Attorney General's Reference No 2 of 2001 (On Appeal from the Court of Appeal (Criminal Division))
24. If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant's Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant's Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant's Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time.
25. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates' Court, Ex p Bennett  1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State  1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor's breach of professional duty is such (Martin v Tauranga District Court  2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant's Convention right.
The second point of law
26. The requirement that a criminal charge be heard within a reasonable time poses the inevitable questions: when, for purposes of article 6(1), does a person become subject to a criminal charge? When, in other words, does the reasonable time begin? In seeking to give an autonomous definition of "criminal charge" for Convention purposes the European Court has had to confront the problem that procedural regimes vary widely in different member states and a specific rule appropriate in one might be quite inappropriate in another. Mindful of this problem, but doubtless seeking some uniformity of outcome in different member states, the Court has drawn on earlier authority to formulate a test in general terms. It is found in paragraph 73 of the Court's judgment in Eckle v Federal Republic of Germany (1982) 5 EHRR 1, 27 (footnotes omitted):
"1. Commencement of the periods to be taken into account
27. As a general rule, the relevant period will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him. This formulation gives effect to the Strasbourg jurisprudence but may (it is hoped) prove easier to apply in this country. In applying it, regard must be had to the purposes of the reasonable time requirement: to ensure that criminal proceedings, once initiated, are prosecuted without undue delay; and to preserve defendants from the trauma of awaiting trial for inordinate periods. The Court of Appeal correctly held (at p 1872, para 10 of its judgment) that the period will ordinarily begin when a defendant is formally charged or served with a summons, but it wisely forbore (pp 1872-1873, paras 11-13) to lay down any inflexible rule.
28. The interviewing of a person for purposes of a regulatory inquiry in England and Wales will not meet the test laid down above: Fayed v United Kingdom (1994) 18 EHRR 393, 427-428, para 61; IJL, GMR and AKP v United Kingdom (2000) 33 EHRR 225, 258-259, para 131. Nor, ordinarily, will time begin to run until after a suspect has been interviewed under caution, since Code C made under section 66 of the Police and Criminal Evidence Act 1984 generally requires the charging process to be set in train once an interviewing officer considers that there is sufficient evidence to prosecute a detained person and that there is sufficient evidence for a prosecution to succeed. In Howarth v United Kingdom (2000) 31 EHRR 861 the European Court held that the period had begun with the first police interview of the defendant, but only 4½ months separated that interview from the charge and attention was largely focused (p 865, para 20) on the passage of time between sentence and final determination of a reference by the Attorney General under section 36 of the Criminal Justice Act 1988. Arrest will not ordinarily mark the beginning of the period. An official indication that a person will be reported with a view to prosecution may, depending on all the circumstances, do so.
29. The opinion of the House on the two points referred by the Attorney General is to substantially the same effect as that of the Court of Appeal. The following summary should be read with the paragraphs of this opinion in which the matters are discussed:
(2) In the determination of whether, for the purposes of article 6(1) of the Convention, a criminal charge has been heard within a reasonable time, the relevant time period commences at the earliest time at which a defendant is officially alerted to the likelihood of criminal proceedings against him, which in England and Wales will ordinarily be when he is charged or served with a summons.
30. Since writing this opinion, I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry, on what I have called the first point of law. Despite the care and comprehensiveness with which they have deployed their reasoning, I am not persuaded of its soundness nor of the unsoundness of my own and I agree with the observations of my noble and learned friends Lord Nicholls of Birkenhead, Lord Hobhouse of Woodborough and Lord Millett. I cannot accept that it can ever be proper for a court, whose purpose is to uphold, vindicate and apply the law, to act in a manner which a statute (here, section 6 of the Human rights Act) declares to be unlawful. Thus a public prosecutor may pursue proceedings against a criminal defendant after the lapse of a reasonable time (in the absence of unfairness) and a court may entertain such proceedings if to do so is compatible with the defendant's Convention rights and so lawful but not if to do so is incompatible with the defendant's Convention rights and so unlawful. I cannot accept that "compatible" bears a different meaning in section 6 of the Human Rights Act and section 57(2) of the Scotland Act, even though the statutory consequence is unlawfulness in the one instance and lack of power in the other. In each case the act is one that may not lawfully be done. I do not think that my opinion in this case can be reconciled with the decision of the majority in HM Advocate v R  2 WLR 317. While, therefore, the House may not overrule that decision of the Privy Council, I should make clear my preference for the opinion there expressed by the dissenting minority, which I take to be consistent with my own opinion in the present case.
LORD NICHOLLS OF BIRKENHEAD
31. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. I agree with it. I add some observations only on the first of the two questions raised by the Attorney General in this reference. This first question raises two separate, although inter-related, issues, one concerning the proper interpretation of article 6(1) of the European Convention on Human Rights, the other concerning the proper interpretation of section 6(1) of the Human Rights Act 1998. The former of these issues of interpretation is one of Convention law, the latter of domestic law. It will be convenient to consider the latter issue first.
Section 6(1) of the Human Rights Act and 'unlawful' conduct
32. Sections 6 to 9 of the Human Rights Act 1998 provide domestic remedies for conduct by a public authority which is incompatible, that is, inconsistent, with a Convention right. The starting point from which these remedies derive is the provision in section 6(1) that Convention-incompatible conduct by a public authority is 'unlawful'. The object of this provision in section 6(1) is plain: such conduct should not occur. Public authorities cannot lawfully, that is, properly, conduct themselves in a way which is incompatible with a Convention right.
33. Sections 7 to 9 provide for the grant of domestic judicial remedies in respect of past or proposed conduct by a public authority which would be unlawful under section 6(1). The court may grant a victim of the unlawful act such relief as it considers just and appropriate. The width of the discretion thus granted to the court is to be expected. The circumstances where section 6(1) is in point will vary greatly.
34. The court itself is a 'public authority' for the purpose of these provisions. What if the conduct of which complaint is made is conduct by a court, as where holding a criminal trial would itself be incompatible with a Convention right? In other words, what is the effect of these provisions when to try a person for an alleged offence and, if he is found guilty, sentence him for that offence, would itself be 'unlawful' by virtue of the express provision of section 6(1)?
35. The Human Rights Act 1998 raises a number of difficult issues of interpretation, but to my mind the questions I have just stated are not among them. As I see it, as a matter of statutory interpretation these questions admit of only one answer. In such a case the court cannot hold the trial. When the very holding of the trial by the court would be unlawful, the trial must be stayed. Consistently with its own essential role as a court of law, the court cannot itself knowingly embark on a course of conduct declared by statute to be unlawful, that is, improper. Courts exist to uphold the law. Whatever may be the appropriate remedy in respect of past or proposed conduct by other public authorities, the court cannot treat itself as having a discretion in respect of its own conduct in such a case.
Breach of the reasonable time guarantee in article 6 of the Convention
36. The other issue arising on the Attorney General's first question concerns the proper interpretation of the reasonable time guarantee in article 6 of the Convention. The issue here is whether to proceed to hold a trial after the lapse of a reasonable time is itself a breach of the Convention. In other words, does the breach lie in the holding of a trial after the lapse of a reasonable time? or does it lie solely in the state's failure to hold the trial within a reasonable time?
37. The distinction between these two formulations, although a little elusive at first sight, is a real one. The scope of the reasonable time guarantee is more extensive under the first formulation than under the second. Under the first alternative, to proceed to hold a trial after the lapse of a reasonable time would itself be a breach of the Convention. That would not be so with the second alternative.
38. I pause to note that this distinction in the formulation of the content of the Convention right has important remedial consequences under United Kingdom law. If the first alternative represents the content of the relevant right conferred by article 6 then, for reasons already outlined, there can be no question of a United Kingdom court proceeding to conduct a trial, whether criminal or civil, once a reasonable time has elapsed. By doing so the court would be acting in breach of a Convention right and, as such, it would be acting unlawfully within the meaning of section 6 of the Human Rights Act 1998. If the second alternative is the proper interpretation, then to hold the trial after the lapse of a reasonable time would not in itself be a breach of a Convention right and therefore it would not in itself comprise unlawful conduct under section 6 of the Human Rights Act 1998. Thus the lapse of a reasonable time would not of itself preclude the courts of this country from holding a trial.
39. In my view the second interpretation of article 6 (1) is preferable. It provides a better match with the underlying object of the reasonable time guarantee. The object of this guarantee is to provide protection against the adverse consequences of unreasonable pre-trial delay. While proceedings are pending there is bound to be suspense and uncertainty for parties. This cannot be avoided, even though suspense and uncertainty bring with them deleterious consequences for those concerned and their families. The reasonable time guarantee is aimed at protecting citizens against this undesirable, if inevitable, feature of court proceedings by confining the period during which it exists to a reasonable one.
40. This undesirable feature of court proceedings, relating to the pre-trial period, is distinct from the actual conduct of the trial. I can detect nothing in the language of article 6, or in the Convention jurisprudence, which suggests that a failure to hold a trial within a reasonable time, itself a breach of article 6, is compounded by the commission of a further breach if a trial then takes place. Rather, the breach of the reasonable time guarantee lies in failure to conduct the trial timeously. When a trial takes place thereafter the breach, which calls for remedy, is not the holding of the trial. The outcome of the trial is in no way impugned. The breach which calls for remedy comprises the state's failure to ensure the trial took place with reasonable despatch. Just recompense is needed in respect of the pre-trial delay, which resulted in the defendant being exposed for longer than he should have been to the undesirable consequences of pending proceedings. Recompense is not needed in respect of the holding of the trial itself.
41. Of course if the pre-trial delay became so protracted that a fair trial could no longer be held, then the holding of the trial itself would on that ground be a breach of article 6. But that is a different case.
42. For these reasons I respectfully consider that H M Advocate v R  2 WLR 317 was wrongly decided.
43. I have studied all the opinions in this matter with care. I cannot accept the analysis contained in the opinions of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry. On the other hand, I agree with the reasons given in the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hobhouse of Woodborough and Lord Millett. I would also make the order which Lord Bingham proposes.
44. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill, with which I am in complete agreement.
LORD HOPE OF CRAIGHEAD
45. At the end of the hearing in this case I thought that I would be able to agree with the conclusion which the majority had reached on the first point of law, and that the only difference between us - fundamental though that difference was - was about the route which led to that conclusion. Having now had the benefit of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hobhouse of Woodborough and Lord Millett and seen the way their conclusion has been expressed, I find myself in the uncomfortable position of being unable to agree with them as to the conclusion also. I have nothing to add to what Lord Bingham has said on the second point of law, as I agree with everything that he has said about it. I wish therefore to concentrate on the first point of law, in order to explain why I am unable to agree with the way in which this question has been answered by the majority.
46. It respectfully seems to me that their conclusion on the first point empties the reasonable time guarantee almost entirely of content, that it runs counter to the principle that the reasonable time requirement is a separate and independent guarantee which is not to be seen simply as part of the overriding right to a fair trial (see Porter v Magill  2 AC 357, 497A-B, para 109), that it overlooks the fact that it is the act of the prosecutor and not the court which is under scrutiny in this case, that it places an unnecessarily strict construction on the word "unlawful" in section 6(1) of the Human Rights Act 1998 and that it risks creating a divergence of view between two separate and entirely independent criminal jurisdictions in the United Kingdom about the meaning of this guarantee. These are fundamental objections, so I hope that I may be forgiven for setting out my own views on these matters in some detail.
47. The first point of law asks whether criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time guarantee in circumstances where the accused cannot demonstrate any prejudice arising from the delay. It is essentially a question about remedy. It seems to have been based upon the assumption that the defendant's Convention right will be breached if the trial is not held within a reasonable time. Paradoxically it is the nature of the Convention right, and not the question of remedy, which has been the focus of attention in this case by the majority. As Lord Hobhouse and Lord Millett have explained, their position is that the holding of the trial after a reasonable time has expired does not itself breach the guarantee. So the state authorities are entitled to hold the trial after a reasonable time has elapsed, and they do not act incompatibly with the defendant's Convention rights by doing so. Lord Bingham follows the same line of reasoning when he says that the breach of the Convention right consists in the delay which has accrued and not in the prospective hearing.
48. As I look around at the state of the authorities on this topic, I am struck by how isolated the reasoning of the majority appears to be from the discussion that has been going on around us about the nature of the Convention right. It was not until Lord Millett raised the issue for the first time in Dyer v Watson  3 WLR 1488, 1527, para 127 that it was suggested by anybody that it would not be incompatible with the Convention right for the authorities to proceed with the trial once it had been established that there had been an unreasonable delay. Up until then the discussion had always been about what, in these circumstances, should be the appropriate remedy. I would, as I shall explain later, put Hardie Boys J's statement in Martin v Tauranga District Court  2 NZLR 419, 432 that the right to trial without undue delay is not a right not to be tried at all into that category. That this is still how the guarantee is viewed by those who are much closer to the issue in practice than we are can be seen from the way Dyson LJ approached the issue in R (Lloyd) v Bow Street Magistrates Court  EWHC 2294 (Admin), 8 October 2003 (see paragraph 101 below), from Lady Smith's observation in H M Advocate v Shell UK Ltd 2003 SLT 1296, 1298K that there will rarely be a dispute about the relevant date for the end of the period that the court has to look at since it will be the trial date, which is usually known. and Lord Kirkwood's observation in Haston v H M Advocate 2003 GWD-959, 15 October 2003, para 17 that the question is whether the overall lapse of time to the date of the trial has crossed the threshold of showing that the guarantee has been breached.
49. None of the judges in these three cases referred to authority when they were explaining the approach which has to be taken to the guarantee. They were expressing their views in the light of the ordinary and natural meaning of the words used in article 6(1). Each of the guarantees which it contains sets out a test which the determination must satisfy if it is to be compatible with the Convention. It is not difficult to apply the reasonable time guarantee in this way, as the approach which the Privy Council took to it in Dyer v Watson  3 WLR 1488 demonstrates. To assert that there must be a trial even if the guarantee is breached is to read into the article words that are not there. It also breaches the principle that the guarantees in the Convention are to be interpreted so as to ensure the full measure of protection that they are intended to provide: Rojas v Berllaque  UKPC 76, para 9. A generous interpretation is called for to ensure that, in the light of their object and purpose, the safeguards which it provides are practical and effective: Loizidou v Turkey (1995) 20 EHRR 99, 133-134, paras 72-73. A reading of the guarantee which insists upon a rule that the state authorities remain entitled to hold the trial even after a reasonable time has elapsed cannot be said to meet these requirements.
50. The advantage which accrues from the way the guarantee is viewed by the majority is that it avoids the problem which has to be confronted when the issue of remedy is viewed through the provisions of the Human Rights Act 1998. But the approach which has always been taken until now is that the flexibility that is needed to avoid abuse was to be found in the meaning which was to be given to the word reasonable in this context, and in the discretion which most systems give the court to choose the appropriate remedy: see Dyer v Watson  3 WLR 1488 as to "reasonable time" and Martin v Tauranga District Court  2 NZLR 419 and Wild v Hoffert NO 1998 (3) SA 695 as to the approach taken in New Zealand and South Africa respectively to the question of remedy. The hearing of this case was, of course, preceded by H M Advocate v R  2 WLR 317 in which it was held by a majority in the Privy Council that the effect of section 57(2) of the Scotland Act 1998 was that the Lord Advocate had no power to act where the holding of the trial would be incompatible with the Convention right, so the court had no alternative but to grant a stay. Lord Steyn, who was searching in that case for a way to permit the court to exercise a discretion in its choice of remedy, said that the approach taken in South Africa was a sensible and just, adding, at p 325, para 16: "Fortunately, the context and wording of section 57(2) permits it to be adopted in Scotland." I do not think, with respect, that anyone now subscribes to this view of the subsection. But the fact that he sought to find the solution in the choice of remedy shows that it was there, and not in the way the guarantee was to be viewed, that the opportunity was seen to lie to avoid results that were undesirable. The effect of the way the guarantee is viewed by the majority is to divert attention from the really interesting question which this case has raised about remedy. This is whether the same result must follow where the complaint is that the holding of the trial would be unlawful within the meaning of section 6(1) of the Human Rights Act 1998.
Unwrapping the problem: taxonomy
51. The raw materials for an examination of the question of remedy are to be found in the Human Rights Act 1998. The Act begins, in section 1, by defining the rights to which it gives effect. They are described in the Act as "the Convention rights". They include the rights and fundamental freedoms set out in articles 2 to 12 and 14 of the Convention: section 1(1)(a). They are to have effect for the purposes of the Act subject to any designated derogation or reservation, and they are set out in Schedule 1 to the Act: section 1(2) and (3). They include all the rights guaranteed by those parts of the European Convention on Human Rights which the United Kingdom has signed and ratified.
52. If questions arise about the content of these rights the answer which is given must take into account the jurisprudence of the European Court of Human Rights and the Commission: section 2(1). The decisions of those institutions are not binding on the domestic courts, but it is obviously desirable that close attention be paid to the Strasbourg jurisprudence. The right of application to the European Court under article 34 of the Convention by persons claiming to be the victim of a violation of the Convention rights has not been abolished. The Government's purpose was to see "rights brought home": "Rights Brought Home: The Human Rights Bill" (1997) (Cm 3782). That purpose would not be achieved if the domestic courts were to depart in material respects from current thinking about the content of the Convention rights in Strasbourg.