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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 21437/93

Francis Dougan

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 11 January 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-37). . . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 16-30) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 31-37) . . . . . . . . . . . . . . . . . . . . . 5

III. OPINION OF THE COMMISSION

(paras. 38-57). . . . . . . . . . . . . . . . . . . . . . . . 8

A. Complaint declared admissible

(para. 38) . . . . . . . . . . . . . . . . . . . . . . . 8

B. Point at issue

(para. 39) . . . . . . . . . . . . . . . . . . . . . . . 8

C. As regards Article 6 para. 1 of the Convention

(para. 40-56). . . . . . . . . . . . . . . . . . . . . . 8

CONCLUSION

(para. 57) . . . . . . . . . . . . . . . . . . . . . . .11

APPENDIX I : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .12

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a United Kingdom citizen, born in 1949 and

resident at Stenhousemuir, Larbert, Scotland. He was represented

before the Commission by Mr. J. Caroll, Solicitor, Glasgow.

3. The application is directed against the United Kingdom. The

respondent Government were represented by their Agents, Mrs. A. Glover

and Mr. I. Christie.

4. The case concerns the length of criminal proceedings against the

applicant, who has invoked Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 22 November 1992 and registered

on 25 February 1993.

6. On 5 May 1993 the Commission (First Chamber) decided to

communicate the application to the respondent Government, pursuant to

Rule 48 para. 2 (b) of the Rules of Procedure.

7. The Government's written observations were submitted on

21 September 1993, after an extension of the time-limit fixed for that

purpose. The applicant replied on 15 December 1993, also after an

extension of the time-limit. On 18 January 1994 the Commission granted

the applicant legal aid.

8. On 11 May 1994 the Commission declared the application

admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 18 May 1994 and they were invited to submit further

information and observations on the merits of the case. On 26 August

1994 the Government submitted observations, dated 29 July 1994, to

which the applicant replied on 6 October 1994.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. F ERMACORA

E BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

12. The text of this Report was adopted on 11 January 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is attached hereto as Appendix I.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. On 22 May 1981 the applicant was arrested and charged with the

attempted murder of his wife. He appeared before the sheriff in

Glasgow on 26 May 1981 when he was remanded in custody for two weeks

and then released on bail. A few weeks later he was re-arrested at his

home for breach of bail as he was alleged to have contacted his wife.

He was again imprisoned on 30 June 1981 for a further two weeks and

then granted bail of £200.

17. The applicant failed to appear for trial on 6 November 1981 and

a warrant was granted by the Glasgow High Court for his arrest. The

warrant was passed by the court to the Procurator Fiscal's office in

Glasgow, but it was not until 14 November 1984 that the warrant was

issued by the Procurator Fiscal to the police with instructions for

execution.

18. In the meantime the Procurator Fiscal had written to the

Strathclyde police on 9 November 1981 informing them of the situation

and instructing them to arrest the applicant without warrant, pursuant

to section 3(7) of the Bail Etc. (Scotland) Act 1980, for the offence

of failing to appear for trial. Police inquiries were made at the

applicant's house and likely places of concealment. Later inquiries

revealed that the applicant might have left for the United States of

America in 1981 or 1982. However, American authorities found no trace

of an entry visa or other entitlement being issued to the applicant.

19. After the Procurator Fiscal's instructions were received in

November 1984, further unsuccessful inquiries were made with the

applicant's relatives and friends, as well as with the public services,

in an attempt to trace him.

20. In September 1987 the applicant's solicitors telephoned the

Procurator Fiscal's office indicating that the applicant was abroad but

was considering returning to Scotland. He wished to know beforehand

whether he would be granted bail. The Procurator Fiscal notified the

police of this and they then, in anticipation of the applicant's

return, sought the main prosecution witness in the case, the

applicant's wife, but found no trace of her. Unsuccessful inquiries

about the applicant's whereabouts were again made with the public

services.

21. The Procurator Fiscal's office replied in writing to the

solicitors on 9 December 1987 that the applicant's position would be

reviewed if and when he cared to return. The solicitors were not

questioned as to the applicant's whereabouts because their telephone

call had implied that the applicant was seeking to avoid custody and

trial and, therefore, it would have been unreasonable to expect them

to divulge information which could have led to the applicant's

extradition.

22. On 25 January 1990 the police reported that their inquiries had

been continuing, but the best information which they had was that the

applicant had moved to the United States some years before and no

contrary information had come to light. The applicant's sister and

mother had not heard from him or the wife. The police investigation

officer said that the applicant's mother appeared genuinely upset at

not having heard from her son for six years.

23. On 10 January 1991 the applicant, using his sister's address,

wrote to the Procurator Fiscal's office in Glasgow to ascertain whether

proceedings were still outstanding against him. In the reply dated

25 January 1991 he was informed that, so far as could be ascertained,

there appeared to be no outstanding proceedings against him but that

this information should be double checked with the police. As the

sister's house had been checked for the applicant in December 1989 and

the Procurator Fiscal had taken the view that there were no outstanding

charges, the Procurator Fiscal did not inform the police of the

applicant's letter.

24. In a report dated 19 April 1991, the police stated that inquiries

had not confirmed whether the applicant was abroad, although they had

discovered that the applicant had been issued with a full British

passport in May 1990. In March 1992, the police reported that the usual

inquiries with the applicant's relatives and friends, as well as with

the public authorities, had been fruitless.

25. Acting on information received, the police executed the warrant

on 26 May 1992 and arrested the applicant at his girlfriend's house.

Following his arrest he was released from custody on bail, granted by

the High Court on 9 June 1992. A new indictment was served upon him,

charging him with three separate offences of assault and attempted

murder, breach of the peace and failing to appear at his trial.

26. The applicant challenged the proceedings because of their delay.

At a preliminary hearing in the High Court on 22 April 1993 before Lord

Weir, his objection was rejected as there had been no oppression and

as it would be open to the trial judge to give appropriate directions

to the jury on how they should take account of the delay when arriving

at their verdict. The applicant did not appeal against this decision

as he was entitled to do under section 76A(1) of the Criminal Procedure

(Scotland) Act 1975.

27. The applicant's trial was set for 26 April 1993, but adjourned

twice at the applicant's request until 20 August 1993. The applicant

pleaded guilty to assaulting his wife, but not of attempting to murder

her. He also pleaded guilty to the charge of failing to appear at his

trial set for 6 November 1981, when he was on bail. These pleas were

accepted by the Crown and the applicant was convicted.

28. During the sentencing proceedings the applicant's counsel

explained that the applicant had been in Scotland for most of the time

from 1981 to 1984. He had then gone abroad and could not explain why

the police had been unable to find him on his return. The applicant

was sentenced on 10 September 1993 to 240 hours of community service

and a fine of £1000.

29. On 16 December 1993 the Secretary of State for Scotland referred

the applicant's case to the High Court on the question whether a

procedural irregularity in the case had amounted to a miscarriage of

justice, which would warrant the quashing of the applicant's conviction

and sentence. On 28 April 1994 the applicant's counsel abandoned the

appeal that had been made on the same point. This left the applicant's

conviction and sentence in force. On 17 November 1994 there was a

hearing of the Secretary of State's referral, but, on the agreement of

the parties, albeit for different reasons, it was not insisted upon.

30. The proceedings may be deemed to have been effectively terminated

on 28 April 1994 when the applicant abandoned his appeal. However,

given the fact that the applicant could have been affected by the

Secretary of State's referral if the matter had been pursued, the case

may arguably be said to have terminated on 17 November 1994.

B. Relevant domestic law

(a) Warrants to apprehend

31. Where an accused fails to attend for trial, a warrant may be

issued to apprehend him. Such a warrant should be executed as soon as

possible because delay in the execution of the warrant may mean that

proceedings cannot be brought to a speedy conclusion. Delay in the

execution of a warrant is, therefore, a factor which may be taken into

account in determining whether to uphold a plea in bar of trial on

grounds of delay.

32. The Crown does regularly review the position of warrants which

are not executed. In this connection, the following points may be

noted :

(i) the Procurator Fiscal can at any stage instruct the police

to return the warrant to him and mark the case "no further

proceedings", ie to make a decision that the prosecution

will proceed no further;

(ii) if a time-limit is given for execution and the warrant

returned to the Procurator Fiscal, he may decide to take no

further proceedings at that stage or return it to the

police to make further attempts to execute;

(iii) if no time-limits are given, then the Procurator Fiscal will

normally request regular reports from the police on the

efforts made to execute the warrant;

(iv) in serious matters it is likely that the warrant will remain

with the police for execution for a much longer period and,

in a High Court case, particularly where the accused has

failed to appear for his trial, a warrant is likely to

remain in existence for many years.

(b) Effect of delay

33. There is no time bar in Scots law on common law crimes, such as

the crime of attempted murder for which the applicant was charged on

22 May 1981. Subject to the following points, therefore, the Lord

Advocate can bring a prosecution for any crime, no matter how long the

delay may be between the date when the offence was alleged to be

committed and the date of the commencement of the trial.

34. In case of undue delay it is possible for the accused to take

what is called "a plea in bar of trial". If successful, the court will

prevent the prosecution from proceeding any further. The only ground

upon which the court can prevent the Crown from proceeding to trial is

the ground of "oppression", ie that to continue would be oppressive to

the accused. The test for oppression in all cases is whether there is

a risk of prejudice to the accused so grave that no direction by a

trial judge could be expected to remove it and that it would not be

possible for the accused, therefore, to receive a fair trial.

Accordingly, it has been held in the case of McFadyen v. Annan 1992

SCCR 186 at 193B that

"the real question which the court has to consider in all cases

where delay is alleged is whether the delay has prejudiced the

prospect of a fair trial. This involves the court asking itself

whether the risk of prejudice from the delay is so grave that no

direction by the trial judge could be expected to remove it ...".

35. In the later case of Normand v. Rooney 1992 SCCR 336, it was

stated at page 340C

"In solemn proceedings the question is whether the risk of

prejudice is so grave that no direction by the trial judge,

however careful, could be expected to remove it. That formulation

creates no difficulty, because it leaves open the question

whether the appropriate direction is to ignore the events which

are alleged to be prejudicial or to take them into account in the

assessment of the evidence ...".

36. Since the effect of the delay will depend upon the individual

circumstances of the case, if the court does not hold that, as a matter

of law, the proceedings are oppressive and that the prosecution should

not proceed further, it then becomes a question for the jury to decide

whether they can accept the credibility and reliability of the

witnesses, bearing in mind the delay and any instructions given to them

by the trial judge in connection with the effect of that delay. In

other words, if the effect of delay ceases to be a matter of law, it

then becomes a matter of fact for the jury to decide.

37. A rejection of such a plea in bar of trial on the ground of delay

may be open to appeal, in accordance with section 76A of the Criminal

Procedure (Scotland) Act 1975, which provides that

"(1) Without prejudice to any right of appeal under section 228

or 280A of this Act, a party may, with the leave of the court of

first instance ..., appeal to the High Court against a decision

at a preliminary diet; but any such appeal must be taken not

later than 2 days after such decision."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

38. The Commission has declared admissible the applicant's complaint

that the duration of the criminal proceedings against him exceeded a

reasonable time.

B. Point at issue

39. The point at issue in the present case is whether there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

40. The relevant part of Article 6 para. 1 (Art. 6-1) of the

Convention provides as follows:

"In the determination ... of any criminal charge against him,

everyone is entitled to a ... hearing within a reasonable time

by [a] tribunal ...".

(a) The period to be taken into consideration

41. The period to be taken into consideration began with the

applicant's arrest on 22 May 1981 when he was charged, inter alia, with

the attempted murder of his wife. It originally ended on

10 September 1993 when the applicant, having been convicted of assault

on his wife and for failing to appear at his trial, was sentenced to

240 hours of community service and a fine of £1000. However,

subsequently, a procedural irregularity was discovered, upon which the

applicant appealed and the Secretary of State for Scotland referred the

case to the High Court (para. 29 above). The proceedings may be deemed

to have been terminated either when the applicant abandoned his appeal

on 28 April 1994, in which case the period under examination lasted

over 12 years and eleven months, or when the referral procedure closed

on 17 November 1994, in which case the period under examination lasted

nearly thirteen and a half years (para. 30 above).

(b) Reasonableness of the length of the proceedings

42. The Commission refers to its constant jurisprudence in this

field:

"The reasonableness of the length of the proceedings is to be

assessed in the light of the particular circumstances of the

case, regard being had to the criteria laid down in the Court's

case-law, in particular the complexity of the case, the

applicant's conduct and that of the competent authorities ..."

(Eur. Court H.R., Kemmache judgment of 27 November 1991, Series

A no. 218, p. 27, para. 60).

43. The applicant contends that the proceedings against him have not

been conducted within a reasonable time, in violation of Article 6

para. 1 (Art. 6-1) of the Convention. The Government refute this

contention.

(i) Complexity of the case

44. The Commission notes that the Government have not claimed that

the present case was complex. Therefore, the Commission can only

conclude that the case was straightforward and that the element of

complexity is immaterial to this application.

(ii) Applicant's conduct

45. The Government submit that the main reason for the delay in this

case is the applicant's conduct: He failed to appear at his trial, set

for 6 November 1981. He then absconded, either in Scotland or for the

most part abroad, and was untraceable for the period from 6 November

1981 until, at least, 10 January 1991, when he contacted the Procurator

Fiscal's office to ascertain whether proceedings were still outstanding

against him.

46. The applicant refutes the Government's submission. He claims

that his conduct did not affect the length of the proceedings and that

the delay in the case was not his responsibility. He claims to have at

no stage taken steps to avoid arrest on the warrant. He states that he

did not abscond or make himself unavailable. He carried on a high

profile career in the entertainment industry using a stage name known

to his wife, the complainant in the prosecution.

47. His passport uses his real name and records movement between the

United Kingdom and elsewhere where appropriate. He submits that it is

inconceivable that his name and business would not have been known to

the police. Given the nature of the entertainment industry, the

applicant sought and was given publicity in newspapers in Scotland and

other parts of the United Kingdom and Europe. His career required him

to travel about Europe. Consequently, his leaving and re-entering the

United Kingdom would have been known to the prosecuting authorities and

the police who claim, according to the Government, to have made

"extensive enquiries". The applicant passed freely through official

channels out of and into the United Kingdom.

48. The applicant claims that he was always available or could have

been contacted relatively easily had the police or prosecuting

authorities made any reasonable attempt to do so.

49. The Commission notes, on the one hand, that the applicant failed

to appear at his trial and, therefore, was responsible for the initial

delay in the proceedings. Moreover, he has not shown that he was

gravely prejudiced by their length. On the other hand, the Commission

finds that these proceedings are extraordinarily long and that some

compelling justification is needed for the delays. However, the

Government have not convincingly demonstrated that the applicant was

in fact untraceable for the ten year period relied on by them, having

regard to his submissions and the conduct of the authorities, which the

Commission will now consider.

(iii) Conduct of the authorities

50. The applicant submits that the cause of delay in his case lies

in the prosecuting authority's incompetence, as well as in defective

administrative practices without proper records. As a result, the

Government have been unable to establish how and why the proceedings

took so long. An example of the poor handling of the case may be seen

in the instructions sent by the Glasgow Procurator Fiscal's office on

9 November 1981 to the Strathclyde police, which instructions were

confusing and disclosed no sense of urgency. The letter which was sent

made no mention of the serious nature of the substantive charge of

attempted murder against the applicant and gave the impression that the

case was of a summary, minor kind.

51. The applicant makes no admission in respect of alleged inquiries

to trace him, and points out that he lived his life openly and lawfully

until arrested on 26 May 1992. It is averred that even a cursory

inquiry, if competently carried out, could not have failed to locate

him.

52. The Government concede that they have been unable to establish

the following:

- why the arrest warrant of 6 November 1981 on the attempted

murder charge was not immediately issued to the police for

execution by the Procurator Fiscal after the applicant failed to

appear at the High Court hearing of the same day;

- why the Procurator Fiscal instead instructed the police on

9 November 1981 to arrest the applicant without warrant for

failing to appear at the trial;

- why the arrest warrant was not issued to the police until three

years later on 14 November 1984;

- or why the Procurator Fiscal informed the applicant in January

1991 that there were no outstanding proceedings against him.

53. It is also conceded that the Procurator Fiscal did not instruct

the police to check whether the applicant was at his sister's address

when he wrote to the Procurator Fiscal, giving that address, on

10 January 1991. However, the Government contend that the procedures

followed did not delay bringing the applicant to trial. The police made

periodic inquiries with the applicant's relatives and friends, as well

as with the public services, but to no avail. At one point he was

thought to be in the United States of America, but inquiries conducted

with the American authorities proved unsuccessful. For the authorities

concerned, the applicant had clearly absconded and was untraceable.

54. Even if the Procurator Fiscal's failure to pass on to the police

the address given by the applicant in his letter of 10 January 1991

caused any further delay in bringing the applicant to trial, the

Government submit that the 17 month period which followed until his

arrest on 26 May 1992 was insignificant, having regard to the total

period of time involved in this case. Moreover, the Government deny

that this error increased the delay in bringing the applicant to trial,

given the continuing police inquiries and the fact that the applicant

was eventually arrested at his girlfriend's house.

55. The Commission considers that the present case reveals several

incidents of poor administration in the Procurator Fiscal's office for

which no satisfactory record or explanation exists. These incidents,

in the Commission's opinion, contributed considerably to the delay in

bringing the applicant to trial. The Commission is particularly struck

by the fact that, after the applicant's failure to appear for trial,

it took three years for the Procurator Fiscal to issue a warrant for

the applicant's arrest with instructions for its execution, despite the

seriousness of the attempted murder charge against him. It is also

struck by the fact that the applicant was informed by the same office

in January 1991 that there were apparently no outstanding proceedings

against him. This mistake was compounded by a further error in not

notifying the police of the applicant's inquiry that month and, by

implication, his apparent return to the area. Another 17 months went

by before the applicant was arrested. The Commission disagrees with the

Government that such a period may be deemed insignificant in view of

the overall length of the case. Moreover, the Commission notes that no

detailed chronology or description of police or other inquiries have

been submitted to clarify their purported frequency and result.

56. In these circumstances, the Commission considers that the length

of the proceedings in the present case of some 13 years has not been

convincingly justified by the Government. Consequently, the Commission

is of the opinion that the "reasonable time" prescribed by Article 6

para. 1 (Art. 6-1) of the Convention has been exceeded.

CONCLUSION

57. The Commission unanimously concludes that in the present case

there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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DOUGAN v. the UNITED KINGDOM

DOUGAN v. the UNITED KINGDOM

LEXI