FOURTH SECTION

DECISION

Application no . 35863/10 Thomas JUDGE against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 19 November 2013 as a Chamber composed of:

Ineta Ziemele, President, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Zdravka Kalaydjieva, Vincent A. De Gaetano, Paul Mahoney, judges and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 11 June 2010,

Having regard to the partial decision of 8 February 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant , Mr Thomas Judge, is a British national, who was born in 1951. He was represented before the Court by Ms R. Cameron, a lawyer practising in Edinburgh with John Pryde & Co Supreme Court Solicitors.

2. The United Kingdom Government (“the Government”) were represented by their Agent, Mr M. Kuzmicki, of the Foreign and Commonwealth Office.

The circumstances of the case

1. Introduction

3. This case concerns the applicant ’ s trial and conviction for sexual offences and his unsuccessful appeal against conviction. The main complaints concerning the fairness of the trial were declared inadmissible by the Court in its partial decision of 8 February 2011. The remaining complaint in the case concerns the length of the appeal proceedings.

4. The facts of the case, as submitted by the parties, may be summarised as follows.

2. The trial

5. In 2007, the applicant was charged with offences of a sexual nature.

6. Before trial, an application was made by the defence to admit evidence concerning the credibility of one of the three complainers (victims) under section 275 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”). This provides for a series of exceptions to the general prohibition on questioning as to character or sexual history of a complainer in sexual offences.

7. That application was heard and refused by the preliminary hearing judge on 30 August 2007. As stated above, the applicant ’ s complaint based on this decision of the preliminary hearing judge was declared inadmissible by this Court in its partial decision of 8 February 2011.

8. The trial proceeded and, on 17 September 2007, the applicant was convicted by the jury. On 16 October 2007 he was sentenced to seven years ’ imprisonment.

3. The appeal against conviction

9. The applicant appealed against his conviction, inter alia on the ground that the preliminary hearing judge erred in refusing the defence application under section 275.

a. The proceedings before determination of the appeal

10. On 29 October 2007 notice of intention to appeal against conviction and sentence was lodged (in time) by the applicant ’ s representatives, Bell Russell & Co.

11 . On 12 November 2007, upon receipt of the notice, Justiciary Office (that part of the court service responsible for High Court trials and appeals) ordered a transcript of the trial judge ’ s charge (summing up) to the jury.

12. On 29 November 2007, the applicant ’ s agents withdrew from acting and the applicant was unrepresented.

13 . On 3 December 2007 the trial judge ’ s charge was received and sent to the applicant personally since he had at that time no representatives instructed.

14. By 24 December 2007 the applicant was supposed to have submitted his note of appeal but failed to do so.

15. On 31 December 2007 new representatives of the applicant, McClure Collins, wrote to Justiciary Office requesting copies of the papers in the case and collected them on 8 January 2008. However, as no written decision had been issued by the preliminary hearing judge in respect of the section 275 application (and thus there was none that could be sent to the new representatives), the new representatives applied for an extension of time to lodge the note of appeal, which was granted. The note of appeal was submitted on 2 April 2008.

16 . On 10 April 2008, Justiciary Office requested the trial judge ’ s report on the trial. The trial judge was on leave for two weeks but the report was prepared. It was received by Justiciary Office on 21 May 2008 and sent to the parties.

17 . On 26 May 2008 the sift judge (that is, a single judge sitting alone to determine whether leave to appeal should be given) indicated that the appeal could not be dealt with on the papers currently available and that he needed to see a copy of the section 275 application which the applicant had made before trial. He had indicated that it would be appropriate to obtain a report from the preliminary hearing judge. The preliminary hearing judge was suffering from a terminal illness and, on 5 June 2008, Justiciary Office was advised that he was not well enough to prepare the report.

18 . On 7 June 2008, the sift judge granted leave to appeal against conviction so as not to delay the proceedings by waiting for the preliminary hearing judge to be well enough to prepare his report. The sift judge noted that, as the date for the appeal hearing approached, enquiry should be made as to whether it would be possible for the preliminary hearing judge to provide a report.

19. A procedural hearing was fixed for 22 July 2008 to determine whether the parties were ready to proceed to a full hearing. By letter dated 18 July 2008 the applicant ’ s representatives gave notice that the appeal was ready to proceed and that half a day would be required to hear it. The applicant ’ s representatives proposed dates between 6 October and 31 December 2008. Given that the parties were ready to proceed, the procedural hearing was administratively withdrawn and the court directed that a date for the appeal hearing be set for after 6 October 2008.

20. On 15 August 2008, in response to a query from the applicant ’ s representatives as to the possible hearing date, Justiciary Office advised that efforts were being made to obtain additional resources to hear criminal appeals and that the hearing in the applicant ’ s case was likely to be fixed at the end of the year. On 16 October 2008, again in response to a query from the applicant ’ s representatives, Justiciary Office indicated that the hearing was likely to be in January or February 2009.

21. On 20 January 2009, the applicant ’ s representatives, McClure Collins, withdrew from acting.

22 . On or about 9 February 2009, Justiciary Office set a hearing date for 7 April 2009. It also wrote to the preliminary hearing judge requesting his report within four weeks.

23. On 17 February 2009, the applicant wrote to the court asking for the appeal hearing to be adjourned since he wanted to appoint new representatives and submit additional grounds of appeal. A letter from the prospective new representatives, BCKM, was sent to Justiciary Office indicating that they were considering representing the applicant. On 23 February 2009 the Lord Justice General (the head of the judiciary of Scotland) refused the applicant ’ s request for an adjournment, noting that he, the applicant, had appeared to have given instructions to new representatives, and that they should be advised of the date of the appeal hearing so that they could decide whether an adjournment was necessary.

24 . By 3 March 2009 the preliminary hearing judge ’ s report had been received and sent to the parties.

25. On 9 March 2009 BCKM confirmed that they would represent the applicant. Two weeks later, the applicant sought an adjournment of the appeal hearing in order to obtain a psychological report, which might result in additional grounds of appeal. This was on the basis that the need for a report had been raised with the applicant ’ s representatives at trial, but a report had not been obtained and thus his representation at trial might have been defective. The Lord Justice General refused that request finding that the parties had indicated in July 2008 that the appeal was ready to proceed, that the previous representatives had withdrawn two months ago and that there was no basis for the allegation of defective representation at trial.

b. The hearing of the appeal

26. When the appeal hearing commenced on 7 April 2009, the applicant again asked for an adjournment for the same reasons as he had previously given in his request to the Lord Justice General. Having heard counsel ’ s explanation that the adjournment was necessary, the court granted that adjournment.

27. By 9 June 2009 no further grounds of appeal had been lodged and Justiciary Office fixed another appeal hearing for 1 September 2009.

28. The appeal was heard on that day. No psychologist ’ s report was produced by the applicant and no reference made to any proposed grounds of appeal based on defective representation at trial. However, in the course of the appeal, counsel for the applicant indicated that the applicant might wish to lodge a further ground of appeal concerning the correctness of a part of the trial judge ’ s charge to the jury. This was based on a similar point which the Appeal Court was due to hear in a different case, Heggie v. HM Advocate , on 23 September 2009. This concerned the appropriate direction to a jury as regards intent in sexual offences cases involving children. The court allowed the applicant to lodge any proposed additional grounds of appeal with reference to the Heggie case. The applicant did so on 3 September 2009.

29. The Appeal Court issued its judgment dismissing the appeal in Heggie on 11 December 2009.

30. On 3 December 2009, the Appeal Court fixed a procedural hearing in the applicant ’ s case for 9 December 2009 to consider his additional grounds. On 7 December 2009 the applicant requested an adjournment as his counsel was not available. That request was granted and another hearing fixed for 15 December 2009. At the hearing on 15 December 2009, since the Heggie judgment had now been delivered, the Appeal Court refused the applicant leave to amend his grounds of appeal.

c. The dismissal of the appeal

31. The Appeal Court issued its decision dismissing the applicant ’ s appeal on 18 December 2009. It found inter alia that, although errors had been made by the preliminary hearing judge in his consideration of the section 275 application, no miscarriage of justice had occurred.

COMPLAINT

The applicant complains the appeal proceedings violated the “reasonable time” requirement in Article 6 § 1 of the Convention.

THE LAW

A. The parties ’ submissions

1. The Government ’ s submissions

32 . The Government submitted first that the applicant had failed to exhaust domestic remedies. He could have taken the following steps to have obtained redress before the domestic courts:

- He could have sought an early date for the hearing of his appeal.

- He could have sought interim liberation (release on bail) pending the outcome of the appeal.

- At the appeal hearing, he could have requested the Appeal Court to make a finding that the reasonable time requirement of Article 6 § 1 had been violated. This would have allowed the Appeal Court, when dismissing the appeal, to have reduced his sentence.

- He could have sought damages under section 7 of the Human Rights Act 1998.

- He could have sought review of the appeal proceedings by the Scottish Criminal Cases Review Commission.

33. The Government then submitted that, in any event, the complaint was inadmissible because it was manifestly ill-founded. In their view, the majority of the delay in the appeal proceedings was a result of the applicant ’ s actions. He had changed legal representatives twice. The appeal had begun as a relatively straightforward one (turning on correctness of the preliminary hearing judge ’ s rulings) and had become complex as a result of the applicant intimating that he wished to rely on new, further grounds of appeal, most of which never materialised. His note of appeal was lodged thirteen weeks out of time, and six months after conviction and sentence. No explanations had ever been given for the delay and this could not be attributed only to the change in representation. The proceedings were also prolonged by the applicant seeking three times to have the hearing of 7 April 2009 adjourned. The first two requests were refused and the third was only granted by the court to accommodate the applicant and allow him time to obtain a psychologist ’ s report and to prepare additional grounds of appeal. No report was ever produced and no additional grounds were ever submitted. When the appeal was heard on 1 September 2009 the applicant sought and was given leave to submit an additional ground based on the Heggie case. Although this could have been raised sooner by the applicant, it nonetheless was dealt with properly and promptly by the court and the opinion of the court dismissing the appeal was handed down just over two months after the appeal hearing.

34. The Government accepted that there was a lapse in the proceedings between July 2008 and 9 February 2009. However, this had been caused principally by the need to obtain a report from the preliminary hearing judge and any delay incurred there was a result of his poor health. All hearings in the case had been set promptly, precisely because, in the period concerned, extra resources had been devoted to the hearing of appeals (the number of days the Appeal Court sat increased from 189 days in 2007 to 377 days in 2009). For instance, in June 2009, within a month of the first hearing date being discharged, when it became apparent that no further grounds of appeal would be lodged, a new hearing date was set for 1 September 2009. The hearing dates for the additional, “ Heggie ” point were set within a few weeks in December 2009.

35. Finally, though the appeal had been of great importance to the applicant, he had made no complaint of delay during the proceedings, or any application for release pending the hearing of the appeal. The appeal was, in any event, unsuccessful on the merits, and the reasoning of Appeal Court had been confirmed in this Court ’ s partial decision of 8 February 2011 declaring his substantive complaints inadmissible as manifestly ill-founded.

36. Further , the Government reiterated that there were domestic remedies for delay, beyond simply a reduction in sentence (see paragraph 32 above). They also did not accept that any appreciable delay had occurred either from the failure to give written reasons for the section 275 ruling before trial, or as a result of the preliminary hearing judge ’ s subsequent illness: both the trial and the appeal had moved forward in the absence of those reasons. As regards information management, the Justiciary Office had promptly provided all documentation to the applicant ’ s successive representative whenever requested.

2. The applicant ’ s submissions

37. The applicant submitted that there were no effective remedies available to him in respect of the length of the appeal proceedings. He had abandoned his appeal against sentence so he could not benefit from a reduction in sentence on account of excessive delay in the appeal proceedings. It was clear from domestic case-law, particularly the Beggs case, that complaints of delay had to be made as part of an appeal against sentence (see paragraph 20 of the Appeal Court ’ s judgment in Beggs , quoted at paragraph 148 of this Court ’ s judgment in that case). There was also no real possibility that the Appeal Court would entertain a reference back to it by the Scottish Criminal Cases Review Commission, especially when it had already heard and determined the appeal.

38. On the merits of his complaint, the applicant recalled there that was a duty on Contracting States to organise their judicial systems to meet heavy workloads ( Majarič v. Slovenia , no. 28400/95, § 39, 8 February 2000). In Scotland, there was no requirement for judges to give written reasons for important rulings in criminal proceedings; had there been, the delay caused by the need to obtain a report from the preliminary hearing judge as to his ruling on the section 275 application would not have occurred. There was also no proper system of information management in the Scottish courts. Finally, there was nothing in the Government ’ s submissions which displaced responsibility for the delay from the domestic courts to the applicant.

B. The Court ’ s assessment

39. The Court considers it unnecessary to rule on the Government ’ s preliminary objection in respect of exhaustion of domestic remedies since, in any event, it considers the applicant ’ s complaint to be manifestly ill ‑ founded. Its reasons for that conclusion are as follows.

40. The applicant ’ s complaint concerned the length of the appeal proceedings only. Although the parties have made no submissions as to the exact period to be taken into consideration, the Court considers that the relevant period started on 29 October 2007 (when the notice of intention to appeal against conviction and sentence was lodged) and ended on 18 December 2009 (when the Appeal Court dismissed his appeal). The proceedings therefore lasted two years, one month and twenty days.

41. The reasonableness of the length of these appeal proceedings is to be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, what was at stake for the applicant and the conduct of the applicant and of the relevant authorities (see Beggs , cited above, § 234).

42. This was not a particularly complex case. At trial, following the preliminary hearing judge ’ s ruling on the section 275 application, the main issue was whether the jury would believe the evidence of the complainers or that of the applicant. On appeal, the core issue was whether, on the facts of the case, the preliminary hearing judge had erred in his handling of the section 275 application and, if so, whether a miscarriage of justice had occurred. This did raise an important point of law, but once it had received the preliminary hearing judge ’ s report, the Appeal Court was able to deal with the issue comparatively shortly. The Court therefore agrees with the Government that this was a relatively straightforward case. As to the Government ’ s submission that it was made complex by the applicant, this is best considered as part of the Court ’ s assessment of the conduct of the parties.

43. In terms of what was at stake for the applicant, the Government have accepted that the appeal was of great importance to him. They have, however, submitted that the length of the proceedings had no drastic effect on him. They submit that this was because he failed to complain of the delay or to request release pending the hearing of the appeal, and because the Appeal Court dismissed his appeal and this Court then rejected his substantive complaint in respect of the section 275 question.

44. The Court is unable to accept these submissions. Although it may well have been open to the applicant to complain of the delay during the proceedings, this is more relevant to the issue of effectiveness of domestic remedies rather than it is to the issue of what was at stake for the applicant. As to the possibility of release pending the hearing of the appeal, this too is a matter of the effectiveness of domestic remedies for delay and, in any event, the Government have not provided any evidence that such a request was likely to have been granted. Finally, the fact that an appeal is ultimately dismissed has no bearing either on the question of what is at stake for the applicant or on whether the proceedings are unreasonably long: appellants in criminal proceedings have a right to have those proceedings concluded within a reasonable time irrespective of whether the appeal is meritorious or not.

45. However, in the Court ’ s view, it is clear that the responsibility for much of the delay lay with the applicant. His note of appeal was submitted thirteen weeks out of time, causing a delay in proceedings from December 2007 to April 2008. As the Government have noted, this delay cannot be attributed solely to his first change in legal representation, since there seems to be no reason why his initial representatives could not have lodged the note of appeal while they still had conduct of the case. When the applicant changed representation a second time, after a hearing date had been set for 7 April 2009, he sought on three occasions to have the proceedings adjourned, either to instruct new representatives or submit additional grounds of appeal. When the Appeal Court finally acceded to the applicant ’ s request it was to allow the preparation of a psychologist report and further grounds of appeal, neither of which ever materialised. That request caused a further delay of five months from April to September 2009.

46. By contrast, the Appeal Court and Justiciary Office appear to have acted promptly throughout most of the proceedings. Once the notice of intention to appeal was lodged, the transcript of the trial judge ’ s charge was ordered and received promptly (paragraphs 11 and 13 above). So too was the trial judge ’ s report on the trial (paragraph 16 above). When the latter was received, the sift judge acted promptly both in identifying the need for a report from the preliminary hearing judge on the section 275 application and, when it became apparent that this was going to be difficult to obtain, in granting leave to appeal so as not to delay the proceedings by waiting for the preliminary hearing judge to be well enough to prepare his report (see paragraphs 17 and 18 above). It was also commendable that, despite suffering a terminal illness, the preliminary hearing judge was able to prepare his report within a one month of being asked to do so by Justiciary Office in February 2009 (paragraphs 22 and 24 above). His illness also partly explains the delay of nearly nine months in the proceedings between 18 July 2008 (when the applicant ’ s representatives gave notice that the appeal was ready to proceed) and 7 April 2009 (the first date which was set for the appeal hearing). The Court also accepts the Government ’ s explanation that, during this time, efforts were made to expedite the hearing of criminal appeals by allocating additional judicial resources to that task. In any event, had a hearing date been fixed for sooner than 7 April 2009 it is likely that it would been adjourned, either to allow the preliminary hearing judge more time to prepare his report or to allow the applicant to prepare the additional grounds of appeal that he considered introducing once the 7 April 2009 hearing date had been agreed. Similarly, the Court is satisfied that, once a new hearing date was set for 1 September 2009, the case proceeded with reasonable expedition. It was appropriate at the conclusion of the hearing to allow the applicant to formulate further grounds of appeal, based on the pending Heggie case and, since that case was decided just over two months after the hearing in the applicant ’ s c ase, this only caused a brief ‑ but entirely proper – delay in the proceedings. Finally, it is of some significance that the Appeal Court ’ s written judgment dismissing the applicant ’ s appeal was handed down within three days of the final procedural hearing in the case and within three and a half months of the substantive hearing of 1 September 2009.

47. In light of the above, the Court is satisfied that the appeal proceedings did not exceed the reasonable time requirement in Article 6 § 1. Accordingly, the applicant ’ s complaint under this head (the only remaining complaint in the case), is therefore manifestly ill-founded and must be rejected under Article 35 §§ 3(a) and 4 of the Convention

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

             Françoise Elens-Passos Ineta Ziemele Registrar President