PROCEDURE

The case originated in two applications (nos. 41516/10 and 75702/13) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two British nationals, Mr Charles Bernard O’Neill and Mr William Hugh Lauchlan (“the applicants”), on 15 July 2010 and 28 November 2013 respectively.

The first applicant was born in 1962 and is currently detained in HMP Glenochil in Scotland. He was represented by McClure Collins Solicitors, a firm of solicitors practising in Glasgow. The second applicant was born in 1976 and is currently detained in HMP Edinburgh in Scotland. He was represented by Fitzpatrick and Co, a firm of solicitors practising in Glasgow. The United Kingdom Government (“the Government”) were represented by their Agent, Mr P. McKell of the Foreign and Commonwealth Office.

The applicants’ complaints concerning the length of their criminal proceedings were communicated to the Government on 13 November 2012 and 17 December 2012 respectively.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The initial investigation

On 16 February 1998 R.M. reported his ex-wife, A.M, missing.

On 24 February 1998 police carried out an initial forensic investigation of an apartment which A.M. and her son had shared with the applicants in June 1997, the date she had last been seen.

An Interim Missing Persons report was prepared by police and submitted to the Procurator Fiscal on 1 May 1998, with later reports following on 31 August 1998 and 8 September 1998.

On 30 June 1998 police obtained a search warrant in respect of the apartment A.M. had shared with the applicants. However, a full forensic examination of the property does not appear to have disclosed any relevant evidence.

On 18 August 1998 the applicants were sentenced to periods of imprisonment of eight years’ and six years’ respectively following their conviction for various sexual offences. The complainer in relation to some of those offences was A.M.’s son. Following conviction, both applicants were placed on the Sexual Offenders’ Register.

By September 1998 A.M.’s disappearance was being referred to by the Procurator Fiscal at Kilmarnock as “suspicious” and Crown Counsel described the police inquiry into her disappearance as a “murder inquiry”. On 14 September 1998 the police sought authorisation for the release of the applicants from HMP Peterhead into their custody so that they could be interviewed with regard to the disappearance and suspected murder of A.M.

On 17 September 1998, while serving their sentence at HMP Peterhead, the applicants were detained by the police under section 14 of the Criminal Procedure (Scotland) Act 1995 and removed to Queen Street Police Office in Aberdeen. On the same day the applicants were interviewed separately by police officers for over five hours. During these interviews they were directly accused of the murder of A.M. Both applicants asked police officers if they were going to be charged with the murder, but received indications to the contrary. Following the interviews, neither applicant was arrested or charged with any offence owing to insufficient evidence. They were therefore returned to prison to continue serving their respective sentences.

By November 1998 no progress had been made in finding A.M. and the police inquiry was scaled down. A full Missing Person Report was submitted to the National Missing Persons Bureau at New Scotland Yard (London). The case was continued as a live enquiry and periodic reviews were conducted by police.

The applicants were released from custody on licence on 22 May 2003 and 18 January 2002 respectively. They both travelled to Spain without notification, thereby breaching the terms of their parole licence in contravention of the Sex Offenders Act 1997. The Scottish Executive subsequently revoked their licences.

In April 2004 the applicants were arrested in Spain in connection with the apparent abduction of a fourteen year old boy. They were returned to the United Kingdom, where they were recalled to prison to serve the unexpired portion of their licence periods.

On 10 November 2004 both applicants appeared on indictment in respect of offences contrary to the Sex Offenders Act 1997. They pled guilty and on 4 April 2005 they were sentenced to a further three years’ imprisonment, which was reduced on appeal to eighteen months.

B. The charges

Between 1 and 4 April 2005 a decision was made by the Procurator Fiscal, following consultation with Crown Counsel, to place both applicants on petition in relation to the murder of A.M. The Crown’s position was that A.M. had threatened to report the applicants to the police after discovering that they were sexually abusing her son. The applicants’ had subsequently killed her and disposed of her body.

On 5 April 2005 the applicants were charged with the murder of A.M. and with concealing and disposing of her body in an attempt to pervert the course of justice. They appeared on petition at Kilmarnock Sheriff Court were they were committed for further examination and remanded in custody.

The police continued to pursue their investigation and enquiries.

On 6 June 2005 the Crown Office provisionally fixed a preliminary hearing date for 12 September 2005. That hearing date was set aside as the first applicant lodged a “devolution minute” (see paragraphs 51-52 below) relating to a potential violation of the reasonable time guarantee contained within Article 6 § 1 of the Convention. On 14 October 2005 the Sheriff Court held that the devolution minute had been raised prematurely as no indictment had been served. On 7 December 2005 the High Court dismissed the first applicant’s appeal against that decision and refused him leave to appeal to the Judicial Committee of the Privy Council.

Meanwhile, a Proof of Life report was produced on 18 November 2005 (supplemented on 5 January 2006), which concluded that A.M. had been dead since approximately June 1997.

In late 2005 Crown Counsel had concerns regarding the sufficiency of evidence against the second applicant. Although the evidence against the first applicant was stronger, the understanding that the applicants had acted together would have made a trial against the first applicant only very difficult. Therefore, on 19 December 2005 the Crown decided to take “no proceedings meantime” (see paragraph 49 below) with regard to the 2005 petition.

Following reviews of the case in February and March 2006, Crown Counsel instructed that no new additional material had come to light which would justify reconsideration of that decision. However, the decision would remain under periodic review.

Pursuant to sections 65(1)(a) and (1A) of the Criminal Procedure (Scotland) Act 1995, a trial had to take place within twelve months of the accused’s first appearance on petition in respect of the offence, although this period could be extended either within the twelve-month period or retrospectively (see paragraph 48 below). The twelve-month period for bringing proceedings expired on 4 April 2006 and the Lord Advocate did not seek an extension of time. On 26 April 2006 the applicants were informed that there would be “no proceedings meantime”.

By November 2006 both applicants had served the custodial element of their earlier criminal sentences and were released from prison. They both travelled to live in Spain for a period before returning to the United Kingdom in November 2007.

The police continued to conduct periodic reviews of the decision to take “no proceedings meantime” in respect of the 2005 petition. Furthermore, Central Scotland Police formed “Operation Aspen”, the objective of which was to look for evidence both of further sexual offending by the applicants, and of their involvement in the disappearance of A.M.

As a result of Operation Aspen, new evidence came to light concerning the circumstances of A.M.’s disappearance and the applicants’ sexual offending. Consequently, on 9 September 2008 Crown Counsel concluded that there had been a material change in the prospects of securing a conviction against both applicants on the murder charges contained in the earlier 2005 petition.

C. The indictment

On 10 September 2008 the applicants were served with an indictment which contained the same charges as the 2005 petition. It also contained a number of additional charges relating to various sexual offences.

The second applicant lodged a devolution minute on 15 September 2008 in which he argued that certain missing evidence would have a prejudicial impact on the fairness of his trial.

The following day the first applicant lodged a devolution minute, arguing that he could not receive a fair trial within the meaning of Article 6 owing to the significant delay which had occurred in his case.

On 10 October 2008 a preliminary hearing was held at the High Court in Glasgow where further preliminary notices and devolution minutes were served on behalf of both applicants. The Crown also made an application under section 65(3)(a) of the Criminal Procedure (Scotland) Act 1995 for a retrospective extension of the twelve-month time-limit contained within section 65(1) of that Act (see paragraph 48 below).

Between 4 November 2008 and 20 February 2009 there were a number of preliminary hearings in respect of the Crown’s application for an extension. Following the hearing on 20 February 2009 the application was granted. The High Court found that the Crown had acted properly in investigating and reviewing the evidence between 1997 and 2008; that the expiry of the section 65 time-limit had come about through a positive decision rather than through inadvertence; and that new evidence had since come to light so as to allow the Crown to proceed against both applicants. Although the applicants were granted permission to appeal, their appeal was refused on 5 June 2009.

At a preliminary hearing on 29 June 2009 the High Court allowed motions by the applicants to separate the murder charges from the sexual offences charges. The first applicant also argued that the murder charge against him should be dismissed for reason of delay. However, the court refused to dismiss the charge, finding, inter alia, that proceedings had begun on 5 April 2005; that the “reasonable time” permitted by Article 6 had not been exceeded; that the fairness of the upcoming trial had not been jeopardised; and that there was no other compelling reason why it would be unfair to proceed to trial.

The first applicant appealed against the decision not to dismiss the charge against him. The Lord Advocate brought a cross-appeal against the decision to separate the charges.

Both appeals were dismissed on 26 November 2009. In dismissing the first applicant’s appeal, the Appeal Court accepted that the police had interrogated him “robustly” in 1998, but agreed with the High Court that he was not “charged” until 5 April 2005. The court considered that the Crown had acted without fault since that time, and, in the particular circumstances of the case, it could not be said that the matter would not be determined within a reasonable time.

The Appeal Court and the Supreme Court refused the first applicant leave to appeal on 26 November 2009 and 22 February 2010 respectively.

Further preliminary hearings took place between January 2010 and May 2010 in respect of various petitions and minutes lodged by the applicants.

D. The applicants’ trials

1. Sexual offences

The applicants’ trial for the sexual offences took place between 19 April 2010 and 13 May 2010. On 12 May 2010 the applicants were convicted on numerous counts and sentenced to periods of imprisonment ranging from eight to ten years to run concurrently. Both applicants unsuccessfully sought to appeal against conviction and sentence.

2. Murder

The murder trial began at the High Court in Glasgow on 17 May 2010 with the Crown leading evidence from over fifty witnesses.

On 4 June 2010 the second applicant addressed the Court on his devolution minute dated 15 September 2008 (see paragraph 27 above). The High Court dismissed the minute as the arguments advanced by the second applicant related to unreasonable delay and not to missing evidence (which was the argument raised in the original minute). The second applicant did not appeal the decision.

On 10 June 2010 a jury convicted the applicants of murder and attempting to pervert the course of justice. They were sentenced to life imprisonment for murder, with a tariff of thirty years for the first applicant and twenty-six years for the second applicant. They were also sentenced to concurrent sentences of eight years imprisonment for attempting to pervert the course of justice.

E. The appeal against conviction and sentence

The applicants appealed against conviction and sentence. The first applicant lodged a Note of Appeal on 2 September 2010, containing numerous grounds and sub-grounds on a wide range of issues regarding all the charges. The sifting judges granted him leave to appeal against his sentence for murder, but not against his conviction. The second applicant lodged a Note of Appeal on 27 August 2010. On 3 February 2011 leave to appeal was refused by the judge at first sift. On 4 July 2011, following the second sift, leave to appeal against conviction was granted though restricted to two grounds relating to alleged errors by the trial judge. The second applicant was also granted leave to appeal against sentence.

The applicants subsequently applied under section 107(8) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) for leave to reinstate grounds which the sifting judges had found to be unarguable, including those relating to the length of proceedings.

An oral hearing took place on 8 November 2011. On 8 February 2012 the Appeal Court granted the first applicant leave to appeal against his conviction on one ground only, which alleged an error by the trial judge. The second applicant was refused leave to appeal on the grounds raised.

The applicants sought leave to appeal to the Supreme Court against the Appeal Court’s refusal to grant leave to appeal on the additional grounds.

On 19 April 2012 the Appeal Court granted both applicants leave to appeal on the issue of undue delay. The court also granted the first applicant permission to appeal against his conviction on another ground alleging apparent bias on the part of the trial judge.

A hearing took place on 29 and 30 April 2013 before the Supreme Court, which gave judgment on 13 June 2013. The main issue before the Supreme Court was whether the applicants could be said to have been “charged” on 17 September 1998 or whether the appropriate “starting point” for the purposes of Article 6 § 1 was 5 April 2005. The court assessed the evidence in light of the relevant case-law of the domestic courts and of this Court. In doing so, it distinguished the applicants’ case from that of Ambrose v. Harris [2011] UKSC 43, in which the Supreme Court accepted that an appellant, who was complaining that there had been a breach of his right to legal advice under Article 6 § 1, had been “charged” following his caution by police in connection with the alleged offence. The Supreme Court observed that as the “fair trial” guarantee under Article 6 was distinct from the “reasonable-time” guarantee it had to be approached separately. Therefore, the fact that the applicants had been subjected to questioning on 17 September 1998 that might have affected their right to a fair trial did not mean that this was the relevant “starting point” for determining whether proceedings had been conducted within a “reasonable time”. The court concluded that the correct “starting point” in the applicants’ proceedings was 5 April 2005 and the case was remitted to the Appeal Court.

The Appeal Court dismissed the first applicant’s appeal against conviction and sentence on 27 March 2014, and the second applicant’s appeal on 19 June 2014.