O’Neill and Lauchlan v. United Kingdom, nos. 41516/10 and 75702/13, 28 June 2016 – read judgment.
The European Court of Human Rights has ruled that criminal proceedings concerning two Scottish individuals ran beyond the “reasonable” period of time permitted under Article 6, ECHR. Despite considering that the individual stages of the proceedings were all reasonable in length, the cumulative time was excessive and in violation of Article 6(1).
In August 1998, the applicants were sentenced to periods of imprisonment of eight and six years following convictions for various sex offences. During their incarceration, the police wished to question the applicants about the disappearance, and suspected murder, of their ex-housemate (AM) after she had been reported missing six months earlier. On 17 September 1998 the applicants were detained by police and interviewed separately for over five hours. During these interviews they were directly accused of the murder of AM but, subsequently, neither applicant was arrested or formally charged.
Following release from prison, and subsequent re-arrest and recall to prison due to the apparent abduction of a fourteen year old boy, the applicants were again convicted of various sex offences and sentenced to a further three years in prison. During this period of incarceration the applicants were also placed on petition in relation to the murder of AM in early April 2005. Formal charges were brought on 5 April 2005 whilst the police continued with their investigations. However, in late 2005, Crown Counsel raised concerns about the sufficiency of evidence. Accordingly, a decision to take “no proceedings meantime” was made in December 2005 and subjected to continuous review as investigations continued.
Eventually, new evidence came to light. In September 2008, Crown Counsel concluded that there had been a material change in the prospects of conviction and the applicants were served with an indictment for the murder of AM. The charges in the indictment were identical to those contained in the original 2005 petition as well as the addition of various sexual offences. The applicants unsuccessfully lodged devolution minutes (a complaint about the unlawful actions of a public authority due to their incompatibility with the ECHR or EU law) relating to the significant delays and the sufficiency of evidence. Despite continued preliminary complaints about the delays faced, and other attempts to have proceedings discontinued, the applicants were unsuccessful in having the charges dropped. In May and June 2010, the applicants were convicted of the sexual offences and murder charges relating to AM.
The applicants, in August and September 2010, appealed against their convictions and the sentences imposed. Attempts by the applicants to appeal due to the unreasonable delays faced were initially unsuccessful. However, in April 2012, the Appeal Court eventually granted leave to appeal to the Supreme Court. The judgment of the Supreme Court was made on 13 June 2013. In considering whether an unreasonable period of time had elapsed, the Supreme Court had to firstly assess when the proceedings could be considered to have started. Despite arguments that the relevant date was in September 1998, when the applicants were initially detained and questioned, the Supreme Court ruled that the date formal charges were brought in April 2005. The case was remitted to the Appeal Court and the convictions and sentences imposed were upheld in respect of both applicants in March and June 2014 respectively.
The Strasbourg Court
The applicants complained that the domestic criminal proceedings against them had breached the “reasonable time” guarantee in Article 6(1). The first issue for the European Court of Human Rights (the Court) was to ascertain the relevant period to be taken into consideration. The date on which the proceedings ended was relatively uncontroversial. The “reasonable time” guarantee in Article 6(1) applies to the entirety of proceedings, including appeals. Accordingly, the end dates were in March and June 2014 when the applicants’ convictions and sentences were upheld. However, assessing the starting date of this period was more problematic.
For the purposes of Article 6(1), this period begins on the date that the individual is “charged”. This term is autonomously interpreted by the Court and is defined as the point at which “the situation of the [suspect] has been substantially affected”. The applicants, consistent with their submissions at domestic level, argued that the starting point was 17 September 1998 – the date on which they were detained and interviewed by the police in relation to the suspected murder of AM. Despite these arguments, and the fact that the Court has previously taken the starting point to be the first interrogation of the individual (for example, Vlad and Others v. Romania, nos. 40756/06, 41508/07 and 50806/07, 26 November 2013, para. 143), the Court decided that it was unnecessary to resolve the issue. Firstly, the Court stated that even if the latter date was adopted, the period could not be considered “reasonable” under Article 6(1) (removing the suspense as to their final conclusion!). Secondly, the Court opined that the activities between 1998 and 2005 would have made no material difference to their reasoning as the authorities had acted with diligence throughout this period. Having established the relevant period to be considered, the Court then moved on to consider whether this period could be considered “reasonable”.
The reasonableness of proceedings is assessed in light of the entirety of the circumstances. A number of issues, including the complexity of the case, the conduct of the applicants and the authorities, and what was at stake for the applicant, are taken into consideration.
The Court considered that in light of both the number of individuals involved in the proceedings (50 witnesses during the trial), and also the difficulties faced in collecting evidence, the situation could be said to have “undoubted complexity”. The more complex a case may appear, the more reasonable an extended period of time for conclusion of proceedings will be.
What was at stake for the applicant?
Due to the seriousness of the charges faced by the applicants, the Court considered that what was at stake could be described as “significant”. The need to conclude criminal proceedings within a reasonable time is motivated by protecting individuals from facing a “prolonged state of uncertainty”. The uncertainty surrounding such serious charges resulted in the need for increased diligence on the part of the authorities to conclude the proceedings speedily.
Conduct of parties
In assessing the reasonableness of the parties’ actions, the Court split the elapsed time into four distinct periods: the pre-indictment stage (April 2005-September 2008); the indictment to trial stage (September 2008-May 2010); the trial stage (May-June 2010); and the appeal stage (June 2010-June 2014). The Court examined each of these periods to assess to what extent the delays were caused by the applicants and the authorities.
Whilst the applicants had lodged a number of procedural motions and appeals during the early stages of the proceedings, which had an inevitable delaying effect, they could not be blamed for “making full use of the multiple remedies available to them under domestic law”. The authorities had, throughout the proceedings, acted with diligence. However, the Court considered that the appeal stage of proceedings, which lasted around four years, did appear long.
When considering whether the length of proceedings can be said to be “reasonable”, the Court will consider the proceedings as a whole. Whilst no single stage of the proceedings could be considered unreasonable, the cumulative length of the proceedings was held to be unreasonable. Accordingly, the Court unanimously found a violation of Article 6(1).
This decision of the Strasbourg Court is a relatively straightforward application of their general approach to issues concerning the “reasonable time” guarantee in Article 6(1). The same four considerations are regularly applied by the Court in similar cases.
A factor that may have influenced the Court’s conclusion is the significant period of time that had elapsed between the commission of the suspected offence and the criminal charge. The Court itself mentioned that this situation may call for “heightened diligence” on behalf of the authorities. However, without a firm conclusion from the Court as to the date of the charge, it is difficult to assess whether or not a substantial period of time elapsed between the commission of the offence and the charge. The Court refrained from assessing whether the applicants were charged, for the purposes of Article 6, in 1998 or 2005. This approach was due to the lack of influence it would have on this specific case. However, clearly assessing when the applicants were charged, and therefore when the period of time began to run, would have been useful for domestic courts when considering similar issues in the future.