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HER MAJESTY's ADVOCATE V. D.P. and S.M. [2001] Scothc 115 (16Th February, 2001)

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HER MAJESTY's ADVOCATE V. D.P. and S.M. [2001] Scothc 115 (16Th February, 2001) HER MAJESTY'S ADVOCATE v. D.P. AND S.M. [2001] ScotHC 115 (16th February, 2001) HIGH COURT OF JUSTICIARY OPINION OF LORD REED in the cause HER MAJESTY'S ADVOCATE against D P and S M ________________ For the Crown: S E Woolman, AD For the First Accused: McLeod, Advocate;, Banks Devlin & Co, Paisley For the Second Accused: Quinn, Solicitor-Advocate; Ross Partnership, Paisley 16 February 2001 [1] At this preliminary diet I have been invited on behalf of each of the accused to dismiss the indictment against them. The submission made on their behalf is that by virtue of section 57(2) of the Scotland Act 1998 the Lord Advocate has no power to prosecute the case against them since to do so would be incompatible with their right under Article 6(1) of the European Convention on Human Rights: "In the determination... of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time..." The Advocate Depute on the other hand maintains that the case is capable of being brought to trial within a reasonable time in terms of Article 6(1). [2] The material facts are not in dispute. The indictment charges the accused jointly with the rape of the complainer on 11 March 1999. There is also a separate charge against the second accused, alleging a separate assault upon the same complainer on the same date and at the same locus. No mention however was made in argument of that charge. At the time of the alleged offences, the first accused was aged 13 years and five months. The second accused was aged 13 years. The complainer was aged 14 years and four months. [3] As I have mentioned, the date of the alleged offence was 11 March 1999. On 13 March 1999 the complainer made a statement to a relative as a result of which the police were contacted. The complainer reported the same matter to the police later the same day. She was interviewed by police officers on 14 March 1999. A civilian witness was also interviewed by police on 14 March 1999. The complainer underwent a medical examination by a police surgeon the same day. On 15 March 1999 two other civilian witnesses were interviewed by the police. These were the relative, and another person, who had been present when the complainer first made mention of the subject matter of the complaint. On 16 March 1999 each of the accused was interviewed by police officers, under tape-recorded conditions, and under caution. During the interview, the first accused made statements indicating that he had been at the locus in question, and in contact with the complainer, at the time in question, and that he had been at the door of a bedroom there at a time when the second accused and the complainer had been inside the bedroom. The second accused, in his interview, made a statement which could be construed as an admission of having had sexual intercourse with the complainer during the incident in question. Each of the accused were cautioned and charged by police officers at the end of their interview. The charge was one of rape. The police submitted their report to the procurator fiscal on 16 March 1999. [4] On 30 March 1999 the procurator fiscal reported the case to Crown Office. The procurator fiscal's report mentioned that the complainer had learning difficulties. On 7 April 1999 Crown counsel instructed the procurator fiscal to re-report when the complainer had been assessed in respect of her learning difficulties and precognosced. At some point in June 1999 the case was allocated to a precognition officer, working in the procurator fiscal's office in Paisley, for precognition. During July 1999 the same precognition officer was allocated a complex murder case for precognition. I was informed by the Crown that this was a case in which six persons had been placed on petition, and that it took eight weeks for the precognition officer to prepare it. [5] In September 1999 the complainer and her mother were contacted, and gave their permission for a psychiatric report to be prepared. In October 1999 the procurator fiscal contacted Dr Jones, a psychiatrist at Dykebar Hospital, with a view to her preparing such a report. According to the Advocate Depute, it had taken the procurator fiscal some time to find an appropriately qualified psychiatrist. After being contacted, Dr Jones did not respond. Several reminders had to be sent. On 22 November Dr Jones informed the procurator fiscal that she was not qualified to undertake the assessment. She suggested that it should be done by Dr Kerr, a consultant in child and adolescent psychiatry. On 9 December 1999 the procurator fiscal contacted Dr Kerr. Dr Kerr's report was received on 13 January 2000. The complainer was thereafter precognosced on 21 January and 1 February 2000. The procurator fiscal depute had taken the view that the complainer should only be precognosced once the extent of her learning difficulties had been investigated. On 7 February 2000 the procurator fiscal re-reported the case to Crown Office, enclosing the psychiatric report and the precognition of the complainer. [6] On 15 February 2000 Crown counsel instructed that the case be fully precognosced. On 21 March 2000 the procurator fiscal sought Crown counsel's instruction to place the accused on petition in order to facilitate precognition. The Advocate Depute was unable to explain the thinking behind seeking this instruction. Be that as it may, on 24 March 2000 Crown counsel instructed that the accused be placed on petition. Petition warrants were granted by the sheriff on 13 April 2000. On 16 May 2000, the accused appeared on petition at Paisley Sheriff Court, and were granted bail. There is no suggestion that the accused were responsible for the time that elapsed between 13 April and 16 May. On 31 May 2000 the case was allocated by the procurator fiscal to a precognition officer for precognition. Precognition was thereafter carried out. On 27 July 2000 the procurator fiscal re-reported the case to Crown Office. On 31 July Crown counsel instructed that the case be re-reported when a forensic report was available, concerning vaginal swabs taken from the complainer by the police surgeon on 14 March 1999. The report was obtained on 8 August 2000. On 24 August 2000 the procurator fiscal re-reported the case to Crown Office with the forensic report, which was negative. On 30 August 2000 Crown counsel instructed that proceedings be taken against the accused in the High Court. The case was provisionally allocated to the High Court sitting at Glasgow due to begin on 20 November 2000. On 26 October, however, a decision was taken that because of the pressure of business anticipated in that sitting, the case should instead be allocated to a sitting at Paisley due to begin on 19 February 2001. On 18 January 2001 the present indictment was served on the accused, indicting them for trial at the High Court sitting in Paisley on 19 February 2001. The case is listed as case No 7 in that sitting. If it were to proceed to trial in that sitting, the first accused would then be aged 15 years and five months; the second accused would be aged 15 years; and the complainer would be aged 16 years and three months. [7] Addressing me on behalf of the first accused, Mr McLeod pointed out that the period of time between the accused being charged and the date of the trial was one of 23 months. A period of 14 months had elapsed prior to the accused's first appearance on petition. Both the period prior to their being placed on petition, and the period since then, had been marked by delay. The overall period was, on its face, unduly long. Mr McLeod submitted that the present case was not complex; there was only one complainer; and there was no expert witness on the Crown List of Witnesses. The police had dealt with the case, prior to reporting to the procurator fiscal, with the expedition which was required in a case involving children. The same could not however be said of the Crown. In that connection, Mr McLeod submitted that the passage of a period of almost two years between the date of being charged and the date of being tried was particularly serious in the case of a child of 13. A period of two years was a significant part of a person's childhood; and the passage of such a period could result in major changes in the individual's personality. Mr McLeod referred to HMA v Hynd, 2000 SCCR 644, and to the Opinion of the Sheriff in Cook v HMA, 2000 SCCR 922, in which reference had been made to the UN Convention on the Rights of the Child. Counsel submitted that Article 40 of the UN Convention, and Article 20 of the UN Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules") illustrated the importance of avoiding unnecessary delay in proceedings against children. I return to the UN Convention and the Beijing Rules below. [8] On behalf of the second accused, Mr Quinn adopted the submissions made on behalf of the first accused. He added that, on its face, this appeared to be a relatively straightforward case. Eighteen witnesses were listed on the Crown List of Witnesses. There were two photographers; the complainer and six other civilian witnesses; a police surgeon; and eight police officers. Mr Quinn also referred to the Opinion of the Sheriff in Cook v HMA, in which the Sheriff had taken the view that the age of the accused could not be regarded as a factor of any great importance.
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