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




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

[2003] UKHL 68


My Lords,

    1. In exercise of his power under section 36 of the Criminal Justice Act 1972 the Attorney General referred to the Court of Appeal two points of law on which he desired the opinion of that court. The points were these:

    "(1)  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 for the Protection of Fundamental Rights and Freedoms ("the Convention") in circumstances where the accused cannot demonstrate any prejudice arising from the delay.

    (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, when does the relevant time period commence?"

The first of these points raises a specific issue on the interpretation and application of the Human Rights Act 1998 and article 6 of the Convention, but also a more general issue which has given rise to difficulties and differences of opinion not only in the United Kingdom but in other jurisdictions around the world. These are important issues, on which compelling arguments to contrary effect can be, and have been, advanced. The second point raises an issue of less general importance but of practical significance to judges called upon to rule whether the reasonable time requirement has been breached.

    2. The acquittal which entitled and prompted the Attorney General to exercise his power under section 36 came about in the following way. On 26 April 1998 there was a serious disturbance in an English prison. Thirty-two prison inmates barricaded themselves in an association room and caused some considerable damage to property. Prison officers were sent into the room to clear the barricades and regain control of the area. The inmates resisted the officers and there was considerable violence before order was restored. An investigation into the incident began on the following day, 27 April 1998. Potential defendants were interviewed by the police between 9 June and 1 July 1998. The police submitted their paperwork to the Crown Prosecution Service for advice on 27 July 1998. On 11 February 2000 informations were laid against 7 prisoners, one of them the defendant who has in this reference been called "the acquitted person". On 16 June 2000 the defendants were committed for trial in the Crown Court, where they were charged in an indictment containing a single count of violent disorder contrary to section 2(1) of the Public Order Act 1986. Trial in the Crown Court was fixed to begin on 29 January 2001. When the matter came before the court, counsel for the defendants (including the acquitted person) submitted to the trial judge that the delay in bringing the charge against the defendants to trial had been such that to proceed with the trial would be to act in a way incompatible with article 6 of the Convention. The judge accepted this argument and on 31 January 2001 ordered that the proceedings against the defendants should be stayed. On 14 March 2001 the trial judge lifted the stay: the prosecution offered no evidence and the defendants were acquitted.

    3. The Court of Appeal (Lord Woolf CJ, Wright and Grigson JJ) gave judgment on this reference on 2 July 2001: [2001] EWCA Crim 1568; [2001] 1 WLR 1869. It did not approve the trial judge's ruling on either of the points of law on which its opinion had been sought. On the first point, the Court of Appeal accepted (p 1876, para 21) that a stay would have to be imposed if a fair trial were not possible and would be appropriate if it would be unfair to try the accused at all. Such cases apart, however, a stay would not normally be appropriate although there might be circumstances in which, notwithstanding the absence of prejudice, it would (p 1878, para 24). Ordinarily, a remedy for breach of the reasonable time requirement could and should be afforded by some means (a declaration, a reduction of sentence or compensation) falling short of a stay (p 1876, para 20). On the second point raised by the Attorney General the Court of Appeal was of opinion that the relevant time period would ordinarily commence when the defendant was charged or served with a summons as a result of an information being laid before justices (p 1872, para 10). There might however be situations in which an accused might be substantially affected or materially prejudiced by the action of the state at an earlier date, in which case the period might commence before charge or summons (pp 1872-1873, paras 11-12). Following the decision of the Judicial Committee of the Privy Council in Dyer v Watson [2002] UKPC D1, [2002] 3 WLR 1488, the Court of Appeal referred the points raised by the Attorney General to the House, on the application of the acquitted person, under section 36(3) of the 1972 Act.

    4. In argument before the House, Mr David Perry, for the Attorney General, supported the Court of Appeal's ruling on the first point referred by the Attorney General. Mr Ben Emmerson QC, for the acquitted person, did not maintain the argument advanced below, and accepted by the trial judge, that breach of the reasonable time requirement must necessarily lead to a stay of proceedings. Instead, he contended for a more flexible approach. Where the effect of delay or the conduct of the executive is such as to render continuation of the proceedings an abuse of the process of the court, then a stay of the proceedings must be ordered. Otherwise, the court must grant such remedy as is proportionate to the demonstrated breach of the reasonable time requirement. In some cases a stay may be the proportionate remedy, in others it will not. At the request of the House, following the majority decision of the Privy Council in HM Advocate v R [2002] UKPC D3, [2003] 2 WLR 317, an amicus was instructed by the Solicitor General to advance the argument that continuation of a criminal prosecution after the lapse of a reasonable time is unlawful and thus requires a stay of further proceedings.

    5. On the second point referred by the Attorney General, counsel on his behalf broadly supported the Court of Appeal's ruling, while seeking further clarity if such could be achieved consistently with the Strasbourg jurisprudence. For the acquitted person it was argued that the relevant time period would ordinarily commence with an arrest or detention of a suspect for the purposes of interrogation. The amicus was not invited to address this point.

Article 6(1) of the Convention

    6. Article 6 of the Convention is headed "Right to a fair trial". Only the first paragraph is directly relevant to this reference. It provides:

    "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

The Human Rights Act 1998

    7. Section 6(1) of the 1998 Act lies at the heart of this reference. It provides that

    "It is unlawful for a public authority to act in a way which is incompatible with a Convention right."

The expression "public authority" is defined in subsection (3) to include a court. It also includes a public prosecutor. Under the definition in section 1(1) of the Act, the right guaranteed by article 6(1) is a "Convention right". "Incompatible" is not defined but bears its ordinary meaning of "inconsistent". Subject to immaterial qualifications, an act includes a failure to act (section 6 (6)).

    8. A victim of any unlawful act, or proposed unlawful act, of a public authority may rely on his Convention right in any legal proceedings. Section 8 of the Act is headed "Judicial remedies" and provides, so far as material:

    "(1)  In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

    (2)  But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

    (3)  No award of damages is to be made unless, taking account of all the circumstances of the case, including -


      any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and


      the consequences of any decision (of that or any other court) in respect of that act,

      the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

    (4) In determining -


      whether to award damages, or


      the amount of an award,

    the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention."

"Damages" is defined in subsection (6) to mean "damages for an unlawful act of a public authority" and "unlawful" to mean "unlawful under section 6(1)". Section 9 governs the right of redress where the unlawful, or allegedly unlawful, act is a judicial act of a court.

The first point of law

    9. The importance of the issues raised by the Attorney General's first point of law calls for a return to first principles and the restatement of some familiar but fundamental propositions. First, the aim of the Convention, declared in its preamble, is to secure the universal and effective recognition and observance of the rights listed in it, which member states bound themselves (in article 1) to secure to everyone within their respective jurisdictions. The listed rights were singled out for protection because they were recognised to be of overriding importance. But the Convention also recognised, implicitly and often explicitly, that "No man is an Island". In the exercise of individual human rights due regard must be paid to the rights of others, and the society of which each individual forms part itself has interests deserving of respect. As pointed out in Brown v Stott [2003] 1 AC 681, 704

    "The [European] court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191, para 52."

    10. Secondly, and as the heading of article 6 makes clear, the core right guaranteed by the article is to a fair trial. Most of the specific aspects singled out for mention (including the presumption of innocence protected by paragraph (2) and the minimum rights guaranteed to criminal defendants by paragraph (3)) relate to the fairness and perceived fairness of the trial process. The article takes a broad view of what fairness requires: in ordinary parlance a trial might be regarded as fair even though judgment was not pronounced in public. But the focus of the article is on achieving a result which is, and is seen to be, fair.

    11. Thirdly, and importantly, article 6 applies not only to the determination of criminal charges, which understandably give rise to most of the decided cases, but also to the determination of civil rights and obligations. In a criminal case the issue usually arises between a prosecutor, who may be taken to represent the public interest, on one side and an individual defendant on the other. In a civil case there may well be individuals, each with rights calling for protection, on both sides. It will only be acts of a public authority incompatible with a Convention right which will give rise to unlawfulness under section 6(1) of the Act. But the Convention cannot, in the civil field, be so interpreted and applied as to protect the Convention right of one party while violating the Convention right of another.

    12. Fourthly, it is clearly established that article 6(1), in its application to the determination of civil rights and obligations and of criminal charges, creates rights which although related are separate and distinct: see Porter v Magill [2002] 2 AC 357, 489, 496, paras 87, 108; Dyer v Watson [2002] 3 WLR 1488, 1513, 1526, 1528, paras 73, 125, 138; Mills v HM Advocate [2002] UKPC D2; [2002] 3 WLR 1597, 1603, paras 12-13; HM Advocate v R [2003] 2 WLR 317, 321, para 8. Thus there is a right to a fair and public hearing; a right to a hearing within a reasonable time; a right to a hearing by an independent and impartial tribunal established by law; and (less often referred to) a right to the public pronouncement of judgment. It does not follow that the consequences of a breach, or a threatened or prospective breach, of each of these rights is necessarily the same.

    13. It is accepted as "axiomatic"

    "that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all": R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, 68.

In such a case the court must stay the proceedings. But this will not be the appropriate course if the apprehended unfairness can be cured by exercise of the trial judge's discretion within the trial process: Attorney General's Reference (No 1 of 1990) [1992] 1 QB 630. Neither of these cases was based on the Convention, but neither is in any way discordant with the Convention jurisprudence. If it is established, after the event, that a trial was unfair, any resulting conviction will be quashed: Mohammed v The State [1999] 2 AC 111, 124; R v Togher [2001] 3 All ER 463, 472; R v Forbes [2001] 1 AC 473, 487, para 24; Mills v HM Advocate [2002] 3 WLR 1597, 1603, para 12. This is what domestic law requires, and what the Convention requires.

    14. If the domestic court appreciates, before an impending trial, that the tribunal by which the case is due to be heard lacks independence or impartiality, it will of course take steps to ensure that the trial tribunal does not lack those essential qualities. If it learns after the event that the trial tribunal lacked either of those qualities, any resulting conviction will be quashed: Millar v Dickson [2001] UKPC D4; [2002] 1 WLR 1615; Porter v Magill [2002] 2 AC 357; Mills v HM Advocate [2002] 3 WLR 1597, 1603, para 12.

    15. It is clear that lack of a public hearing may render a trial unfair: Guisset v France (2000) 34 EHRR 1100. In Riepan v Austria Application No 35115/97, (unreported) 14 November 2000, the European Court ruled that the lack of a public hearing before the trial court could only be remedied by a complete rehearing before the appeal court.

    16. In its application to civil proceedings, the rationale of the reasonable time requirement is not in doubt. The state should not subject claimants to prolonged delay in pursuing their claims, whatever the outcome, nor defendants to prolonged uncertainty and anxiety in learning whether their opponents' claims will be established or not. The ill consequences of delay in civil litigation, immortalised in Bleak House, need no elaboration. In domestic law, a battery of statutory limitations, procedural rules and equitable doctrines address the problem. Article 6(1) gives a further remedy to those prejudiced, at the hands of the state, by this pernicious evil. In its application to the determination of criminal charges, the European Court has explained the rationale of the reasonable time required in several cases: Wemhoff v Federal Republic of Germany (1968) 1 EHRR 55, 78, para 18; Stögmüller v Austria (1969) 1 EHRR 155, 191, para 5; H v France (1989) 12 EHRR 74, 90, para 58. It is readily intelligible. A defendant who is not guilty should have the opportunity of clearing his name without excessive delay. A guilty defendant, facing conviction and punishment, should not have to undergo the additional punishment of protracted delay, with all the implications it may have for his health and family life. Again there are provisions of domestic law which seek to ensure the expeditious dispatch of criminal proceedings, but again article 6(1) reinforces these provisions.

    17. If the court were satisfied, before an impending trial, that the prosecution had been guilty of serious delay such as to cause serious prejudice to the accused, to the point that no fair trial could be held, or if the authorities were shown to have acted in such a way as to render any trial of the defendant unfair in the circumstances, further proceedings would be restrained as an abuse of the court's process by imposition of a stay: Attorney General's Reference (No 1 of 1990) [1992] 1 QB 630; R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42. If such abuse were shown after the trial, any resulting conviction would be quashed. Such is the rule in domestic law, and it is uncontroversial. It is consistent with the Convention. But it rests, in Convention terms, on the fair trial guarantee and not on the reasonable time requirement.

    18. What, then, should the domestic court do if it is shown, before an impending trial, that a reasonable time has already elapsed or will have elapsed before the earliest date at which a trial can be held? One may ignore the case in which the reasonable time requirement can be met by accelerating the trial date, because such a case does not raise the problem. One must also assume, in answering this question, that the trial, if it were to take place, would be fair and compliant with article 6(1) in every respect save in its taking place after the lapse of a reasonable time. One must further assume that responsibility for the lapse of time cannot be laid at the door of the defendant: he is a victim, not a cause, of the delay. In Canada it has been held that in circumstances such as these a stay should be granted: Rahey v The Queen (1987) 39 DLR (4th) 481; R v Askov [1990] 2 SCR 1199; R v Morin [1992] 1 SCR 771. A similar answer has been given in the United States: Doggett v United States (1992) 505 US 647. In the face of a long and unjustified delay by a prosecutor, the New Zealand Court of Appeal has allowed an appeal against refusal of a stay: Martin v Tauranga District Court [1995] 2 NZLR 419.

    19. In Dyer v Watson [2002] 3 WLR 1488 the Privy Council declined to decide on a devolution issue whether a stay should automatically be granted if a breach of the reasonable time requirement were established before trial, since there had been no argument on the point in the Scottish courts, but Lord Millett (pp 1526-1528, paras 123-133) questioned the assumption made up to then that such a stay was necessarily the appropriate remedy. The question arose squarely for decision in HM Advocate v R [2003] 2 WLR 317, which also came before the Privy Council as a Scottish devolution issue. The case concerned a defender committed for trial in October 2001 on an indictment charging him with two offences which had been the subject of complaint in 1995 in addition to four offences based on allegations made in 1999-2000. He sought to dismiss the two earlier charges on the ground that there had been unreasonable delay in prosecuting them, that in prosecuting them further the Lord Advocate would be acting incompatibly with the defender's right to a hearing within a reasonable time and that the Lord Advocate accordingly had no power to act in such a way by virtue of section 57(2) of the Scotland Act 1998. It was not in issue that there had, in relation to these two charges, been unreasonable delay but nor was it suggested that a trial on those charges, if it were to occur, would be other than fair. Thus the case turned on the questions of compatibility and vires. Lord Reed at first instance declined to dismiss these charges (2001 SLT 1366) and his decision was upheld by the Criminal Appeal Court (Lord Coulsfield, Lord Cameron of Lochbroom and Lord Caplan): 2002 SLT 834. In the Privy Council opinion was divided. The majority (Lord Hope of Craighead, Lord Clyde and Lord Rodger of Earlsferry), on grounds elaborated in detailed reasoned opinions, held that the appeal should be allowed and the two stale charges dismissed from the indictment. It was held to be a breach of the defender's right to the determination of a criminal charge against him within a reasonable time for him to be tried on the two stale charges, that in continuing to prosecute those charges the Lord Advocate would be acting in a way which was incompatible with the defender's Convention rights and that accordingly the Lord Advocate had no power to prosecute them further. There was no choice of remedy: the charges had to be dismissed. The Court of Appeal decision in the present reference was by then available, but it was known that the matter had been referred to the House, and the majority forbore to comment on its reasoning. It was accepted that the devolution settlement might require a different outcome in Scotland from that in England and Wales. The dissenting minority (Lord Steyn and Lord Walker of Gestingthorpe) did not accept the reasoning or the conclusions of the majority. Lord Steyn (pp 322-323, para 14) cited an observation of Hardie Boys J in Martin v Tauranga District Court [1995] 2 NZLR 419, 432, echoed by Lord Millett in Dyer v Watson [2002] 3 WLR 1488, 1526-1527, paras 126-130, that "The right is to trial without undue delay; it is not a right not to be tried after undue delay". Lord Walker (p 370, para 157) agreed. The minority saw grave dangers to the administration of criminal justice and the maintenance of public confidence in it if a breach of the reasonable time requirement were automatically to lead to termination of the proceedings, even though a fair trial could still be held (p 325, paras 17-18).

    20. It is a powerful argument that, if a public authority causes or permits such delay to occur that a criminal charge cannot be heard against a defendant within a reasonable time, so breaching his Convention right guaranteed by article 6(1), any further prosecution or trial of the charge must be unlawful within the meaning of section 6(1) of the 1998 Act. Not surprisingly, that argument has been accepted by highly respected courts around the world. But there are four reasons which, cumulatively, compel its rejection. First, the right of a criminal defendant is to a hearing. The article requires that hearing to have certain characteristics. If the hearing is shown not to have been fair, a conviction can be quashed and a retrial ordered if a fair trial can still be held. If the hearing is shown to have been by a tribunal lacking independence or impartiality or legal authority, a conviction can be quashed and a retrial ordered if a fair trial can still be held. If judgment was not given publicly, judgment can be given publicly. But time, once spent, cannot be recovered. If a breach of the reasonable time requirement is shown to have occurred it cannot be cured. It would however be anomalous if breach of the reasonable time requirement had an effect more far-reaching than breach of the defendant's other article 6(1) rights when (as must be assumed) the breach does not taint the basic fairness of the hearing at all, and even more anomalous that the right to a hearing should be vindicated by ordering that there be no trial at all.

    21. Secondly, as the Court of Appeal recognised, at p 1875, para 19 of its judgment, a rule of automatic termination of proceedings on breach of the reasonable time requirement cannot sensibly be applied in civil proceedings. An unmeritorious defendant might no doubt be very happy to seize on such a breach to escape his liability, but termination of the proceedings would defeat the claimant's right to a hearing altogether and seeking to make good his loss in compensation from the state could well prove a very unsatisfactory alternative.

    22. Thirdly, a rule of automatic termination on proof of a breach of the reasonable time requirement has been shown to have the effect in practice of emasculating the right which the guarantee is designed to protect. It must be recognised, as the Privy Council pointed out in Dyer v Watson [2002] 3 WLR 1488, 1508, para 52, that the Convention is directed not to departures from the ideal but to infringements of basic human rights, and the threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. Judges should not be vexed with applications based on lapses of time which, even if they should not have occurred, arouse no serious concern. There is, however, a very real risk that if proof of a breach is held to require automatic termination of the proceedings the judicial response will be to set the threshold unacceptably high since, as La Forest J put it in Rahey v The Queen (1987) 39 DLR 481, 516, "Few judges relish the prospect of unleashing dangerous criminals on the public". La Forest J drew attention to the compelling observation of Professor Amsterdam, written with reference to American experience following the Supreme Court's decisions interpreting the Sixth Amendment to the United States Constitution in Barker v Wingo (1972) 407 US 514 and Strunk v United States (1973) 412 US 434:

    "[T]he spectre of immunizing, of 'turning loose', persons proved guilty of serious criminal offenses has been thoroughly repugnant to judges, and they have accordingly held that shockingly long delays do not 'violate' the sixth amendment. The amendment has thereby been twisted totally out of shape - distorted from a guarantee that all accuseds will receive a speedy trial into a windfall benefit of criminal immunity for a very few accuseds in whose cases the pandemic failure of our courts to provide speedy trials has attained peculiarly outrageous proportions'": Anthony G Amsterdam, "Speedy Criminal Trial: Rights and Remedies" (1975) 27 Stan L Rev 525, 539.

    23. Fourthly, the Strasbourg jurisprudence gives no support to the contention that there should be no hearing of a criminal charge once a reasonable time has passed. It is of course true that the European Court examines cases retrospectively and never prospectively, and it cannot quash convictions. But it is significant that in its interpretation and application of the Convention it has never treated the holding of a hearing as a violation or a proper subject of compensation. In X v Federal Republic of Germany (1980) 25 DR 142 a convicted criminal claimed a right to discontinuation of the criminal proceedings in view of the delays which had occurred. The Commission was sceptical (p 144) that such a right could be deduced from the Convention, but if it did it would only be in very exceptional circumstances. Such did not exist, so the application was found to be inadmissible. The Court found a breach of the reasonable time requirement in Eckle v Federal Republic of Germany (1982) 5 EHRR 1, but when considering just satisfaction for the protracted proceedings in Eckle v Germany (1983) 13 EHRR 556, 559, para 20, disavowed any

    "implication, that their prosecution, conviction and imprisonment were also in breach of the Convention. The sole matter to be taken into consideration is thus the prejudice possibly entailed by the fact of the two proceedings in question having lasted beyond a 'reasonable time'."

In Neubeck v Federal Republic of Germany (1985) 41 DR 13 the Commission found (p 35, para 138) that there had been no sufficiently clear reduction of the sentence on account of delay, but there was no hint that the applicant was entitled to be compensated for having been imprisoned. The most explicit statement by the Court is to be found in Bunkate v The Netherlands (1993) 19 EHRR 477, 484, para 25:

    "The applicant's claims are based on the assumption that a finding by the Court that a criminal charge was not decided within a reasonable time automatically results in the extinction of the right to execute the sentence and that consequently, if the sentence has already been executed when the Court gives judgment, such execution becomes unlawful with retroactive effect.

    That assumption is, however, incorrect."

The Court found a violation of article 6(1) but rejected the claim for just satisfaction. In Beck v Norway Application No 26390/95, (unreported) 26 June 2001 the Court found that there had been no violation where the length of the criminal proceedings had earned the applicant a reduction of sentence.