Title of Case comment: Prejudice by the Back Door?

Completion date: 22 February 2002

The state of the law on the reasonable time requirement in Article 6(1) of the European Convention on Human rights following AG Reference No 2 of 2001 [2001] 1 WLR 1869, was unclear. In particular, the question of whether prejudice is required, and the question of whether any breach is to be remedied by the ending of the proceedings, or whether it can be remedied by a reduction in sentence had been thrown up in the air by Lord Woolf. As Lord Hope said in the present case, Lord Woolf’s ruling is said to be "controversial" (para 110). The Privy Council in the present case were presented with two appeals, both from Scotland. In Watson and Burrows, two Police Officers were charged with perjury and there was a period of 20 months until their trial, 7 months of which was seemingly unjustifiable by the Crown. In JK a boy of 13 years was charged with serious sexual offences. There was a period of 27 months to his trial, 10 months of which was seemingly unjustifiable by the Crown. The Privy Council held that there was no breach of Art. 6(1) in the case of the Police Officers, but that there was in the case of JK. Their reasoning is as interesting as it is instructive.

At first blush, they laid down a simple two-stage test for determining whether there has been a breach or not. First, a high threshold must be crossed: the delay must give "grounds for real concern". Secondly, if, but only if it does give such grounds, the Court should look at the various explanations for the delay; the obvious example is the well-known one of the complexity of the case. The clearest summary of this test is by Lord Bingham at paras 52-55, but it is common to all the five Opinions. It is made explicit by their Lordships that prejudice is not a requirement. Darmalingum v The State [2000] 1 WLR 2303 is to be preferred to Flowers v The Queen [2000] 1 WLR as a precedent, although the Court was concerned to point out that both were correctly decided on their own facts. When the two present appeals themselves are analysed, however, the question arises: whether a prejudice requirement has crept in by the back door. The difference in the length of the delay in the two cases - whether the overall delay, or the unjustifiable portion of it - is insufficient itself to be determinative of the different results. Rather, the distinction is to be found in the effect the delay will have had. In JK, the age of the Defendant was such that the delay will have had a more prejudicial effect upon him. Various international obligations in relation to children were cited, for example, the commentary to rule 20 of the Beijing Rules: "As time passes, the juvenile will find it increasingly difficult, if not impossible, to relate the procedure and disposition to the offence, both intellectually and psychologically." In other words, for a child, the delay is more prejudicial. In Watson and Burrows, there had been a 7 month delay which was unjustifiable; yet, the threshold was not crossed. This can only be because there was no, or insufficient, prejudice. If this analysis is correct, it begs the question: how much prejudice will take a delay over the threshold. Clearly less than is required for a stay under the pre-existing domestic law. (In England and Wales, see AG Reference [No 1 of 1990] [1992] QB 630; in Scotland, see McFadyen v Annan 1992 JC 53.) It may be that what the present case decides is that prejudice is not necessary, but it helps. If that is so, then without prejudice, the delay may have to be very great to give "grounds for real concern".

The Privy Council was unwilling to consider the equally important questions: first, whether a breach must lead to a stay, or can be remedied in some other way; secondly, if it can be remedied in some other way (such as a reduction in sentence), how will the Court decide which remedy to apply? They were unwilling to consider it because in Scotland it involves devolution issues, as well as the Human Rights Act 1998, and the point had not been canvassed in the Court below. The test set out by Lord Woolf in AG Reference [No 2 of 2001] cannot have survived the present case, however, because he indicated that it was difficult to see a situation where the trial should be stopped absent any prejudice impinging upon the fairness of the trial. In the present case, the Privy Council rejected a link between the fairness of the trial protection, and the reasonable time guarantee: they are independent rights. Thus, there is a lacuna in the case law.

Adrian Waterman
11 King's Bench Walk, Temple