AS TO THE ADMISSIBILITY OF
Application No. 21437/93
by Francis DOUGAN
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting in
private on 11 May 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 November 1992 by
Francis DOUGAN against the United Kingdom and registered on
25 February 1993 under file No. 21437/93;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
21 September 1993 and the observations in reply submitted by the
applicant on 15 December 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1949 and resident at
Stenhousemuir, Larbert, Scotland.
He is represented before the Commission by John Caroll, Solicitor,
Glasgow.
The facts of the present case, as submitted by the parties, may be
summarised as follows :
A. The particular circumstances of the case
On 22 May 1981 the applicant was arrested and charged with the
attempted murder of his wife. He appeared before the sheriff in Glasgow
on 26 May 1981 when he was remanded in custody for two weeks and then
released on bail. A few weeks later he was re-arrested at his home for
breach of bail as he was alleged to have contacted his wife. He was
again imprisoned on 30 June 1981 for a further two weeks and then granted
bail of £200.
The applicant failed to appear for trial on 6 November 1981 and a
warrant was granted by the Glasgow High Court for his arrest. The
warrant was passed by the court to the Procurator Fiscal's office in
Glasgow, but it was not until 14 November 1984 that the warrant was
issued by the Procurator Fiscal to the police with instructions for
execution.
In the meantime the Procurator Fiscal had written to the Strathclyde
police on 9 November 1981 informing them of the situation and instructing
them to arrest the applicant without warrant pursuant to section 3(7) of
the Bail Etc. (Scotland) Act 1980. They made a few unsuccessful
inquiries as to the applicant's whereabouts.
After the instructions received in November 1984, further
unsuccessful inquiries were made in an attempt to trace the applicant.
In September 1987 the applicant's solicitors telephoned the
Procurator Fiscal's office indicating that the applicant was abroad but
was considering returning to Scotland. He wished to know beforehand
whether he would be granted bail. The Procurator Fiscal's office replied
in writing to the solicitors on 9 December 1987 that the applicant's
position would be reviewed if and when he cared to return.
On 25 January 1990 the police reported that their inquiries had been
continuing, but the best information which they had was that the
applicant had moved to the United States some years before and no
contrary information had come to light. They were later aware that in
May 1990 the applicant was issued with a full British passport.
On 10 January 1991 the applicant wrote to the Procurator Fiscal's
office in Glasgow to ascertain whether proceedings were still outstanding
against him. In the reply dated 25 January 1991 he was informed that,
so far as could be ascertained, there appeared to be no outstanding
proceedings against him but that this information should be double
checked with the police.
Acting on information received, the police executed the warrant on
26 May 1992 and arrested the applicant. Following his arrest he was
released from custody on bail, granted by the High Court on 9 June 1992.
A new indictment was served upon him, charging him with three separate
offences of assault and attempted murder, breach of the peace and failing
to appear at his trial.
The applicant challenged the proceedings because of their delay.
At a preliminary hearing in the High Court on 22 April 1993 before Lord
Weir, his objection was rejected as there had been no oppression and as
it would be open to the trial judge to give appropriate directions to the
jury on how they should take account of the delay when arriving at their
verdict. The applicant did not appeal against this decision as he was
entitled to do under section 76A(1) of the Criminal Procedure (Scotland)
Act 1975.
The applicant's trial was set for 26 April 1993, but adjourned twice
at the applicant's request until 20 August 1993. The applicant pleaded
guilty to assaulting his wife, but not of attempting to murder her. He
also pleaded guilty to the charge of failing to appear at his trial set
for 6 November 1981, when he was on bail. These pleas were accepted by
the Crown and the applicant was convicted.
During the sentencing proceedings the applicant's counsel explained
that the applicant had been in Scotland for most of the time from 1981
to 1984. He had then gone abroad and could not explain why the police
had been unable to find him on his return. The applicant was sentenced
on 10 September 1993 to 240 hours of community service and a fine of
£1000.
B. The relevant domestic law and practice
a) Warrants to apprehend
Where an accused fails to attend for trial, a warrant may be issued
to apprehend him. Such a warrant should be executed as soon as possible
because delay in the execution of the warrant may mean that proceedings
cannot be brought to a speedy conclusion. Delay in the execution of a
warrant is, therefore, a factor which may be taken into account in
determining whether to uphold a plea in bar of trial on grounds of delay.
The Crown does regularly review the position of warrants which are
not executed. In this connection, the following points may be noted :
(i) the Procurator Fiscal can at any stage instruct the police
to return the warrant to him and mark the case "no further
proceedings", ie to make a decision that the prosecution will
proceed no further ;
(ii) if a time-limit is given for execution and the warrant
returned to the Procurator Fiscal, he may decide to take no
further proceedings at that stage or return it to the police
to make further attempts to execute ;
(iii) if no time-limits are given, then the Procurator Fiscal will
normally request regular reports from the police and the
efforts made to execute the warrant ;
(iv) in serious matters it is likely that the warrant will remain
with the police for execution for a much longer period and, in
a High Court case, particularly where the accused has failed
to appear for his trial, a warrant is likely to remain in
existence for many years.
b) Effect of delay
There is no time bar in Scots law on common law crimes, such as the
crime of attempted murder for which the applicant was charged on
22 May 1981. Subject to the following points, therefore, the Lord
Advocate can bring a prosecution for any crime, no matter how long the
delay may be between the date when the offence was alleged to be
committed and the date of the commencement of the trial.
In case of undue delay it is possible for the accused to take what
is called "a plea in bar of trial". If successful, the court will
prevent the prosecution from proceeding any further. The only ground
upon which the court can prevent the Crown from proceeding to trial is
the ground of "oppression", ie that to continue would be oppressive to
the accused. The test for oppression in all cases is whether there is
a risk of prejudice to the accused so grave that no direction by a trial
judge could be expected to remove it and that it would not be possible
for the accused, therefore, to receive a fair trial. Accordingly, it has
been held in the case of McFadyen v. Annan 1992 SCCR 186 at 193B that
"the real question which the court has to consider in all cases
where delay is alleged is whether the delay has prejudiced the
prospect of a fair trial. This involves the court asking itself
whether the risk of prejudice from the delay is so grave that no
direction by the trial judge could be expected to remove it ..."
In the later case of Normand v. Rooney 1992 SCCR 336, it was stated
at page 340C
"In solemn proceedings the question is whether the risk of prejudice
is so grave that no direction by the trial judge, however careful,
could be expected to remove it. That formulation creates no
difficulty, because it leaves open the question whether the
appropriate direction is to ignore the events which are alleged to
be prejudicial or to take them into account in the assessment of the
evidence ..."
Since the effect of the delay will depend upon the individual
circumstances of the case, if the court does not hold that, as a matter
of law, the proceedings are oppressive and that the prosecution should
not proceed further, it then becomes a question for the jury to decide
whether they can accept the credibility and reliability of the witnesses,
bearing in mind the delay and any instructions given to them by the trial
judge in connection with the effect of that delay. In other words, if
the effect of delay ceases to be a matter of law, it then becomes a
matter of fact for the jury to decide.
A rejection of such a plea in bar of trial on the ground of delay
may be open to appeal, in accordance with section 76A of the Criminal
Procedure (Scotland) Act 1975, which provides that
"(1) Without prejudice to any right of appeal under section 228 or
280A of this Act, a party may, with the leave of the court of first
instance ..., appeal to the High Court against a decision at a
preliminary diet ; but any such appeal must be taken not later than
2 days after such decision."
COMPLAINTS
The applicant complains that the delay in prosecuting him for
attempted murder is in violation of the reasonable time requirement of
Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 November 1992 and registered
on 25 February 1993.
On 5 May 1993 the Commission decided to communicate the application
to the respondent Government, pursuant to Rule 48 para. 2 (b) of the
Rules of Procedure.
The Government's written observations were submitted on
21 September 1993, after an extension of the time-limit fixed for that
purpose. The applicant replied on 15 December 1993, also after an
extension of the time-limit. On 18 January 1994 the Commission granted
the applicant legal aid.
THE LAW
1. The applicant complains of the delay that has ocurred in prosecuting
him for the attempted murder of his wife. He invokes Article 6 (Art. 6)
of the Convention, the relevant part of which provides as follows :
"1. In the determination ... of any criminal charge against him,
everyone is entitled to a fair and public hearing within a
reasonable time ..."
The proceedings in the present case began with the applicant's
arrest on 22 May 1981 when he was charged, inter alia, with the attempted
murder of his wife. They ended on 10 September 1993 when the applicant
was sentenced to 240 hours of community service and a fine of £1000. The
period in question is, therefore, just over 12 years and 3 months.
2. As a preliminary point, the Government contend that the applicant
has failed to exhaust domestic remedies, as required by Article 26
(Art. 26) of the Convention.
The Government submit that the main reason for the delay in the case
is the fact that the applicant failed to appear at his trial, set for 6
November 1981. Furthermore when he was tried in 1993 it was open to him,
as he did, to take a "plea in bar of trial" on the ground of delay,
which, if upheld, would have prevented the prosecution from proceeding
any further. As the applicant's plea was unsuccessful, he could have
appealed under section 76A(1) of the Criminal Procedure (Scotland) Act
1975. He did not do so.
The applicant, in reply, points out that there is no prescriptive
period or "statute of limitations" in Scotland in respect of the common
law offences with which he was charged. In addition, recent
interpretation of the law concerning pleas in bar of trial on the grounds
of prejudice occasioned by delay demonstrate that such a challenge is
almost bound to fail. Notwithstanding, the applicant's solicitors lodged
a plea pursuant to section 76 of the Criminal Procedure (Scotland) Act
1975 but alluding, in addition, to the general public interest. It was
argued, on behalf of the applicant, that the public interest would not
be properly served in the circumstances of this case if the prosecution
were to be allowed to continue. The fault in bringing this matter
finally to a court, more than eleven and a half years after the first
trial date, lay with the prosecution and the applicant had led his life
as averred. The plea was dismissed and the failure to pursue the matter
further by way of a merely academic appeal should not, it is submitted,
be seized upon by the Government as evidence of any failure to exhaust
domestic remedies.
Despite the passage of time, provided there is a sufficiency of
evidence which is accepted by a jury then a conviction must follow. No
regard may be given, by the jury, to any question of the applicant's
behaviour from the date of the offence, and last court date (6 November
1981), to the date of the trial. That is merely a matter to be taken
into account on the question of sentence, which is a function of the
trial judge alone.
The Commission recalls that the obligation to exhaust domestic
remedies contained in Article 26 (Art. 26) of the Convention is limited
to making normal use of those remedies which are likely to be effective.
If it can be shown that a remedy does not present at least some minimal
prospect of success then the individual is not required to pursue it (cf.
eg. No. 8378/78, Dec. 14.5.80, D.R. 20 p. 168, at p. 170). The question
in the present case, therefore, is whether an appeal under section 76A
(1) of the Criminal Procedure (Scotland) Act 1975 could have been
effective.
The Commission has examined the parties' submissions on the question
of exhaustion of domestic remedies and finds that, in the circumstances
of the case, an appeal against the decision that the delay had not been
oppressive to the applicant, presented no prospects of success. The
Commission considers it most unlikely that the appeal court would have
interfered with the factual assessment at first instance that there was
no risk of prejudice to the applicant so grave that a direction by the
trial judge could not have removed.
The Commission concludes that the applicant has complied with
Article 26 (Art. 26) of the Convention.
3. As regards the substantive issue under Article 6 (Art. 6) of the
Convention, the Government submit that the applicant is mainly
responsible for the delay as he absconded and was untraceable, removing
himself from the jurisdiction. They do not consider that it can be
attributed to the police or prosecuting authorities. It is stated that
the police made regular and extensive inquiries, albeit unsuccessful.
These inquiries were not delayed by the failure of the Procurator
Fiscal's office to instruct the police to execute the warrant until
14 November 1984, because he had previously instructed them, on
9 November 1981, to arrest the applicant, without a warrant, under
section 3(7) of the Bail Etc. (Scotland) Act 1980. Given the seriousness
of the offence with which the applicant was charged, the competent
authorities might reasonably have been expected to pursue the prosecution
to its conclusion.
The Government believe that the trial judge reflected his view of
the delay in the proceedings with the light sentence imposed on the
applicant.
The applicant submits that the delay in his case was not his
responsibility. He claims to have at no stage taken steps to avoid
arrest on the warrant. He considers that the instructions sent by the
Glasgow Procurator Fiscal's office on 9 November 1981 to the Strathclyde
police were confusing and disclosed no sense of urgency. The letter
which was sent made no mention of the serious nature of the substantive
charge of attempted murder against the applicant and gave the impression
that the case was of a summary, minor kind.
The applicant makes no admission in respect of alleged enquiries to
trace him, and points out that he lived his life openly and lawfully
until arrested on 26 May 1992. It is averred that even a cursory
enquiry, if competently carried out, could not have failed to locate him.
He states that he did not abscond or make himself unavailable. He
carried on a high profile career in the entertainment industry using a
stage name known to his wife, the complainant. That name is "Frankie
Dee".
His passport uses his real name and records movement between the
United Kingdom and elsewhere where appropriate. He submits that it is
inconceivable that the name and his business would not have been known
to the police. Given the nature of the entertainment industry, the
applicant sought and was given publicity in newspapers in Scotland and
other parts of the United Kingdom and Europe. His career required him
to travel about Europe. Consequently, his leaving and re-entering the
United Kingdom would have been known to the prosecuting authorities and
the police who claim, according to the Government, to have made
"extensive enquiries". The applicant passed freely through official
channels out of and into the United Kingdom.
The applicant claims that he was always available or could have been
contacted relatively easily had the police or prosecuting authorities
made any reasonable attempt to do so.
In the light of the parties' observations, the Commission considers
that the application raises serious questions of fact and law which are
of such complexity that their determination should depend on an
examination of the merits. The application cannot, therefore, be
regarded as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention, and no other ground for
declaring it inadmissible has been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy