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Judgments - Attorney General's Reference No 2 of 2001 (On Appeal from the Court of Appeal (Criminal Division))

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    53. The Act deals with the interpretation of legislation in sections 3 to 5. It then turns to the treatment of violations of Convention rights by public authorities and the provision of remedies. It is important to appreciate that the system which it lays down for dealing with these issues is a system which domestic law has devised for itself. The case law of the European Court indicates that the means which are to be employed to protect a person's Convention rights are left to the domestic legal systems of the contracting states: see Vilvarajah v United Kingdom (1991) 14 EHRR 248, 291-292, para 122. It has also been made clear that the machinery of protection established by article 41 of the Convention as amended by Protocol No 11 (formerly article 50) is of a subsidiary character: see Eckle v Federal Republic of Germany (1982) 5 EHRR 1, 24, para 66. One would not expect to find dicta in the decisions of the institutions at Strasbourg which circumscribe or dictate the approach which may be taken in the domestic systems to the provision of remedies. It is only if the internal law of the contracting state proves to be inadequate, because it allows only partial reparation to be made, that the European Court has jurisdiction to afford just satisfaction to the party which has been injured by a violation of his Convention rights.

    54. The Act goes about the provision of remedies in this way. First, it declares that it is "unlawful" for a public authority to act in a way which is incompatible with a Convention right: section 6(1). Second, it provides that a person who claims that a public authority has acted (or proposes to act) in a way which is made "unlawful" by section 6(1) may bring proceedings against the authority under the Act in the appropriate court of tribunal, but only if he is (or would be) a victim of the unlawful act: section 7(1). Third, it provides that in relation to any act (or proposed act) of a public authority which the court finds is (or would be) "unlawful" the court may grant such relief or remedy within its powers as it considers just and appropriate: section 8(1). This is a simple and coherent structure. I shall have to examine some of the details more closely later on. It is enough for the time being to point out that the essential link between a complaint about incompatibility and the provision of a remedy is a finding that the act (or proposed act) is made "unlawful" by section 6(1). Unless the act (or proposed act) is "unlawful" the court has no jurisdiction under the Act to provide a remedy.

    55. The first question of law is, as I have already said, a question of remedy. There is an uneasy tension between Lord Bingham's statement in paragraph 24 of his judgment that the prosecutor and the court do not act incompatibly with the defendant's Convention right in continuing to prosecute, as the breach consists in the delay which has accrued and not in the prospective hearing, and his reference in the immediately following sentence to the possible remedies if a breach is established retrospectively after there has been a hearing. There can only be remedy for this breach after there has been a hearing if the determination of the charge after an unreasonable time is held to have been "unlawful". If it is possible to predict before the hearing takes place that the determination cannot be made until after an unreasonable time has elapsed, why should the proposed act not be held to be "unlawful" too? It is to be noted that a finding that the act (or proposed act) is "unlawful" is merely the gateway to the provision of a remedy under the Act. It does not predetermine the question as to what remedy, in terms of section 8(1), is just and appropriate.

Automatic termination

    56. The approach of the majority displays an understandable concern as to the consequences of a rule, if the court were to have jurisdiction to provide a remedy for a breach of the reasonable time requirement before the trial takes place, that the proceedings must automatically be terminated. Indeed, as I understand the reasoning of the majority, particularly with the benefit of Lord Bingham's epilogue, that is precisely what the majority believe would have to be done if the reasonable time guarantee is to be interpreted in that way. But, as I have just said, an examination of the approach which the Human Rights Act 1998 takes to this issue shows that a finding that an act (or proposed act) is "unlawful" does not predetermine the question as to the appropriate remedy. Much of the reasoning of the majority seems to assume that such a finding will inevitably lead to a stay, as does Lord Hobhouse's comment that I would read article 6(1) "as prohibiting" any trial after the lapse of a reasonable time. I believe that this is a mistaken view, as I shall seek to demonstrate.

    57. In some systems, as Lord Bingham has observed, a stay has been held to be the appropriate or standard remedy where a breach of the reasonable time requirement in criminal proceedings is established. That was what the Court of Appeal of New Zealand decided in Martin v Tauranga District Court [1995] 2 NZLR 419, although it is to be noted that the court did not go so far in that case as to say that this was the inevitable remedy. In Darmalingum v The State [2000] 1 WLR 2303, 2310D the Board held that the normal remedy for a breach of the reasonable time guarantee was to quash the conviction. That part of the Board's decision was disapproved in Mills v H M Advocate [2002] 3 WLR 1597, 1614, para 49 in favour of the proposition that it was one of a variety of possible remedies, the choice of which must depend on the circumstances of each case. One does not find in any of these legal systems the same method of dealing with remedies as that which is to be found in the Human Rights Act. In those jurisdictions the relevant statute is silent on the question of remedy. This is something that the courts have had to work out for themselves. It is relatively easy for us in the United Kingdom to deal with the question as a matter of discretion, rather than something that must be resorted to automatically, because that is what section 8(1) of the Act itself expressly provides.

    58. An automatic stay was, of course, the result in H M Advocate v R [2003] 2 WLR 317. But that was because section 57(2) of the Scotland Act 1998 provides that a member of the Scottish Executive, including the Lord Advocate as the public prosecutor, has "no power" to act in a way that is incompatible with a Convention right. In my opinion in Dyer v Watson [2002] 3 WLR 1488, 1523, para 111, I drew attention to the difference between the wording of section 57(2) of the Scotland Act and that of section 8(1) of the Human Rights Act and to observations by Iain Jamieson (formerly a senior civil servant in the Scottish Office), who was closely involved in the drafting of the Scotland Act: "Relationship between the Scotland Act and the Human Rights Act" 2001 SLT (News) 43. At p 44 he points out that the Human Rights Act does not impose a vires control upon UK Ministers, and that where the court finds that a public authority has acted "unlawfully" within the meaning of section 6(1) of that Act, it is merely given a discretion by section 8(1) to make such order as it considers just and appropriate. This is to be contrasted with the way the matter is dealt with in the devolution context.

    59. In the context of section 8(1) all that is needed is a sensible approach to the way in which the discretion is to be exercised, bearing in mind all the factors that Lord Bingham has identified. The task which has been given to the court is to give effect in domestic law to the rights and freedoms guaranteed by the Convention. Account must, of course, be taken of the way the domestic system for the conduct of criminal proceedings operates. As has often been pointed out, the rule of law lies at the heart of the Convention. It is not its purpose to make it impractical to bring those who are accused of crime to justice, and the public interest has to be considered as well as those of the accused when decisions are being taken about the choice of remedy.

    60. It was an appreciation of this point that led my noble and learned friend Lord Steyn to say, in his dissenting opinion in H M Advocate v R [2003] 2 WLR 317, 325, para 17, that it would be contrary to the public interest and detrimental to a fair and balanced criminal justice system for the rule to be that a permanent stay of the proceedings must be ordered. He said that, if the result of that case were to be adopted in England, the result would be a huge increase in stay applications in the criminal courts at every level, with detriment to the administration of justice.

    61. The Board was told in that case that since the commencement of the Scotland Act out of 1727 devolution minutes that had been lodged in the Scottish courts 657, or 39 per cent, raised issues of delay. In the present case Mr Perry said that a comparison of the six month periods before and after the decision in H M Advocate v R showed that, while before there had been 153 minutes of which 49 or 32 per cent had raised issues of delay, the position afterwards was that there had been 180 minutes of which 76 or 42 per cent had raised such issues. Some fluctuation in these statistics is to be expected.

    62. Under the Scottish system statutory time limits ensure that an accused does not remain longer than is strictly necessary in custody and that once an accused has been fully committed for trial, even if he is not in custody, his trial should take place within one year. On the one hand there is the 110 day rule, which requires that the trial in solemn proceedings of a person remanded in custody must start within 110 days of his full committal in custody, failing which he shall be liberated forthwith and shall thereafter be for ever free from all question or process for the offence: section 65(4)(b) of the Criminal Procedure (Scotland) Act 1995. This rule, which was first enacted by the Criminal Procedure Act 1701 (c 6), has existed in more or less the same form for more than three centuries. Changes to the period and to the sanction are at present being considered by the Scottish Parliament under the Criminal Procedure (Amendment) (Scotland) Bill but the principle on which the rule was based is not in question. On the other hand there is the 12 months rule, which requires all trials in solemn proceedings to be commenced within 12 months of the first appearance of the accused on petition in respect of the offence, failing which in this case too he shall be discharged forthwith and thereafter be for ever free from all question or process for the offence: section 65(1) of the 1995 Act. Summary proceedings are also regulated by the imposition of statutory time limits.

    63. The invariable sanction, until now, for a breach of one or other of the statutory time limits has been that the proceedings are brought to an end. Power is given to extend the time limits in certain carefully defined circumstances, but that power is jealously exercised by the judiciary in the public interest against the executive. Due to the vigilance of the judges, the statutory time limits are carefully observed by the prosecutor. Complaints of delay are unusual in cases which are not covered by the statutory time limits.

    64. In a case which is typical of those where the article 6(1) right has been invoked in Scotland in a case not covered by the statutory time limits, H M Advocate v H, 2000 JC 552, 553I-554A, Lord Bonomy said that it was perhaps a surprising feature of Scottish criminal procedure that the statutory rules had not in the past been complimented by rules designed to ensure that those who were subject to serious criminal charges but not active criminal proceedings, and are presumed to be innocent, should have their fate determined within a reasonable time. He said that the introduction of such a right under the Convention was to be welcomed. That was a case where no action was taken for 13 months after the appellant had been charged and the case reported to the Crown for proceedings to be brought against him. The judge held, at a preliminary diet, that the delay was unreasonable and he dismissed the indictment. The fact that he decided to dismiss the indictment occasioned no surprise in a system which regards this as the natural consequence of a delay in the bringing of criminal proceedings which is held to be unreasonable. Haggart v Spiers 2003 SLT 991 provides a more recent example of a summary prosecution being stayed by the appeal court in the High Court of Justiciary on the ground that there had been a delay which was unreasonable in breach of the article 6(1) guarantee.

    65. It appears that in that jurisdiction, where the prosecutor has no power to act in a way that is incompatible with a Convention right, the adverse consequences which my noble and learned friend predicted for England have not materialised. I readily acknowledge that the result in England might well be quite different if a strict view were to be taken of breaches of the reasonable time requirement, and that this is an important factor that must be taken into account. But it would not be surprising if the view were to be taken that the result of this case, which leans so far in the opposite direction, is a lost opportunity.

    66. It is worth noting the point made for England and Wales in a recent article that compliance with the reasonable time guarantee requires a special case to be made on human rights grounds for youth cases to brought to trial as expeditiously as possible and that, in view of the decision of the Court of Appeal in this case, this should be done by the introduction of statutory time limits which would usually, but not automatically result in the staying of the case: Jackson, Johnstone and Shapland, Delay, Human Rights and the Need for Statutory Time Limits in Youth Cases [2003] Crim L R 510. A footnote to that article records the fact that since the article was written a decision has been taken not to implement time limits in youth courts. The effect of the majority decision is to remove, once and for all, the opportunity of doing something about this problem in this jurisdiction, in contrast to what was done for Scotland in the case of JK: see Dyer v Watson [2002] 3 WLR 1488.

    67. The point which I wish to emphasise is that the Human Rights Act itself confers a discretion on the court as to the choice of remedy in the event of a violation of a Convention right. How that discretion is to be exercised is a matter which must be determined in the first instance under the domestic system (or systems) of each contracting state. There is nothing in either the Strasbourg jurisprudence or what we can learn from other jurisdictions outside Europe where there is a reasonable time guarantee that constrains us in finding a solution which is best suited to our own circumstances. If we fall short of what is required to provide just satisfaction, the victim will be entitled to seek his remedy under article 41 in Strasbourg.

"No right not to be tried": Hardie Boys J's dictum is not about right but about remedy

    68. In Martin v Tauranga District Court [1995] 2 NZLR 419, 432 Hardie Boys J said of the reasonable time requirement: "The right is to trial without undue delay; it is not a right not to be tried after undue delay." In H M Advocate v R [2003] 2 WLR 317, 322-323, para 14 Lord Steyn observed that this statement neatly exposed the fallacy in the proposition that a breach of the reasonable time guarantee automatically triggers a right not to be prosecuted. As a comment on the New Zealand system and others like it where the court is free to make its own choice, his observation cannot be faulted. But he then said that Hardie Boys J's reasoning was consistent with the observations of Lord Millett in Dyer v Watson [2002] 3 WLR 1488, 1526-1527, paras 126-130. Here, I believe, he went too far.

    69. In paragraph 127 of his opinion in Dyer v Watson my noble and learned friend Lord Millett said that it had been assumed that the right to trial within a reasonable time carried with it a correlative right not to be tried at all after the lapse of an unreasonable time but that it was not self-evident that that assumption was correct. In paragraph 130, having observed that the European Court has repeatedly held that unreasonable delay does not render the trial or sentence liable to be set aside, he said that the question was whether this was a matter of right because there is no Convention right not to be tried at all or (as I would hold) was a matter simply of remedy. Although he left the question unanswered in that case, the general thrust of his reasoning was that this was a matter of right and that there is no Convention right not to be tried at all. Hence it would not be incompatible with the Convention for the prosecutor to bring the case to trial without further delay. In paragraph 24 of his opinion in the present case Lord Bingham has developed the same point. He says that the prosecutor and the court do not act incompatibly with the defendant's Convention right in continuing to prosecute, as the breach consists in the delay which has accrued and not in the prospective hearing.

    70. I believe that Hardie Boys J's skilfully crafted dictum has influenced much of this line of reasoning. This can be seen in Lord Bingham's assertion in paragraph 20 of his opinion that the right of a criminal is to a hearing. But that is not what article 6(1) says. What it says is that in the determination of any criminal charge against him the hearing is to have certain characteristics. The idea that the criminal has a right to a hearing which the state can invoke against him, with the result that he is to be subjected to a hearing which does not possess all these characteristics, is a novel one. It appears to have been inspired by Hardie Boys J's description of the reasonable time requirement. It is important that his dictum should be seen in its whole context.

    71. The respondents in Martin v Tauranga District Court [1995] 2 NZLR 419 did not contend for any remedy other than a stay, should the court hold in the appellant's favour that there had been an undue delay. There was a difference of view as to whether this should be the standard remedy. Cooke P said, at p 424, lines 53-54, that a stay should logically be the standard remedy. Hardie Boys J said, at p 432, lines 6-7, that he was far from persuaded that this should be the case. It was in the course of his discussion of the question as to whether a stay was the standard or necessary remedy that he said that the right was not a right not to be tried after undue delay. This was to answer a point made by the Supreme Court of Canada in Rahey v The Queen (1987) 39 DLR (4th) 481 that the court would not have jurisdiction to embark on a trial once there had been undue delay. He said that he doubted the logic, as (if I may shorten his proposition at this point) the right was not "a right not to be tried after undue delay". At line 30 he made the important point that a person should not be entitled to plead undue delay unless he has taken such earlier opportunity as there may have been to protest at the delay up to that point. Realistic anticipatory remedies could then be provided. At lines 36-38 he said that a stay might be acceptable as the ultimate remedy, but not otherwise.

    72. As a comment on the Supreme Court of Canada's view that there was an absence of jurisdiction to proceed to a trial after there has been an undue delay, the dictum was, if I may say so with respect, entirely in point. There is nothing in the reasonable time guarantee that drives one to the conclusion that there cannot be a trial at all once an undue delay has been identified. But that is a comment on remedy. It does not follow that, to pick up the language of section 6(1) of the Human Rights Act, to proceed with the trial where an undue delay in the determination of the criminal charge has been demonstrated would not be "incompatible" with the Convention right.

What is meant by "unlawful"?

    73. The absence of a detailed examination of this issue is a significant omission from the discussion of the first question of law by the majority. It is an important issue, because the use of this word might at first sight be thought to affect the vires of the public authority. If so, there would be little, if anything, to choose between it and the words "has no power" in section 57(2) of the Scotland Act. Mr Hugo Keith devoted a substantial part of his written submissions in his capacity as amicus curiae to the argument about vires. This would suggest that one would indeed have to say that to proceed with the trial after an undue delay was not incompatible with the Convention right, if the consequences which might flow from a finding that the reasoning in H M Advocate v R [2003] 2 WLR 317 are to be avoided. I detect an inclination to think along these lines in the opening sentences of paragraph 20 of Lord Bingham's judgment.

    74. This impression has been greatly strengthened by his epilogue in which he says that he cannot accept that it can ever be lawful for a court to act in a manner which a statute declares to be unlawful. There is obvious force in this proposition, as there is in Lord Hobhouse's discussion of the point. But I think that the consequences that flow from it in the present context require one to ask what this statute means when it uses the word "unlawful". The proposition, which Lord Nicholls and Lord Millett too have adopted with impeccable logic, assumes that its meaning is so obvious that it needs no such examination. I do not believe this to be so.

    75. A careful study of the relevant sections of the Human Rights Act shows that the true meaning of the word "unlawful" in this context is simply that a wrong has been (or is proposed to be) committed which entitles the victim to a remedy under the Act. The fact that a person can bring proceedings only if he is (or would be) a "victim" of the "unlawful" act is an important signpost. This means that the act is unlawful only against the victim. It is not unlawful against all the world. Another signpost is the fact that under section 8(1) the court is given a choice of remedies. There are also important limitations as to what can be done where a judicial act is said to be unlawful: see section 9.

    76. A finding that an act (or a proposed act) is (or would be) "unlawful" because it is incompatible with a Convention right is therefore simply a vehicle, or a gateway, to the provision under the Human Rights Act of an appropriate remedy. This is a necessary part of the system which has been devised for "bringing rights home". Acts (or proposed acts) which are (or would be) incompatible with Convention rights have to be branded or stamped in some way to provide the necessary link between the act on the one hand and the provision of a remedy on the other. The Convention uses the word "violation": see articles 34 and 41. The word "unlawful" in the Act serves the same purpose. Its use does not in any way prejudge the choice of remedy.

    77. Three further points are worth mentioning. The first is that a person is a "victim" of an unlawful act for the purposes of section 7 "only if" he would be a victim for the purposes of article 34 of the Convention: section 7(7). This tells one that he requires to do more, if he is to show that he is (or would be) a victim, than simply assert that Convention rights have been (or would be) violated. He needs to show that his interests have been affected in some way by the violation of the relevant Convention right. This is a further limitation on the scope of the word "unlawful". Only a "victim" as so defined can take proceedings in respect of an "unlawful" act (or proposed act). The second point is that, as the words in parenthesis in sections 7(1) and 8(1) indicate, the word "unlawful" is extended to proposed acts as well as to past acts. These words show that an order which prohibits the proposed act is within the contemplation of the statute, where this is just and appropriate: see also section 7(11). The third point is that there are close links between what section 8 has in mind and the jurisprudence at Strasbourg. Section 8(3) refers to the "just satisfaction" principle and section 8(4) requires the court to take Strasbourg jurisprudence into account in determining whether to award damages and the amount of the award. As Mr Emmerson QC pointed out, these references support his proposition that a test which the court should apply when it is selecting the remedy that is just and appropriate is whether, in Strasbourg terms, it is proportionate.

    78. The meaning to be given to the word "unlawful" has a bearing too on what is to be done about past acts. If the view of the majority is right, and the word in this context means something that cannot lawfully be done, the conclusion to which one would be driven would be that such acts would have to be treated as acts which the public authority had no power to do. That would mean, in the case of a determination by a court or tribunal, that it was a determination that the court or tribunal had no power to make. The logical conclusion would seem to be that a court or tribunal which was aware that it was not possible for it to issue its determination within a reasonable time would have to refrain from issuing the determination.

    79. But in Gillespie v H M Advocate 2003 SLT 210 following the decision of the Privy Council in Mills v H M Advocate [2002] 3 WLR 1597, the appeal court of the High Court of Justiciary held that there had been a delay in the hearing of the appeal which was the responsibility of the court and was unreasonable. Having held that there had been a breach of the reasonable time guarantee because the appellant had been denied the right to a determination of his appeal within a reasonable time, it proceeded to grant him a remedy by way of a reduction in the punishment part of his life sentence. The decision that it was open to the court in that situation, which was of its own making, to grant such a remedy is consistent with what I take to be the meaning of the word "unlawful" in this context. I do not understand how it would have been either possible or appropriate if the word is to be given the meaning which is favoured by the majority.

Some points on practice

    80. The concept of a proposed act may be relevant in many contexts. There is no reason to think that it may not be relevant also in the context of a complaint about unreasonable delay. In Dyer v Watson [2002] 3 WLR 1488, for example, the question whether the reasonable time guarantee had been violated was raised as a devolution issue before the cases of Watson and Burrows, the police officers, and of JK, the minor aged 13 when he was charged, respectively were due to come to trial. In the case of the police officers notice of the devolution issue was given before the pleading diet in May 2000. The trial would probably have taken place in August or September of that year. Lord Bingham noted, at p 1509, para 56, of his judgment that a period of 20 months elapsed (or would have elapsed) between the date when the officers were charged and the date of their trial. In JK's case the devolution minute was lodged about four days before the start of his trial, the original date of which had been postponed to allow the defence to obtain a medical report. Lord Bingham said, at p 1510, para 60, that in his case a period of 28 months would have elapsed between the date when he was charged and the original trial date.

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