Attorney General's Reference No. 2 of 2001

Factual and Procedural Background

A disturbance involving thirty-two inmates occurred in The Prison on 26 April 1998. Police interviews of potential defendants were completed by 1 July 1998 and the file was submitted to Company A (the prosecuting authority) on 27 July 1998. Informations were laid on 11 February 2000 and seven prisoners, including the present “Acquitted Person”, were committed for trial on 16 June 2000 for violent disorder. Trial was listed for 29 January 2001.

At trial, defence counsel argued that the delay violated Article 6(1) of the European Convention on Human Rights (ECHR). The trial judge stayed the indictment on 31 January 2001; when that stay was lifted on 14 March 2001 the prosecution offered no evidence and the defendants were acquitted.

Under section 36 of the Criminal Justice Act 1972 the Attorney General referred two questions of law to the Court of Appeal, which disagreed with the trial judge. A further reference reached the House of Lords, generating the present opinion.

Legal Issues Presented

1. Whether criminal proceedings may be stayed solely because the reasonable-time requirement in Article 6(1) has been violated, even though the accused cannot demonstrate specific prejudice.
2. For the purpose of Article 6(1), when does the “relevant period” begin for calculating whether a criminal charge has been determined within a reasonable time?

Arguments of the Parties

Attorney General’s Arguments

• A stay should be exceptional; violations of the reasonable-time guarantee can normally be remedied by declaration, sentence reduction or compensation.
• The relevant period ordinarily begins when an accused is charged or served with a summons.

Acquitted Person’s Arguments

• A flexible approach is required: if proceeding would amount to an abuse of process, a stay is mandatory; otherwise the court must fashion a proportionate remedy.
• The “relevant period” should usually commence at arrest or detention for interrogation because that is when the individual’s situation is “substantially affected.”

Amicus Curiae Arguments

• Continuation of a prosecution after the lapse of a reasonable time is itself unlawful; therefore a stay is the only lawful course once the breach is shown.

Table of Precedents Cited

Court's Reasoning and Analysis

The House first analysed the nature of the Article 6(1) “reasonable time” guarantee. Distinguishing it from the rights to a fair and public hearing and to an impartial tribunal, the majority (Judge Bingham, Judge Nicholls, Judge Hobhouse, Judge Millett, Judge Scott) held:

• A breach occurs when delay itself exceeds what is reasonable, but that breach does not eo ipso render any future trial unlawful.
• The statutory term “unlawful” in section 6(1) of the Human Rights Act 1998 is a gateway to remedies under section 8; it does not automatically remove prosecutorial power.
• A stay is mandatory only where (a) a fair hearing is impossible, or (b) to try the defendant would be otherwise oppressive or an abuse of process. In most cases delay can be vindicated by lesser measures—declaration, sentence reduction, or damages.
• Commencement of the “reasonable time” period generally coincides with official charge or service of a summons; however, if earlier State action substantially affects the suspect, the period can start sooner.

A minority (Judge Hope and Judge Rodger) dissented, viewing any trial after unreasonable delay as incompatible with Article 6(1) and therefore unlawful under section 6(1), warranting a stay unless a proportionate alternative existed.

Holding and Implications

Holding: (1) A stay is not an automatic consequence of violating the reasonable-time requirement; it is justified only if a fair trial is impossible or if continuation would be otherwise unfair. (2) The relevant period for Article 6(1) typically starts when the defendant is charged or summoned, though it can begin earlier if State action substantially affects the individual.

Implications: The decision affirms a flexible, proportionate remedial approach under the Human Rights Act 1998, limiting use of the stay remedy in England and Wales. Prosecutors remain able to proceed after excessive delay provided lesser measures sufficiently redress the breach, thereby balancing defendants’ rights with the public interest in adjudicating criminal charges.