Mills (Kenneth Anthony) v HM Advocate (No.2): The Case of the Appeal Hearing Delay

Mills (Kenneth Anthony) v HM Advocate (No.2)
2001 S.L.T. 1359
High Court of Justiciary (Appeal)

Brief Summary:

The appellant was convicted of theft and assault on October 17, 1996 following a trial in the High Court of Justiciary, and sentenced on November 7, 1996, to a total of eight years and six months' imprisonment. After an unsuccessful appeal on other grounds, which the court dismissed on August 10, 2001, the appellant lodged a new ground of appeal that certain delays in the hearing of the appeal had breached his right to a trial within a reasonable time. The court held that the appellant's right to a trial within a reasonable time had been breached, and reduced his sentence by nine months.

 

The Facts:

 

The appellant was convicted of assault inter alia by driving at a police officer and causing him to be thrown from the car, to his injury and danger of life, raised as a devolution issue that his rights under Article 6 of the European Convention on Human Rights had been breached in relation to the subsequent appeal proceedings on the grounds that the proceedings had not been completed within a reasonable time. The accused initially appealed against sentence of eight and a half years' detention in December 1996. In 1997 the appeal was continued to allow fresh evidence to be investigated. In January 1999 the court allowed the new evidence to be heard, and a hearing was fixed for 6 May 1999 when the Crown was granted a continuation. The appellant was then released on bail. Transcripts of the evidence at trial were received at the Justiciary Office in August 1999, and of the speeches in December, but no further hearing took place until 9 May 2001 when the fresh evidence was heard. The following day the appeal was refused. It was on this delay, for which no reason was given, that the appellant challenged.

The Holding:

There was an unexplained delay of over a year between the time the court allowed the appellant's new evidence to be heard and the hearing to decide whether the appellant's appeal would be allowed.  The court held that , given the circumstances of the case, including the time which had already passed, was unreasonable.  The court noted that in considering whether proceedings have been completed within a reasonable time, regard has to be had to the whole period of the proceedings, including any period required for the hearing of an appeal. It is also well established that in considering whether there has been unreasonable delay, any period of unexplained delay may be particularly significant. 

 

An issue arose that, when the appellant appealed. the Lord Advocate was no longer in charge of the case because the appellant had already been convicted.  However, the Crown was still in charge of the case, as evidenced by the fact that it had obtained a discharge of a hearing for further preparation but had failed to intimate when its preparations were complete or to monitor the appeal's progress.  Accordingly, the appellant's Article 6 right to a trial without unnecessary delay had been violated.  However, the appellant's conviction was not quashed as per his request. Instead, his sentence was reduced by nine months, leaving the appellant six months to serve before becoming entitled to parole.

 

Villain?

 

The appellant was convicted of driving a car at a police officer and then tried to have his conviction quashed because of the delay in hearing his appeal, which was substantively rejected.  Villain.