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IN THE DETERMINATION of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.'
This quotation (italics added) is from the first paragraph of Article 6 of the European Convention on Human Rights, the article being headed 'Right to Fair Trial'. Under the terms of the Convention, any accused person has a right to be tried for the offence alleged against him within a reasonable time. This right can be termed the 'reasonable time guarantee'. A trial which occurs after such a period has elapsed is by definition in breach of Article 6.
Substantial delay
The investigation and prosecution of serious alleged tax fraud by Special Compliance Office, the arm of the Inland Revenue which is responsible for all such prosecutions, is in my experience at least characterised by significant if not massive delay. Whereas in criminal cases involving juveniles, a prosecutor would be called upon to explain a delay of weeks, in tax fraud cases delay measured in years appears to be the norm. The author is currently acting for a sole defendant prosecuted alone for an alleged tax fraud who was arrested and interviewed in 1999. He heard nothing further, until he received a summons by post in late 2003. My experience of acting for other accused in similar circumstances suggests that this history of delay is far from unique.
The focus of this article is to consider whether the guarantee in Article 6 of the Convention is likely to have any impact upon Special Compliance Office prosecutions; furthermore, whether there is now a likelihood that delayed prosecutions in the area of alleged tax fraud will be vulnerable to an effective defence challenge based upon a breach of the Convention.
Domestic law
It must first be understood what the status is in our domestic law of this Article 6 guarantee or indeed, of Convention rights generally. Until the implementation of the Human Rights Act 1998 in late 2000, the Convention had no binding force; its status was that of being a persuasive authority where it did not conflict with any extant domestic law. However, following the advent of the Human Rights Act 1998, Convention rights became binding in the United Kingdom. Section 6 states that 'It is unlawful for a public authority to act in a way incompatible with a Convention right'. Public authority here includes, under subsection (3), any public prosecutor and any court. This legal arrangement must therefore entail the following proposition: that a prosecution by Special Compliance Office in violation of an accused's Article 6 right to trial within a reasonable time is unlawful.
In terms of remedies available to an accused placed in such a situation, section 8, Human Rights Act 1998 provides that the accused may rely for relief on any Convention right in any legal proceedings.
Having grasped this outline of the post-1998 Act position in United Kingdom law, it is important to appreciate how at least potentially this disturbed the pre-existing United Kingdom law concerned with delay in the bringing of criminal prosecutions. Certainly, for many years previous to the incorporation of the Convention under the 1998 Act, English law had recognised the evils of delay and had sought to ameliorate its consequences. Under the common ( i.e. judge-made) law doctrine called 'abuse of process', the courts have been willing to stay or stop prosecutions where there was substantial delay.
In the landmark case of Attorney General's Reference (No 1 of 1990) [1992] 1 QB 630, the Court of Appeal set out the approach to be followed by criminal courts when considering defence complaints of wrongful prosecutorial delay. Summarising this in a later case, Lord Bingham stated, 'If the court were satisfied, before an impending trial, that the prosecution had been guilty of serious delay such as to cause serious prejudice to the accused, to the point that no fair trial could be held, or if the authorities were shown to have acted in such a way as to render any trial of the defendant unfair in the circumstances, further proceedings would be restrained as an abuse of the court's process by imposition of a stay'. (Paragraph 17 of Attorney General's Reference No 2 of 2001 [2003] UKHL 68.)
Although the above is very much a simplified version of the abuse of process jurisdiction concerned with delay, it is sufficient to consider the differences between it and the wording of the reasonable time guarantee that is now part of our law.
Breach of the guarantee
The principal difference is that a breach of the guarantee in Article 6 occurs whenever there has been unreasonable prosecutorial delay. Nothing further is required to establish a violation. In contrast, for a court to find an abuse of process there must be the finding of an additional element, either serious prejudice endangering the fairness of the trial, or pre-trial prosecution misconduct which would make it improper or 'unconscionable' for the trial to be permitted. Describing this difference starkly, whereas Article 6 here holds that justice delayed may be justice denied, the English courts have thought otherwise.
From a defence perspective, the need to establish such an extra element in the face of prosecution delay has often proved the stumbling-block to applications for abuse of process. While the Special Compliance Office delay may not only have been substantial but also unjustifiable, complaints about this lack potency if a court, while expressing sympathy for an accused having to undergo additional suffering as a consequence of protracted delay, does nothing more.
The incorporation of Article 6 was for these reasons greeted with enthusiasm for those acting for accused in Special Compliance Office cases and with deep concern by the Special Compliance Office. If based upon it, delayed prosecutions would be stayed by the courts having found a violation of Article 6 without any proof or even complaint of prejudice or bad faith by an accused, then the vista for Special Compliance Office cases based on historic allegations of tax fraud was appalling.
Court case required
The inter-relationship between the reasonable time guarantee and the pre-existing abuse law on delay required scrutiny by an appellate court. In managing cases and allocating investigative and prosecutorial resources, Special Compliance Office, among other prosecuting bodies, needed to know whether current and future prosecutions might now be in jeopardy owing to the fact that it could be shown that there had been at the time of a defence, complaint, antecedent and unreasonable delay. Such delay, if it had occurred, is incapable of being remedied. It is a violation of Article 6 which cannot be cured by, for example, the exclusion of some evidence or a retrial. If this violation meant that a court would have, under section 6, Human Rights Act 1998, to stay the prosecution altogether, this would have major implications for Special Compliance Office.
Unsurprisingly, a case, Attorney General's Reference No 2 of 2001 [2003] UKHL 68, concerned with this issue found its way quickly to the House of Lords which convened a nine-judge court to hear it. (Normally the House convenes as a five-judge tribunal. The last occasion prior to this case that it convened as a seven-judge tribunal was in the extradition case concerning General Pinochet; only then because it had to quash its previous decision in that case owing to the possible bias of one of the Law Lords who heard it the first time.) The facts of this case are immaterial except to say that at the trial, the judge had agreed to the defence submission that a delay of one year between charge and trial in this case constituted an unreasonable delay. Accordingly, he held that the only way in which the accused's Article 6 guarantee could be upheld and the court act lawfully under section 6, Human Rights Act, was to acquit the accused. The Attorney General disagreed with this finding and sought the opinion of the House of Lords; hence the title of the case.
Two questions
The House decided that there were two questions which needed a conclusive answer. First, what should a trial judge do where it finds that there has been an unreasonable prosecution delay, but in all other respects the trial would be fair? What remedies are available to it in the face of such a violation of the accused's right? Secondly, what as a matter of law ought to be the start-point when the length (and hence the reasonableness) of the delay is being measured?
The decisions of the House on both questions were conclusive. As to the first, it held that the Article 6 guarantee is a right to trial without undue delay; it is not a right not to be tried after undue delay. The House rejected the view that a trial of a criminal charge held in breach of the reasonable time guarantee would be unlawful within the meaning of section 6, Human Rights Act 1998. The awarding of a just and appropriate remedy to an accused for a breach of the guarantee meant that, in accordance with the pre-existing common law position, their trial should only be stayed if, because of the delay, there could no longer be a fair hearing.
It is also apparent that issues of wider policy were at play in the various opinions delivered in this case. These were a fear that the administration of criminal justice and the maintenance of public confidence would be undermined if a breach of the guarantee led automatically to a stay of proceedings. As one legal commentator put it, 'Lord Bingham and his colleagues evidently looked over the precipice and then drew back'.
The House's reply to the second question, i.e. when the length of the delay should start being measured, was that this was when a person was officially alerted to the likelihood of criminal proceedings against him and, in most cases, this meant when a person was either charged or summonsed. Accordingly the event of an arrest, caution interview or even execution of a search warrant would, in most cases, not constitute the start-point for measurement.
This interpretation of the guarantee by the House represents a resounding victory for prosecutors like Special Compliance Office who, for the reasons stated at the beginning of this article, have special cause to be sensitive to any judicial decision concerning prosecutorial delay. Without the presence of serious prejudice caused through delay, Special Compliance Office has, as before, almost a blank cheque to spend as much time as it wishes investigating a target before it decides to initiate a prosecution. Only at that point will the guarantee become relevant and time-limits really become an issue.
Broader interpretation
While the decision of the House is plain as regards the two questions, there remains, however, some latitude or scope for interpretation as regards its answer to the second. Note the qualification of 'in most cases'. Would hostile pre-charge or summons action by Special Compliance Office fall within the exception? Bearing in mind that in R v Gill and Gill [2003] STC 1229 , the Court of Appeal held that any Hansard meeting should be treated as part of a criminal investigation, would this be sufficient now to argue that this should be treated as the start-point?
There is certainly good European Court of Human Rights authority to this effect. In Howarth v United Kingdom (2001) 31 EHRR 37, the Strasbourg court held that a Serious Fraud Office section 2 compulsive interview of H which occurred four months prior to him being charged represented the start of the proceedings. A similar conclusion was reached in Heaney v Ireland (2001) 33 EHRR 12 where H was served with a police notice requiring him to provide an explanation. Both of these recent cases relied on the earlier and much quoted case of Deweer v Belgium (1980) 2 EHRR 439, where the Court held that the meaning of 'charge', this being the start-point for measurement, was when the accused had been 'substantially affected' by the actions of state agents. Clearly substantial affectation is a flexible or fact-sensitive criterion.
Domestically, the case of King v Waldon [2001] STC 822 deals with this point. Here Mr Justice Jacob held that a Hansard interview should be treated as the start-point. However, in the light of the House of Lords speeches, the correctness of this finding may now be in doubt.
Complacent?
Whether Special Compliance Office will overdraw in the sense of becoming complacent about time taken to investigate suspects and so allow years to elapse with minimal activity is something which at present one can only hope will not occur. It does, however, always need to be aware of the power of a court to stay a prosecution if for reasons of policy it was deemed unfair that the accused should be tried. Under this rubric, a judge could find that the delay was so great and unjustified that it amounted to serious misconduct and so a stay was merited.
A stay for this reason would be especially embarrassing to Special Compliance Office, although at present the author is unable to find a single instance of a judge having stayed a prosecution for this reason.
Another human rights case
Finally, it should be noted that soon the European Court of Human Rights will have another opportunity to rule on the effect of a breach of the guarantee: the case of King v United Kingdom Application 13881/02 decided 14 February 2004, i.e. the appeal from King v Waldon, has been declared admissible and furthermore, in a preliminary ruling, the European Court of Human Rights found that a Hansard interview should be treated as the start-point. It will rule later on whether the proceedings in that case were in breach of the guarantee.
This European Court of Human Rights case, however, has the potential to upset the House of Lords decision in Attorney General's Reference No 2 of 2001 .
David Corker is a solicitor at Corker Binning.
