Parties challenged the compliance of proceedings with the convention where there had been considerable delay.
Held: The reasonable detention provision (article 5(3)) and the reasonable time requirement (article 6(1)) conferred free-standing rights, which could be broken notwithstanding absence of effect on the fairness of the trial. The threshold for delay was high, but once established the court must look at the particular case, referring to the complexity of the case, contributions to the delay by the defendant and by the prosecution. Shortage of facilities for prosecutors was not to be accepted as a valid reason for delay. Neither defendant was held in custody. In one case, police officers complained of a twenty month delay. That was not sufficient to breach their rights. A youth complained of a twenty seven month delay. He was still only sixteen at the date of trial This delay did infringe his rights. When examining the reasonable time provisions for children, the court must also look to obligations under the UN Convention.
(The High Court of Justiciary) During a trial, the appellant police officers gave evidence which the sheriff openly said appeared to him to be perjured. The officers complained that the delay in prosecution was a devolution issue, and an infringement of their rights to a speedy trial. The second case involved a delayed case involving investigation of allegations of child sex abuse by a youth.
Held: The delay from April 1998 to January 1999 had to be looked at in the context of the simplicity of the case against the officers and the need for prosecutions of police officers to be given priority. In JK’s case the prosecution was required to proceed within a year and had failed to do so. The procedural law of Scotland is distinctive in including stringent rules to avoid delay in criminal proceedings, but the statutory rules do not apply to summary proceedings. The reasonable detention and reasonable time requirements confer important rights on the individual, and they should not be watered down or weakened, but the rights do not exist in a vacuum. The convention is concerned not with departures from the ideal, but with infringements of basic human rights. In the police officers’ case a delay of twenty months was not enough of itself to be such an infringement. The prosecutors appeal against the action being struck out was upheld. In JKs case as a child it was important that proceedings be speedy. In this case an overall delay of up to 28 months was in the absence of proper explanation from the crown, unreasonable.

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead Lord Hutton, Lord Millett, Lord Rodger of Earlsferry

Citations:

Times 04-Feb-2002, (DRA Nos 1 and 2 of 2001), 2002 SLT 229, [2004] 1 AC 379, [2002] UKPC D1

Links:

PC, PC, PC, Bailii, PC

Statutes:

European Convention for the Protection of Human Rights and Fundamental Freedoms, United Nations Convention on the Rights of the Child and the United Nations Standard Minimum Rules for the Administration of Justice, European Convention on Human Rights, Scotland Act 1998 6, Criminal Procedure (Scotland) Act 1995 65(1), United Nations Convention on the Rights of the Child

Citing:

Cited – Eckle v Germany ECHR 15-Jul-1982
Two fraud prosecutions against the claimants had lasted for 15 and 20 years respectively.
Held: Article 6.1 applies to all stages of criminal proceedings, including sentencing and any appeal. The ‘reasonable time’ in criminal matters, . .
Cited – McFadyen v Annan 1992
The accused, a police officer, was subject of a complaint by the person arrested of assault. The defendant complained that the delay in bringing charges (7 months) was excessive so as to be unfair.
Held: The question should be whether the . .
Cited – Darmalingum v The State PC 10-Jul-2000
(Mauritius) The constitutional right of a defendant to have his case tried within a reasonable time applied not just to the initial trial but also to any appeal arising from that trial. Where there had been inordinate and inexcusable delay between . .

Cited by:

Cited – Mills v HM Advocate and Another PC 22-Jul-2002
(The High Court of Justiciary) The defendant appealed on the basis that the delay in the sentencing process had resulted in an infringement of his human rights.
Held: The appeal itself had been without merit. The delay had been to such an . .
Cited – Lloyd v Bow Street Magistrates Court Admn 8-Oct-2003
The defendant had been convicted and made subect to a confiscation order in 1996. A final order for enforcement was made in late 2002. The defendant said the delay in the enforcement proceedings was a breach of his right to a trial within a . .
Cited – Attorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .
Cited – Department for Work and Pensions v Courts Admn 3-May-2006
The appellant challenged stays of proceedings by the respondent magistrates court for abuse of process infringing the defendants’ human right to a fair trial. The magistrates had fund that being faced with dismissal of a summary case through delay, . .
Cited – McGowan (Procurator Fiscal) v B SC 23-Nov-2011
The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
Held: It was not incompatible with . .
Cited – McGowan (Procurator Fiscal) v B SC 23-Nov-2011
The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
Held: It was not incompatible with . .
Cited – O’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Scotland, Crime, Human Rights

Updated: 05 June 2022; Ref: scu.167604