Court/Judicial body: Privy Council
Date: 29 January 2002 CRC
Provisions: Article 1: Definition of a child Article 3: Best interests of the child Article 40: Administration of juvenile justice
Other international provisions:United Nations Standard Minimum Rules for the Administration of Juvenile Justice1985 (The “Beijing Rules”), Rule 20 (Administration of criminal cases against children)European Convention on Human Rights, Article 6 (Right to a fair trial)
Domestic provisions: Book of Regulations, Chapter 16: Children Criminal Procedure (Scotland) Act1995, s65: Maximum period between petition and trial of 12months Case
Case summary
Background: K, a 13-year-old boy, was charged with serious sexual offences against other children in Scotland in 1998. Proceedings were formally brought against him in March 2000, and a court date was set for January 2001, later adjourned to March 2011. While the case was adjourned, K brought proceedings claiming that the delay had breached his right to a trial within a reasonable time under Article 6 of the European Convention on Human Rights.
Issue and resolution: Juvenile justice. The Court held the delay in bringing K to trial to be a breach of the reasonable time requirement, noting that legal matters involving children should be treated with particular urgency.
Court reasoning: The Court found that very little was done to progress the case in the first 10 months after K was charged, and that the prosecution had waited to set a trial date until near the maximum time limit for doing so under Scottish law. K was forced to wait more than 16 months after the day he was charged, and as there did not appear to be adequate justification for not moving the case to trial sooner, it was held that there had been no attempt to treat the case with urgency. In light of international standards requiring that cases involving children be handled without delay, it was clear that K’s rights had been violated.
Excerpt citing CRC and other relevant human rights Lord Bingham [23] In a persuasive address on behalf of JK, Mr Prentice supported the Appeal Court’s holding that there had in this case been a breach of the reasonable time requirement. In interpreting and applying that requirement to proceedings against child [sic] accused, regard should be paid to other international instruments affecting children, among them the United Nations Convention on the Rights of the Child and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”). Article 40(2)(b)(iii) of the UN Convention ens every child accused of crime to trial “without delay”. Rule 20.1 of the Beijing Rules requires that any criminal case against a child shall from the outset be handled expeditiously, without any unnecessary delay. These internationally-agreed statements of good practice should colour the courts’ approach to the reasonable time requirement when applied to child accused. In the present case the Appeal Court’s criticism of Lord Wheatley’s approach was justified and its unanimous conclusion should be upheld. … [61] During this period JK was not in custody. But at the time of the alleged offences he was a child in domestic law, and he is still a young person. I would unreservedly accept the need for cases such as his to be carefully, expertly and sensitively handled, both in interviewing witnesses and in deciding on the best course of action to follow. But the reasonable time requirement in the convention must, when dealing with children, be read in the light of the UN Convention on the Rights of the Child and the Beijing Rules, both of which apply to JK and both of which highlight the need for criminal proceedings, if brought at all, to be prosecuted with all due expedition.
Lord Hope [104] As Lord Reed pointed out in HM Advocate v DP and SM 2001 SCCR 210, 215B, para 11, the Strasbourg court has taken into account the provisions of the following international instruments when considering the requirements imposed by the [European Convention on Human Rights] in relation to proceedings involving juvenile offenders: V v United Kingdom (1999) 30 EHRR 121, 176, para 76. Article 1 of the United Nations Convention on the Rights of the Child 1989 defines a child as a human being under the age of 18 years. Article 40 (2) (b) provides: “Every child alleged as or accused of having infringed the penal law has at least the following guarantees: … (iii) To have the matter determined without delay …” Rule 20 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (“the Beijing Rules”) provides: “Each case shall from the outset be handled expeditiously, without any unnecessary delay.” [105] The United Nations Convention was ratified by the United Kingdom and came into effect on 15 January 1992. Chapter 16 of the Book of Regulations deals with the subject of children in the light of what it acknowledges in para 16.01 as the fundamental rights of the child which are recognised and guaranteed by the [European Convention on Human Rights]. Para 16.18 states that procurators fiscal are required to liaise with the Children’s Reporter in cases against children who are reported for consideration of proceedings and that such liaison should take place as a matter of urgency so as to avoid any unnecessary delay in dealing with these cases. I would endorse the recognition which is given by this paragraph to the fact that the passage of time is likely to be particularly prejudicial where criminal charges are brought against children… [106] Against this background, I would hold that the delay in bringing this case to trial was so excessive as to give rise to a real concern that the respondent’s [right under the European Convention on Human Rights] has been violated and, for this reason, demand an explanation by the prosecuting authorities. I would also hold that the explanations that were offered were insufficient to avoid the conclusion that the delay was inordinate and excessive, and that the guarantee of a trial within a reasonable time has indeed been breached. Lord Rodger [179] As is pointed out in para 16.01 of the Book of Regulations , the United Nations Convention on the Rights of the Child was ratified by the United Kingdom in December 1991 and came into force on 15 January 1992. It was therefore binding on the United Kingdom at all material times. The Book of Regulations notes that, in terms of Article 3 of that convention, in all actions concerning children, including actions in courts of law, the best interests of the child are to be the primary consideration. The passage continues: “This has to be borne in mind when dealing with witnesses or accused under 18 years of age”. Moreover, as Lord Reed pointed out in HM Advocate v DP and SM 2001 SCCR 210, 215B–D, para 11, Article 40(2)(b) of the United Nations Convention provides: “Every child alleged as or accused of having infringed the penal law has at least the following guarantees: … (iii) To have the matter determined without delay …” Similarly, rule 20 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (“the Beijing Rules”) provides that “Each case shall from the outset be handled expeditiously, without any unnecessary delay.” The European Court has taken account of both the United Nations Convention and the Beijing Rules when considering proceedings involving children (V v United Kingdom (1999) 30 EHRR 121, 175–176, paras 72–73). Lord Reed did so too, when dealing with the reasonable time requirement, in DP and SM 2001 SCCR 210, 215B, para 11. [180] Moreover, the directions given by the Lord Advocate to procurators fiscal as to the way they should proceed if they decide, in consultation with the children’s reporter, to retain a case with a view to precognition and reporting to Crown counsel reflect the spirit of the United Nations Convention and the Beijing Rules: “this precognition and reporting should be completed as soon as possible in order that if the matter is ultimately referred to the reporter, the delay in his dealing with it is kept to a minimum. Such cases often involve allegations of sexual abuse or violence by children upon other children” (Book of Regulations, para 16.18). [181] The passages in the Book of Regulations show not just that the Lord Advocate is duly conscious of the obligations imposed by these international agreements, but that he has been particularly concerned to ensure that the precognition and reporting of just this very kind of case should be completed as soon as possible. These international obligations and this direction by the Lord Advocate are relevant to any assessment as to whether the time between charge and trial in this case was reasonable. They amply justify the view that, in making that assessment, the court should treat it as a case which called for more than the usual degree of expedition. As the commentary to rule 20 of the Beijing Rules points out, “As time passes, the juvenile will find it increasingly difficult, if not impossible, to relate the procedure and disposition to the offence, both intellectually and psychologically.” In my view, there is clearly a risk of that happening in the present case where the proceedings have taken so long that the boy of 13 who was charged in 1998 had become a youth of 16 before he was to be tried and, if found guilty, punished. During all that time the matter was hanging over him. In such a situation the delay affects the effectiveness and credibility of the proceedings which the reasonable time requirement exists to promote (DP and SM 2001 SCCR 210, 215G–216A, para 12).
Notes: This case was heard in the Privy Council at the same time as another case regarding reasonable time before trial, but that case did not involve the prosecution of a child.
CRIN Comments: CRIN believes this decision is consistent with the CRC. As noted by the Court, children alleged to be in conflict with the law have the right to have their cases brought to trial without delay under Article 40 of the Convention. As children have a different sense of timing and may experience delays more acutely, legal systems must make every effort to bring proceedings involving children to a swift resolution.
Citation: [2002] UKPC D1 (29 January 2002), [2004] 1 AC 379
Link to Full Judgment:http://www.bailii.org/uk/cases/UKPC/2002/D1.html