Attorney General's Reference No 2 of 2001 (On Appeal from the Court of Appeal (Criminal Division))

A breach of the reasonable-time guarantee in article 6(1) occurs when a criminal charge is not determined within a reasonable time. It does not, by itself, make a later, otherwise fair trial unlawful.

Proceedings may be stayed only where a fair hearing is no longer possible or a compelling reason makes it unfair to try the defendant. A stay is exceptional and inappropriate where a lesser remedy would vindicate the right. The remedy must be effective, just and proportionate, taking account of the stage and circumstances of the proceedings.

Time begins at the earliest point when the defendant is officially alerted to the likelihood of criminal proceedings. In England and Wales this will ordinarily be upon charge or service of a summons.

Following a serious prison disturbance, seven prisoners were charged with violent disorder. The trial judge held that the delay in bringing them to trial violated article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and stayed the proceedings. The stay was later lifted, the prosecution offered no evidence and the defendants were acquitted.

The Attorney General referred two questions of law to the Court of Appeal under section 36 of the Criminal Justice Act 1972. In Attorney General's Reference (No 2 of 2001) [2001] EWCA Crim 1568, [2001] 1 WLR 1869, the court rejected any general rule requiring a stay and held that time ordinarily began upon charge or service of a summons. It referred both questions to the House of Lords.

The issues were when the article 6(1) period began and whether breach of the reasonable-time requirement could justify staying a prosecution where the delay had caused no trial prejudice.

1. Disposition. The appeal was dismissed. The House answered the questions substantially as the Court of Appeal had done. The first point was determined by a majority of seven to two. The second point was unanimous.

2. Nature of the breach. Per Lord Bingham of Cornhill, in the leading speech, article 6(1) creates separate rights, including rights to a fair hearing and to determination within a reasonable time. The consequences of violating those rights need not be identical. Lord Nicholls, Lord Steyn, Lord Hoffmann, Lord Hobhouse, Lord Millett and Lord Scott supported the controlling conclusion. A failure to determine a criminal charge within a reasonable time breaches the reasonable-time guarantee. The vice lies in the accrued delay, however, rather than in holding a later trial which remains fair. Continuing the prosecution in those circumstances is therefore compatible with article 6(1) and is not unlawful under section 6(1) of the Human Rights Act 1998.

3. Stay and remedy. Per Lord Bingham, a stay is required where delay has made a fair hearing impossible or where, for another compelling reason, it would be unfair to try the defendant. The latter category includes serious bad faith, unlawfulness or executive manipulation, but is not confined to those matters. Such cases will be very exceptional. The public interest in determining criminal charges means that a stay must not be granted where a lesser remedy would adequately vindicate the right.

   Under section 8(1) of the Human Rights Act 1998, the remedy must be effective, just and proportionate. Before trial it may include acknowledgement of the breach, expedition or bail. After trial it may include acknowledgement, a reduced sentence or compensation. A conviction should not be quashed merely because of delay where the hearing was fair and it was not otherwise unfair to try the defendant.

4. Starting point. Per Lord Bingham, with the agreement of every member of the House, time begins when the defendant is first officially alerted to the likelihood of criminal proceedings. Formal charge or service of a summons will ordinarily be the starting point in England and Wales. Arrest or an interview under caution will not ordinarily suffice, although an official indication that a person will be reported for prosecution may do so, depending on the circumstances.

5. Dissent on the first point. Lord Hope and Lord Rodger considered that trying a defendant after unreasonable delay would itself violate article 6(1). They nevertheless considered that section 8(1) gave the court discretion to select a just and appropriate remedy. A stay would therefore be available without proof that a fair trial was impossible, but would not be automatic.

1. House of Lords: In Attorney General's Reference No 2 of 2001 [2003] UKHL 68, the House dismissed the appeal and answered both referred questions substantially as the Court of Appeal had done.
2. Court of Appeal (Criminal Division): In Attorney General's Reference (No 2 of 2001) [2001] EWCA Crim 1568, [2001] 1 WLR 1869, the court held that a stay would not ordinarily follow from delay without prejudice and that time would ordinarily begin upon charge or service of a summons. It referred the questions to the House under section 36(3) of the Criminal Justice Act 1972.
3. Crown Court: The trial judge stayed the prosecution because of delay. The stay was later lifted, the prosecution offered no evidence and the defendants were acquitted.