FOURTH SECTION

Application no. 10671/10 Graham GORDON against the United Kingdom lodged on 10 February 2010

STATEMENT OF FACTS

The applicant, Mr Graham Gordon, is a British national, who was born in 1960 and lives in Westhill .

A. The circumstances of the case

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

The applicant was indicted on a charge of rape and two charges of indecent assault. The alleged offences all took place between August and October 2001. The case went to trial before the High Court in Aberdeen on 30 August 2002. During the course of the trial, the Advocate Depute withdrew the first charge of indecent assault and the applicant pleaded guilty to the second.

On 5 September 2002 the jury returned a majority verdict of guilty on the charge of rape. The applicant was sentenced to five years ’ imprisonment. He was released on 13 June 2006.

The applicant applied for leave to appeal on three grounds: first, that his legal representation was defective; secondly, oppression, as the jury had been charged on the basis of the post-incident restatement of the law of rape in Lord Advocate ’ s Reference No. 1 of 2000 2001 JC 143; and thirdly, that there had been prejudicial pre-trial publicity. Each ground was considered at first sift on 20 June 2003. Leave to appeal was refused with the first sift judge giving detailed reasons for his decision. However, at second sift on 23 December 2003 leave to appeal was granted on the defective representation ground only.

At a Procedural Hearing on 30 April 2004 the court allowed the applicant to lodge two “additional” grounds of appeal relating to the adequacy of corroboration and the directions given on mens rea . The new grounds were not made the subject of any sift and proceeded without leave. The permission to lodge additional grounds was interpreted as the grant of leave for these grounds to be argued.

When the appeal proceeded on 29 September 2004, only the additional grounds were argued. The defective representation ground was abandoned on the day of the hearing. The appeal was refused by a court presided over by the Lord Justice General.

The applicant applied to the Scottish Criminal Cases Review Commission (“SCCRC”) on a number of grounds, including most of those already rejected at first or second sift or by the court at the appeal hearing.

In March 2007 the SCCRC decided to refer the case as a potential miscarriage of justice primarily on the basis that the police investigation had been defective in a number of respects; there had been a failure by the Crown to disclose a statement of the complainer; and the SCCRC had uncovered what they regarded as “fresh” evidence.

On 15 June 2007 the applicant lodged his Note of Appeal based upon the SCCRC ’ s report. His grounds of appeal largely reflected those raised by the SCCRC as potentially leading to a miscarriage of justice, namely the failure to disclose the complainant ’ s statement, the “fresh evidence”, and the police ’ s failure to investigate the matter properly. In addition, there was a further ground which concerned an outstanding criminal charge against the complainer.

After the Note of Appeal was lodged, there followed the appointment of twelve Procedural Hearings over a period of two years, during which the appeal process was not advanced at all. The Hearings were preceded by an application to have the evidence, submissions and charge transcribed. That application was granted, even though much of the evidence and the charge had already been transcribed during the initial appeal process and the volumes were with the appeal papers.

The first Procedural Hearing was due to take place on 28 August 2007, but was withdrawn from the Roll because there were flaws in the transcripts received by agents. The next Hearing was set down for 10 October, but it was withdrawn from the Roll because a consultation was needed to discuss the transcripts with the applicant.

The applicant then withdrew his instructions from his legal team. He proposed to represent himself and sought to lodge additional grounds of appeal. Consequently, a Hearing set down for 27 November did not take place. A Hearing set down for 17 January 2008 was also withdrawn when it was said that the applicant had requested the disclosure of documents from the Crown. A Procedural Hearing did eventually take place on 28 February 2008, at which stage new counsel and agents had recently been instructed. A continuation was sought and granted to enable the new representatives to re ‑ visit and, if necessary, re-formulate the grounds of appeal.

A new Hearing was fixed for 29 April 2008, but that was cancelled because recently recovered papers from those who formerly represented the applicant required to be analysed and a consultation arranged. A Hearing on 26 June was also cancelled because the agent dealing with the case had been ill and the work had not been carried out. The next Hearing, which was listed for 5 August, was cancelled because the Crown Office official investigating matters raised by the agents was on holiday. Similarly, a Hearing listed for 10 September was cancelled because “[h] aving reviewed the papers agents have written to the Crown raising a number of matters...[A]gents are still awaiting to hear from Crown Office”. A Hearing on 8 October 2008 was cancelled because agents were still waiting to hear from the Crown Office. On 14 November 2008 a further hearing was cancelled because material requested from the Crown Office had been received and required analyses.

The case called on 28 January 2009. It was stated that substantial material had been made available to the applicant ’ s representatives by the Crown and it was necessary for counsel and agents to scrutinise that material with a view to considering lodging any further grounds of appeal or amending the present grounds. The material had become available on 16 December 2008 and was uplifted by the applicant ’ s representatives on 9 January 2009.

The case was called again at a Procedural Hearing on 24 April 2009. A further continuation of the case to another Procedural Hearing was requested by the applicant ’ s representative, who sought an additional four weeks in which to satisfy himself that the appeal was in a position to proceed. However, in light of the fact that the case had “spent two years languishing amongst Procedural Hearings after a straightforward reference from the Commission on three clear grounds”, the court appointed a Hearing on the grounds lodged two years earlier.

On 18 January 2010 the applicant ’ s legal representatives withdrew from the case because the applicant ’ s instructions were “so much in conflict with [their] responsibilities to the court that the two [could] not be reconciled”. The applicant sought an adjournment but the application was refused.

The day before the Hearing the applicant sought to introduce new material in the form of forensic evidence suggesting that there was strong evidence that the trousers seized by the police were not those worn by the complainer at the material time.

The appeal was heard over three days beginning on 26 January 2010. The applicant represented himself and, as a party appellant, he was permitted to present all the arguments he wished. However, the court ultimately concluded that the appeal hearing had to be restricted to the grounds set out in the original Note of Appeal.

On 6 May 2010 the Appeal Court refused the appeal. In doing so, it considered that the points raised were essentially matters of fact which in the circumstances of the case were unlikely to have made a difference in the jury ’ s deliberations. In particular, the court noted that there had been ample material available at trial which could have persuaded the jury that there was a reasonable doubt about the applicant ’ s guilt, but the jury had had no such doubts. The evidence had fully entitled the jury to reach the verdict they did and there was nothing in the grounds of appeal or otherwise which persuaded the court that a miscarriage of justice had occurred – or might have occurred – in this case.

The applicant applied for leave to appeal to the Supreme Court but permission to appeal was refused.

On 7 May 2011 the applicant applied to the SCCRC for a second review of his case on the basis of the refusal to admit the forensic evidence concerning the trousers worn by the complainer. Following the decision of the Supreme Court in Cadder v Her Majesty ’ s Advocate (Scotland) [2010] UKSC 43 he added a further ground, namely that he had not had an opportunity to consult a solicitor before being interviewed by police officers on 13 August 2001.

On 25 February 2011 the SCCRC notified the applicant that it had decided not to refer his complaints concerning the forensic evidence to the High Court. A supplementary statement of reasons was issued on 30 September 2011. In short, the SCCRC did not find any evidence of a miscarriage of justice.

On 27 January 2012 the SCCRC notified the applicant that it had completed its inquiries and decided not to refer the Cadder complaint to the High Court. The SCCRC accepted that if Cadder had been applied, the applicant ’ s police interview would have been inadmissible. In the absence of any DNA evidence, without the applicant ’ s admission at police interview there would have been insufficient evidence to demonstrate that sexual intercourse had taken place on the date in question between the applicant and the complainer. Consequently, the SCCRC accepted that there may have been a miscarriage of justice in the applicant ’ s case. However, in view of the time that had passed, and the fact that the applicant had not subsequently disputed that he had had sexual intercourse with the complainer, the SCCRC did not consider it to be in the interests of justice to refer the case to the High Court.

B. Relevant domestic law

1. The Criminal Procedure ( Scotland ) Act 1995

a. Right of appeal

Section 106 of the 1995 Act grants any convicted person the right to appeal against conviction or sentence (where such sentence is not fixed by law), provided that the leave of the court under section 107 of the Act has been obtained.

b. The note of appeal and the written report

Section 110(1) of the 1995 Act, as in force at the material time, allowed six weeks for the lodging of a written note of appeal. The note was required to identify the proceedings; contain a full statement of all the grounds of appeal; and be in as near as may be the form prescribed by the relevant rules. The note of appeal is generally lodged on the basis of the issues at trial and after consideration of the trial judge ’ s charge to the jury.

Section 110(4) provided that it was not competent for the applicant to found any aspect of his appeal on a ground not contained in the note of appeal.

Section 110(2) provided that the six-week time limit for lodging the note of appeal could be extended at any time before it expired.

Section 110(1) of the 1995 Act provides that when a convicted person lodges a note of appeal with the clerk, the clerk must send a copy to the judge who presided at trial.

Under section 113 of the 1995 Act:

“(1) As soon as is reasonably practicable after receiving the copy note of appeal sent to him under section 110(1) of this Act, the judge who presided at the trial shall furnish the Clerk of Justiciary with a written report giving the judge ’ s opinion on the case generally and on the grounds contained in the note of appeal.

(2) The Clerk of Justiciary shall send a copy of the judge ’ s report–

(a) to the convicted person or his solicitor;

(b) to the Crown Agent; ...

(3) Where the judge ’ s report is not furnished as mentioned in subsection (1) above, the High Court may call for the report to be furnished within such period as it may specify or, if it thinks fit, hear and determine the appeal without the report.

... ”

c. The sift

Section 107 of the 1995 Act provides, insofar as relevant:

“(1) The decision whether to grant leave to appeal for the purposes of section 106 (1) of this Act shall be made by a judge of the High Court who shall –

(a) if he considers that the documents mentioned in subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing has he considers appropriate; and

(b) in any other case –

( i ) refuse leave to appeal and give reasons in writing for the refusal ...

(2) The documents referred to in subsection (1) above are–

(a) the note of appeal ...

...

(c) where the judge who presided at the trial furnishes a report under section 113 of this Act, that report; and

(d) where, by virtue of section 94 (1) of this Act, a transcript of the charge to the jury of the judge who presided at the trial is delivered to the Clerk of Justiciary , that transcript.

...

(4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days ... , apply to the High Court for leave to appeal.

(4A) The High Court may, on cause shown, extend the period of 14 days mentioned in subsection (4) above, or that period as extended under this subsection, whether or not the period to be extended has expired ...

(5) In deciding an application under subsection (4) above the High Court shall–

(a) if, after considering the documents mentioned in subsection (2) above

and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and

(b) in any other case–

( i ) refuse leave to appeal and give reasons in writing for the refusal ...

(6) Consideration whether to grant leave to appeal under subsection (1) or (5) above shall take place in chambers without the parties being present.

(7) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.

(8) Where the arguable grounds of appeal are specif ied by virtue of subsection (7) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.

(9) Any application by the appellant for the leave of the High Court under subsection (8) above Act–

(a) shall be made not less than seven days before the date fixed for the hearing of the appeal; and

(b) shall, not less than seven days before that date, be intimated by the appellant to the Crown Agent.

... ”

2. The duty of disclosure under Scots law

In the case of McLeod v Her Majesty ’ s Advocate (No. 2) (1998 JC 67), Lord Justice General Rodger (as he then was) held:

“Our system of criminal procedure ... proceeds on the basis that the Crown have a duty at any time to disclose to the defence information in their possession which would tend to exculpate the accused ... Equally ... the Crown will respond to specific requests from the defence for information or for the production of statements or other items where the defence can explain why they would be material to the defence ...

In a system which operates in this way there should for the most part be no need for an accused person to invoke the petition procedure to recover documents whose possible exculpatory effect can be appreciated by the Crown, whether spontaneously or when the defence ask for them. In such a system also it can be expected that the defence will have access to the documents which are material to the preparation and presentation of their case ...

Like others in the past I am conscious of the difficulty of formulating the test which the court should apply when asked to order the production of documents in a criminal case where the charges are set out relatively succinctly and the only formal documents indicating a line of defence will be any transcript of the accused ’ s judicial examination and any special defence or notice of incrimination. I consider, however, that an accused person who asks the court to take the significant step of granting a diligence for the recovery of documents, whether from the Crown or from a third party, does require to explain the basis upon which he asks the court to order the haver to produce the documents. The court does not grant such orders unless it is satisfied that they will serve a proper purpose and that it is in the interests of justice to grant them. This in turn means that the court must be satisfied that an order for the production of the particular documents would be likely to be of material assistance to the proper preparation or presentation of the accused ’ s defence. The accused will need to show how the documents relate to the charge or charges and the proposed defence to them. Such a requirement imposes no great burden on an accused person or his advisers: the averments in the petition may be relatively brief and the court will take account of any relevant information supplied at the hearing.”

In Sinclair v Her Majesty ’ s Advocate ([2005] UKPC D2), the Privy Council considered the position of disclosure in Scots law and the relevant Convention authorities. Lord Hope of Craighead set out the following principles:

“First, it is a fundamental aspect of the accused ’ s right to a fair trial that there should be an adversarial procedure in which there is equality of arms between the prosecution and the defence. The phrase ‘ equality of arms ’ brings to mind the rules of a mediaeval tournament – the idea that neither side may seek an unfair advantage by concealing weapons behind its back. But in this context the rules operate in one direction only. The prosecution has no Convention right which it can assert against the accused. Nor can it avoid the accused ’ s Convention right by insisting that the duty does not arise unless the accused invokes it first. Secondly, the prosecution is under a duty to disclose to the defence all material evidence in its possession for or against the accused. For this purpose any evidence which would tend to undermine the prosecution ’ s case or to assist the case for the defence is to be taken as material. Thirdly, the defence does not have an absolute right to the disclosure of all relevant evidence. There may be competing interests which it is in the public interest to protect. But decisions as to whether the withholding of relevant information is in the public interest cannot be left exclusively to the Crown. There must be sufficient judicial safeguards in place to ensure that information is not withheld on the grounds of public interest unless this is strictly necessary.”

Lord Rodger of Earlsferry added:

“The Crown ’ s article 6(1) duty to disclose evidence in favour of the defence does not ... depend on any request being made by the defence. That duty subsists unless, unusually, it is waived by the defence.”

In that case the Privy Council quashed the convictions, holding that the failure of the prosecution to disclose police statements of witnesses rendered the trial unfair.

In the case of McDonald and others v Her Majesty ’ s Advocate ([2008] UKPC 46), the Privy Council again considered the duty of disclosure in Scottish criminal proceedings. In that case, the defence had requested statements and details of previous convictions of witnesses from the prosecution, contending that no formal specification of documents was required in light of the prosecution ’ s general duty of disclosure. The prosecution declined to provide the documents requested and considered that for recovery of documents in such wide terms, a petition for the recovery of documents should be lodged with, and considered by, the court. The defence lodged petitions for recovery of documents and challenged before the court, by reference to Article 6 of the Convention, the position of the prosecution regarding disclosure.

The Privy Council considered developments in the duty of disclosure in Scotland and the requirements of the Convention. It dismissed the appeals and found the system of disclosure in Scotland , as it operated at the time, to be compatible with Article 6.

An October 2008 version of the prosecutors ’ Disclosure Manual, revised in light of the decision in McDonald and others and available on the website of the Crown Office, provides guidance as to the extent and operation of the obligation of disclosure under Scots law. In particular, the manual sets out the following disclosure principles:

“ The Crown ’ s Principles of Disclosure

1. The Crown is obliged to disclose all material evidence for or against the accused . This relates to statements, but it also relates to all information of which the Crown is aware.

2. ‘ Material ’ means evidence which is likely to be of real importance to any undermining of the Crown case, or to any casting reasonable doubt on it, and of positive assistance to the accused.

3. This legal duty persists in perpetuity. This means that the duty exists during the appeal process, and even where there is no live appeal, for example, where such material comes to the attention of the Crown after conviction, or after an appeal has been refused.

4. Compliance with the duty requires the Crown to disclose all statements of all witnesses on the Crown and defence lists ...

5. Compliance with the duty requires the Crown, without having to be requested to do so , to disclose all previous convictions and outstanding charges for all witnesses on the Crown lists ... , subject to the materiality test and the public interest in protecting the Convention Rights of the witnesses.

6. Failure to disclose material evidence risks a miscarriage of justice. Disclosure carried out properly and timeously ensures that justice is done and prevents unnecessary trials and delay.”

The Criminal Justice and Licensing ( Scotland ) Bill, [passed by the Scottish Parliament and awaiting Royal Assent], codifies and clarifies the duty of disclosure in criminal proceedings.

3. Remedies for delay in legal proceedings in Scotland

As a consequence of section 57(2) of the Scotland Act 1998, in carrying on prosecutions or directing them to be carried on the Lord Advocate, may not act incompatibly with Article 6 § 1 of the Convention. Thus an accused person in Scotland who complains about undue delay in criminal proceedings under Article 6 § 1 may raise a devolution issue against the Lord Advocate under section 57(2) of the Scotland Act 1998 or, alternatively, he may make a complaint against the court as a public authority under the Human Rights Act 1998 (see R. v. HM Advocate [2002] PC D3, per Lord Steyn at paragraph 1). He may also raise civil proceedings in the High Court alleging a violation of section 6 of the Human Rights Act 1998 in the event that he is dissatisfied with the remedy granted by the High Court.

In Mills v HM Advocate [2002] UKPC D1, the court was required to examine whether, following an unreasonable delay in the hearing of an appeal, the reduction in sentence awarded by the High Court provided adequate redress. The Privy Council considered that in light of the express acknowledgement of a violation of the Convention and the extent of the reduction in sentence, there had been adequate redress and the applicant was no longer a victim of any violation.

Lord Steyn noted the available remedies for delay in criminal proceedings (at paragraphs15-16):

“The separate question of the remedies available in respect of a breach of the guarantee of a hearing within a reasonable time must now be considered. The court is entitled to be informed of all factors logically relevant to the appropriateness of the remedy. In a post conviction case, for example, the fact that the accused ’ s guilt was established at trial and that an unmeritorious appeal was dismissed, is undoubtedly a relevant factor in considering what remedy, if any, to grant.

The remedies available could include an order for discontinuance of a prosecution, quashing of the conviction, reduction of the sentence, monetary compensation or a declaration. A finding of a violation of a guarantee may itself sometimes be a sufficient vindication of the right: Eckle v Germany (Just Satisfaction) ( 1983) 13 EHRR 556, 560, para 24 ...”

Similarly in R v. HM Advocate [2002] UKPC D3, the applicant complained of a breach of the reasonable time requirement. Lord Steyn , setting out domestic law, noted (at paragraph 1):

“The result of this scheme is that an accused person in Scotland who complains about undue delay in criminal proceedings under article 6.1, may raise a devolution issue against the Lord Advocate under section 57(2) or, alternatively, he may make a complaint against the court as a public authority under the Human Rights Act 1998.”

On the question of remedies, he explained (at paragraph 11):

“The width of the reasonable time guarantee is relevant to the separate question of the remedies available for a breach. There is no automatic remedy. In this case too the role of the Strasbourg Court is a residuary one. In the Strasbourg Court the only remedies available are therefore declaratory judgments and award of damages. But domestic courts have available a range of remedies for breach of the reasonable time guarantee. In a post conviction case the remedies may be a declaration, an order for compensation, reduction of sentence, or a quashing of the conviction: see Mills v H M Advocate (No 2), 2002 SLT 939, 944, para 16 . In a preconviction case the remedies may include a declaration, an order for a speedy trial, compensation to be assessed after the conclusion of the criminal proceedings, or a stay of the proceedings. Where there has been a breach of the reasonable time guarantee, but a fair trial is still possible, the granting of a stay would be an exceptional remedy.”

The majority of the Privy Council held that in light of the acceptance by the prosecution that there had been unreasonable delay in the case, it would be incompatible with the appellant ’ s right to a determination of a criminal charge against him within a reasonable time for the Lord Advocate to continue to prosecute him on two of the charges of the indictment and, as section 57(2) of the Scotland Act 1998 provided that the Lord Advocate had no power to do an act which was incompatible with the Convention right, the plea in bar of trial should be sustained and the relevant charges dismissed from the indictment.

In Gillespie v. HM Advocate 2003 SLT 210 the appellate court found a breach of Article 6 on length and granted, by way of remedy, a reduction of six months in the punishment part previously imposed by the High Court.

In Spiers v. Ruddy [2008] UKPC D2, the Privy Council once again considered the range of remedies available for breach of the reasonable time requirement. Lord Bingham concluded (at paragraph 16):

“ ... The European Court does not prescribe what remedy will be effective in any given case, regarding this as, in the first instance, a matter for the national court. The Board, given its restricted role in deciding devolution issues, should be similarly reticent. It is for the Scottish courts, if and when they find a breach of the reasonable time provision, to award such redress as they consider appropriate in the light of the Strasbourg jurisprudence.”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that he has not had a final determination of the criminal proceedings against him within a reasonable time because of, inter alia , the lack of any formal disclosure system in Scotland which led to delays in accessing relevant information and the poor administration of his case by the Appeal Court.

The applicant further complains under Article 6 § 1 of the Convention that the domestic courts hearing his case were not independent and impartial because, inter alia , they admitted expert evidence submitted by the Crown and did not admit that submitted by the applicant.

The applicant complains under Article 6 § 3 (c) that he was not legally represented at the hearing in January 2010.

The applicant complains under Article 3 of the Convention that his treatment at the hands of the Scottish courts amounted to inhuman treatment.

He further complains under Article 13 of the Convention that he has no domestic remedy in relation to the delay in his appeal proceedings.

Finally, the applicant complains under Article 14 of the Convention that he was treated differently from others in analogous situations.

QUESTIONS TO THE PARTIES

1. Was the length of the criminal proceedings beginning on 15 June 2007 and ending with the refusal of permission to appeal to the Supreme Court in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

2. Did the applicant have at his disposal an effective domestic remedy for his Convention complaints under Article 6 § 1, as required by Article 13 of the Convention?