Reasonable time, cross-border investigations and fair trials

No time for Christmas festivities at the Times, clearly, as it published an important judgment of the Privy Council on Boxing Day 2008. 

In Burns v HM Advocate, Advocate General for Scotland intervening [2008] UKPC 63 the issue was one of delay incompatible with the right to a fair trial within a reasonable time under Article 6(1) ECHR.  The accused, who lived in Scotland, had been arrested and interviewed in February 2003 by police officers in England.  They had told him there was sufficient evidence to charge him with child pornography offences in either England or Scotland.  He eventually appeared on petition in the latter jurisdiction in December 2004 and was indicted to stand trial there.  The Privy Council held that the reasonable time began to run from the date of the interview in England rather than from the notification of charges in Scotland, overturning the earlier decision of the High Court of Justiciary and Sheriff Mitchell in Glasgow Sheriff Court.  There was no decision on whether the delay in the case was unreasonable,

Giving the judgment of the Judicial Committee, Lord Rodger of Earlsferry said that the case was a good example of the public interest requirement that authorities on either side of the border should cooperate as much as possible, with the minimum formality, in the investigation and prosecution of crime.  It would be highly artificial to treat the actions of the prosecuting authorities in Scotland as if they were divorced from earlier events and particularly the actions of the officers from the unit in England. 

The case is also notable for the appearance on the Committee panel of Lady Cosgrove, who gives a concurring judgment emphasising the significance to be attached to substance over form in the determination of reasonable time under Article 6(1) ECHR.  Since Lord Hope of Craighead was also on the panel, this meant that three of the five judges were Scottish, a further indication of the extent to which since devolution the Privy Council has become a third-tier court in the Scottish criminal justice system.