No. 2001/02780/S4
Neutral Citation Number: [2001] EWCA Crim 1568
IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Date: Monday  2  July  2001
B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(The Lord Woolf of Barnes)

MR  JUSTICE  WRIGHT
and

MR  JUSTICE  GRIGSON

ATTORNEY GENERAL'S REFERENCE No. 2 of 2001
UNDER  SECTION  36  OF
THE  CRIMINAL  JUSTICE  ACT  1972
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R E G I N A

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MR DAVID PERRY and MR ROBIN McCOUBREY appeared on behalf of THE ATTORNEY GENERAL
MR T WATSON appeared on behalf of THE ACQUITTED OFFENDER
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J U D G M E N T

1.	THE LORD CHIEF JUSTICE: The Attorney General applies under section 36 of the Criminal Justice Act 1972 to refer two points of law for the opinion of this court. The application arises out of a decision of His Honour Judge Hewitt sitting in the Crown Court at Newcastle on 31 January 2001 when he decided that an indictment against the seven defendants should be stayed on the ground that there had been a breach of Article 6(1) of the European Convention for the Protection of Fundamental Rights and Freedoms due to the delay which had taken place in the proposed trial of the defendants. 
2.	The two points on which the Attorney General seeks the opinion of the court are identified in these terms: 
“(i) 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. 
(ii) 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?” 
3.	The facts giving rise to the references can be summarised very shortly and are not contentious. A serious disturbance took place in a prison on 26 April 1998. As a result, a large number of the inmates were interviewed in connection with the disturbance on 9 June and 1 July 1998. Subsequently paperwork was submitted to the Crown Prosecution Service on 27 July 1998. 
4.	Informations were laid against the seven prisoners on 11 February 2000. Of those who were interviewed on the dates to which we have referred, some were the subject of no action of any sort. Others were subject to disciplinary proceedings within the prison. The seven defendants to whom we have referred were singled out as being appropriate persons to be prosecuted. 
5.	The matter came before the trial judge on 31 January 2001. He came to the conclusion that the delay, which he calculated from the time that the defendants were interviewed in July 1998 until 11 February 2000 when they were summonsed, was a period of unreasonable delay. He concluded that it was appropriate to stay the charges against the seven defendants. 
6.	The Attorney General has been influenced in referring the matter to this court under section 36 by the fact that there have been a number of cases where courts up and down the country are having difficulties as to the appropriate steps to take when they come to the conclusion that there has been unreasonable delay. 
7.	The terms of Article 6 are well‑known. Article 6(1) deals with the right to a fair trial. 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....” 
8.	The two points of law are set out as two questions. The first question deals with the remedy where there has been a violation, and the second question deals with the commencement date for the computation of the time which has lapsed so as to ascertain whether or not a reasonable time has passed. It is convenient, as was pointed out by Wright J in the course of argument, to take the second question which was fundamental to the judge's decision in this particular case first. 
9.	The meaning of the word “charge” is well‑known within this jurisdiction. However, for the purpose of considering what amounts to “charging” someone for the purpose of the reasonable time requirement in Article 6(1) it is necessary to bear in mind that as the Convention applies to a number of jurisdictions and the meaning of “charge” in Article 6(1) may not necessarily correspond with our domestic approach to the charging of a criminal offence. For that reason Mr Perry, who has appeared on behalf of the Attorney General, has referred us to a number of authorities. He did so with great skill and rapidity, but for the purposes of this judgment it is unnecessary to subject those authorities to a detailed and critical analysis. It appears to us that the message which the jurisprudence in Strasbourg gives is clear and accords with what would be expected. 
10.	The jurisprudence does not confine a charge for the purpose of Article 6 to precisely the circumstances which we would regard in this jurisdiction as amounting to a charge. However, in the great majority of situations the date that a defendant is charged (in the sense we use that term in our domestic jurisprudence) will provide the answer. Ordinarily therefore the commencement of the computation in determining whether a reasonable time has elapsed will start with either a defendant being charged or being served with a summons as a result of an information being laid before the magistrates. 
11.	There will, however, be situations where a broader approach is required to be adopted in order to give full effect to the rights preserved by Article 6(1) of the Convention. Mr Perry put the matter as follows. For the purposes of that Article there could be a period prior to a person formally being charged under English law if the situation was one where the accused has been substantially affected by the actions of a state so as a matter of substance to be in no different position from a person who has been charged. The importance of the approach that Mr Perry concedes the court has to adopt is that it takes account of the fact that there may be some stage prior to an accused being formally charged in accordance with our domestic law where, as a result of the actions of a state linked to an investigation, when he has been materially prejudiced in his position. In support of that approach we were referred to Deweer v Belgium (1980) 2 EHRR 439, in which a Belgian butcher was alleged to have committed an offence of selling meat at an illegal profit. The public prosecutor ordered the provisional closure of the applicant's shop either until judgment was given in the intended prosecution of the applicant or until he paid an agreed fine by way of settlement. At page 440 of the report the court decided: 
“(a) 'Criminal charge' is an 'autonomous' concept which must be understood within the meaning of the Convention. 
(b) The term has a 'substantive' rather than a 'formal' meaning. 
(c) On the facts, the Court held the proceedings against the applicant had constituted a 'criminal charge' which could be defined as 'the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence'.” 
12.	The Court's approach is reflected by paragraph 46 of their judgment where they said this: 
“There accordingly exists a combination of concordant factors conclusively demonstrating that the case has a criminal character under the Convention. The 'charge' could, for the purposes of Article 6(1), be defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence. In several decisions and opinions the Commission has adopted a test that appears to be fairly closely related, namely, whether 'the situation of the [suspect] has been substantially affected'.” 
13.	The approach that we have indicated to the question of when a person is charged is important in relation to what was contended before the judge in this case. It was contended before the judge that there had taken place an interrogation of the defendant and it was said that this constituted the charge. We disagree with that view. In the ordinary way an interrogation or an interview of a suspect by itself does not amount to a charging of that suspect for the purpose of the reasonable time requirement in Article 6(1). We do not consider it would be helpful to seek to try and identify all the circumstances where it would be possible to say that a charging has taken place for the purpose of Article 6(1), although there has been no formal charge. We feel that the approach indicated by the authority that we have cited clearly expresses the position and we are content to leave the matter in that way. However, if greater assistance is needed there is authority to which we could turn, although we do not think it necessary to lengthen this judgment by doing so. We have in mind the cases of Corigliano v Italy (1982) 5 EHRR 334, Eckle v Germany (1982) 5 EHRR 1 and Foti v Italy (1982) 5 EHRR 313. 
14.	On the facts of this case, because the defendants were already inmates serving a sentence, there may be sufficient circumstances because of what happened to them in prison for saying that they were in a position where the consequences of the interrogation which took place singled them out for special treatment which would lay a foundation for an argument that the charging followed upon the interrogation without the necessity for them to have been given notice of the fact that they were summonsed to the appropriate magistrates' court. However, whether that is so or not we cannot say as the judge did not have any evidence as to this. If there were sufficient facts, then the position would be that the judge would have been entitled to come to the conclusion that there had been a failure to comply with the reasonable time requirement in Article 6(1) because there is no doubt there was more than a reasonable time which elapsed between their being interviewed and being notified that they were to be charged. So far as delay which incurred between those two dates is concerned, Mr Perry did not argue before us that the judge was not entitled to come to the conclusion which he did. Mr Perry rightly submits that the judge looked at the wrong date. The delay on the evidence runs not from the interview but from the time when they received their summonses. From that time on there was no delay which could be complained of by the defendants as contravening the reasonable time requirement in Article 6(1). 
15.	We turn our attention to the first of the two questions posed by the Attorney General. It is important to note that the first question is addressed to the appropriate remedy to be imposed where the court has found that there is a contravention of the reasonable time requirement in Article 6(1). Mr Perry's argument is that the position under domestic law has not been altered as a result of the Convention becoming part of our domestic law. He submits that the position as indicated by this court in answer to Attorney General's Reference No 1 of 1990 [1992] QB 630 still accurately sets out the position. That case concerned a police officer who had attended an incident where two people were arrested. Complaints about his conduct were made of which he was given notice. A formal investigation was instituted and adjourned pending the outcome of criminal proceedings against those arrested. They were acquitted in January 1988. The investigation of the complaints was then resumed. In March 1989 (approaching two years after the incident), the police officer was served with summonses alleging two offences of assault occasioning actual bodily harm. Thereupon, for the first time, he consulted a solicitor. In the Crown Court, over two years after the incident, the police officers submitted that in view of the delay the proceedings constituted an abuse of the process of the court. The trial judge held that although the delay was not unjustified, on the balance of probabilities it might be prejudicial to the police officer and he ordered the proceedings to be stayed. The prosecution offered no evidence and by direction a verdict of not guilty was recorded. This led to the Attorney General's Reference. As the headnote in the case indicates, this court was of the opinion that a stay for delay or any other reason was to be imposed only in exceptional circumstances. Even where delay could be said to be justifiable, the imposition of a permanent stay was to be the exception rather than the rule. Even more rarely could a stay properly be imposed in the absence of fault on the part of the complainant or the prosecution, and never where the delay was due merely to complexity. Secondly, no stay was to be imposed unless a defendant established on the balance of probabilities that, owing to the delay, he would suffer serious prejudice to the extent that no fair trial could be held. 
16.	In an important passage in the judgment of the court Lord Lane CJ said at page 644: 
“In answer to the second question posed by the Attorney‑General, no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind: first, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly, the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict. 
It follows from what we have said that in our judgment the decision of the judge to stay the proceedings in the instant case was wrong. The delay, such as it was, was not unjustifiable; the chances of prejudice were remote; the degree of potential prejudice was small; the powers of the judge and the trial process itself would have provided ample protection for the respondent; there was no danger of the trial being unfair; in any event the case was in no sense exceptional so as to justify the ruling. 
This judgment will, we hope, result in a significant reduction in the number of applications to stay proceedings on the ground of delay. At the risk of repetition, we emphasise the exceptional nature of the jurisdiction. In the event of an unsuccessful application to the Crown Court on such grounds, the appropriate procedure will be for the trial to proceed in accordance with the ruling of the trial judge and, if necessary, the point should be argued as part of any appeal to the Court of Appeal (Criminal Division).” 
17.	Mr Watson on behalf of the defendant (who is the respondent to this application) submits that the judge was right to take a different approach from that indicated by Lord Lane CJ in that case because of the effect not of Article 6(1) by itself, but Article 6(1) together with section 6(1) of the Human Rights Act 1998. He says that this explains the decision of the judge. Although the judge dealt with the matter very shortly, it seems to us that Mr Watson is absolutely right to rely on section 6(1). At the end of his ruling the judge said this: 
“In those circumstances [the infringement of Article 6], to proceed with the trial would be for the prosecution and the court to act in a way incompatible with Convention rights, contrary to Section 6 of the 1998 Act. I therefore grant a stay, on that ground, of these proceedings.” 
18.	The reason that the judge was caused to take that view of the effect of section 6(1) is because of the terms in which the section is couched. It provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. A public authority includes a court. The approach of the judge, reflected in Mr Watson's submissions, is that if there has been unreasonable delay, to go on and proceed to try a defendant results in the court acting in a way which is incompatible with that defendant's rights. There is no discretion about the matter. Once the court has come to the conclusion that the reasonable time requirement in Article 6(1) has been contravened, the court has to stay the proceedings. 
19.	The illogicality of this approach, or the nonsense it produces, is illustrated when the position is looked at where it is not a party to criminal proceedings who is complaining about a contravention of the reasonable time requirement in Article 6, but a defendant to civil proceedings. The position of such a defendant was put to Mr Watson. The defendant would say, “Because of the delay my Article 6 rights have been infringed. Section 6(1) means that you cannot proceed with the trial of the claim which is brought against me”. But what about the claimant? The claimant is also entitled to Article 6(1) rights. The claimant says that he is entitled to have his rights determined within reasonable time. If Mr Watson is correct, the court would not be entitled to proceed with the trial because of its effect upon the defendant. With the greatest respect, that approach cannot be right. Similarly, at the trial of a defendant on a criminal charge, it is not only the defendant who is to be considered. The public are interested in whether or not defendants are tried for criminal offences they have committed. As is the case with many of the rights which are contained in the Convention, the courts are called upon to hold the balance between the rights of the individual and the rights of the public. 
20.	The explanation for the judge taking the view which he did, in our judgment, is because the judge failed to distinguish between the conduct which constitutes the unlawful act for the purpose of Article 6(1) and the remedy which the court provides for the unlawful act if there has indeed been an unlawful act. If a person complains of a contravention of the reasonable time requirement in Article 6, and if the court comes to the conclusion that there has been a contravention, then at the request of the complainant the court is required to provide the appropriate remedy. If the court is willing and able to provide the appropriate remedy, then the court is not compelled to take the course of staying the proceedings. That is a remedy which the court can grant, but it is certainly not a remedy which it is required to grant. It seems to us in general that the approach that previously existed as to the provision of the remedy of staying the proceedings should be confined, as it was prior to the Convention becoming part of our domestic law, to situations which in general terms can be described as amounting to an abuse of the process of the courts. But there are many other actions which the court can take which avoid the need for such action. In particular, if the court comes to the conclusion that this would provide the appropriate remedy, the court can mark the fact that the way the prosecution has been conducted does contravene the reasonable time requirement in Article 6(1) and acknowledge the rights of the defendant by so doing. In many cases the court will come to the conclusion that that is not a sufficient recognition of the defendant's rights. If that be so, then the court can take other action. It can, for example, take account of the failure to proceed with the case with due expedition in the sentence which the court imposes. It has always been the practice for the courts in this jurisdiction to take into account delays of the sort to which we have referred when sentencing a defendant. It does so, recognising that it is inevitably a disadvantage to a defendant to have a charge hanging over his or her head longer than is reasonably required. The criminal process inevitably subjects an individual to distress. Albeit that they are acquitted at the end of the process, they still have been subjected to unnecessary distress. The difference which the Human Rights Act 1998 makes is that the remedies available to a court can be greater than they were hitherto. In particular, it is now in appropriate circumstances open to the courts to make awards of compensation. This court accepts that where a person is acquitted at a subsequent trial, it could be appropriate for there to be compensation if there has been delay which contravenes the reasonable time requirement in Article 6(1) of the Convention. It depends on all the circumstances whether compensation is appropriate.
21.	There is a certain amount of authority on this subject. However, there is no authority which supports the conclusion that a stay is the appropriate remedy, except in limited circumstances where it is no longer possible for a defendant to have a fair trial, bearing in mind the ability of the court to exclude evidence or to take other action to achieve a fair trial. If a fair trial is not possible, then a stay would have to be imposed. Equally, it would be appropriate to stay proceedings if the situation is one where it could be said that to try the accused would in itself be unfair. 
22.	There are two decisions of the Privy Council to which it is necessary to refer. The first is Darmalingum v The State [2000] 1 WLR 2303. The second is Flowers v The Queen [2000] 1 WLR 2396. The case of Darmalingum involved the Constitution of Mauritius. The Constitution of Mauritius in section 10(1) contains a provision which is in very similar terms to that of Article 6. The judgment of the Privy Council was delivered by Lord Steyn. In the course of his judgment he drew attention to the fact that the defendant had had the shadow of proceedings hanging over him for about 15 years and there was therefore manifestly a flagrant breach of section 10(1). In that context he went on to say: 
“The normal remedy for a failure of this particular guarantee, viz the reasonable time guarantee, would be to quash the conviction. That is, of course, the remedy for a breach of the two other requirements of section 10(1), viz (1) a fair hearing and (2) a trial before an independent and impartial court. Counsel for the prosecution argued however that the appropriate remedy in this case is to affirm the conviction and to remit the matter of sentence to the Supreme Court so that it may substitute a non‑custodial sentence in view of the delay. The basis of this submission was that the guilt of the defendant is obvious and that it would therefore be wrong to allow him to escape conviction. This argument largely overlooks the importance of the constitutional guarantee as already explained. Their Lordships do not wish to be overly prescriptive on this point. They do not suggest that there may not be circumstances in which it might arguably be appropriate to affirm the conviction but substitute a non‑custodial sentence, eg in a case where there had been a plea of guilty or where the inexcusable delay affected convictions on some counts but not others. But their Lordships are quite satisfied that the only disposal which will properly vindicate the constitutional rights of the defendant in the present case would be the quashing of the convictions.” 
23.	We have no difficulty with the view of the Privy Council in that case insofar as it is confined to the type of situation being considered in that case. But it should not be regarded as guidance which should be applied in consideration of breaches of the reasonable time requirement in Article 6(1) in this jurisdiction. Although the opening words of Lord Steyn are of a general nature, they would not be applicable here because they are inconsistent with the jurisprudence of the Strasbourg Court which recognises, for example, that a reduction of sentence is an appropriate remedy for a breach of Article 6(1). That passage of Lord Steyn's judgment has to be read subject to the comments of the Privy Council in Flowers v The Queen to which we have already made reference. In that case at page 2414 Lord Hutton distinguished Darmalingum. He said that the more appropriate approach was to take account of all factors which had been discussed before their Lordships and notwithstanding the lengthy and very regrettable delay in that case, he came to the conclusion that a conviction should not be quashed by reason of delay. In coming to that conclusion the Privy Council referred to the decision in Bell v Director of Public Prosecutions for Jamaica [1985] AC 937, and in particular the speech of Lord Templeman at page 952, where the court clearly adopted the approach that the significant factor was whether or not there was prejudice. In that case there had been a lapse of seven years between the date of the alleged offence and the date of the retrial. The view was taken that there was specific prejudice caused as a consequence of delay of that nature. As we have already indicated, if there has been prejudice caused to a defendant which interferes with his right to a fair trial in a way which cannot otherwise be remedied, then of course a stay is the appropriate remedy. But in the absence of prejudice of that sort, there is normally no justification for granting a stay. 
24.	The question posed by the Attorney General presupposes that the court, if it accepts the arguments of the Attorney General, should give a negative answer to the first question. We consider that in normal circumstances a negative answer will be appropriate. But we are not prepared to say that there cannot be circumstances (which at the present time we are unable to identify) where, notwithstanding the absence of prejudice, it can be said that it would be appropriate for a trial to take place. To that extent we therefore give a qualified negative answer to the first question. 
25.	In relation to the second question as to when a criminal charge has occurred, we refer to what we have said earlier in this judgment.