(292) DELAY, PROSECUTION AND HUMAN RIGHTS: AN ANGLO-SCOTTISH DIFFERENCE OF VIEW
The House of Lords issued its judgment in Attorney General’s Reference No 2 of 2001  UKHL 68 on 11 December 2003. By a majority of 7-2 (the minority being the Scots Law Lords, Lords Hope and Rodger, while the majority are all English judges), the court disagreed with the Scottish Privy Council decision in HM Advocate v R 2003 SC (PC) 21, itself a decision by a majority of 3 (consisting of the Scots judges Lords Hope, Rodger and Clyde) to 2 (consisting of the English judges Lords Steyn and Millett), and one which also over-ruled decisions of the High Court of Justiciary at first instance (2001 SLT 1366 – Lord Reed) and as the Court of Criminal Appeal (2002 SLT 834).
The issues were (1) whether criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in Article 6(1) ECHR in circumstances where the accused cannot demonstrate any prejudice arising from the delay; and (2) when in the calculation of a reasonable time does the time start to run? HMA v R held that the answer to (1) was Yes for Scotland, on the basis that section 57(2) of the Scotland Act 1998 says that the Lord Advocate has no power” to act in a way incompatible with a Convention right; but the majority in Attorney General’s Reference No 2 of 2001 holds that the answer is No for England and Wales. On the second point