Scottish High Court of Justiciary Decisons

The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Rodger), Lord Marnoch and Lord Allanbridge for a hearing on 6 October 1999.

Eo die the court refused the appeal for reasons which were set forth in the opinion of the court which was delivered on 3 November 1999 by the Lord Justice-General (Rodger).

OPINION OF THE COURT—The appellant is Gordon McLean who has been served with an indictment containing two charges of attempted murder, the first relating to an alleged incident ‘between 1 November 1994 and 27 November 1994, both dates inclusive’ and the second relating to an alleged incident in August 1998. In each the complainer is a male who was born on 10 November 1980. The incident in the first charge came to the notice of the Crown authorities only when they were investigating the second incident. It is not disputed, however, that the incident in question was known to the relevant social work department at the time and that the appellant was cited to a children's hearing in March 1995. At that time, however, the incident was treated as being one of a relatively minor character and it was not reported to the police or to the prosecuting authorities.

At a preliminary diet on 2 September 1999 counsel who appeared for the appellant advanced two devolution issues relating to alleged breaches of art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The presiding judge held that there had been no breach of art 6 and the appellant has appealed against that decision.

The first issue is said to arise under art 6(3)(a) which provides that everyone charged with a criminal offence has the minimum right ‘to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him’. Counsel argued that the specification of the date of the alleged offence in the first charge was too imprecise to meet the requirement of art 6(3)(a). The Crown should have been more precise and should indeed have specified the particular day on which the incident was alleged to have occurred. Among the papers in the possession of the Crown, and now indeed available to the defence, was the reporter's statement of facts which had been the basis of the reference to the children's hearing in 1995 and this indicated that the incident in question had occurred on 25 November 1994. In that situation, instead of averring that the incident had occurred ‘between 1 November 1994 and 27 November 1994’, the Crown should have given the exact date.

The presiding judge rejected that argument and we are satisfied that he was right to do so. We leave on one side the point that, even if the Crown had averred that the incident occurred on 25 November, the charge would still have included an implied latitude of three months by virtue of para 4(1) of sched 3 to the Criminal Procedure (Scotland) Act 1995. The argument for the appellant really turned on what was said by the European Court of Human Rights in Brozicek v Italy at para 42 where the court held that the accusation addressed to Mr Brozicek had ‘sufficiently listed the offences of which he was accused, stated the place and the date thereof, referred to the relevant articles of the criminal code and mentioned the name of the victim’. The contention for the appellant was that a charge did not meet this test unless it gave the actual date of the offence rather than a period within which the offence was said to have occurred.

That is too extreme a proposition. The appellant's right under act 6(3)(a) is to be informed in detail of the nature and cause of the charge against him. The amount of detail which is required may vary with the nature of the allegation. Obviously, as counsel himself recognised, there will be many cases in which the Crown cannot know the precise date on which a crime was committed—for example, when a young girl goes missing and her body is discovered months later. Usually in such a case the best that the Crown could do would be to aver that the murder had been committed within a period, determined perhaps by means of tests carried out by the forensic pathologists. Here the Crown have not chosen to insert into the indictment the particular date in the statement of facts used for the 1995 hearing and they were not, of course, bound to do so. We do not know the reason for the Crown choosing to aver a period rather than a specific date, but it may be, for instance, because the complainer himself is no longer able to be precise about when the alleged incident occurred. At all events the only issue for us is whether the charge, containing the averment that the crime occurred within the particular period of less than four weeks, informs the appellant in detail of the nature and cause of the accusation against him. In our view it does.

The other point argued by counsel arose out of art 6(1) which provides that: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time....’ This right is, of course, a free-standing right under the Convention. This is therefore one of the cases of the kind envisaged by this court in HM Advocate v Montgomery where an accused does not point to any actual prejudice which could found a plea of oppression but relies simply on his rights under art 6(1). In that respect the case is similar to McNab v HM Advocate.

Counsel argued that the social work department had been aware of the incident which now forms the basis of the first charge very shortly after the alleged incident itself. The reporter had then formulated grounds of referral based on the incident and had cited the appellant to a hearing before the children's panel. In those circumstances, he contended, the appropriate time from which to calculate the relevant period for purposes of art 6(3) was when the matter was investigated by the social work department. Admittedly, they had not drawn it to the attention of the police or prosecuting authorities but that was simply their decision which could not take away from the fact that any trial of the offence would not take place ‘within a reasonable time’.

We are satisfied that the argument advanced by counsel is unsound. What art 6(1) requires is that the accused's trial on a criminal charge should take place within a reasonable time. That very formulation shows that it is the delay between the criminal charge and the trial on that charge which is of concern for purposes of art 6(1). There is no need in the present case to add to the burgeoning jurisprudence on exactly when the relevant period will usually begin.

We find it helpful, however, to remind ourselves that in Stögmiiller v Austria at para 5 the European Court of Human Rights stated that the aim of art 6 was to give a protection against excessive procedural delays. In particular in criminal matters ‘it is designed to avoid that a person charged should remain too long in a state of uncertainty about his fate’. We observe that in the present case the appellant was not kept in prolonged uncertainty about his fate in relation to charge 1 since he first became aware of the Crown's intention to prosecute him for the offence when the charge appeared on the indictment which was due to call in court for trial within a relatively short period.

We also find it useful to remind ourselves that in Eckle v Germany at para 73, the Human Rights Court said that: ‘In criminal matters, the "reasonable time" referred to in art 6(1) begins to run as soon as a person is "charged"; this may occur on a date prior to the case coming before the trial court…, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened’ (citations omitted).

All the possible starting points envisaged by the court for the period in art 6(1) relate to the start of activities by criminal justice authorities of some kind. In the present case, by contrast, counsel argues that the starting date should be a time when a version of the alleged incident was investigated by the social work authorities who did not bring it to the attention of the police or prosecuting authorities. As counsel admitted, the social work authorities had no power to initiate a criminal investigation or to charge the appellant with a criminal offence. In that situation their investigation and other actings have no bearing on the date within which, under art 6(1), charge 1 in the indictment requires to be brought to trial.

For these reasons, which are indeed those of the presiding judge, we refuse the appeal.