EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 21437/93
Francis Dougan
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 11 January 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-37). . . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 16-30) . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 31-37) . . . . . . . . . . . . . . . . . . . . . 5
III. OPINION OF THE COMMISSION
(paras. 38-57). . . . . . . . . . . . . . . . . . . . . . . . 8
A. Complaint declared admissible
(para. 38) . . . . . . . . . . . . . . . . . . . . . . . 8
B. Point at issue
(para. 39) . . . . . . . . . . . . . . . . . . . . . . . 8
C. As regards Article 6 para. 1 of the Convention
(para. 40-56). . . . . . . . . . . . . . . . . . . . . . 8
CONCLUSION
(para. 57) . . . . . . . . . . . . . . . . . . . . . . .11
APPENDIX I : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .12
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a United Kingdom citizen, born in 1949 and
resident at Stenhousemuir, Larbert, Scotland. He was represented
before the Commission by Mr. J. Caroll, Solicitor, Glasgow.
3. The application is directed against the United Kingdom. The
respondent Government were represented by their Agents, Mrs. A. Glover
and Mr. I. Christie.
4. The case concerns the length of criminal proceedings against the
applicant, who has invoked Article 6 para. 1 of the Convention.
B. The proceedings
5. The application was introduced on 22 November 1992 and registered
on 25 February 1993.
6. On 5 May 1993 the Commission (First Chamber) decided to
communicate the application to the respondent Government, pursuant to
Rule 48 para. 2 (b) of the Rules of Procedure.
7. 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.
8. On 11 May 1994 the Commission declared the application
admissible.
9. The text of the Commission's decision on admissibility was sent
to the parties on 18 May 1994 and they were invited to submit further
information and observations on the merits of the case. On 26 August
1994 the Government submitted observations, dated 29 July 1994, to
which the applicant replied on 6 October 1994.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. F ERMACORA
E BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
12. The text of this Report was adopted on 11 January 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is attached hereto as Appendix I.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. 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.
17. 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.
18. 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, for the offence
of failing to appear for trial. Police inquiries were made at the
applicant's house and likely places of concealment. Later inquiries
revealed that the applicant might have left for the United States of
America in 1981 or 1982. However, American authorities found no trace
of an entry visa or other entitlement being issued to the applicant.
19. After the Procurator Fiscal's instructions were received in
November 1984, further unsuccessful inquiries were made with the
applicant's relatives and friends, as well as with the public services,
in an attempt to trace him.
20. 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 notified the
police of this and they then, in anticipation of the applicant's
return, sought the main prosecution witness in the case, the
applicant's wife, but found no trace of her. Unsuccessful inquiries
about the applicant's whereabouts were again made with the public
services.
21. 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. The solicitors were not
questioned as to the applicant's whereabouts because their telephone
call had implied that the applicant was seeking to avoid custody and
trial and, therefore, it would have been unreasonable to expect them
to divulge information which could have led to the applicant's
extradition.
22. 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. The applicant's sister and
mother had not heard from him or the wife. The police investigation
officer said that the applicant's mother appeared genuinely upset at
not having heard from her son for six years.
23. On 10 January 1991 the applicant, using his sister's address,
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. As the
sister's house had been checked for the applicant in December 1989 and
the Procurator Fiscal had taken the view that there were no outstanding
charges, the Procurator Fiscal did not inform the police of the
applicant's letter.
24. In a report dated 19 April 1991, the police stated that inquiries
had not confirmed whether the applicant was abroad, although they had
discovered that the applicant had been issued with a full British
passport in May 1990. In March 1992, the police reported that the usual
inquiries with the applicant's relatives and friends, as well as with
the public authorities, had been fruitless.
25. Acting on information received, the police executed the warrant
on 26 May 1992 and arrested the applicant at his girlfriend's house.
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.
26. 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.
27. 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.
28. 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.
29. On 16 December 1993 the Secretary of State for Scotland referred
the applicant's case to the High Court on the question whether a
procedural irregularity in the case had amounted to a miscarriage of
justice, which would warrant the quashing of the applicant's conviction
and sentence. On 28 April 1994 the applicant's counsel abandoned the
appeal that had been made on the same point. This left the applicant's
conviction and sentence in force. On 17 November 1994 there was a
hearing of the Secretary of State's referral, but, on the agreement of
the parties, albeit for different reasons, it was not insisted upon.
30. The proceedings may be deemed to have been effectively terminated
on 28 April 1994 when the applicant abandoned his appeal. However,
given the fact that the applicant could have been affected by the
Secretary of State's referral if the matter had been pursued, the case
may arguably be said to have terminated on 17 November 1994.
B. Relevant domestic law
(a) Warrants to apprehend
31. 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.
32. 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 on 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
33. 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.
34. 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 ...".
35. 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 ...".
36. 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.
37. 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."
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
38. The Commission has declared admissible the applicant's complaint
that the duration of the criminal proceedings against him exceeded a
reasonable time.
B. Point at issue
39. The point at issue in the present case is whether there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
40. The relevant part of Article 6 para. 1 (Art. 6-1) of the
Convention provides as follows:
"In the determination ... of any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time
by [a] tribunal ...".
(a) The period to be taken into consideration
41. The period to be taken into consideration began with the
applicant's arrest on 22 May 1981 when he was charged, inter alia, with
the attempted murder of his wife. It originally ended on
10 September 1993 when the applicant, having been convicted of assault
on his wife and for failing to appear at his trial, was sentenced to
240 hours of community service and a fine of £1000. However,
subsequently, a procedural irregularity was discovered, upon which the
applicant appealed and the Secretary of State for Scotland referred the
case to the High Court (para. 29 above). The proceedings may be deemed
to have been terminated either when the applicant abandoned his appeal
on 28 April 1994, in which case the period under examination lasted
over 12 years and eleven months, or when the referral procedure closed
on 17 November 1994, in which case the period under examination lasted
nearly thirteen and a half years (para. 30 above).
(b) Reasonableness of the length of the proceedings
42. The Commission refers to its constant jurisprudence in this
field:
"The reasonableness of the length of the proceedings is to be
assessed in the light of the particular circumstances of the
case, regard being had to the criteria laid down in the Court's
case-law, in particular the complexity of the case, the
applicant's conduct and that of the competent authorities ..."
(Eur. Court H.R., Kemmache judgment of 27 November 1991, Series
A no. 218, p. 27, para. 60).
43. The applicant contends that the proceedings against him have not
been conducted within a reasonable time, in violation of Article 6
para. 1 (Art. 6-1) of the Convention. The Government refute this
contention.
(i) Complexity of the case
44. The Commission notes that the Government have not claimed that
the present case was complex. Therefore, the Commission can only
conclude that the case was straightforward and that the element of
complexity is immaterial to this application.
(ii) Applicant's conduct
45. The Government submit that the main reason for the delay in this
case is the applicant's conduct: He failed to appear at his trial, set
for 6 November 1981. He then absconded, either in Scotland or for the
most part abroad, and was untraceable for the period from 6 November
1981 until, at least, 10 January 1991, when he contacted the Procurator
Fiscal's office to ascertain whether proceedings were still outstanding
against him.
46. The applicant refutes the Government's submission. He claims
that his conduct did not affect the length of the proceedings and that
the delay in the case was not his responsibility. He claims to have at
no stage taken steps to avoid arrest on the warrant. 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 in the prosecution.
47. His passport uses his real name and records movement between the
United Kingdom and elsewhere where appropriate. He submits that it is
inconceivable that his name and 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.
48. 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.
49. The Commission notes, on the one hand, that the applicant failed
to appear at his trial and, therefore, was responsible for the initial
delay in the proceedings. Moreover, he has not shown that he was
gravely prejudiced by their length. On the other hand, the Commission
finds that these proceedings are extraordinarily long and that some
compelling justification is needed for the delays. However, the
Government have not convincingly demonstrated that the applicant was
in fact untraceable for the ten year period relied on by them, having
regard to his submissions and the conduct of the authorities, which the
Commission will now consider.
(iii) Conduct of the authorities
50. The applicant submits that the cause of delay in his case lies
in the prosecuting authority's incompetence, as well as in defective
administrative practices without proper records. As a result, the
Government have been unable to establish how and why the proceedings
took so long. An example of the poor handling of the case may be seen
in the instructions sent by the Glasgow Procurator Fiscal's office on
9 November 1981 to the Strathclyde police, which instructions 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.
51. The applicant makes no admission in respect of alleged inquiries
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
inquiry, if competently carried out, could not have failed to locate
him.
52. The Government concede that they have been unable to establish
the following:
- why the arrest warrant of 6 November 1981 on the attempted
murder charge was not immediately issued to the police for
execution by the Procurator Fiscal after the applicant failed to
appear at the High Court hearing of the same day;
- why the Procurator Fiscal instead instructed the police on
9 November 1981 to arrest the applicant without warrant for
failing to appear at the trial;
- why the arrest warrant was not issued to the police until three
years later on 14 November 1984;
- or why the Procurator Fiscal informed the applicant in January
1991 that there were no outstanding proceedings against him.
53. It is also conceded that the Procurator Fiscal did not instruct
the police to check whether the applicant was at his sister's address
when he wrote to the Procurator Fiscal, giving that address, on
10 January 1991. However, the Government contend that the procedures
followed did not delay bringing the applicant to trial. The police made
periodic inquiries with the applicant's relatives and friends, as well
as with the public services, but to no avail. At one point he was
thought to be in the United States of America, but inquiries conducted
with the American authorities proved unsuccessful. For the authorities
concerned, the applicant had clearly absconded and was untraceable.
54. Even if the Procurator Fiscal's failure to pass on to the police
the address given by the applicant in his letter of 10 January 1991
caused any further delay in bringing the applicant to trial, the
Government submit that the 17 month period which followed until his
arrest on 26 May 1992 was insignificant, having regard to the total
period of time involved in this case. Moreover, the Government deny
that this error increased the delay in bringing the applicant to trial,
given the continuing police inquiries and the fact that the applicant
was eventually arrested at his girlfriend's house.
55. The Commission considers that the present case reveals several
incidents of poor administration in the Procurator Fiscal's office for
which no satisfactory record or explanation exists. These incidents,
in the Commission's opinion, contributed considerably to the delay in
bringing the applicant to trial. The Commission is particularly struck
by the fact that, after the applicant's failure to appear for trial,
it took three years for the Procurator Fiscal to issue a warrant for
the applicant's arrest with instructions for its execution, despite the
seriousness of the attempted murder charge against him. It is also
struck by the fact that the applicant was informed by the same office
in January 1991 that there were apparently no outstanding proceedings
against him. This mistake was compounded by a further error in not
notifying the police of the applicant's inquiry that month and, by
implication, his apparent return to the area. Another 17 months went
by before the applicant was arrested. The Commission disagrees with the
Government that such a period may be deemed insignificant in view of
the overall length of the case. Moreover, the Commission notes that no
detailed chronology or description of police or other inquiries have
been submitted to clarify their purported frequency and result.
56. In these circumstances, the Commission considers that the length
of the proceedings in the present case of some 13 years has not been
convincingly justified by the Government. Consequently, the Commission
is of the opinion that the "reasonable time" prescribed by Article 6
para. 1 (Art. 6-1) of the Convention has been exceeded.
CONCLUSION
57. The Commission unanimously concludes that in the present case
there has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy