Killers win human rights ruling over Scottish court delays, but no damages
Two convicted murderers have won a ruling in the European Court of Human Rights that the length of the proceedings against them in the Scottish courts infringed their article 6 right to a fair trial within a reasonable time, but have been awarded nothing in respect of a claim for damages of £350,000.
Charles O’Neill and William Lauchlan were convicted in 2010 of the murder in 1997 of Allison McGarrigle, with whom they had shared an apartment, to prevent her reporting their abuse of a young boy. They were first interviewed over her disappearance and suspected murder in 1998, while serving other sentences, but neither was then charged or arrested due to insufficient evidence.
Charges were brought against them in April 2005 for the murder and for concealing and disposing of the body. However, concerns remained over insufficiency of evidence until, after periodic reviews of the case, new evidence came to light which led to the two being indicted in September 2008. A further 20 months elapsed until their trial, during which they lodged a number of motions and appeals arguing that they could not receive a fair trial owing to the significant delay which had occurred, all without success.
The trial took place between May and June 2010, and ended in their conviction for murder and attempting to pervert the court of justice. Between June 2010 and June 2014 the applicants lodged appeals against their conviction and sentence as well as ancillary appeals, including a complaint under article 6. These were finally dismissed in March 2014 (O’Neill) and June 2014 (Lauchlan).
For the United Kingdom it was argued that both accused had failed to accept their guilt or to assist the authorities with any investigation. The case against them had presented police with a challenging and complex enquiry, which was continually reviewed and saw numerous lines of enquiry pursued, leading to a gradual but significant development of the evidential landscape against the accused. Furthermore, the main witness, the son of the deceased, suffered from profound psychological issues arising from sexual abuse suffered at the hands of the applicants, and it took some time for him to fully cooperate with the authorities.
The applicants contended that the length of the proceedings should be measured from 1998; the Government argued for 2005. The seven judge court ruled that it was not necessary to decide the issue as, even assuming that the period was taken to have commenced in April 2005, the court was satisfied that the resulting overall length of the proceedings could not be regarded as compatible with the requirement of a “trial within a reasonable time” under article 6(1). In any event the lapse of time between September 1998 and April 2005 was not the result of a lack of diligence on the part of the authorities.
On the basis that 2005 was the starting point, the proceedings lasted almost nine years for the first applicant and just over nine years and two months for the second applicant. Although they were not remanded in custody at any point, the court accepted that what was at stake was significant.
Such a long duration called for "convincing justification" by the respondent state. The court took account of the applicants' conduct and of the complexity of the case, but considered that, although there were "no specific incidents of outright dilatoriness attributable to the Scottish prosecuting and judicial authorities, there were certain stages of the proceedings which were protracted (most notably, the passage of almost four years from the date the applicants lodged their notes of appeal against conviction and sentence and the date those appeals were finally determined)".
Although it accepted that the applicants’ own actions greatly contributed to that delay, "in view of the need for diligence triggered by the significant lapses of time both between the commission of the offence and the laying of charges, and between the laying of charges and the applicants’ conviction becoming final, the court considers that the overall length of the proceedings... was excessive and failed to meet the reasonable time requirement".
However it held that the finding of a violation constituted adequate just satisfaction in respect in any possible non-pecuniary prejudice sustained by the applicants. It awarded €4,500 to the applicant O’Neill for costs and expenses.