Monday, January 12, 2009

Getting on with it

Does either party, prosecution or defence, have an obligation to find the quickest way through the legal labyrinth?

The defence may complain of breach of the right to trial within a reasonable time, although in the course of the proceedings it took such legal objections as were available to it (eg objections based on lack of jurisdiction). Is the defence to blame for the time taken up in deciding such issues?

The defence might agree to a course that is not the quickest. For example, it may agree to have an issue of confiscation decided by the trial judge rather than the most immediately available judge. Or it may fail to seek severance from a co-defendant, when severance could have led to quicker resolution. Is the defence to blame for these sorts of delay?

If the state has done all it can to expedite proceedings, does that render all delay reasonable?

In Bullen and Soneji v United Kingdom [2009] ECHR 28 (8 January 2009) the Chamber applied (58) its established approach of assessing reasonableness of delay by reference to the complexity of the case, the conduct of the parties, and what was at stake for the defendant. These were confiscation proceedings, and were to be treated for this purpose as analogous to sentencing (applying Crowther v. United Kingdom, no. 53741/00, §§ 24 and 25, 1 February 2005).

Here the jurisdictional point had been particularly difficult, and the House of Lords had overruled the Court of Appeal. The Chamber summarises the House of Lords reasoning at 30. It was not a point that needed to be considered by the Chamber, but essentially it concerned the consequences of a statutory limitation on commencement of confiscation proceedings, and the distinction between mandatory and directory requirements, and between (for the latter) purely regulatory directory requirements (where breach never invalidates subsequent action) and other directory requirements (where the consequences of breach depend on whether there was substantial compliance with the requirement).

The Chamber held (62) that neither party was to blame for the appeal delay in this case.

The defendants could not be criticised for agreeing to have the trial judge determine the confiscation issue (64), and failure by the defendants to press for early determination or to seek severance did not absolve the state from its obligation to deal with cases within a reasonable time (65, citing Crowther, above). The defendants could not be blamed for the time it took judges to hear the confiscation argument and to reach decisions, or for the time between the lodging of the appeal to the Court of Appeal and delivery of that Court's decision (67, 68). The Chamber also noted (at 69, and seemingly in contradiction to para 62) the two year delay between the Court of Appeal's certification of the point of appeal and the House of Lord's judgment on that appeal. This latter may be an illustration of the kind of delay for which the state will not normally be responsible unless – as apparently here – the delay was inherently unreasonable.

The apparent contradiction between paras 62 and 69 disappears once it is remembered that it is not only the parties who are involved: the state is responsible for compliance with the defendant's right to a hearing within a reasonable time.

The Chamber noted that what was at stake for the defendants was serious (70): further imprisonment in default of payment of substantial sums, after the sentences of imprisonment had been served, and over 5 years since the convictions were entered, where payment was more difficult that it would have been without the delay.

The delay here was held to have been in breach of the art 6§1 right to a hearing within a reasonable time. An argument that the proceedings were unfair was dismissed.

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