APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Clarke Lord Menzies	[2012] HCJAC 32 Appeal Nos: XC605/09 XC125/09, XJ607/09, XJ830/09 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEALS by PETER STEPHEN McCOURT First Appellant; and PAUL ROBERTSON Second Appellant; against HER MAJESTY'S ADVOCATE Respondent: and EUAN McWILLIAM ROSS Third Appellant; against THE PROCURATOR FISCAL, ABERDEEN Respondent:

and DAVID JOHN FORSYTH HART Fourth Appellant; against THE PROCURATOR FISCAL, ALLOA Respondent: _______

First Appellant: Paterson, McQuillan; Paterson Bell, Edinburgh

Second Appellant: Shead, McKenzie; Paterson Bell, Edinburgh

Third Appellant: Shead, Mitchell; John Pryde & Co

Fourth Appellant: Mitchell; Paterson Bell, Edinburgh

Respondent: MacSporran, A.D.; Crown Agent

27 January 2012

Introduction

[1] On 23 June 2010 the consolidated appeals of the present appellants, and of three other individuals (two appellants and one respondent), were taken to avizandum. The judgment of the court in all these cases was delivered on 20 December 2011, some eighteen months later. The question which the court, as presently constituted on 27 January 2012, had to decide was whether the rights, under Article 6 of the Convention of Human Rights, of the present appellants or any of them to a hearing within a reasonable time had been infringed by the delay in giving judgment and, if so, what remedy was appropriate. We decided at the conclusion of the hearing on 27 January that the right of each of the present appellants had been so infringed and granted certain remedies. We announced that the reasons for those decisions would be given in due course in writing. That we now do.

[2] For the purposes of Article 6 the relevant time begins when the person is, in the European sense, "charged" with the offence in question. It ends when all proceedings, including appellate or similar further proceedings involving sentence, have been finally concluded (Howarth v United Kingdom (2001) 31 EHRR 37, at para 20). The proceedings must be looked at as a whole. If the whole period is such that, on its face and without more, it does not give ground for real concern, it is almost certainly unnecessary to go further; if, on the other hand, it does, on its face and without more, give ground for real concern, two consequences follow - first, it is necessary for the court to look into the detailed facts and circumstances of the particular case and, secondly, it is necessary for the contracting state to explain and justify any lapse of time which appears to be excessive (Dyer v Watson 2002 SC (PC) 89, per Lord Bingham of Cornhill at para [52]). There is, however, European authority for the view that, even if the overall length of the proceedings may not seem excessive, an unduly lengthy stage - in the criminal case in question eighteen months without a hearing, where the individual was in custody - may show the lack of diligence required to meet the state's obligation (Matwiejczuk v Poland (2 December 2003, Application No.37641/97), at para 86). The reasonableness of the length of the proceedings must be assessed in the light of the circumstances of the case and with reference to the complexity of the case, the conduct of the affected person and the relevant authorities and what was at stake for the affected person (Minshall v United Kingdom (20 December 2011, Application No.7350/06) at para 45).

The history of the several proceedings

[3] The proceedings against the first appellant began on 19 June 2009, when he appeared on petition charged with a contravention of section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (having a heavy knife with an obviously sharpened point with him in a public place). On that date he was committed for further examination and remanded in custody. On 26 June he was fully committed, bail being refused. He subsequently intimated in writing his intention to plead to that charge and on 12 August 2009 did so in response to an indictment served under section 76 of the Criminal Procedure (Scotland) Act 1995. He was sentenced to three years and six months' imprisonment backdated to 19 June 2009. The first appellant had a very substantial prior criminal record, including several prior analogous offences. The sheriff took the view that the appropriate starting point was a term of imprisonment of four years (the maximum term) but that this should be discounted to some extent by reason of the plea of guilty having been tendered at the stage when it was. He discounted the sentence by six months, indicating that one-half of the four year sentence was for protection of the public and that the remaining one-half had been discounted by 25%. The sentence imposed by the sheriff was accordingly of three years and six months.

[4] The first appellant sought leave to appeal against that sentence, contending that the starting point selected by the sheriff was too high and that the sheriff had erred in his approach to the application of a discount. His Note of Appeal was out of time but on 25 September 2009 the court extended the time limit to allow the Note to be lodged. Leave to appeal against sentence was on 6 November refused by the single judge but on application to the High Court under section 107(4) was granted on 3 December 2009. A hearing of the appeal was fixed for 3 February 2010. A written case and argument was submitted in advance of that date. This did not significantly expand on the stated grounds of appeal. No authorities were cited in it. The case called before two judges on 3 February. By that date another case raising the issue of discount in relation to protection of the public (Mark Martin) had been remitted to a court of five judges. The court assigned the present appeal to a procedural hearing before three judges for consideration as to whether it should be heard along with Mark Martin. In the event the case called, with six other appeals, before a bench of five judges on 22 June 2010. Argument in all seven cases was heard on that and the following day, when the court made avizandum. On 25 June 2010 the first appellant was granted interim liberation.

[5] On 20 December 2011 the Opinions of the judges were made available. Each of the judges delivered a separate Opinion. There was an important division of view among them, in particular in relation to the proper approach to discounting of a determinate custodial sentence where an element in the sentencing disposal was protection of the public. There was a similar division of principle as to the approach to discounting where, in certain of the other appeals before the court, disposal by way of disqualification from driving or the imposition of penalty points was in issue. The majority (three of the judges, including the chairman) took the view that a discount of one-third should be applied to the whole starting sentence. As all the judges were agreed that, in the first appellant's case, the sheriff was entitled to select four years' imprisonment as the starting figure, the application of the majority's view on discount would have brought his sentence down to one of two years and eight months.

[6] However, before determining five of the appeals, including that of the first appellant, the court allowed time for the parties, among other things, to consider the terms of the Opinions and to prepare any submissions regarding the delay in determining the appeal. Certain devolution minutes were thereafter lodged and the grounds of appeal allowed to be amended. On 13 January 2012 the court ordered the issues of delay to be argued on 27 January. A differently constituted bench was arranged for that date, when having heard parties we determined the delay issues. The total length of the proceedings against the first appellant was accordingly two years and seven months.

[7] The proceedings against the second appellant began on 14 October 2008, when he appeared on petition charged with assault to severe injury of his female partner. On that date he was remanded in custody. He appeared again on 22 October when he was fully committed for trial. Again he was remanded in custody. On 2 December the second appellant intimated in writing to the Crown his desire to plead guilty to the charge under certain deletions, including of the word "severe", but at that stage the Crown was unwilling to accept that plea. At the first diet (on 5 January 2009), however, the Crown indicated its willingness to accept a restricted plea of guilty in essentially these terms. The case was continued to 19 January when the restricted plea was formally tendered and accepted. The case was further continued for reports until 4 February. On that date the sheriff sentenced the second appellant to twenty months' imprisonment (with effect from 4 October 2008) and imposed a supervised release order of ten months' duration. The starting custodial sentence which the sheriff had in mind was one of two years' imprisonment. He discounted that to twenty months having regard to the need to protect the public as well as the fact and timing of the plea. The second appellant sought and on 25 March 2009 obtained leave to appeal against sentence, the judge commenting that, in addition to the matters raised in the Note of Appeal, it was arguable that the sheriff had erred in taking into account the need for public protection in fixing the level of discount, rather than reflecting that solely in the starting figure. On 19 May the second appellant was granted interim liberation. The case was continued by two judges to be heard with other cases (including Mark Martin) and on 2 February 2010 was further continued to a hearing before five judges. Following a procedural hearing on 30 March it was so heard on 22 and 23 June 2010.

[8] The issues before the court were substantially the same as in the case of the first appellant, the judgment being advised, as earlier mentioned, on 20 December 2011. The judges were unanimous in regarding the starting point of two years taken by the sheriff as correct. They disagreed, however, in respect of the approach to discounting as regards the protection of the public. The majority view was that a discount of 25% on the whole starting figure of two years should be allowed, resulting in a sentence of eighteen months imprisonment, the supervised release order being restricted to nine months.

[9] Again issues were raised as to the infringement of human rights by the delay in advising the case. These issues were considered and decided by this, differently constituted, bench on 27 January 2012. The total length of the proceedings against the second appellant was accordingly three years and three months.

[10] Proceedings against the third appellant began on 13 November 2008, when following a road accident he was charged by the police with contravention of section 3 of the Road Traffic Act 1988 (as amended). He co-operated with the police at the scene of the accident. He was subsequently charged by the procurator fiscal with this offence on complaint. He had approached a junction at an excessive speed resulting in his vehicle crashing into the rear of a stationary vehicle, which in turn was propelled into another vehicle in front. His own vehicle was written off and damage to the amounts of £4,000 and £1,500 caused to the other vehicles respectively. The appellant's passenger sustained a fracture to his right wrist and to his left hand. The occupants of the other vehicles received minor injuries. At the time of the accident the third appellant was 17 years of age.

[11] When the case first called before the sheriff on 13 February 2009 it was continued without plea. On 6 March it called again when the appellant by letter pled guilty as charged. The sheriff considered that in all the circumstances the appropriate starting point was a fine of £750. He reduced that by one-third (to £500) to reflect the third appellant's early plea and level of co-operation. He imposed seven penalty points. He did not discount the penalty points - on the view that, these points being in the nature of a warning to the third appellant as regards his future driving, no discount was appropriate. A consequence of the imposition of that number of points was that, under the Young Drivers Regulations, the third appellant's driving licence was revoked.

[12] The third appellant sought leave to appeal against sentence. This was refused by the single judge but granted by the High Court, it being held to be arguable that the sheriff had erred in not discounting the penalty points. The appeal was heard by three judges on 11 September 2009 but on 22 October that court remitted it to a bench of five judges. It was subsequently associated with other appeals, which were heard by that bench on 22 and 23 June 2010. The Opinions of the judges were again issued on 20 December 2011. The judges were agreed that the starting point of a fine of £750 and seven penalty points was appropriate. They were also agreed that the discounted fine of £500 imposed by the sheriff was appropriate. They unanimously agreed that the penalty points should also have discounted, fixing these at five - though their reasoning differed to some extent on that matter. This court heard and determined the third appellant's contention about delay on 27 January 2012. The total length of the proceedings against him was accordingly three years and two months.

[13] The fourth appellant was charged in the Justice of the Peace Court at Alloa with a contravention of section 3 of the Road Traffic Act 1988 (as amended) on 17 March 2009. He had exited from a junction and collided with another vehicle. Severe damage was caused to the other vehicle, whose driver sustained minor neck and back injuries. The fourth appellant had a previous conviction for careless driving. The justice adopted a starting point of a fine of £650, which he modified to £500 having regard to the fact that the fourth appellant had pled guilty at the first diet. He imposed six penalty points. It was not clear from his reports to the court whether he had modified the number of points in light of the fourth appellant's early plea. The fourth appellant sought leave to appeal against sentence. This was refused by the single judge but granted by the High Court. The case was on 22 October 2009 remitted to a bench of five judges and was ultimately heard with the other cases on 22 and 23 June 2010. The Opinions of the judges were issued on 20 December 2011. The judges were unanimous that the starting sentence of £650 and six penalty points was appropriate. They were also unanimous that the discounted fine of £500 was appropriate but that the number of points should be discounted to four. Their approaches to the discounting of penalty points, however, differed. Again the matter of delay was heard and determined on 27 January 2012. The total length of the proceedings against the fourth appellant was accordingly two years and ten months.

[14] The remaining appellant (James Kelly Gemmell) who had also raised an issue about the delay in disposal of his appeal abandoned that contention at the hearing on 27 January 2012. Neither of the other two parties (David Alexander Gibson and Charlene Elisabeth Ogilvy) of the seven whose cases had been heard on 22 and 23 June 2010 raised any question of delay.

Discussion
[15] All of the appellants with whom we are concerned pled guilty significantly in advance of trial to the charges (in one case as restricted) brought against them. Their appeals were directed against sentence only. None of them complains that the length of the procedural steps prior to the cases being taken to avizandum gives rise of itself to any concern in relation to delay. The complaint is focused essentially on the eighteen months which it took the appeal court to announce its decision on the appeals. Whether one looks at the length of the whole proceedings or concentrates on the period when the cases were at avizandum the periods in question in each case give ground, in our view, for real concern. Appeals against sentence only, whether in solemn or in summary cases, are ordinarily disposed of in a few months, with judgment being given at the hearing or very shortly thereafter. The rule of thumb is that all cases taken to avizandum, whether civil or criminal, should be advised within three months of the hearing - though it is recognised that exceptionally some cases will, for reasons of complexity or otherwise, justifiably take longer to advise. In George v HM Advocate 2011 SCCR 568 (an unusually complex case involving a challenge to conviction) it was recognised that a period exceeding three months between hearing and judgment was not unreasonable but that a period of nine months exceeded what would have been reasonable in all the circumstances (para [8]). The Civil Courts Review at Chapter 10, para 35 recommends special measures where a judgment has been outstanding for a period of more than three months.

[16] In the present cases the issues were not, in our view, of unusual complexity but they were of importance to sentencing practice. These issues had ramifications well beyond the particular cases which had to be decided. The issue of the proper approach to discounting for an early plea where the penalty selected was a determinate custodial sentence divided the court. In criminal business, including sentencing decisions which are likely to affect other cases, it is desirable that unanimity, if possible, should be achieved. This allows for a single Opinion and leads to greater certainty in courts which require to apply the decision. It was to be expected that in the present instance meetings would be arranged to explore the possibility of an agreed position being achieved. That that did not, in the event, prove possible does not detract from the need to take time to explore the possibility. Further, as principles of sentencing practice were in issue, it would be unsurprising that the court would look for assistance to jurisprudence beyond its own case law. As is plain, in particular from the chairman's Opinion, such assistance was sought from English, Australian and Canadian jurisprudence, as well as from academic writing. This appears to be research which, after the hearing, the court had largely to undertake itself. That inevitably would take some time. Moreover, the chairman had certain health difficulties during the period in question.

[17] There can be no suggestion that any of the appellants contributed to the delay in question. The third element is "what was at stake for the [appellants]?" (Minshall v United Kingdom, at para 45). In the cases of the first and second appellants, each of them was at liberty while the decision of the court was awaited and it was unlikely, even if the submissions made on their behalf were accepted (as they were by the majority of the court), that they would not have a balance of their sentences yet to serve. Nonetheless, it was no doubt an anxious time for them while they were uncertain as to the outcome. Anxiety while awaiting the outcome of proceedings, including appellate proceedings, is a relevant form of prejudice (Mills v HM Advocate 2003 SC (PC) 1, per Lord Hope of Craighead at para [54]). Neither counsel for the third appellant nor counsel for the fourth appellant identified for us any particular matter which was at stake for either of their clients. Again, no doubt there may have been some anxiety, at least on the part of the third appellant, having regard to what might happen in relation to the revocation of his driving licence. Accordingly something - albeit not very much - was at stake for each of them also.

[18] However, the most striking of the particular circumstances was what, on any view, was an inordinate time between the hearing and the advising of the cases. Notwithstanding the factors to which we have referred, we concluded without much difficulty that in the case of each of these appellants the proceedings had not been completed within a reasonable time.

[19] As to remedy, it appeared to us that a mere declaration of infringement would not provide just satisfaction. Something more was required. In the case of the first and second appellants some further discount of their custodial terms seemed appropriate. A further discount of eight months and four months respectively would allow each his immediate freedom. While the discount in the case of the first appellant might appear in other circumstances over-generous, we saw no advantage in allowing a shorter period which would have the consequence of his return to custody for a very short time only. Accordingly, we substituted in the cases of the first and the second appellants terms of imprisonment of two years and fourteen months respectively. We restricted the period of the supervised release order imposed on the second appellant to seven months. In the case of the third and fourth appellants, a reduction in the fines imposed seemed appropriate. In each case we further modified the fines to £300. The penalty points, as set by the appeal court, were allowed to stand.