Trial within a reasonable time: a subtle shift?

One of the guarantees under article 6 of the ECHR – which led to rather more litigation than Scots lawyers expected prior to the Scotland Act 1998 – is the right to trial within a reasonable time. That right runs, according to the European Court, from the time at which the person is “charged”. A charge, for these purposes, has been defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence” (Eckle v Federal Republic of Germany (1983) 5 EHRR 1, at para 73).

In practice, the Crown has tended to accept that for ECHR purposes, a “charge” occurs when the police put an allegation to a suspect while he is being interviewed (see, e.g., Dyer v Watson [2002] UKPC D1, at para 96 per Lord Hope of Craighead). That concession, arguably, goes further than is required by the ECHR (see Attorney-General’s Reference (No 2 of 2001) [2003] UKHL 68), and the opinion issued in Burns v HM Advocate [2007] HCJAC 66 last Thursday casts some further doubt on it.

In Burns, the appellant was initially interviewed by police officers in England, and the case papers were subsequently sent to Strathclyde police. The appeal court was not prepared to entertain the suggestion that the article 6(1) clock had started to run when allegations were put to him during his interview in England. Other considerations aside, the police officers could not be regarded as the “competent authority” (although the court did acknowledge that the position might be different had the English police been acting at the request of Scottish officers).

What is interesting is that the court does not seem prepared to endorse the concession which has been previously made by the Crown as to the starting point for the article 6(1) guarantee. Counsel for the appellant submitted that “[h]ad what was said to the appellant by Metropolitan Police officers in February 2003 been said to him by officers of Strathclyde Police at that time, it was clear that he would then have received official notification for the purposes of the Convention” (see para 6). But the Lord Justice-General avoids endorsing this claim, saying only (at para 10):

“it has been accepted both in Scotland and in England and Wales that that initiation can take place before the formal commencement of criminal proceedings by the public prosecutor. In Scotland, the formal charging, in the domestic sense, of a suspect by a Scottish police officer will, ordinarily at least, constitute an official notification given by the competent authority of an allegation that the individual has committed a criminal offence.”

Does this mean that the prior concession was wrong? The difference is important: in Dyer v Watson, for example, the Crown conceded that the article 6(1) clock started to tick for Watson and Burrows when they were interviewed on the 28 January 1999. But they were not charged by the police on that occasion, and the next alternative date which might be regarded as the date of a “charge” would seem to be April 2000 when proceedings were commenced by way of summary complaint. If that was the starting date, the article 6 arguments they made a matter of weeks thereafter (which succeeded before the High Court but were later overturned by the Judicial Committee) would never have got off the ground.

It would be dangerous to read too much into what is at most, an obiter omission (if such a thing exists) – but the point may arise again before long.