APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Nimmo Smith Lord Wheatley	[2007] HCJAC 66 Appeal No: XC472/07 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL under section 74 of the Criminal Procedure (Scotland) Act 1995 by GEORGE FRANCIS BURNS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Shead; Carr & Co., Glasgow

Alt: Mackay, A.D.; Crown Agent

22 November 2007

The charges

[1] The appellant has been charged on indictment with contraventions of five sections of the Civic Government (Scotland) Act 1982 and with a single charge of breach of the peace. The statutory charges are all concerned with indecent photographs or pseudo-photographs of children and arise respectively under sections 52A(1), 52(1)(a), 52(1)(b), 52(1)(c) and 52(1)(d) of the Act. All six offences are alleged to have occurred at the appellant's home in Glasgow. The offences alleged in charges (1) and (3) are said to have occurred on 18 February 2003 and those alleged in the remaining charges between 1 January 2000 and 18 February 2003.

The procedural history

[2] The undisputed procedural history is that on 18 February 2003 the appellant was arrested at a service station at Luton in Bedfordshire. The background to that arrest was that information had been received from authorities in the United States of America about an online paedophilic group, understood to have a significant worldwide membership. An analysis of that information suggested that the appellant was a member of that group, the telephone number of his Glasgow home being provided on its website. In February 2003 the appellant was staying with his sister in Luton. A warrant was obtained from English magistrates and the appellant arrested as above narrated. The stated basis of his arrest was "conspiracy to distribute child pornography". On being arrested he was cautioned and made no reply. He was taken to a local police station where a caution in English form was administered to him. He was detained and interviewed by officers of the Metropolitan Police on several occasions during that detention. On 20 February 2003 he was released on "police bail". Prior to that release the interviewing officer stated to him:

"What I'm going to recommend to the Custody Sergeant is that you be bailed from here, because I don't know what jurisdiction to charge you in ... I will be recommending that you are charged with offences in the future and they will either be in England and Wales or in Scotland. And unless circumstances change drastically, I don't see you having another opportunity in relation to these offences, which is conspiracy to distribute, yeah, being available to you".

Shortly thereafter that officer said to the accused "Certainly there's sufficient evidence in my mind ready to charge and remand in custody".

[3] So far as appears the appellant was not, in the event, charged by the Custody Sergeant nor remanded in custody. Before the sheriff it was accepted that, as at 20 February 2003, the Lord Advocate was unaware of the police investigation. The English police took advice from the Crown Prosecution Service which advised that in the circumstances the Scottish courts had the relevant jurisdiction. The case papers were passed to Strathclyde Police. The procurator fiscal first came into direct control of matters in October 2003. A full report was received by him from the Scottish Police in October 2004. As a result a petition warrant was sought and granted in November 2004. On 17 December 2004 the appellant, by invitation, answered the petition warrant at Glasgow Sheriff Court. An indictment was subsequently served on the appellant. That indictment was deserted pro loco et tempore for reasons associated with the preparation of the defence. Two subsequent indictments met the same fate. Extensions of the 12 month time limit were duly granted.

[4] The appellant, having now been indicted again, lodged a devolution minute in which he contended that he had been deprived of his entitlement to a hearing within a reasonable time contrary to Article 6 of the European Convention. His contention was that he had been given "official notification" of the charges on 18 February 2003 (at the Luton Police Station).

[5] On 22 June 2007 the sheriff, having heard parties, refused the devolution minute. He held that "the concept of a 'competent authority' must imply an authority which is an integral part of the criminal justice system" and that officers of the Metropolitan Police were not a "competent authority" in the context of the Scottish criminal justice system. The appellant was, in his view, first given official notification by the competent authority when in December 2004 the petition warrant was served on him. The sheriff granted leave to appeal against his decision.

The submissions of parties

[6] On behalf of the appellant Mr. Shead submitted that the underlying purpose of the Convention guarantee was that the person affected should not be kept unduly long in suspense as to criminal proceedings against him. The position of the police was quite different from that of Inland Revenue officials (Unterschutz v HM Advocate 2003 SCCR 287) or Health and Safety Executive officials (HM Advocate v Shell UK Limited 2003 SCCR 598). The investigation had given rise to the possibility of criminal proceedings being taken in any of the United States of America, England and Wales or Scotland. Ultimately jurisdiction had been focused in Scotland. Had what was said to the appellant by Metropolitan Police officers in February 2003 been said to him by officers of Strathclyde Police at that time, it was clear that he would then have received official notification for the purposes of the Convention. It was inconsistent with the Convention guarantee for the Crown to approach the issue, as it did, in an unduly mechanistic way. In Attorney General's Reference (No. 2 of 2001) [2004] 2 AC 72 Lord Bingham of Cornhill, with whom all the other judges had agreed, had at paragraph 27 spoken of "the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him". Here, the officer had told the appellant that he would be recommending that the appellant be charged. A question mark as to the jurisdiction in which the proceedings would ultimately be brought was insufficient to prevent the clock starting to tick. It was also relevant to notice that in Eckle v Federal Republic of Germany (1982) 5 EHRR 1 the European Court had referred to the alternative formulation of whether the "situation of the [suspect] has been substantially affected". The appellant would, in light of the officer's remarks, naturally be anxious about the possibility of proceedings in either jurisdiction.

[7] The Advocate depute submitted that the sheriff's decision had been correct. The competent authority as referred to in Eckle must be an authority within the legal system in which the criminal proceedings were ultimately brought. Reference was made to Unterschutz v HM Advocate, especially at paragraph [15]. More was required than a power to investigate, linked with a power to pass the results of that investigation on to others. The Metropolitan Police, in contrast to officers of Scottish police forces, were not subject to the directions of the Scottish public prosecutor. The interviewing officer had merely told the appellant that he was going to make a recommendation. Attorney General's Reference (No. 2 of 2001) had suggested a flexible approach but had also indicated the "normal" position in England and Wales. There was nothing to suggest that, as a matter of English law, the circumstances here were otherwise than "normal". In these circumstances matters had, in terms of English law, not reached the stage of "official notification". There was on the facts no indication that the officer's recommendation would be taken up. The position could be contrasted with that in HM Advocate v DP 2007 SCCR 370, where English police officers had been acting on the request of a Scottish police force. Here all the charges were directed to conduct in Scotland. The appellant could be prosecuted for these offences only in Scotland.

Discussion

[8] In Eckle the European Court gave guidance as to the meaning in Strasbourg jurisprudence of the autonomous concept of "charge" for the purposes of Article 6 of the Convention. It suggested at para. 73 that "charge" might be defined as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence". That definition, it added, corresponded to the test "whether the situation of the [suspect] has been substantially affected".

[9] In Scotland it has been held that steps taken by Inland Revenue officials (Unterschutz) and by officials of the Health and Safety Executive (Shell UK Limited) were not apt to constitute official notification by the competent authority. In Unterschutz at para. [15] the court expressed the opinion that the concept of a "competent authority" implied an authority which was an integral part of the criminal justice system. It contrasted the position of such officials with that of the police, who had power to arrest and charge (in the domestic sense) and who might act under the direction of the public prosecutor. It seems clear that the court there had in mind Scottish police officers.

[10] Although a purpose to which regard must be had in applying the reasonable time requirement is to ensure that the criminal proceedings, "once initiated", are prosecuted without undue delay (Attorney General's Reference (No. 2 of 2001), per Lord Bingham at para. 27, it has been accepted both in Scotland and in England and Wales that that initiation can take place before the formal commencement of criminal proceedings by the public prosecutor. In Scotland, the formal charging, in the domestic sense, of a suspect by a Scottish police officer will, ordinarily at least, constitute an official notification given by the competent authority of an allegation that the individual has committed a criminal offence. That officer is subject to the direction of the procurator fiscal and has a responsibility to report to him on such matters. In England, it appears, the clock will likewise ordinarily start ticking when a defendant is "formally charged", which appears to be a step taken by a police officer who is different from and independent of the investigating police officers (see Attorney General's Reference (No. 2 of 2001) per Lord Bingham at para. 27 and per Lord Hobhouse of Woodborough at para. 128). Lord Bingham's reference in the earlier paragraph to a person being officially alerted "to the likelihood of criminal proceedings against him" presumably is intended to take account of the circumstance that formal charging may occur before actual commencement of criminal proceedings - by the service of a summons - and may accordingly alert the individual to the likelihood of such proceedings. The rule is not, however, inflexible. Circumstances may occur which justify taking an earlier starting point.

[11] None of the authorities to which we were referred deal with any cross-border situation. However, it is significant, in our view, that in its proffered definition in Eckle the European Court used the definite article ("the competent authority"). That suggests that what must be looked at is the prosecuting authority of the legal system in which the criminal proceedings are ultimately brought, together with such bodies, if any, as form an integral part of that system. Scottish police officers can be regarded as an integral part of the Scottish criminal justice system, being answerable to the procurator fiscal and subject to directions from him. English police officers (no more than police officers of, say, Greece or Bulgaria) cannot be regarded as so answerable or subject to such directions. The position may be different if these "foreign" officers are acting in furtherance of a request by Scottish officers.

Disposal

[12] In these circumstances we are satisfied that the sheriff was correct to hold that time did not, for the purposes of Article 6, begin to run in February 2003 and was correct to refuse the devolution minute. The appeal is accordingly refused.