The reasonable time guarantee: a fairly honourable defeat

Thanks to Tony Kelly for drawing my attention to Spiers v Ruddy [2007] UKPC D2, a decision of the Judicial Committee of the Privy Council issued last Wednesday. Here, the Committee has resolved the conflict between Scotland and England over the reasonable time guarantee in criminal trials.

Prior to Spiers v Ruddy, the position was as follows. (For discussion, see Himsworth (2004) 8 Edin LR 255.) In Scotland, where the right to trial within a reasonable time had been breached, the Lord Advocate would be acting incompatibly with the accused’s article 6 rights to proceed further, and so the prosecution would have to be brought to an end (R v HM Advocate [2002] UKPC D3). In England, proceedings could be halted only where a fair trial was no longer possible or it was unfair to try the defendant for a “compelling reason”; otherwise a lesser remedy could be given (Attorney-General’s Reference (No 2 of 2001) [2003] UKHL 68, a decision of nine judges). These decisions were reached by a majority: in both cases, Lord Hope of Craighead and Lord Rodger of Earlsferry were in favour of the absolutist position taken in R. (In that case, they had been joined in the majority by Lord Clyde.)

Both of these judges recant in Spiers v Ruddy, where the conflict is unanimously resolved in favour of the English position. It is a remarkably short judgment for such an important issue (a total of 29 paragraphs compared to 168 in R v HM Advocate and 179 in Attorney-General’s Reference). Rather than a full review of the issues involved, it is a reconciliation attempt which allows Lords Hope and Rodger to change their views with honour and without having to admit to any error at an earlier stage. The Committee seizes on some recent decisions of the European Court of Human Rights which talk of the possibility of preventing a “continuation” of a breach of the reasonable time requirement and suggest that a breach can be remedied by “expedition” of proceedings. On that basis, it is said, the decision in Attorney-General’s Reference must now be preferred.

This decision dramatically weakens the protection offered by the reasonable time guarantee in Scots law (see also this earlier post on a possible shift in the time when that guarantee starts to run). Matters are now not all that different from the pre-Scotland Act position where delay would only result in proceedings being halted (on the basis of “oppression”) if a fair trial were no longer possible.

Spiers v Ruddy does allow for remedies short of barring a trial where the reasonable time guarantee has been violated, but these may not be particularly valuable to accused persons. In Attorney-General’s Reference, Lord Bingham said (at para 24) that “[i]f the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail… If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant.”

It is not clear whether Lord Bingham meant to exclude sentence reduction as an appropriate remedy where a breach is established before a hearing, and there must surely be cases in which the other remedies suggested will not themselves be sufficient. There has been only relatively limited discussion in England of sentence reduction as an appropriate remedy for a breach of the reasonable time requirement, but there are at least two cases: Miller v DPP [2004] EWHC 595 (two year delay in speeding case meant that it was appropriate to find “exceptional hardship” established and thereby reduce the period of disqualification which M was otherwise due to serve as a result of totting up) and R v Wheeler (Darielle) [2004] EWCA Crim 572 (undesirable for W to go to prison for purchasing goods with stolen cheque books and credit cards five to eight years ago). It is unlikely that the courts will develop clear “sentence discounting” guidelines: these may be attractive as a means of encouraging people to plead guilty (see earlier post), but there is no such “case management” advantage here.