HER MAJESTY'S ADVOCATE v. D.P. AND S.M.

[1] At this preliminary diet I have been invited on behalf of each of the accused to dismiss the indictment against them. The submission made on their behalf is that by virtue of section 57(2) of the Scotland Act 1998 the Lord Advocate has no power to prosecute the case against them since to do so would be incompatible with their right under Article 6(1) of the European Convention on Human Rights:

"In the determination... of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time..."

The Advocate Depute on the other hand maintains that the case is capable of being brought to trial within a reasonable time in terms of Article 6(1).

[2] The material facts are not in dispute. The indictment charges the accused jointly with the rape of the complainer on 11 March 1999. There is also a separate charge against the second accused, alleging a separate assault upon the same complainer on the same date and at the same locus . No mention however was made in argument of that charge. At the time of the alleged offences, the first accused was aged 13 years and five months. The second accused was aged 13 years. The complainer was aged 14 years and four months.

"As a matter of common-sense and ordinary experience it is unrealistic to expect that all cases should progress towards trial at the same speed. Each makes its own particular demands in regard to preparation. Some cases are subject to the imperative created by the fact that the accused is remanded in custody. Others have features which call for special expedition. Pressure of business may lead to proceedings taking longer than they would otherwise have done".