Cunctation

Can the prosecution cure an unreasonable delay in the proceedings against an accused by speeding them up? Or, once the accused’s right to a trial without undue delay is breached, is the only remedy a stay of the proceedings?

A difference in the English authorities on this point was recently resolved by the Privy Council in a devolution case, Spiers v Ruddy (Scotland) [2007] UKPC D2 (12 December 2007).

The resolution of the difference brought the law into line with Strasbourg jurisprudence, by upholding Attorney-General’s Reference (No 2 of 2001) [2003] UKHL 68, and declining to follow R v HM Advocate [2002] UKPC D3.

Accordingly, if it is still possible to hold a fair trial, a stay of proceedings is not the appropriate remedy for undue delay, unless it would be, for any compelling reason, unfair to try the accused. Where neither of these two forms of unfairness are present, the appropriate remedy would be a reduction of sentence or payment of compensation.

The distinction between the forms of unfairness is important. If a person cannot be tried fairly, then he cannot be tried at all: this is axiomatic, as Lord Bingham said at para 15 of Spiers v Ruddy.

The other form of unfairness, not discussed in the case, would presumably be the public policy form of unfairness, which really means that continuation of the proceedings would bring the administration of justice into disrepute. Public policy fairness has broad application. I have mentioned public policy fairness in discussing Simmons v R (Bahamas) 4 April 2006 and Williams v R (Jamaica) 26 April 2006.

Of interest here is the mention of reduction of sentence as a remedy for undue delay. It is possible that reduction of sentence (which, obviously, is only applicable if the case proceeds to sentencing) could be a more widely used remedy for breach of rights. One of the factors that New Zealand’s new Evidence Act 2006 mentions as relevant to the decision whether to exclude improperly obtained evidence is the existence of alternative remedies that can adequately provide redress: s 30(3)(f).