Attorney General's Reference (No 2 of 2001)

The House considered two questions referred under section 36 of the Criminal Justice Act 1972 concerning the effect and timing of the Article 6(1) "reasonable time" guarantee. It held that breach of the reasonable time requirement does not automatically require termination of criminal proceedings; a stay will be appropriate only if (a) a fair hearing is no longer possible, or (b) for any compelling reason it is unfair to try the defendant. The court also held that, for Article 6(1) purposes, the relevant period ordinarily begins at the earliest time the defendant is officially alerted to the likelihood of prosecution, which in England and Wales will normally be the date of formal charge or service of a summons.

This reference arose under section 36 of the Criminal Justice Act 1972 after a Crown Court trial judge stayed proceedings for alleged breach of the Article 6(1) reasonable time requirement; the stay was subsequently lifted and the defendants were acquitted when the prosecution offered no evidence. The Attorney General referred two points of law: (1) whether proceedings may be stayed for breach of Article 6(1) where the accused cannot demonstrate prejudice from delay, and (2) when the relevant time period begins for Article 6(1).

Nature of the reference: two points of law on the interpretation and remedial effect of Article 6(1) of the European Convention and of the Human Rights Act 1998.

Issues framed:

• whether a finding that a criminal charge was not heard within a reasonable time requires as a matter of law that proceedings be stayed or dismissed even where there is no shown prejudice to fairness of trial; and
• when the Article 6(1) period ordinarily commences — for example, at arrest, first interview, charge or service of summons.

Reasoning and outcome: the House undertook a principled examination of Article 6(1) and the Human Rights Act 1998. It distinguished the separate guarantees within Article 6(1) (fair/public hearing, within reasonable time, independent and impartial tribunal) and concluded that the harm caused by delay lies in the delay itself and is not cured by subsequently holding a fair trial. Nonetheless, the court rejected the proposition that every breach of the reasonable time guarantee requires automatic termination of proceedings. Under section 6(1) and section 8(1) of the Human Rights Act 1998 the domestic court must afford a remedy that is just and appropriate (for example, public acknowledgement, expedition, release on bail, reduction of sentence or compensation), and a stay or dismissal is only appropriate where a fair hearing is no longer possible or it would otherwise be unfair to try the defendant. On the second point, the House adopted the Strasbourg approach: the relevant period ordinarily runs from the earliest official notification that a person will be prosecuted or otherwise from the point the person's situation has been substantially affected — in England and Wales usually the date of charge or service of a summons.

The judgment emphasised the court's remedial discretion under section 8 of the Human Rights Act 1998 and reconciled domestic remedial mechanisms with Strasbourg jurisprudence, while recording and distinguishing contrary Privy Council authority in HM Advocate v R.

Issues determined. The House held that: (1) criminal proceedings may be stayed for breach of the Article 6(1) reasonable time requirement only where (a) a fair hearing is no longer possible, or (b) it would for any compelling reason be unfair to try the defendant; otherwise a lesser remedy under section 8(1) of the Human Rights Act 1998 (such as acknowledgment, expedition, bail, reduction of sentence or compensation) will ordinarily be appropriate. (2) The Article 6(1) period commences at the earliest time the defendant is officially alerted to the likelihood of criminal proceedings against him, which in England and Wales will ordinarily be when he is charged or served with a summons. The court based its reasoning on Article 6(1), the Human Rights Act 1998 (notably sections 6 and 8), and Strasbourg jurisprudence and explained why automatic termination would be inappropriate in most cases.

Reference made by the Attorney General under section 36 of the Criminal Justice Act 1972; the Court of Appeal (Lord Woolf CJ, Wright and Grigson JJ) gave judgment on 2 July 2001 ([2001] EWCA Crim 1568; [2001] 1 WLR 1869) and did not approve the trial judge's stay; following further consideration and related Privy Council authority (notably Dyer v Watson and HM Advocate v R) the points were referred to the House, which delivered the present opinions resolving the two legal questions.