FOURTH SECTION

DECISION

Application no . 10671/10 Graham GORDON against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 26 March 2013 as a Chamber composed of:

Ineta Ziemele , President, David Thór Björgvinsson , Päivi Hirvelä , Ledi Bianku , Vincent A. De Gaetano, Paul Mahoney, Faris Vehabović , judges,

and Lawrence Early , Section Registrar ,

Having regard to the above application lodged on 10 February 2010,

Having regard to the declaration submitted by the respondent Government on 17 December 2012 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Graham Gordon, is a British national who was born in 1960 and lives in Westhill . He was represented before the Court by Mrs R. Cameron of John Pryde & Co., a firm of Solicitors practising in Edinburgh .

2. The United Kingdom Government (“the Government”) were represented by their Agent , Ms A. Swampillai of the Foreign and Commonwealth Office.

3. The applicant complained under Articles 3, 6 § 1, 6 § 3(c), 13 and 14 of the Convention about his treatment by the Scottish courts.

4. His complaint concerning the length of domestic proceedings was communicated to the Government .

THE LAW

5. The applicant complained, inter alia , about the length of domestic criminal proceedings. He relied on Article 6 § 1 of the Convention.

6. After the failure of attempts to reach a friendly settlement, by a letter of 17 December 2012 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out this part of the application in accordance with Article 37 of the Convention.

7. The declaration provided as follows:

“1. The Government of the United Kingdom accept that, in the particular circumstances of this case, there has been a breach of the ‘ reasonable time ’ requirement of Article 6 § 1 of the Convention.

2. The Government do so in the following circumstances.

- The appellant ’ s case was referred by the Scottish Criminal Cases Review Commission to the Criminal Appeal Court in March 2007. The appellant had been convicted in September 2002.

- The appeal was characterised by Lord Carloway , in his opinion issued in April 2009, as ‘ a straightforward reference from the Commission on three clear grounds ’ : [2009] HCJAC 52, para.18. The case had been thoroughly investigated by the Commission: ibid, para 17.

- Between the lodging of the Note of Appeal in June 2007 and April 2009 twelve procedural hearings were fixed. Many of these were cancelled at the request of the appellant. The appeal made no apparent progress: ibid.

- During this period the appellant made requests to the Crown for additional disclosure beyond the disclosure which had already been made to him. At the time the law relating to disclosure in the context of appeals in cases which had predated the decisions of Holland 2005 1 SC (PC) 28 was awaiting clarification by the Judicial Committee of the Privy Council in McDonald v. H.M. Advocate 2010 SC (PC) 1. The decision of the High Court in McDonald had been issued in December 2007: 2008 SLT 144 and the decision of the Judicial Committee was issued in October 2008. After the decision of the Judicial Committee pending appeals in such cases were reviewed from the point of view of disclosure. In the present case, this resulted in additional disclosure in accordance with the terms of the Judicial Committee decision in McDonald being made in January 2009.

- Following Lord Carloway ’ s opinion of April 2009, the appeal diet took place in January 2010. The appeal was refused in May 2010.

3. In spring 2008, the office of the High Court of Justiciary identified an increase in the number of outstanding appeals against conviction. When planning the Appeal Court programme for 2009 it was recognised that there was a backlog of appeals against conviction. Throughout 2009 and 2010 two Criminal Appeal Courts sat continuously with a view to dealing with that backlog. The number of days that the Criminal Appeal Court sat each year to hear appeals against conviction increased from 189 days in 2007 to 377 days in 2009. In addition, the Lord Justice General appointed four administrative judges to support the efficient management of court business, one of whom (Lord Carloway ) was appointed to deal with appeals against conviction.

4. The Government draw the attention of the Court to material changes in the law and practice relating to criminal appeals and to disclose which have been implemented since the determination of the applicant ’ s appeal.

4.1 There have been reforms to appeal procedure in the High Court of Justiciary since the determination of the applicant ’ s appeal. In particular:-

a. Rule 15.15A of the Act of Adjournal (Criminal Procedure Rules) 1996, which came into force on 1 November 2010, required that, ordinarily, an appellant must within 42 days of the granting of leave to appeal, lodge a case and argument inter alia , setting out, for each ground of appeal, a succinct and articulate statement of the facts founded upon and the propositions of law being advanced, as well as an estimate of the duration of the appeal. The case and argument must be signed by counsel or the solicitor advocate instructed to represent the appellant or by the appellant where he intends to conduct the appeal himself.

b. Practice Note No. 2 of 2011 states that where a written case and argument is lodged, the Court will ordinarily fix a procedural hearing and that the Court will ordinarily fix the date and time for the substantive hearing of the appeal at the procedural hearing.

4.2 The law on disclosure in the context of criminal appeals in Scotland was clarified in October 2008 , when the Judicial Committee of the Privy Council issued its decision in McDonald v. H.M. Advocate 2010 SC (PC) 1. Since the determination of the applicant ’ s appeal , the law on disclosure generally (including on appeals) has been put on a statutory footing: Criminal Justice and Licensing ( Scotland ) Act 2010 , Part 6. Section 121 states the general duty of the prosecutor t o disclose information. Section 133 provides specifically for disclosure in the context of appellate proceedings and requires the prosecutor to review all information of which the prosecutor is aware that relates to the grounds of appeal in the appellate proceedings and , insofar as required by that section , to make further di sclosure: see also sections 134– 138. There is provision for the Court to rule on di sclosure requests: sections 139 –140. There are a variety of ancillary provisions regarding disclosure.

5. In light of the above, and in the particular circumstances of the applicant ’ s case, the Government offer to pay the applicant the amount of EUR 3,600 (three thousand six hundred Euros) to cover any and all pecuniary and non-pecuniary damage as well as any costs and expenses, to be paid in pounds sterling into a bank account nominated by the applicant within three months from the date of the striking-out decision of the Court pursuant to Article 37 of the Convention. This payment will constitute final settlement of the applicant ’ s case.”

8. By a letter of 29 January 2013 the applicant indicated that he was not satisfied with the terms of the unilateral declaration because it did not address his complaint in respect of Article 13 of the Convention. However, this complaint was not communicated to the Government.

9. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part thereof out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application” .

10. It also recalls that in certain circumstances, it may strike out an application or part thereof under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

11. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey , [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o . v. Poland ( dec .) no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec .) no. 28953/03).

12. The Court has established in a number of cases its practice concerning complaints about the violation of the right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 ‑ ... .; Majewski v. Poland , no. 52690/99, 11 October 2005; and Wende and Kukówka v. Poland , no. 5 6026/00, 10 May 2007).

13. Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)).

14. In light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine ).

15. The Court understands that the amount offered by the Government in the unilateral declaration should be converted into pounds sterling at the rate applicable at the date of payment , and paid within three months from the date of notification of the Court ’ s decision is sued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period , simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.

17. The Court has also examine d the complaints under Articles 3, 6 § 3(c), 13 and 14 but finds, in the light of all the material in its possession and in so far as the matters complained of are within its competence, that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

For these reasons , the Court:

1. Takes note of the terms of the respondent Government ’ s declaration under Article 6 § 1 of the Convention regarding length of proceedings and of the modalities for ensuring compliance with the undertakings referred to therein;

2. Decides by a majority to strike the part of the application which concerns the length of the civil proceedings out of its list of cases in accordance with Article 37 §§ 1 (c) of the Convention;

3. Declares unanimously the remainder of the application inadmissible.

Lawrence Early Ineta Ziemele Registrar President