Lord Bingham of Cornhill
This devolution issue comes before the Board on the requirement of the Lord Advocate under paragraph 33 of Schedule 6 to the Scotland Act 1998.
The facts may be very briefly summarised. On 8 September 1999 Mr Ruddy was convicted at Perth Sheriff Court of driving while disqualified. On 20 October 1999 he was ordered to be disqualified from driving for 3 years. Two and a half years later, on 4 March 2002, he lodged a Bill of Suspension, seeking to challenge this disqualification on the ground that it had been imposed by a temporary sheriff. On 31 May 2002 he was arrested for driving while disqualified, having no insurance and giving a false name. He appeared at Airdrie Sheriff Court on 4 June 2002 on a summary complaint, pled not guilty to all three charges and was remanded in custody. Trial dates were fixed and adjourned, and on 9 August 2002 he was released on bail. On that date he also withdrew his plea of not guilty to the first (driving while disqualified) charge, and entered a plea to the competency of that charge on the ground that the original disqualification had been imposed by a temporary sheriff. This was the issue raised by the Bill of Suspension and the sheriff felt unable to proceed until there had been a ruling on the Bill. On 18 January 2005 the High Court of Justiciary refused the Bill, and Mr Ruddy's appeal to this Board was dismissed on 6 February 2006. Mr Ruddy lodged a devolution issue on 20 February 2006, contending that his right under article 6(1) of the European Convention to be tried within a reasonable time had been breached, and that the Lord Advocate accordingly had no power to continue the proceedings against him. The Lord Advocate required the sheriff to refer two issues to the Board, and the reference was lodged with the Board on 27 June 2006. There was difficulty in fixing a date for this hearing (partly attributable to Mr Ruddy's need for legal aid), and on 16 April 2007 the Registrar fixed 5 November 2007 as the hearing date. Depending on the outcome, the proceedings are due to resume before the sheriff at Airdrie on 16 January 2008.
The first question formulated for consideration by the Board is whether there has been unreasonable delay in determining the charges against Mr Ruddy, in breach of his rights under article 6(1) to determination of the charges within a reasonable time. The judgment on this question is primarily one for the Scottish courts, and only where the facts have been found (as they were in Dyer v Watson  UKPC D1, 2002 SC (PC) 89,  1 AC 379), can the Board properly entertain a devolution issue relating to the question. In the present case, however, unlike Dyer v Watson, there has been no decision by the Scottish courts whether a reasonable time for bringing the proceedings to trial has been exceeded or not. The relevant facts have not been explored and no decision has been made. That being so, I would think it wholly inappropriate for the Board to make the initial decision. It was not pressed in argument to do so.
It is the second referred issue on which argument has been focused. The issue is whether it would be incompatible with Mr Ruddy's right to a determination of the criminal charges against him within a reasonable time for the Lord Advocate to continue to prosecute him on those charges following the lapse of a reasonable time, in circumstances where a fair trial remains possible and there is no other compelling reason why it would be unfair to try Mr Ruddy, and whether the Lord Advocate has power to do so. The Lord Advocate, with the support of the Advocate General for Scotland as intervener, contends that it would not be incompatible and that the Lord Advocate does have power. Counsel for Mr Ruddy makes a contrary submission.
This issue as formulated makes implicit reference to article 6(1) of the European Convention, which provides that "In the determination of .... any criminal charge against him, everyone is entitled to a fair .... hearing within a reasonable time". The issue assumes that the charges against Mr Ruddy may not be, or may not have been, determined within a reasonable time, an assumption which may or may not be found to be correct but which, as I have noted, the Board cannot decide. The reference to the power of the Lord Advocate as a member of the Scottish Executive is made in the context of section 57(2) of the Scotland Act, which provides:
A member of the Scottish Executive has no power to .... do any other act, so far as the .... act is incompatible with any of the Convention rights ....
Mr Ruddy points to the role of the Lord Advocate as the nominal prosecutor in the criminal proceedings pending against him and submits that if, as he contends, the charges have not been or will not be determined within a reasonable time, then the Lord Advocate will act incompatibly with his (Mr Ruddy's) Convention right under article 6(1) if he continues to prosecute him, and the Lord Advocate has no power to act incompatibly.
The real problem underlying the second issue derives from a conflict between two authorities, both of high standing: one a decision of the Board on a Scottish devolution issue, the other a decision of the House of Lords on a point of law referred to the Court of Appeal (and by it to the House) by the Attorney General of England and Wales. I do not think these two decisions can be reconciled, and it is therefore necessary to choose between them. Happily, there is a body of Strasbourg authority, mostly decided after both of these cases and not referred to in either of them, which eases our choice.
Judgment in R v HM Advocate  UKPC D3, 2003 SC (PC) 21,  AC 462 was given on 28 November 2002. It was a case in which an accused complained that criminal charges against him had not been determined within a reasonable time, that the Lord Advocate would act incompatibly with his article 6(1) rights if he continued to prosecute him and that therefore the proceedings should be brought to an end. The opinions of the Board do not lend themselves to succinct summary. The members were divided. A majority (my noble and learned friends Lord Hope of Craighead, Lord Clyde and Lord Rodger of Earlsferry) accepted the broad thrust of the accused's submissions. As Lord Rodger put it (para 150),
Once the proceedings have already gone on so long that they cannot be completed within a reasonable time, not only is the Lord Advocate infringing the accused's Convention right, but he will continue to do so all the time until the charges are determined. His is a continuing infringement. Every day that the prosecution continues is an additional day during which the accused is kept in a state of uncertainty about his fate for longer than is reasonable ....
A minority (Lord Steyn and Lord Walker of Gestingthorpe) disagreed. They did not accept that there was any continuing breach in a case where, although there had been excessive delay, a fair trial was still possible.
Lord Steyn based his dissent in R, in part, on the judgment of Lord Woolf CJ sitting in the Court of Appeal (Criminal Division) in Attorney General's Reference (No 2 of 2001)  EWCA Crim 1568,  1 WLR 1869. Following the Board's decision in Dyer v Watson, above, the Court of Appeal referred the issues raised to the House. Relevant for present purposes is the first point of law on which the Attorney General desired the opinion of the court. It was whether criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in article 6(1) of the European Convention in circumstances where the accused cannot demonstrate any prejudice arising from the delay. Having reviewed most of the domestic, Strasbourg and other authority then cited to the House, I summarised my conclusion in paragraph 29 of my opinion by ruling that "Criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in article 6(1) of the Convention only if (a) a fair hearing is no longer possible, or (b) it is for any compelling reason unfair to try the defendant": Attorney General's Reference (No 2 of 2001)  UKHL 68,  2 AC 72. This was a conclusion in which Lord Nicholls of Birkenhead (para 31), Lord Steyn (para 43), Lord Hoffmann (para 44), Lord Hobhouse of Woodborough (para 111), Lord Millett (para 129) and Lord Scott of Foscote (para 140) concurred. All of them declined to follow the majority decision in R. For detailed reasons given in their own opinions, my noble and learned friends Lord Hope and Lord Rodger adhered to the decision of the majority in R.
In opening his argument for the Lord Advocate, the Advocate Depute did not seek to address the Board on the respective merits and demerits of the various opinions in R and Attorney General's Reference (No 2 of 2001), but instead relied on a body of Strasbourg jurisprudence of which neither the Board nor the House had had the benefit in the earlier cases but which, he submitted, supported the decision of the House.
The first of these authorities was Kudla v Poland (2000) 35 EHRR 198. This was a criminal case. The applicant complained of delay in determining the charges against him, and the Strasbourg court upheld his complaint (para 130) in respect of a period of about one year and eight months between the quashing of his first instance conviction on appeal in February 1996 and his retrial in October 1997. At his retrial the applicant was again convicted and sentenced to a term of imprisonment somewhat reduced on appeal. The court considered the appropriate remedy for this breach under article 13, noting (paras 148-149) the frequency of such complaints and the need (para 158) for an effective national remedy which would either prevent the alleged violation or its continuation, or provide adequate redress for any violation that had already occurred. But the Polish Government (para 159) was unable to suggest that any of the remedies it had referred to, alone or in combination, could have expedited the determination of the charges against the applicant or given him adequate redress for delays that had already occurred. There was accordingly (para 160) no domestic remedy whereby he could enforce his right to a hearing within a reasonable time as guaranteed by article 6(1). It does not appear to have been suggested, and it was certainly not held, that once the reasonable time provision had been broken all that followed was a continuing breach.
The applicant in Mifsud v France (Appn no 57220/00, 11 September 2002, unreported, BAILII:  ECHR 851) had issued civil proceedings in May 1994 for repayment of penalties ordered against him for breach of planning control. In March 2001 he had been advised by the public prosecutor to proceed against a different defendant, which he had done, but in March 2002 the proceedings were still unresolved. The applicant complained that the reasonable time provision had been breached. The European Court, sitting as a Grand Chamber, found the complaint to be inadmissible. It repeated its ruling in Kudla, but found that in this case domestic law provided a compensatory remedy of which the applicant could yet take advantage. It made no difference that the proceedings were still pending. It was not suggested that the delay complained of had brought the proceedings to an end, and it does not appear that the applicant contended for such a result. Indeed, it seems likely that he wanted them to continue.
Cocchiarella v Italy (Appn no 64886/01, 29 March 2006, unreported, BAILII:  ECHR 270 ) also concerned civil proceedings, which arose from a claim for social security benefits made in July 1994 and finally resolved in early 2003. The applicant had in the meantime filed domestic proceedings claiming compensation for the delay in resolving the proceedings, and an award had been made under a domestic statute enacted in 2001. In its decision the European Court, sitting as a Grand Chamber, reiterated, as it has routinely done, that (para 74) the best solution for problems of delay is indisputably prevention and that a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy has the advantage over a remedy affording only compensation
since it also prevents a finding of successive violations in respect of the same set of proceedings and does not merely repair the breach a posteriori, as does a compensatory remedy of the type provided for under Italian law for example.
The court acknowledged (para 77) that different types of remedy may redress a violation appropriately; in criminal cases the length of proceedings could be taken into account by reducing the sentence in an express and measurable manner. The court found on the facts that the reasonable time provision had been breached, and found the sum of damages awarded by the Italian court to be an inadequate remedy.
The European Court, again sitting as a Grand Chamber, gave judgment in Scordino v Italy (No 1) (2006) 45 EHRR 207 on the same day as in Cocchiarella, BAILII:  ECHR 270. The case concerned proceedings brought in 1990 to challenge the compensation paid for the compulsory acquisition of the applicant's land. The claim was finally resolved in 1998. The Italian courts had found the length of the proceedings to be excessive and had awarded compensation under the 2001 statute already mentioned, but the applicant complained that the compensation awarded was inadequate, and the European Court agreed. Not surprisingly, given the timing of the judgments, the court repeated (in paras 183-188) the substance of what was said in Cocchiarella, BAILII:  ECHR 270. It again found the compensation to be inadequate.
Reference was finally made to Zarb v Malta (Appn no 16631/04, 4 October 2006, unreported, BAILII:  ECHR 1163). The applicant had been arraigned with others on theft charges in April 1991, had been convicted and sentenced on some counts in February 1995, and had appealed. His appeal, delayed for a period by a constitutional motion pursued by him, had been dismissed in January 2004. The European Court found (paras 39-40) the length of the proceedings to be excessive and so found a breach of article 6(1). The court referred (para 48) to its earlier authority requiring an effective domestic remedy where such breach occurs, and found (para 60) the compensation awarded to the applicant to be manifestly inadequate.
None of these cases concerned the situation where delay jeopardises the fairness of a forthcoming trial or where, for any compelling reason, it is not fair to try an accused at all. It is axiomatic that if an accused cannot be tried fairly he should not be tried at all, and where either of these conditions is held to apply the proceedings must be brought to an end.
The cases concerned a situation where there has (or may have been) such delay in the conduct of proceedings as to breach a party's right to trial within a reasonable time but where the fairness of the trial has not been or will not be compromised. The authorities relied on and considered above make clear, in my opinion, that such delay does not give rise to a continuing breach which cannot be cured save by a discontinuation of proceedings. It gives rise to a breach which can be cured, even where it cannot be prevented, by expedition, reduction of sentence or compensation, provided always that the breach, where it occurs, is publicly acknowledged and addressed. 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.
I do not think section 57(2) of the Scotland Act warrants any distinction between the law in Scotland and the law in England and Wales as declared in Attorney General's Reference (No 2 of 2001), to which I would give effect. In a situation such as this the same principles should apply on both sides of the border and it is now clear that Attorney General's Reference (No 2 of 2001) gives better effect than R to the Strasbourg jurisprudence. Once it is accepted that a breach of the reasonable time requirement does not give rise to a continuing breach, it ineluctably follows that the Lord Advocate does not act incompatibly with a person's Convention right by continuing to prosecute him after such a breach has occurred.
I would accordingly depart from the decision of the Board in R and answer the second issue, referred to in paragraph 4 above, as proposed by the Lord Advocate. I would remit the case to the Sheriff Court at Airdrie for the hearing to be continued and any submission on the first issue heard and determined.
Lord Hope of Craighead
The Sheriff at Airdrie was required by the Lord Advocate under para 33 of Schedule 6 to the Scotland Act 1998 to refer two questions for consideration by the Judicial Committee. The first was whether there had been unreasonable delay in determining these proceedings in contravention of article 6(1) of the Convention. I agree that the Board should decline to answer that question. As for the second question, I agree for the reasons given by Lord Bingham of Cornhill that the decision of the Board in R v H M Advocate 2003 SC (PC) 21 should be departed from and the question answered as proposed by the Lord Advocate.
As Lord Nicholls of Birkenhead said in Attorney General's Reference (No 2 of 2001)  2 AC 72, para 37, the distinction between whether the breach lies in the holding of a trial after the lapse of a reasonable time and whether it lies solely in the state's failure to hold the trial within a reasonable time is a little elusive at first sight. It has not been easy to determine which of these alternatives is compatible with the jurisprudence of the European Court in Strasbourg. The distinction has been obscured further by the differences of view which emerged during the discussion in R v H M Advocate of the question of remedy.
The following points do not seem to me now to be in issue. First, article 6(1) contains three separate, distinct and independent guarantees. So under the reasonable time guarantee prejudice, although relevant, need not be established. It is not necessary to show that a fair trial is no longer possible or that for any other reason the proceedings would be unfair: Porter v Magill  UKHL 67,  2 AC 357, paras 108-109; R v H M Advocate, paras 8-10, per Lord Steyn. Second, article 13 of the Convention requires that everyone whose rights and freedoms under the Convention have been violated must have an effective remedy. Where the legislature has left it to the courts to decide what that remedy shall be, as is the case under the Human Rights Act 1998, the court has a discretion to choose the remedy for the unlawful act which it considers just and appropriate: Attorney General's Reference (No 2 of 2001), para 24, per Lord Bingham. Third, section 57(2) of the Scotland Act 1998 does not leave it to the courts to decide what the consequences of the violation should be. It states that there is no power to do any act in so far as it is incompatible with any of the Convention rights. It is the axe that is used not the scalpel, as Lord Rodger observed in R v H M Advocate, para 155. This point was not in issue in Attorney General's Reference (No 2 of 2001). As Lord Bingham put in it that case, para 30, the statutory consequence of section 57(2) is lack of power. That part of the decision of the majority in R v H M Advocate is not in issue in this case either. Fourth, although the consequences of a violation may be different in Scotland, there is no difference between Scots law and English law as to the meaning that is to be given to any of the Convention rights. In this matter, of course, the last word must lie with Strasbourg.
The most illuminating discussion of the reasonable time guarantee in the Strasbourg jurisprudence has been in the context of article 13. It was that article that was the centre of attention in the series of recent cases which Lord Bingham has analysed. In Kudla v Poland (2000) 35 EHRR 198, para 158, the Court said:
It remains for the Court to determine whether the means available to the applicant in Polish law for raising a complaint about the length of the proceedings in his case would have been 'effective' in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred.
In Zarb v Malta (Application no 16631/04, 4 October 2006, unreported, BAILII:  ECHR 1163), para 48, the Court said:
Remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are 'effective' within the meaning of article 13 of the Convention if they prevent the alleged violation or its continuation, or provide adequate redress for any violation that has already occurred.
I think that the use of the words "or its continuation" in these passages is particularly significant. It is plain that there can be no incompatibility between the Convention right and that which is regarded as appropriate for the purposes of article 13 as an appropriate remedy. It would make nonsense of the Convention for the Strasbourg Court to prescribe a remedy that was in conflict with any of the Convention rights. From this it follows that it would not be incompatible with Mr Ruddy's Convention right to a determination of the criminal charges against him within a reasonable time for the Lord Advocate to continue to prosecute him on those charges following the lapse of a reasonable time. But if termination of the proceedings is held not to be the appropriate remedy, steps must be taken to ensure that Mr Ruddy still has the benefit of the reasonable time guarantee that is afforded to him by the Convention right.
Lord Rodger of Earlsferry
I agree that, for the reasons given by Lord Bingham of Cornhill, the first question should not be answered and the second question should be answered as he proposes.
The basic difference of opinion between the majority and the minority in both R v HM Advocate 2003 SC (PC) 21 and Attorney General's Reference (No 2 of 2001)  2 AC 72 was over the nature of the accused's article 6(1) Convention right to a fair and public hearing for the determination of the criminal charge against him "within a reasonable time". In particular, if the Crown delayed so that more than a reasonable time was allowed to go by, did this mean that – as I held – the prosecutor was, irretrievably, in continuing breach of the article, even if he then took steps to proceed to trial as expeditiously as possible? Or – as the seven-man majority held in Attorney General's Reference – did any violation of the right cease when the prosecutor took steps to expedite the trial?
At the time of the two decisions, the case law of the European Court cast little light on the problem. Since then, the position has become clearer. Admittedly, as Mr Coppel pointed out, the European Court cases concern the nature of the appropriate remedy, rather than the nature of the violation of article 6(1). Nevertheless, they do point in favour of the view adopted by the majority in the Attorney General's Reference. In other words, if the prosecutor speeds up, he is no longer delaying the proceedings and so is no longer violating article 6(1). In particular, in Kudla v Poland (2000) 35 EHRR 198, a case of delay in criminal proceedings, the European Court said, at p 237, para 158, that a remedy will be "effective" for purposes of article 6(1) if it prevents the alleged violation "or its continuation". The Court went on to indicate, in para 159, that none of the remedies open to the applicant under Polish law "could have expedited determination of the charges" against him. This approach has been adopted in subsequent cases. It shows that expediting proceedings can indeed prevent the "continuation" of any violation. That is inconsistent with the view that the prosecutor is, inevitably, in continuing breach of article 6(1) once he has delayed unduly, so that the situation can only get worse. Since the prosecutor is not in continuing breach in such circumstances, section 57(2) of the Scotland Act 1998 has no application.
Like Lord Bingham, I would leave the procedural implications of the Board's decision to be worked out by the Scottish courts.
I agree that the first issue is, so far as it arises, for the Sheriff to rule upon, and that the Board should, for the reasons given by Lord Bingham, depart from its previous decision in R v. HM Advocate 2003 SC (PC) 21 and answer the second issue as proposed by the Lord Advocate, and that the case should be remitted accordingly to the Sheriff Court at Airdrie for the hearing to be continued.
Lord Neuberger of Abbotsbury
I, too, agree that the first issue is, so far as it arises, for the Sheriff to rule upon, and that the Board should, for the reasons given by Lord Bingham, depart from its previous decision in R v. HM Advocate 2003 SC (PC) 21 and answer the second issue as proposed by the Lord Advocate, and that the case should accordingly be remitted to the Sheriff Court at Airdrie for the hearing to be continued.
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