Title of Case comment: A Reasonable Approach to Unreasonable Delay?

Completion date: 21 July 2001

Under Article 6(1) of the European Convention on Human Rights, the clock starts running from the time when the accused is "charged". In the instant case, Lord Woolf CJ held that "charged" is ordinarily to be taken to mean actually charged or served with a summons. It had been assumed by many that the decision as to when the accused had been "charged" would depend upon when he first knew he was under investigation for the particular criminal offence. This could well be earlier than when he had been summonsed or than when he had been formally charged. For example, in Eckle v Germany [1982] 5 EHRR 1, at paras. 73-74, the important features in deciding the time of "charge" for the purposes of Art 6(1) were held to be when the accused had learned of the investigation or when he began to be affected by it. In the instant case, Lord Woolf cited a number of European authorities (see paras. 12-13) and emphasized that one of the key elements in deciding when the accused had been "charged" is whether at any particular stage he had been "substantially affected". Lord Woolf seems to have taken quite a restrictive meaning of this expression so as to require the accused to have been "materially prejudiced" (see para 11) for him then to be able to say that he was "charged" within the meaning of Art 6(1). In the instant case, the defendants were already prison inmates who had been interrogated about involvement in a disturbance within the prison. Lord Woolf speculated that had their interrogations led to different (and presumably more severe) treatment of them within the prison, then those interrogations might have amounted to "charge". Presumably, this is because they would have been materially prejudiced. The logic of this approach may not, however, be correct. In Stogmuller v Austria [1979-1980] 1 EHRR 155, it was said in relation to Art 6(1) that "in criminal matters, especially, it (the right to trial within a reasonable time) is designed to avoid that (sic) a person charged should remain too long in a state of uncertainty about his fate." It is this that lies at the heart of the prohibition on unreasonable delay in bringing an accused to trial. In Corigliano v Italy [1982] 5 EHRR 334, at para 35, the European Court of Human Rights listed various stages which might amount to "charge", such as the date of arrest; the date when the accused was officially notified of the investigation; or the date when official investigations were opened. The ECtHR then went on to say, "it may in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect". It is arguable that the approach taken by the ECtHR is that the central question is whether any particular step in the proceedings began the process of the accused being uncertain about his fate. Moreover, it is arguable that the phrase "substantially affected" means no more than that the accused is affected in that way – namely, by being put in a state of uncertainty about his fate. If this is correct, then to require that the accused was "materially prejudiced" before he could be said to have been "charged", would be to apply different principles from the ECtHR.

Domestic law is quite clear: there must be substantial prejudice for any stay on the ground of delay to be ordered and such a stay is exceptional, all the more so if the Prosecution is not at fault: Attorney-General’s Reference No. 1 of 1990 [1992] QB 630. However, some criminal practitioners had thought that Art. 6(1) had done away with the need for prejudice; if you could show unreasonable delay, then the Court should order a stay. In Eckle v Germany, at para. 66, for example, it was held that prejudice was not necessary for a breach of the Art 6(1) right to trial within a reasonable time. The reason prejudice has been held to be unnecessary is that the purpose of the Art 6(1) right to trial within a reasonable time has always been to prevent the accused being left uncertain about his fate for too long (see Stogmuller v Austria). The Scottish Courts, ahead of England and Wales on implementation of the ECHR, have certainly taken the view that prejudice is not necessary for a plea in bar, which is equivalent to a stay of the indictment (see, for example, McNab v HM Advocate, Unreported, 2 September 1999). Prosecutors in England and Wales had been trying to find a way to circumvent the considerable problems that this approach presented in many cases. One route taken was to argue that mitigation of sentence was an alternative and more proportionate remedy for unreasonable delay, relying, for example, upon X v Germany (Appln. 8182/78). This had been approved in principle by the Privy Council in Darmalingum v The State [2000] 1 WLR 2303, which was a case concerning equivalent provisions to those in Art 6(1) within the Constitution of Mauritius. However, the Privy Council also held that prejudice was not a necessary prerequisite for a fundamental breach of the Constitution. Then came Flowers v The Queen [2000] 1 WLR 2396. That too was a case concerning the Constitution of Mauritius. In that case, the Privy Council, Lord Hutton giving the speech, took a different view from that taken in Darmalingum v The State and held that there were four factors to be considered in relation to any constitutional right to a fair trial within a reasonable time: the length of delay; the reason for delay; whether the defendant asserted his right at trial; and any prejudice to the defendant. He also said that the weight to be attached to each factor must vary from jurisdiction to jurisdiction. It might have been thought that the latter would provide a basis for holding that prejudice was necessary in the domestic context, notwithstanding the European jurisprudence. However, in the instant case, Lord Woolf did not seem to take such a fundamental approach. He appears to give three reasons why there should not have been a stay in this case, even had there been unreasonable delay (which he found there was not, because of his ruling on the issue of time of "charge"). First, the First Instance Court had confused the "unlawful" act pursuant to Section 6(1) of the Human Rights Act 1998 on the one hand, with the remedy that the Court was required to consider if there had been an unlawful act on the other. In other words, it was the Crown’s delay that was the unlawful act, not the Court continuing to try the defendant. (See, eg, para. 20.) Secondly, and to some extent dependent upon the first, alternative remedies were available to the Court (see, eg, paras. 19, 21 and 23). Lord Woolf does not expressly say so, but it appears that he is contrasting the absolute right to a fair trial with the non-absolute constituent rights, such as the right to trial within a reasonable time. In the latter, the concept of proportionality applies: Brown v Stott [2001] 2 WLR 817. Thus, a reduction in sentence or the prospect of compensation in the event of an acquittal, for example, could be appropriate remedies. (Whether acquitted defendants, who had been able to show a breach of the ECHR, but who had been unable to go on to establish that they would have an unfair trial, will be able successfully to claim compensation is an interesting question.) Finally, Lord Woolf simply relies upon the fact that in Flowers v The Queen the Privy Council had held that prejudice was a significant factor. There was, somewhat surprisingly, no discussion in the judgement of the European jurisprudence on the question of whether prejudice is required. This aspect seems ripe for further judicial scrutiny. Although Lord Woolf says that the Court of Appeal is not saying that there can never be circumstances where a stay would be appropriate absent prejudice, he says that he cannot currently identify any circumstance where that might be the case. The present situation therefore appears to be that the principles in Attorney-General’s Reference No. 1 of 1990 remain the only basis for a stay in cases of unreasonable delay unless: first, despite the absence of prejudice, a fair trial would not be possible under Art 6; secondly, any alternative remedy, such as reducing sentence, would not adequately compensate for the unreasonable delay according to the principle of proportionality. These two qualifications appear to be more apparent than real, but we shall see.