Undue delay in criminal cases: The Scottish and South African courts’ response

• Jurisdiction: South Africa
• Citation: 2003 Acta Juridica 139
• Date: 15 August 2019
• Pages: 139-159
• Published date: 15 August 2019

Undue delay in criminal cases: The Scottish

and South African courts’ response*

ESTHER STEYN**

University of Cape Town

‘Time rushes by and yet time is frozen. Funny how we get so exact about time

at the end of life and at its beginning. She died at 6:08 or 3:46, we say, or the

baby was born at 4:02. But in between we slosh through huge swatches of

time-weeks, months, years, decades even.’

1

I INTRODUCTION

If we consider the rules governing civil or criminal matters, it is evident

that time fulf‌ils an important function in most legal systems all over the

world. Much depends, for example, on the lapse of time between the

issuing and serving of a legal document; or bringing a matter to trial

before the prescription period of the offence; or disposing of a matter

without it being unduly delayed. Despite varying practices which

regulate these processes that are all concerned with a period of time, we

f‌ind that time itself is neither specif‌ied nor def‌ined as a standardised unit in

most criminal justice systems. Nevertheless, courts are expected to

determine whether a criminal matter has been unduly or unreasonably

delayed without being given a yardstick by which to measure it. In some

cases it is crucial to determine the starting point from which the time

period should be calculated. Should one begin the calculation when an

accused person is charged or start counting from the f‌irst day of

appearance in court? It is essential to analyse these questions in order to

consider the approaches adopted by the courts in South Africa and

Scotland in deciding whether a matter has been unduly or unreasonably

delayed, in circumstances where time is not standardised.

Why should we look specif‌ically at the systems of these two countries?

The answer is simple. First, both Scotland and South Africa recently

adopted human rights laws that impact drastically on their criminal justice

systems and secondly, the way trials are conducted in both countries.

Furthermore, both countries have ‘mixed’ legal systems, ref‌lecting

inf‌luences from ‘Civilian’ and ‘Anglo-American’ systems and facing

similar challenges in the criminal justice sphere. In this chapter the

*The f‌inancial assistance rendered by the University of Cape Town and the University of

Aberdeen in support of the research on which this article is based is gratefully acknowledged.

Opinions expressed and conclusions arrived at are, however, those of the author and should not

be attributed to the aforementioned institutions.

**Senior Lecturer, Department of Criminal Justice, University of Cape Town.

1

R Andrews et al The Columbia World of Quotations (1996).

139

2003 Acta Juridica 139

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different responses of the two systems to the notion of undue delay will be

examined and specif‌ic attention will be paid to the shortcomings of each

system.

II SCOTLAND

It would be fair to say that most Scottish criminal law and procedure

has in the past been predominantly judge-made law with a peculiar

Scottish f‌lavour.

2

The criminal process in Scotland afforded substantial

protection to accused persons through the Scottish Criminal Procedure

Act

3

long before any of the human rights legislation came into operation.

4

Since delays involve the handling of matters before they reach court, it is

important to note that in Scotland the decision to prosecute in criminal

matters, for practical purposes, lies in the hands of the Crown.

5

The role

of the police in Scotland is restricted as far as the investigation is

concerned. What is expected of the police is to report the facts to the

Procurator Fiscal and then to receive instruction from him for the further

investigation of the crime.

6

Absolute control over the proceedings is

exercised by the Crown. It is the Lord Advocate, or the Procurator Fiscal,

acting on his behalf, that have the discretion to decide whether an offence

is suff‌iciently grave to justify the use of solemn procedure

7

or whether a

summary procedure

8

will be followed. Despite comprehensive protec-

tion afforded to accused persons in criminal trials, constitutional changes

and hence constitutional protection only came about in 1999.

On 20 May 1999, s 44(1)(c) of the Scotland Act 1998 came into force

in terms of which the Lord Advocate became a member of the Scottish

executive. By virtue of s 57(2) of the Scotland Act 1998, he has no power

to do any act that is incompatible with any of the Convention rights

def‌ined in s 1 of the Human Rights Act 1998, unless the act in question

2

M C Meston et al The Scottish Legal Tradition (1991) 25.

3

Criminal Procedure (Scotland) Act 1995 (c 46) that governs criminal proceedings.

4

Buchanan v McLean 2000 SLT928 at 934 the views held by Lord Prosser with regard to the

earlier concerns of the courts: ‘. . . Scots law prior to the Convention, one was concerned with

the principles of substantial justice, and with a practical risk of real unfairness.’

5

Generic terms for the state prosecution authorities in Scotland include the Lord Advocate,

the Crown Off‌ice and the Procurator Fiscal Service.

6

Meston et al (n 2) 27.

7

Solemn procedure refers to a trial, on indictment, before a judge and jury of 15 persons

who will decide upon the guilt or innocence of an accused person.

8

A summary procedure refers to a trial heard before a judge, sheriff, magistrate or lay

justice, but most importantly, without a jury. The decision to indict is always one for Crown

Counsel, not the Procurator Fiscal, but the Fiscal may decide to delay initiating summary

proceedings by placing the accused on a Petition Warrant, which is usually the f‌irst step in a

solemn procedure.

140 CRIMINAL JUSTICE IN A NEW SOCIETY

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