writing for the refusal ...
(6) Consideration
whether to grant leave to appeal under subsection (1) or (5) above shall take
place in chambers without the parties being present.
(7) Comments in
writing made under subsection (1)(a) or (5)(a) above may, without prejudice to
the generality of that provision, specify the arguable grounds of appeal
(whether or not they are contained in the note of appeal) on the basis of which
leave to appeal is granted.
(8) Where the
arguable grounds of appeal are specified by virtue of subsection (7) above it
shall not, except by leave of the High Court on cause shown, be competent for
the appellant to found any aspect of his appeal on any ground of appeal
contained in the note of appeal but not so specified.
(9) Any application
by the appellant for the leave of the High Court under subsection (8) above Act-
(a) shall be made not
less than seven days before the date fixed for the hearing of the appeal; and
(b) shall, not less
than seven days before that date, be intimated by the appellant to the Crown
Agent.
...”
2. The nobile officium
In Perrie, Petitioner (1991
S.C.C.R. 475), Lord Justice General Hope (as he then was) described the
jurisdiction of the court under the nobile officium as follows:
“The purpose of the nobile officium is to prevent
injustice or oppression where the circumstances are extraordinary or unforeseen
and where no other remedy or procedure is provided by the law.”
3. The duty of disclosure under Scots law
In the case of McLeod
v HM Advocate (No. 2) (1998 JC 67), Lord Justice General Rodger (as he
then was) held:
“Our system of criminal procedure ... proceeds on the basis
that the Crown have a duty at any time to disclose to the defence information
in their possession which would tend to exculpate the accused ... Equally ...
the Crown will respond to specific requests from the defence for information or
for the production of statements or other items where the defence can explain
why they would be material to the defence ...
In a system which operates in this way there should for the
most part be no need for an accused person to invoke the petition procedure to
recover documents whose possible exculpatory effect can be appreciated by the
Crown, whether spontaneously or when the defence ask for them. In such a system
also it can be expected that the defence will have access to the documents
which are material to the preparation and presentation of their case ...
Like others in the past I am conscious of the difficulty of
formulating the test which the court should apply when asked to order the
production of documents in a criminal case where the charges are set out
relatively succinctly and the only formal documents indicating a line of
defence will be any transcript of the accused’s judicial examination and any
special defence or notice of incrimination. I consider, however, that an
accused person who asks the court to take the significant step of granting a
diligence for the recovery of documents, whether from the Crown or from a third
party, does require to explain the basis upon which he asks the court to order the
haver to produce the documents. The court does not grant such orders unless it
is satisfied that they will serve a proper purpose and that it is in the
interests of justice to grant them. This in turn means that the court must be
satisfied that an order for the production of the particular documents would be
likely to be of material assistance to the proper preparation or presentation
of the accused’s defence. The accused will need to show how the documents
relate to the charge or charges and the proposed defence to them. Such a
requirement imposes no great burden on an accused person or his advisers: the
averments in the petition may be relatively brief and the court will take
account of any relevant information supplied at the hearing.”
In Sinclair v HM
Advocate ([2005] UKPC D2), the Privy Council considered the position of
disclosure in Scots law and the relevant Convention authorities. Lord Hope of
Craighead set out the following principles:
“First, it is a fundamental aspect of the accused’s right to a
fair trial that there should be an adversarial procedure in which there is
equality of arms between the prosecution and the defence. The phrase ‘equality
of arms’ brings to mind the rules of a mediaeval tournament - the idea that neither side may
seek an unfair advantage by concealing weapons behind its back. But in this
context the rules operate in one direction only. The prosecution has no
Convention right which it can assert against the accused. Nor can it avoid the
accused’s Convention right by insisting that the duty does not arise unless the
accused invokes it first. Secondly, the prosecution is under a duty to disclose
to the defence all material evidence in its possession for or against the
accused. For this purpose any evidence which would tend to undermine the
prosecution’s case or to assist the case for the defence is to be taken as
material. Thirdly, the defence does not have an absolute right to the
disclosure of all relevant evidence. There may be competing interests which it
is in the public interest to protect. But decisions as to whether the
withholding of relevant information is in the public interest cannot be left
exclusively to the Crown. There must be sufficient judicial safeguards in place
to ensure that information is not withheld on the grounds of public interest
unless this is strictly necessary.”
Lord Rodger
of Earlsferry added:
“The Crown’s article 6(1) duty to disclose evidence in favour
of the defence does not ... depend on any request being made by the defence.
That duty subsists unless, unusually, it is waived by the defence.”
In that case the
Privy Council quashed the convictions, holding that the failure of the
prosecution to disclose police statements of witnesses rendered the trial
unfair.
In the case of McDonald
and others v HM Advocate ([2008] UKPC 46), the Privy Council again
considered the duty of disclosure in Scottish criminal proceedings. In that case,
the defence had requested statements and details of previous convictions of
witnesses from the prosecution, contending that no formal specification of
documents was required in light of the prosecution’s general duty of
disclosure. The prosecution declined to provide the documents requested and
considered that for recovery of documents in such wide terms, a petition for
the recovery of documents should be lodged with, and considered by, the court.
The defence lodged petitions for recovery of documents and challenged before
the court, by reference to Article 6 of the Convention, the position of the
prosecution regarding disclosure.
The Privy
Council considered developments in the duty of disclosure in Scotland and the requirements of the Convention. It dismissed the appeals and found the system of
disclosure in Scotland, as it operated at the time, to be compatible with
Article 6.
An October 2008
version of the prosecutors’ Disclosure Manual, revised in light of the decision
in McDonald and others and available on the website of the Crown Office,
provides guidance as to the extent and operation of the obligation of
disclosure under Scots law. In particular, the manual sets out the following
disclosure principles:
“The Crown’s Principles of Disclosure
1. The Crown is obliged to disclose all material evidence for
or against the accused. This relates to statements, but it also relates to all information
of which the Crown is aware.
2. ‘Material’ means evidence which is likely to be of real
importance to any undermining of the Crown case, or to any casting reasonable
doubt on it, and of positive assistance to the accused.
3. This legal duty persists in perpetuity. This means that the
duty exists during the appeal process, and even where there is no live appeal,
for example, where such material comes to the attention of the Crown after
conviction, or after an appeal has been refused.
4. Compliance with the duty requires the Crown to disclose all
statements of all witnesses on the Crown and defence lists ...
5. Compliance with the duty requires the Crown, without having
to be requested to do so, to disclose all previous convictions and outstanding
charges for all witnesses on the Crown lists ..., subject to the materiality
test and the public interest in protecting the Convention Rights of the
witnesses.
6. Failure to disclose material evidence risks a miscarriage of
justice. Disclosure carried out properly and timeously ensures that justice is
done and prevents unnecessary trials and delay.”
Part 6 of the Criminal
Justice and Licensing (Scotland) Act 2010 codifies and clarifies the duty of
disclosure in criminal proceedings in Scotland. It entered into force on 6 June
2011.
4. Devolution issues
Section 57(2) of the
Scotland Act 1998 provides that the Scottish Executive (of which the Lord
Advocate is a member) has no power to act in a manner incompatible with the
Convention.
A devolution issue
is an issue raised under Schedule 6 to the Scotland Act concerning whether a
legislative provision or an administrative act passed or taken under the
Scotland Act 1998 is within the powers of the Scottish Parliament or the
Scottish Executive.
In Russell
v Thomson ([2010] HCJAC 138), the Appeal Court observed:
“15. A Devolution Minute in an appeal process, which complains
of the actions of the lower court, does not have a life of its own. It requires
to be linked to the grounds of appeal raised. In this case, these grounds are
expressed in the appellant’s Note of Appeal and are simply that the appellant’s
conduct, as spoken to by the witnesses, did not amount to a breach of the peace.
The Note defines the scope of the appeal. If the appellant had wished to pursue
any of the many matters contained in his Devolution Minute, he should have
included them in his Note of Appeal. If he had failed to do that, he should
have applied to the court to allow that Note to be amended to include them ...”
5. The Human Rights Act 1998
. Section 6(1) of the Human Rights Act 1998 (“the 1998 Act”)
provides that it is unlawful for a public authority to act
in a way which is incompatible with a Convention right. Section 6(3) clarifies
that “public authority” includes a court or tribunal and any person certain of
whose functions are functions of a public nature.
. Section 7(1) provides that:
“A person who claims that a public authority has
acted (or proposes to act) in a way which is made unlawful by section 6(1) may-
(a) bring proceedings against the authority under
this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights
concerned in any legal proceedings,
but only if he is (or would be) a victim of the
unlawful act.”
. Section 8 of the Act sets out available remedies and
provides:
“(1) In relation to any act (or proposed act) of
a public authority which the court finds is (or would be) unlawful, it may
grant such relief or remedy, or make such order, within its powers as it
considers just and appropriate.
(2) But damages may be awarded only by a court
which has power to award damages, or to order the payment of compensation, in
civil proceedings.
(3) No award of damages is to be made unless,
taking account of all the circumstances of the case, including-
(a) any other relief or remedy granted, or order
made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or
any other court) in respect of that act,
the court is satisfied that the award is
necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining-
(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles
applied by the European Court of Human Rights in relation to the award of
compensation under Article 41 of the Convention.”
. However, section 9(3) limits the possibility of claiming
damages where the act or failure of which an individual complains is a judicial
act or failure:
“(3) In proceedings under this Act in respect of a judicial act
done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention.”
. Section 9(5) defines “judicial act” as a judicial act of a
court, including an act done on the instructions, or on behalf, of a judge.
6. Remedies for delay in legal proceedings in Scotland
As a consequence of
section 57(2) of the Scotland Act 1998 (see paragraph 187 above), in
carrying on prosecutions or directing them to be carried on the Lord Advocate, may
not act incompatibly with Article 6 § 1 of the Convention. Thus an accused
person in Scotland who complains about undue delay in criminal proceedings
under Article 6 § 1 may raise a devolution issue against the Lord Advocate
under section 57(2) of the Scotland Act 1998 or, alternatively, he may make a
complaint against the court as a public authority under the Human Rights Act
1998 (see R. v. HM Advocate [2002] PC D3, per Lord Steyn at paragraph
1). He may also raise civil proceedings in the High Court alleging a violation
of section 6 of the Human Rights Act 1998 in the event that he is dissatisfied
with the remedy granted by the High Court.
In Mills v HM
Advocate [2002] UKPC D1, the court was required to examine whether,
following an unreasonable delay in the hearing of an appeal, the reduction in
sentence awarded by the High Court provided adequate redress. The Privy Council
considered that in light of the express acknowledgement of a violation of the
Convention and the extent of the reduction in sentence, there had been adequate
redress and the applicant was no longer a victim of any violation.
Lord Steyn noted
the available remedies for delay in criminal proceedings (at paragraphs 15-16):
“The separate question of the remedies available in respect of
a 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.
The remedies available could include an order for
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 ...”
Similarly in R v. HM Advocate [2002] UKPC D3, the applicant
complained of a breach of the reasonable time requirement. Lord Steyn, setting
out domestic law, noted (at paragraph 1):
“The result of this scheme is that an accused person in Scotland who complains about undue delay in criminal proceedings under article 6.1, may
raise a devolution issue against the Lord Advocate under section 57(2) or,
alternatively, he may make a complaint against the court as a public authority
under the Human Rights Act 1998.”
On the question of remedies, he explained (at
paragraph 11):
“The width of the reasonable time guarantee is relevant to the
separate question of the remedies available for a breach. There is no automatic
remedy. In this case too the role of the Strasbourg Court is a residuary one. In
the Strasbourg Court the only remedies available are therefore declaratory
judgments and award of damages. But domestic courts have available a range of
remedies for breach of the reasonable time guarantee. In a post conviction case
the remedies may be a declaration, an order for compensation, reduction of
sentence, or a quashing of the conviction: see Mills v H M Advocate (No 2), 2002 SLT 939, 944, para 16. In a preconviction case the remedies may include
a declaration, an order for a speedy trial, compensation to be assessed after
the conclusion of the criminal proceedings, or a stay of the proceedings. Where
there has been a breach of the reasonable time guarantee, but a fair trial is
still possible, the granting of a stay would be an exceptional remedy.”
The majority of
the Privy Council held that in light of the acceptance by the prosecution that
there had been unreasonable delay in the case, it would be incompatible with
the appellant’s right to a determination of a criminal charge against him
within a reasonable time for the Lord Advocate to continue to prosecute him on
two of the charges of the indictment and, as section 57(2) of the Scotland Act
1998 provided that the Lord Advocate had no power to do an act which was
incompatible with the Convention right, the plea in bar of trial should be
sustained and the relevant charges dismissed from the indictment.
201. In
Gillespie v. HM Advocate 2003 SLT 210 the appellate court found a
breach of Article 6 on length and granted, by way of remedy, a reduction of six
months in the punishment part previously imposed by the High Court.
In Spiers v.
Ruddy [2008] UKPC D2, the Privy Council once again considered the range of
remedies available for breach of the reasonable time requirement. Lord Bingham
concluded (at paragraph 16):
“...The European Court does not prescribe what remedy will be
effective in any given case, regarding this as, in the first instance, a matter
for the national court. The Board, given its restricted role in deciding
devolution issues, should be similarly reticent. It is for the Scottish courts,
if and when they find a breach of the reasonable time provision, to award such
redress as they consider appropriate in the light of the Strasbourg
jurisprudence.”
THE LAW
I. SCOPE OF THE COMPLAINTS
The applicant complained that the length of the
appeal proceedings was incompatible with the “reasonable time” requirement,
laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal...”
He also complained that the domestic courts had
failed to expedite the proceedings or to provide interim relief, in breach of the
requirement to provide an effective remedy set out in Article 13, which reads as
follows:
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
. Being
master of the characterisation to be given in law to the facts of the case (see
Phillips v. the United Kingdom, no. 41087/98, § 38, ECHR 2001-VII;
and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September
2009), the Court considers that in the light of its
case-law (see Price and Lowe v. the United Kingdom, nos.
43185/98 and 43186/98, § 23, 29 July 2003; Crowther v. the United Kingdom, no. 53741/00, § 29, 1 February 2005; Bullen and Soneji v. the United Kingdom, no. 3383/06, §§ 65-66, 8 January 2009; Richard Anderson v. the
United Kingdom, no. 19859/04, § 28,
9 February 2010; and McFarlane v. Ireland [GC], no. 31333/06, §§ 126 and 152, 10
September 2010) the applicant’s complaints concerning
the failure of the domestic courts to take steps to expedite the proceedings
are most appropriately examined from the standpoint of Article 6 § 1 of the
Convention.
As to the applicant’s complaint under Article
13 regarding the failure of the domestic courts to provide interim relief, the
Court observes that the applicant failed, in his application form, to clarify
the exact nature of this complaint. It observes that he referred in this
context to the Appeal Court, in its judgment of 28 November 2006, having
“declared that the issue is best considered only once the Appeal has been
determined” and having refused to grant interim relief (see paragraphs 96-97
above).
The Court notes that these comments and
conclusions of the Appeal Court in its judgment of 28 November 2006 were in the
context of the applicant’s application for interim release pending his appeal,
on the basis that release was justified by the delay which had occurred. Having
regard to the nature of the applicant’s complaint as outlined in his
application form, the Court’s consideration will be limited to an examination
of whether Article 13 required interim release in the applicant’s case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. Admissibility
1. The parties’ submissions
(a) The Government
The Government contended that the applicant had
failed to exhaust domestic remedies in that he had been dilatory at various
stages of the procedure; had caused delay by the misinterpretation of the relevant
legislation and the raising of petitions for recovery of documents which were
later withdrawn; and had failed to use domestic procedures open to him to
accelerate the determination of the proceedings or to seek remedies for any
alleged unreasonable delay to date.
The Government set out
a number of steps which they argued the applicant could have taken in order to
obtain acknowledgement of any alleged violation and appropriate redress. First,
he could have sought an early hearing for his substantive appeal. Second, he
could have requested the High Court to make a finding that his Article 6 § 1
right to trial within a reasonable time had been violated. This finding could
have formed the basis for a remedy at the end of the appeal process, which
could have included a reduction of sentence in the event that the substantive
appeal was unsuccessful (referring to Gillespie
v. HM Advocate - see paragraph 201
above). Third, the applicant could have appealed under section 7 of the Human
Rights Act (see paragraph 191 above) against any act or
failure on the part of the High Court which in his opinion contributed to the
alleged violation of his Article 6 § 1 rights. Finally, the applicant could
have sought judicial review to identify any alleged violation and seek damages
under section 7 of the Human Rights Act 1998.
(b) The applicant
The applicant argued that he was not
responsible for the delays encountered in the proceedings and that there was no
available remedy to expedite the proceedings or to obtain relief at the time of
his application to this Court, as the domestic court did not recognise that the
delay in his case was unreasonable or in contravention of Article 6 § 1.
2. The Court’s assessment
It is convenient to distinguish between two
categories of remedies proposed by the Government: (1) remedies to expedite the
proceedings; and (2) remedies to allow the applicant to obtain a declaration
that the delay in his case was unreasonable and any appropriate redress at the
conclusion of the proceedings.
As regards the former category, the Court finds
that the Government’s submissions in this respect essentially identify periods
in the proceedings where, in their view, the delay was caused by the applicant’s
conduct and, in particular, his failure to take steps to ensure the expedition
of the appeal proceedings. As such, it finds that these submissions in reality
go to the merits of the application and in particular to the applicant’s
conduct and contribution, if any, to the length of the proceedings (see Richard
Anderson, cited above,
§ 19).
As regards the second category, the Court
observes that the applicant lodged his case with this Court while the appeal
proceedings were still pending. Subsequent to the receipt of the written
observations in the case, the applicant lodged a devolution minute in the Appeal Court contending that there had been a breach of the reasonable time requirement
contained in Article 6 (see paragraph 138 above). He subsequently informed the Appeal Court that he did not intend to pursue the grounds stated in his note of appeal
against sentence (see paragraph 142 above). At a hearing in April 2011, he
insisted that he was not seeking to appeal against sentence under the 1995 Act,
but was instead seeking to make an application under the Human Rights Act (see
paragraph 144 above). The Appeal Court refused the application as incompetent
(see paragraphs 145-148 above). His attempt to secure leave to appeal to the
Supreme Court was refused on similar grounds (see paragraph 155 above).
It is clear from the judgment of the Appeal Court issued on 12 May 2011 that the applicant could have sought remedies for an
alleged breach of the reasonable time requirement in the context of an appeal
against sentence (see paragraphs 146 and 148 above). For reasons which he did
not explain, the applicant chose not to pursue an appeal against sentence under
the 1995 Act. It is, however, to be noted that an appeal against sentence
permits the Appeal Court to review the sentence and while it may allow a
reduction in sentence, it is also open to that court to increase the sentence
where it considers that the sentence imposed was too lenient. However, the
Court observes that an application under the Human Rights Act for a reduction
in sentence based on an alleged violation of Article 6 did not appear to offer
any scope for an increase in the applicant’s sentence by the
court. The Court further observes that the applicant did not seek to
commence judicial review proceedings under the Human Rights Act to seek a
declaration and, where appropriate, compensation for the alleged delay in the
appeal proceedings. He has failed to explain why he has not done so.
However, the Court reiterates that the
applicant lodged his case with this Court while the criminal proceedings
remained pending. In these circumstances, the Court is not prepared to take
into consideration remedies which would not have become available to the
applicant until the conclusion of the proceedings when determining whether the
applicant exhausted available remedies. In any event the Court observes that in
the context of the applicant’s appeals against conviction and sentence the Appeal Court considered the extent of the delay in the proceedings and did not accept the
applicant’s arguments in this regard.
It follows that the Government’s objection as
to non-exhaustion of domestic remedies must be dismissed. The Court further
notes that the applicant’s complaint under Article 6 of the Convention is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and that they are not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
The applicant complained that he had not had a
final determination of the criminal proceedings against him within a reasonable
time because of, inter alia, the lack of any formal disclosure system in
Scotland which led to delays in accessing relevant information; his removal to
a prison in Peterhead and the resulting difficulties in communicating with his
legal advisers, exacerbated by the opening of his prison correspondence by the
prison authorities; the delay in obtaining authorisation from the SLAB for certain
expenditure and its refusal to authorise expedited transcripts; and the poor
administration of his case by the Appeal Court. He emphasised that it was the
duty of the respondent State to organise its judicial system in such as way as
to meet the requirements of Article 6 § 1. He argued that the courts should
take a firm approach in cases of unreasonable delay even if that meant quashing
a conviction and noted that in Mellors v. the United Kingdom, no.
57836/00, 17 July 2003, the Court had found a violation of Article 6 § 1 where
the time taken to conclude an appeal against conviction was some three years
and two months in which fifteen months were not satisfactorily explained or
excused.
The applicant further pointed to the additional
information sought by the SLAB before authorisation of expenditure as
contributing to delay in his case. He concluded that while it was not alleged
that the conduct of the SLAB in his case caused particularly great periods of
delay, it doubtless had “some impact”.
As to the cause of delay in the lodging of the
note of appeal, the applicant emphasised that the notice of intention to appeal
had been lodged timeously. In respect of the various extensions of time sought
by the applicant to lodge his note of appeal, the applicant submitted that the
reasons that the extensions were required should be considered, which included
the need to obtain further transcripts and sanction from the SLAB, as part of
the overall delay. In particular, he argued that the requirement to see the
Book of Adjournal was not unusual, as it contained the official record of the
terms of the conviction as set against the sentence passed, and in a complex
appeal such as the applicant’s, it was not uncommon to have regard to the Book
of Adjournal when drafting grounds of appeal. He also pointed to the need
for transcripts in his appeal, which were necessary for greater certainty of
what was actually said in court, both in terms of factual testimony and legal
submissions.
The applicant was critical of the delay between
the lodging of the note of appeal and the issuing of the trial judge’s report.
He further contended that the delay between the notification of the decision of
the single sift judge and the granting of leave to appeal on all grounds set
out in the applicant’s note of appeal was the result of a chronic
misunderstanding and misapplication of the law and practice on appeals.
Regarding the cause of delay since full leave
to appeal against conviction was eventually granted, the applicant contended
that the lack of a functional system of disclosure lay at the heart of much of
the delay in this respect. Citing Roche v. the United Kingdom [GC], no.
32555/96, § 167, ECHR 2005-X, the applicant argued mutatis mutandis
that it was incumbent on States to put in place an effective and accessible
procedure for disclosure. Although the applicant had subsequently withdrawn his
petitions for recovery of documents, this was on the understanding that the
Crown was prepared to disclose the documents sought. He argued that the
material sought to be disclosed was highly relevant to his conviction and
grounds of appeal and that any delay resulting from his attempts to obtain the
material was attributable to the Crown.
The applicant further argued that his move to HM
Prison Peterhead protracted proceedings in that it made it more difficult for
him to consult with his lawyers and to communicate with them in appropriately
confidential conditions. His privileged correspondence had been opened on
occasions and thus eroded the applicant’s trust in this method of
communication.
(b) The Government
The Government pointed out that between 10
January 2001, when the applicant arrived back in the United Kingdom, and 12
October 2001, when he was convicted following trial, the High Court heard not
only the applicant’s trial but also his application to restrict reporting, his
legal challenges, at first instance and on appeal, against the competency of
the indictment and in relation to pre-trial publicity, and four substantive
motions made at his instance during trial.
In respect of the nine months taken by the
applicant to lodge his note of appeal, the Government emphasised that the
applicant had regularly sought extensions of time due to pressure of work on
his counsel, the volume of documentation in the case, and the need for
additional transcripts and expert opinions. Accordingly, they submitted, the
delay was wholly attributable to the conduct of the applicant and his
solicitors. In particular, the Scottish Court Service was unable to find any
record of a request for the Book of Adjournal, it was not usual practice for
such a request to be made, and the Book of Adjournal itself contained no more
detail than would already have been available to the applicant’s own solicitors
who attended trial. It was clear from the various requests for extension that
the applicant’s agents were in possession of the materials normally available
to those seeking to appeal, including the trial judge’s charge to the jury
(see paragraph 29 above).
The delay in obtaining the trial judge’s report
on the note of appeal was, the Government argued, due to the considerable care
and effort of the trial judge in the preparation of the report.
As to the period of almost three years to
challenge the decision of the single sift judge, this was in the Government’s
contention entirely due to the applicant’s misinterpretation of the statute and
to the extensions of time sought by him.
Finally, the period between November 2005, when
leave to appeal on all grounds was granted, and the conclusion of the appeal
was due to the applicant’s actions in seeking further transcripts and
disclosure of additional materials by the authorities. The Government pointed
out that the State permitted a procedure for recovery of documents and the
applicant chose to insist on using it, but argued that the State was not
responsible for his decision to pursue and then abandon this process. The Government
noted that the applicant had offered no explanation for the necessity to obtain
further or additional materials to support his appeal. The Government relied on
the Crown schedule of disclosure in the applicant’s case which they contended showed
regular and full disclosure in the applicant’s case (see paragraph 124
above).
Throughout the whole
period, the State was responding to ever more specific and far-reaching
requests by the applicant’s lawyers for further details about the trial process
and for authority to incur additional expenditure on transcripts, travel and
further opinions of counsel and experts. Legal aid applications were determined
promptly and court documents were provided within a reasonable time. The Government
submitted a report detailing every request for legal aid made by the applicant
to the SLAB in the context of his appeal against conviction and sentence and
his petition to the nobile officium. The report identified instances
where the SLAB asked the applicant’s agents for further information and reasons
were provided in each instance. The length of the proceedings was due to the
sheer amount of documentation, the fact that applicant’s counsel was busy on
other cases, the fact that the applicant himself took an unusually close
interest in the appeal and the applicant’s desire to have external input into
the framing of his appeal grounds.
The Government contested the suggestion that
delay was caused by the applicant’s detention at HM Prison Peterhead, referring
to the judgments in the applicant’s judicial review proceedings (see paragraphs
165 and 167 above) and the number of visits received and telephone calls made
by the applicant during his detention in HM Prison Peterhead (see paragraph 170
above). As to the interference with the applicant’s correspondence, the
Government argued that the instances where it had been accepted in domestic
proceedings that the applicant’s privileged correspondence had been interfered
with did not prevent or dissuade the applicant from communicating regularly
with his legal advisers and other relevant authorities, as the applicant’s use
of the mail demonstrated (see paragraph 170 above).
The Government disputed that the Appeal Court or its registry were to blame for any delay. During the appeal proceedings, the
Appeal Court was required to have regard to the applicant’s desire to use
remedies and procedures available to him. His awareness and perception of his legal
rights, together with his willingness to have recourse to further legal
proceedings to vindicate them, played a part in prolonging the proceedings.
The Government accepted that the appeal was of
great importance to the applicant. However, they argued that the appeal
proceedings were complex and matters were complicated by the applicant’s
involvement in a variety of other legal proceedings as the applicant was
essentially running three strands of court proceedings at once: the substantive
appeal against conviction and sentence; petitions for recovery of documents;
and devolution minutes. The applicant had chosen to pursue every avenue
available to him to investigate the case and delay the final outcome. In the
circumstances the Government argued that the State had acted reasonably and
with due expedition. Referring to the various proceedings before the courts
between 2001 and 2009 and the regular procedural hearings conducted by the High
Court and the Appeal Court, the Government concluded that there had been no
single excessive period of delay, nor had there been an unreasonable delay
overall. The applicant’s conduct, on the other hand, had contributed to the
length of the proceedings. In particular, he had shown no desire to bring the
matters to a full hearing and had been astute to explain and justify why
further time should be afforded to him for submission of documents, preparing
of hearing or seeking new information.
2. The Court’s assessment
The Court notes at the outset that the
applicant’s complaint concerned the proceedings on appeal only.
The parties made no submissions as to the exact
period to be taken into consideration. The Court considers that the relevant
period started on 17 October 2001, when the applicant intimated to the court
his intention to lodge an appeal. As to the end of that period, the Court notes
that the Supreme Court refused the applicant permission to appeal his
conviction on 17 December 2010. The applicant’s appeal against sentence was, at
that time, outstanding. However, on 7 April 2011 his counsel made it clear to
the Appeal Court that the appeal against sentence under the 1995 Act and the
associated devolution minute would not be pursued. The Court does not consider
that the application purportedly made pursuant to section 7 of the Human Rights
Act can be considered part of the criminal appeal proceedings for the purposes
of Article 6, in light of the insistence of applicant’s counsel that the
proceedings were wholly independent of the possibility envisaged under the 1995
Act to appeal against sentence (see paragraphs 142 and 144 above). The
Court is accordingly satisfied that the proceedings ended, for the purposes of
Article 6, on the day of the hearing on 7 April 2011. The relevant proceedings
therefore lasted for ten years, three months and twenty-one days.
The Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the circumstances of
the case and with reference to the following criteria: the complexity of the
case, what was at stake for the applicant and the conduct of the applicant of
the relevant authorities (see, among many other authorities, Pélissier and
Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II; Sürmeli v. Germany [GC], no. 75529/01, § 128, ECHR 2006-VII; and McFarlane, cited above,
§ 140).
(a) Complexity of the case
As regards the complexity of the case, the
Court notes that prior to trial, preliminary matters relating to the competency
of the indictment and pre-trial publicity were examined, both at first instance
and on appeal (see paragraphs 19-20 above). The trial proceedings lasted
almost five weeks and four separate written opinions were handed down by the
trial judge (see paragraphs 21-26 above and the Court’s decision in Beggs
(No. 2), cited above). The applicant’s subsequent note of appeal
relied on eight grounds of appeal against conviction and one ground of appeal
against sentence, covering diverse and complex matters including prejudicial
pre-trial publicity, extradition and the rule of specialty, the admission of evidence
and the trial judge’s directions to the jury, and each ground of appeal
contained several subparagraphs (see paragraph 48 above). Shortly before the
appeal was heard the applicant lodged a further ground of appeal regarding
disclosure (see paragraph 133 above). From 2006 onwards, the applicant sought
disclosure of a large volume of documents, both informally and through the use
of court procedures, from a variety of bodies including the Crown, the Sheriff
Court, the Foreign and Commonwealth Office and the police (see, inter alia,
paragraphs 81, 85, 94, 98-101, 104, 107, 111-112, 115 and 122 above). This
documentation was in addition to the extensive case file already in existence.
He also pursued ancillary civil proceedings in respect of his detention at HM
Prison Peterhead and the opening of his prison correspondence, as well as
raising devolution minutes in the context of his appeal proceedings (see
paragraphs 86 and 117 above). The multitude of court proceedings added to the
complexity of proceedings which were in substance complicated and vast. The
appeal hearing itself took eight days and the detailed judgment handed down was
128 pages long (see paragraphs 134-135 above and the Court’s decision in Beggs
(No. 2), cited above).
The Court accordingly concludes that the
proceedings were particularly complex.
(b) What was at stake for the applicant
The importance of what was at stake for the
applicant, namely a conviction for a serious criminal offence and sentence of
life imprisonment with a substantial tariff, is not in doubt.
(c) Conduct of the parties
The complexity of the case, while an important
factor in assessing the reasonableness of the length of the appeal proceedings,
cannot of itself justify appeal proceedings which lasted for over ten years. Of
particular relevance in the present case is therefore the conduct of the parties.
The Court notes that it has previously found in
the context of civil proceedings that where the parties to the proceedings are
required to take the initiative with regard to the progress of the case this
does not dispense the State from complying with its obligation to deal with
cases in a reasonable time (see Price and Lowe, cited above, § 23;
and Crowther, cited above, § 29). As the Court has indicated, the manner
in which a State provides for mechanisms to comply with this requirement -
whether by way of increasing the numbers of judges, or by automatic time-limits
and directions, or by some other method - is for the State to decide. However,
if a State lets proceedings continue beyond the “reasonable time” prescribed by
Article 6 of the Convention without doing anything to advance them, it will be
responsible for the resultant delay (see Price and Lowe, cited above, §
23). The same principles apply in criminal proceedings, where the courts have a
responsibility to take steps of their own motion if necessary in order to
advance the proceedings (see Bullen and Soneji, cited
above, §§ 65-66; and McFarlane, cited above, § 152).
The Court further considers that in giving due
weight to the various aspects of a fair trial guaranteed by Article 6,
difficult decisions have to be made by the domestic courts in cases where these
aspects appear to be in conflict. In particular, the right to a trial within a
reasonable time must be balanced against the need to afford to the defence
sufficient time to prepare its case and must not unduly restrict the right of
the defence to equality of arms. Thus in assessing whether the length of
proceedings was reasonable, particularly in a case where an applicant relies upon
the court’s responsibility to take steps to advance the proceedings, this Court
must have regard to the reasons for the delay and the extent to which delay
resulted from an effort to secure other key rights guaranteed by Article 6.
In order to assess the extent of any delay
caused by the conduct of the applicant or the conduct of the authorities in the
appeal proceedings, the Court considers it expedient to examine each stage of
the appeal proceedings in turn.
(i) The lodging of the note of appeal: 17 October 2001
to 2 July 2002
The Court notes at the outset that the
applicant did not seek to complain about alleged delay in this part of the
proceedings in the context of his incompetent application under the Human
Rights Act (see paragraph 151 above). However, he contended before this Court
that this period of delay was attributable to the acts of the authorities. The
Court emphasises in this regard that following the conviction of the applicant on
12 October 2001, he was required to lodge a note of appeal with the Appeal Court in order to commence the appeal proceedings (see paragraph 171 above). Despite lodging his
written intention to lodge an appeal, he failed to produce his note of appeal
within the requisite six-week period. Instead, he requested six extensions of
time for lodging the note, amounting to a total of around thirty-five weeks’
extension, relying on the complexity of the trial and the mass of documentation
as well as the need to obtain expert evidence and additional transcripts and
the other commitments of his own counsel. In the event, the note of appeal was
finally lodged on 2 July 2002, some nine months after the conclusion of the
trial. The Court emphasises that the applicant was responsible for taking the
procedural steps necessary to commence his appeal, including lodging his note
of appeal.
The Court notes that each request for an
extension of time was reasoned and four of the six applications made reference
to potential prejudice to the applicant if the request for an extension were
not granted. In their second request for an extension (see paragraph 35 above)
based on the need for further transcripts, the applicant’s agents did not
explain which transcripts were required and why they were needed. The Court
notes that by the time the request was made, the SLAB had already processed, in
two days, a request for sanction for further transcripts (see paragraph 34
above). As regards the third request for an extension in February
2002 (see paragraph 37 above), based on the “production of the ‘Parole
Report’” by the judge, the Court notes that the applicant did not specify when
he or his solicitors first saw the note to the Parole Board, but it is clear
that the note was available by 4 December 2001 (see paragraph 31 above) and it
is therefore unclear why it would have prompted the need for an extension some
two months later. The Court further observes that while the fourth request for
an extension referred to factual inaccuracies in the trial judge’s opinion, the
applicant has not clarified to which of Lord Osborne’s rulings he was referring,
nor did he explain what the inaccuracies were. It appears that when the note of
appeal was finally lodged with the court, it made no reference to any factual
inaccuracies. The extension of time request also referred to the need for
further transcripts. However, the Court notes that this request for an
extension was made some five months after the conclusion of the trial. The
applicant has failed to explain why further transcripts were required at this
late stage and had not been sought earlier. Similar considerations apply to the
reference in the extension of time request to the need for SLAB sanction for
expert evidence to be obtained on the issue of pre-trial publicity. The Court
notes that the question of pre-trial publicity was argued as a plea in bar of
trial in October 2001 and the late decision that an expert opinion was required
in order to formulate a relevant ground of appeal has not been explained by the
applicant. The fifth extension was requested in April 2002 (see paragraph 42
above) in order to obtain authority to transcribe yet further evidence. Again,
it is not clear why transcripts were still being sought at this late stage and
it is clear that the request for sanction was treated promptly by the SLAB,
being received on 19 March 2002 and granted the following day (see paragraph 41
above). Similarly, as regards the sixth request for an extension on 21 May 2002
(see paragraph 45 above) on the basis of the applicant’s transfer to
HM Prison Peterhead and the difficulty of arranging a meeting, the Court
notes that an application for SLAB sanction for the costs of a visit to
Peterhead was only made on 24 May 2002 and was granted three days after receipt
of additional information requested (see paragraph 47 above).
In his submissions to the Court the applicant
claimed that part of the delay was attributable to the respondent State. He
referred to delays in obtaining authorisations by the SLAB and transcripts and
a copy of the Book of Adjournal from the High Court. The Court notes that the
facts outlined by the applicant demonstrate that the SLAB dealt with his requests
promptly (see for example paragraphs 34, 41, 47, 59-60, 62, 64-65, 77 and 80
above). He further did not dispute the information provided by the Government
as to the SLAB’s treatment of his requests (see paragraph 228 above). That
information discloses no significant periods of delay in sanctioning requests
for additional expenditure. In particular, there can be no criticism of the
SLAB’s request for further information in order to assess whether there was a
need for the additional expenditure to be incurred and paid for through public
funds. Requests for further information were made timeously and once the
requested information was received, the SLAB dealt promptly with legal aid
applications. Accordingly the Court finds that no unreasonable delay on the
part of the SLAB during this stage of proceedings has been established on the
facts. There is also no evidence of unreasonable delay in obtaining transcripts
and the applicant has not pointed to any occasion on which the clerk failed to
promptly approve a request for further transcripts. The Court further observes
that none of the applicant’s requests for extension made reference to any delay
in obtaining a copy of the Book of Adjournal. In any event the Court does not consider
that any delay in obtaining a copy of the official record of the appeal
proceedings should have had a significant effect on the preparation of the
applicant’s note of appeal, given the technical nature of the information it
contained.
The applicant further argued that his transfer
to HM Prison Peterhead was a cause of delay in the preparation of his note of
appeal. However, the Court considers that there is no evidence that the
transfer caused any delay at this stage. The applicant was able to and
frequently did communicate with his legal team (see paragraph 170 above). In
any event, the drafting of the note of appeal was principally a legal exercise
and the applicant was represented by experienced senior counsel, as his
requests for extensions of time to lodge the note of appeal confirm (see, for
example, paragraphs 32 and 37 above). Accordingly, while the applicant could
reasonably be expected to play a role in the formulation of the grounds of
appeal, the Court is not persuaded that the constant and regular input of the
applicant was necessary throughout the period in which the grounds of appeal
were being researched and drafted.
In conclusion, the Court does not consider that
the delay in lodging the note of appeal can be attributed to the authorities.
In seeking six extensions of time and making late requests for transcription,
the delay encountered at this stage of the proceedings was wholly attributable
to the conduct of the applicant and his legal team.
(ii) The trial judge’s report: 2 July 2002 to 28
November 2002
The Court notes that although the note of
appeal was lodged on 2 July 2002, the trial judge’s report was not ordered
until 16 August 2002, apparently on account of a missing notebook. However, the
Court observes in this regard that, had extensions of time not been sought and
granted, the note of appeal would have been lodged in late December 2001, two
and a half months after the conclusion of the trial. Instead, the applicant
finally lodged the note of appeal almost seven months later, at the beginning
of the summer holiday period. The Court considers that the delay in locating
the notebook and ordering the trial judge’s report was therefore not unreasonable
in the circumstances.
Once the report was ordered, it took a further
fifteen weeks for it to be completed and provided to the parties. However, the
Court observes that the trial lasted almost five weeks. Prior to the trial
proceedings the applicant challenged the competency of the indictment and the
fairness of the trial following extensive media coverage, both at first
instance and on appeal. Moreover, four written opinions were handed down by the
trial judge during the trial proceedings. Further, the note of appeal contained
eight grounds of appeal against conviction and one ground of appeal against
sentence covering diverse and complex legal issues, and was further divided
into a number of subparagraphs. By the time the trial judge received the
request for a report, the trial had finished some ten months earlier. It is
clear that some time was necessary for him to reacquaint himself with the case.
The report which he prepared was twenty-eight pages long and provided a clear
picture for the Appeal Court, with particular reference to the factual
background, the preliminary matters dealt with by Lord Wheatley and on appeal,
the matters of controversy that arose during the trial itself and the trial
judge’s comments on the grounds of appeal (see paragraph 51 above).
The applicant pointed to the other commitments
of the trial judge which in his contention delayed the production of the
report. The Court notes that while Contracting States are obliged to organise
their justice systems in such a way as to avoid unreasonable delay, in the
present case the applicant delayed lodging his note of appeal for some
thirty-five weeks and in the circumstances it was not surprising nor was it
unreasonable at this stage in the proceedings that when the note was eventually
lodged, the trial judge was otherwise engaged for some time. In any case, it is
evident that as time passed, the urgency of finalising the report became
apparent to the authorities and the trial judge, and steps were taken to
progress matters more speedily, including the allocation of three writing days
in mid-November 2002 (see paragraph 50 above).
In all the circumstances, the Court finds that
there was no unjustified delay in producing the trial judge’s report.
(iii) The leave proceedings: 29 November 2002 to 25
November 2005
The Court notes that once the note of appeal
had been lodged, the decision of the single sift judge was made swiftly, around
one month later, and shortly thereafter notified to the applicant. Following
that decision, a period of almost three years was spent first pursuing
incompetent avenues to obtain leave and, subsequently, seeking leave via the
correct route.
(α) The incorrect procedure via the second
sift and the nobile officium
The Court notes, first, that a period of almost
two years - between the decision of the single sift judge to grant leave on a
restricted number of grounds of appeal, notified on 6 January 2003, and the
decision of the High Court in respect of the nobile officium petition on
8 December 2004 - was wasted in court proceedings which were, in the event,
unnecessary and incompetent. The Court must therefore examine the extent to
which the authorities were to blame for this period of delay.
The Court observes that the letter of 6 January
2003 advising the applicant of the decision of the single sift judge, informed
him that he had 14 days in which to lodge an appeal, but did not refer to the
legislative provision under which such an appeal could be made. An examination
of section 107 of the 1995 Act reveals that while a 14-day appeal period is
mentioned in respect of an appeal to the second sift judges, no such time
period is mentioned in section 107(8) dealing with refusal of leave on some
grounds. The Government have not provided any evidence to support their
contention that the error was of the applicant’s own making and have not
disputed the applicant’s allegation that this procedure was standard at the
time and was followed in thousands of appeals following the entry into force of
the 1995 Act and until the High Court decision in his case. The Court further
observes that the applicant was granted leave to apply to the nobile
officium, an extraordinary remedy which can only be used where no other
remedy is available, which appears to support his contention that he had
followed the procedure required by the court at that time. The Court
accordingly concludes that the applicant cannot be criticised for the erroneous
appeal to the second sift judges and the subsequent nobile officium
application.
However, the Court emphasises that it is a
fundamental role of the domestic courts to interpret and apply national law. It
is not unusual for the courts’ examination of statutory provisions to result in
the development of the law either in substance or as regards procedural
requirements. While it is regrettable in the applicant’s case that the
erroneous application to the second sift and the resulting unnecessary petition
to the nobile officium resulted in a delay of twenty-three months, the
State cannot be held responsible for the incorrect procedure followed.
Notwithstanding this conclusion, it remains to be established whether the
authorities complied with their obligation to conduct the proceedings within a
reasonable time.
In this regard, the Court notes that from 17
January 2003 to 21 July 2003, the applicant and his advisers were continuing to
develop their arguments in support of their application for leave to appeal
against the decision of the single sift judge, and sought a total of ten weeks’
extension of time for that purpose (see paragraphs 53-56 above). The decision
of the High Court on the second sift on 20 August 2003 followed merely one
month after receipt of the further submissions of the applicant (see paragraphs
56-57 above) yet the applicant subsequently waited until 14 June 2004, some ten
months later, to lodge his application to the nobile officium (see
paragraph 67 above), and this despite the fact that as early as October 2003 he
had applied to the SLAB for legal aid and that legal aid was granted, following
receipt of further information requested, on 29 December 2003 (see
paragraphs 59-65 above). The applicant has argued that his detention at HM
Prison Peterhead caused delay during this period but the Court disagrees. The
grounds of appeal had already been elaborated over a nine-month period for the
drafting of the note of appeal. Further written submissions had already been
made to the second sift judges. The Court sees no reason to doubt that the
substance of the grounds of appeal had been well rehearsed between the
applicant and his lawyers long before the preparation of the nobile officium
application. The actual drafting of the application was principally a task
for the applicant’s lawyers and while consultation was undoubtedly necessary
from time to time, such contact as was required was not impeded by the applicant’s
detention at Peterhead. In any event, the Court notes that the applicant was
transferred back to HM Prison Edinburgh for one month to facilitate the
preparation of the application (see paragraph 66 above).
The Court further observes that once the
petition had been lodged, a preliminary hearing took place less than one month
later and short deadlines were fixed for the lodging of notes of argument (see
paragraph 68 above). The applicant’s full note of argument was lodged on 4
August 2004 and a date for the hearing was fixed at the convenience of the
applicant’s counsel (see paragraph 69 above). In the event the petition was
argued and granted on 8 December 2004 (see paragraph 70 above), four months
after the full note of argument had been lodged. In the circumstances the Court
does not consider that the authorities contributed to any unreasonable delay at
this stage in the proceedings or failed to ensure the timeous progress of the
applicant’s case.
(β) The correct procedure via section 107(8)
of the 1995 Act
Following the High Court’s judgment of 8
December 2004 that the correct route of appeal was under section 107(8),
judgment in the applicant’s section 107(8) application was not handed down
until 25 November 2005, almost a year later.
However, the Court notes at the outset that
despite the judgment of 8 December 2004, the applicant failed to lodge his
section 107(8) application until 26 April 2005, four and a half months later,
engaging in the interim in a process of obtaining yet further transcripts (see
paragraphs 70-72 above). The authorities cannot be faulted for this delay
as it was the responsibility of the applicant to lodge an application under
section 107(8) if he wished to obtain leave to appeal on all grounds.
Nonetheless, once the application had been
lodged, it was the duty of the court to progress it with expedition, having regard
to the overall length of time which had already passed in the appeal
proceedings and in particular the time spent in the unnecessary application to
the second sift and the nobile officium. However, from the evidence
available to the Court, it would appear that the domestic courts failed to take
any additional steps to deal with the section 107(8) application speedily and
the applicant’s agents were required to make persistent inquiries with the
court as to progress over a period of some five months (see paragraph 73
above). The Government have indicated that this period of inactivity was due to
the unavailability of the applicant’s counsel and the need to find judges who
had not previously sat in any of the applicant’s previous hearings, an
explanation which the applicant did not dispute. The Court considers that,
while there may have been some delay due to the applicant’s counsel’s
commitments, and while in such complex and multifaceted proceedings scheduling
hearings becomes more difficult due to the need to ensure an independent and
impartial bench, the Government have not demonstrated that the authorities took
all steps possible to minimise delay. In this regard the Court refers to the
four letters sent by the applicant’s advisers in May, June, July and September
2005. Further, the Court notes that no explanation has been given by the
Government for the one-month delay in handing down the judgment and have not
sought to argue that the matters to be decided were particularly complex such
as to justify the delay (see paragraphs 74-75 above).
In the circumstances, the Court finds that
there was unreasonable delay by the judicial authorities as a result of their
apparent inactivity during the seven-month period taken for the examination of
the applicant’s section 107(8) application.
(iv) The substantive appeal against conviction: 25
November 2005 to 9 March 2010
Once leave to appeal on all grounds had been
granted, it took four years, three months and two weeks for judgment to be
handed down in the appeal against conviction.
The Court notes that when granting leave to
appeal on all grounds following the section 107(8) application on 25 November
2005, the Appeal Court ordered the applicant to lodge reformulated grounds of
appeal within four weeks. However, the applicant failed to lodge his
reformulated grounds until 16 January 2006, some seven weeks later. Once the
grounds were lodged, it is not clear what steps, if any, were then taken by the
Appeal Court to progress the substantive appeal in the ensuing period. It
would appear that the first procedural hearing in the substantive appeal took
place on 11 July 2006, almost six months later, when the reformulated note of
appeal was admitted and a deadline was set for answers to be lodged (see paragraph
84 above). No explanation has been provided by the Government for this period
of inactivity on the part of the Appeal Court. Procedural hearings in the
appeal were subsequently held on a regular basis until May 2008 (see paragraphs
88, 90, 93, 95, 99, 102, 106, 109, 113, 119-121, 123 and 125-126 above)
but little progress was made and there is no evidence that any steps were taken
by the court to urge the parties to proceed to a full hearing on the appeal.
The Court further observes that in December
2007, a procedural hearing was adjourned to allow the parties to consider the
terms of a judgment concerning the issue of disclosure in another Appeal Court case (see paragraph 119 above). Some progress was subsequently made in the
applicant’s case, including the holding of a full hearing on the petition for
recovery of documents (see paragraph 125 above). However, in May 2008, the
proceedings were again continued to await the judgment of the Privy Council in
the same case (see paragraph 126 above). The judgment was handed down on 16
October 2008, five months later. The Court recalls in this regard that although
Article 6 requires proceedings to be conducted expeditiously, it also lays down
the more general principle of the proper administration of justice. The
continuation of hearings in order to await the judgment of senior courts in a
case on disclosure was, in all the circumstances of the case and in particular
in light of the applicant’s numerous challenges to the disclosure made by the
Crown, compatible with the fair balance that has to be struck between the
various aspects of the right to a fair trial (see Pafitis
and Others v. Greece, 26 February 1998, § 97, Reports of Judgments and
Decisions 1998-I). However, following the handing down of the
judgment of the Privy Council in McDonald and others on 16 October 2008,
it appears that no action was taken to bring the applicant’s case back before
the court until 22 January 2009, when the prosecution wrote to the clerk
seeking to make progress (see paragraph 130 above). For reasons which have not
been explained, a procedural hearing was not held until 6 May 2009, at which
time it was agreed to fix a date for the appeal hearing, at the applicant’s
request not before autumn 2009 (see paragraph 131 above).
Following the lodging of his reformulated note
of appeal in January 2006, the applicant for his part pursued further
transcripts and recovery of documents (see, for example, paragraphs 77, 81-82, 85,
94, 101, 104, 107 and 127 above). His decision to request disclosure of
additional documents for the first time in May 2009 (see paragraph 81 above)
has not been explained by the applicant; the Court observes that no issue had
been taken as to allegedly inadequate disclosure during the applicant’s trial
itself. The Court recalls that applicants are entitled to make use of all
relevant domestic procedural steps but emphasises that they should do so with
diligence and must bear the consequences when such procedural applications
result in delay (see Jordan v. the United Kingdom (no. 2), no. 49771/99,
§ 44 10 December 2002; Boczoń v. Poland, no. 66079/01, § 51,
30 January 2007; and McFarlane, cited above, § 148). In the applicant’s
case three petitions for recovery of documents were lodged (see paragraphs 85, 111
and 122 above) together with associated devolution minutes (see paragraphs 86, 117
and 122 above). Various amendments to the petitions were made (see paragraphs
87 and 116 above). One petition for recovery was lodged some three weeks later
than the deadline permitted (see paragraph 111 above). Despite being ordered to
do so prior to the hearing on 11-14 March 2008, the applicant failed to lodge
an inventory detailing the extent of disclosure already made and the issues in
relation to material not disclosed (see paragraphs 123 and 125 above). In the
event, none of the petitions resulted in an order for recovery being made
against the Crown and although some further material was disclosed to the
applicant between July 2006 and May 2009, the Appeal Court in its judgment of 9
March 2010 indicated that the disclosure exercise which the applicant and his
advisers had embarked upon had had little significant result but had
substantially delayed the hearing of the appeal (see paragraph 136 above). This
was a point reiterated in its later judgment of 12 March 2011, where the Appeal Court accepted that the petitions for recovery might have been, to some extent,
instrumental in obtaining disclosure of information, but emphasised that what
was material was whether the exercise was justified (see paragraph 152 above). Only once the petitions for recovery of documents
had been withdrawn, in May 2009, could the court move to fix a hearing.
The Court notes that the applicant blamed the
allegedly inadequate system of disclosure for the delay. However,
the Court does not consider that there is any evidence before it that the
system of disclosure was inadequate. It appears that a great deal of disclosure
took place, and it is noteworthy that the only ground of appeal linked to
non-disclosure related to a statement by I.C., which the Court found in its
decision in Beggs (No. 2) did not constitute material evidence in
the case. The Appeal Court held regular procedural hearings in the applicant’s
case in order to assess progress on disclosure, and in affording such extensive
opportunities to the applicant to avail himself of the procedural possibilities
for further disclosure safeguarded the applicant’s right to adequate time and
facilities in the preparation of his case as well as his right to have access
to all material evidence for or against him.
However, the Court cannot ignore the fact that
this state of affairs continued over a period of almost three years, delaying
the hearing of the substantive appeal, and that there were nonetheless periods
of inactivity on the part of the judicial authorities. It may be that there was
very little that the Appeal Court could do in the face of the applicant’s
persistent attempts to obtain yet further disclosure and his refusal to move to
a substantive hearing, and that any efforts by the court to expedite matters
would have been frustrated by the applicant’s conduct. However, the fact
remains that Article 6 § 1 required the domestic court to adopt an active role
in steering the appeal to a speedy conclusion, and in particular in the present
case, to press for the resolution of the matters concerning disclosure and the
fixing of a date for the appeal hearing, particularly in the period following
the handing down of the Privy Council decision in McDonald and Others in
October 2008 (see paragraph 128 above). There is no evidence before the Court
that the domestic courts that the court took matters in hand in this way (see Richard
Anderson, cited above, § 28).
There was accordingly also unjustified delay on
the part of the authorities at this stage in the appeal proceedings.
(v) Subsequent proceedings for leave to appeal against
conviction
Following the publication of the Appeal Court’s
judgment on 9 March 2010, the applicant applied for permission to appeal
to the Supreme Court in respect of the human rights issues arising. Leave was
refused by the Appeal Court promptly, on 27 May 2010 (see paragraph 137 above).
The applicant subsequently applied to the Supreme Court for leave to appeal and
an extension of time. He lodged his application on or around 21 October 2010
(see paragraph 140 above). This was refused shortly afterwards, on 16 December
2010 (see paragraph 141 above).
The Court is accordingly satisfied that there
was no undue delay during this period in the proceedings.
(vi) The appeal against sentence
After handing down its judgment in the appeal
against conviction and refusing leave to appeal, the Appeal Court fixed the
hearing in the applicant’s appeal against sentence to take place on 4 August
2010, just over two months later but the applicant requested that the hearing
be adjourned to allow him to request leave to appeal his conviction to the
Supreme Court (see paragraph 139 above). Following the refusal of leave by the
Supreme Court on 16 December 2010, a procedural hearing in the applicant’s
appeal against sentence was fixed for 22 February 2011, just under two months
later (see paragraph 142 above). At that hearing, the applicant’s counsel
advised the court that the application would proceed in a different form to
that originally intimated. Time was allowed for the lodging of written
submissions and a hearing date was fixed for 1 April 2011, around six weeks
later. Because of pressure of business, the hearing did not take place on that
day, but it is clear that steps were taken by the court, in recognition of the
time which had elapsed in the case, to ensure a swift hearing. In particular,
other engagements of counsel were accommodated to permit a hearing to take
place the following week, and the court sat late to complete the hearing (see
paragraph 154 above).
The Court does not consider that an undue delay
took place during this phase of the proceedings. Indeed, on the contrary,
recognising the delay which had occurred, special efforts were made by both the
court and counsel to ensure a speedy determination of the outstanding issues in
the case.
(d) Conclusion
While it is regrettable that the applicant’s
appeal proceedings took over ten years to be concluded, it is clear that a
substantial proportion of the delay is attributable to the applicant’s own
conduct. Further delays were incurred through no fault of either party as a
result of clarifications of the law as regards the correct procedure for
appealing a decision of the single sift judge. It is clear from the judgments
of the domestic courts, particularly in the later stages of the proceedings, that
they were alive to the issue of delay and that they were prepared to take steps
to expedite the proceedings.
However, given the periods of inactivity
identified above and the failure of the judicial authorities during these
periods to take steps to progress matters of their own motion, the Court
concludes that there has been a violation of Article 6 § 1 in the present case.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
A. Admissibility
1. The parties’ submissions
(a) The applicant
The applicant complained that his application
for interim liberty was not an effective remedy, noting that the respondent
State had been obliged to seek his extradition from the Netherlands and that the
application for interim release was made at the appeal stage, when he had
already been convicted and sentenced to life imprisonment with a tariff of
twenty years. He pointed out that the court did not recognise the delay in his
case as being unreasonable or in violation of Article 6 § 1 of the Convention
and contended that only by abandoning all attempts to secure a fair trial could
he have achieved an early conclusion to the case.
(b) The Government
The Government pointed out that the applicant’s
application for interim liberty was difficult to justify given the gravity of
the crime, the applicant’s previous record of violence and the need to protect
the public. They contended that an application for interim liberation could
constitute an effective remedy, in combination with other measures, and the
fact that it was refused by the court in the present case did not render it
ineffective.
2. The Court’s assessment
The Court reiterates that, given the lack of
clarity concerning the exact nature of the applicant’s complaint under this
head, its consideration will be limited to an examination of whether Article 13
required interim release in the applicant’s case (see paragraphs 206-207
above). The Court recalls that in cases concerning length of detention prior to
conviction, Article 5 § 3 imposes stringent requirements on States,
particularly with the passage of time, as regards interim liberation. However,
the Court doubts whether the availability of interim release in post-conviction
cases, where detention is justified under Article 5 § 1 (a), is required under
Article 13 in order to establish that there exist effective remedies for a
complaint regarding length of proceedings.
In any case, the Court notes that the applicant
was able to and did make an application for interim release. The fact that due
to the gravity of the crime, his history of violence and the risk to the
public, the court declined to grant interim release in the applicant’s case
(see paragraph 97 above) does not render the procedure ineffective. There was
no suggestion that it was not within the power of the court to grant interim
release in circumstances where this was justified.
In the circumstances, the Court finds the
applicant’s complaint under Article 13 to be manifestly ill-founded and
therefore rejects it pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured
party.”
A. Damage
The applicant claimed 16,400 pounds sterling (GBP)
in respect of non-pecuniary damage.
The Government argued that the claim was
excessive and inconsistent with the Court’s jurisprudence. They further called
on the Court to take into account the periods where delay was attributable to
the applicant.
The Court considers that the applicant suffered
some frustration resulting from delays attributable to the authorities, which
cannot sufficiently be compensated by the finding of a violation (see, for
example, Mitchell and Holloway v. the United Kingdom, cited above, § 69).
Taking into account the contributory delay imputable to the applicant and
ruling on an equitable basis, the Court awards him EUR 2,000 in respect of
non-pecuniary damage.
B. Costs and expenses
The applicant also claimed GBP 10,332.76 for
the costs and expenses incurred before the Court.
The Government contested the claim. They noted
in particular that it included over sixty hours’ work by counsel, in addition
to the expenses of the applicant’s solicitors. They submitted that a total of
no more than GBP 5,000 was appropriate.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 4,000 for the proceedings before the Court.
C. Default interest
The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Declares
unanimously the complaint under Article 6 § 1 admissible and by a majority the
remainder of the application inadmissible;
2. Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention;
3. Holds unanimously
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, EUR
2,000 (two thousand euros) in respect of non-pecuniary damage and EUR 4,000 (four
thousand euros) in respect of costs and expenses,
inclusive of any tax that may be chargeable, to be converted into pounds
sterling at the rate applicable on the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 6 November 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Lech Garlicki
Deputy Registrar President
