Criminal court: Thom bar still applies

Spring is here!

Amid all the gloom and doom on a number of fronts, I detect the green shoots of recovery from an unlikely location.

Thom and its aftermath

After a series of High Court decisions on a variety of topics like s 275 of the Criminal Procedure (Scotland) Act 1995 and Moorov, some of which could best be described charitably as post-modern, it was a joy to wake up one day recently and find that Thom v HM Advocate 1976 JC 48 is still good law.

I still remember my tutor fiscal (do they have such things nowadays?), the late Hugh Annan, travelling to Forfar to face a debate in the sheriff court. Indictment proceedings were raised against Thom four months after the local PF, Sandy Ingram had written to his solicitor that, after an earlier appearance on petition on the same charge, he was taking the matter no further and he could uplift his bail from the sheriff clerk – the nominal money bail which was the thing in those days (good riddance).

A plea in bar of trial had been lodged that the prosecutor had disclaimed the process. This was refused by the sheriff and after trial Mr Thom was sentenced to two years for embezzling £1,174 while town clerk at Brechin.

The conviction was appealed, and a full bench of Lord Justice General Emslie, Lord Justice Clerk Wheatley, Lords Cameron, Johnston and Kissen (an eminent, experienced and diverse group) had no difficulty in holding that the statement by the local fiscal constituted an unequivocal and unqualified announcement on behalf of the Lord Advocate that he had decided not to exercise his right of prosecution and was like a motion in court to desert the case simpliciter.

In light of that decision, instructions were given to fiscals that while they had discretion in summary proceedings, subject to reporting unusual cases to Crown Office, they could not reduce or abandon petition proceedings without authority of the Lord Advocate. Cases could only be reduced to summary prior to full committal, or within a similar period if the accused was granted bail at first appearance, otherwise a report or precognition had to be submitted.

It was clear that Lords Advocate did not like their discretion fettered in this way by fiscals exercising their discretion in the local public interest. Fiscals’ ad vitam aut culpam commissions under the Sheriff Courts and Legal Officers (Scotland) Act 1927 were steadily watered down between 1985 and 2014, and Carltona v Commissioner for Works [1943] 2 All ER 560, in which the courts permitted civil servants to act as the Secretary of State, was frowned on as born out of wartime, although paradoxically nowadays Crown counsel’s instructions at petition stage and sheriff and jury level are taken by officials.

Subsequently, in the so-called Dundee corruption case HM Advocate v Stewart 1980 JC 4, a plea in bar of trial was taken in respect of certain charges, as the Lord Advocate had in October 1966 written to local MPs that after investigation “the evidence does not warrant proceedings”. The trial judge, Lord Kincraig, following Thom, held that the letter was an unequivocal announcement not to prosecute the persons referred to although not named in the letter. The court allowed the accused to lead evidence to flesh out the terms of the letter and adduce the accused’s solicitor, who had been informed of the Lord Advocate’s decision by the procurator fiscal. Contemporaneous police papers had been destroyed. In the event the Crown dropped the disputed charges rather than face a proof and the case proceeded to trial on the remaining matters.

Post-devolution, the accountability of the Lord Advocate came into sharper focus whereby the Law Officers could be summoned to the Scottish Parliament to speak about their actions. While decision-making in individual cases remained in the discretion of the Lord Advocate, the law officers could face a vote of no confidence in Parliament. Lines became further blurred when the Lord Advocate became a regular member of the Scottish Government and not just summoned to give legal advice on public law issues, as had been the practice prior to devolution.

Still good law

I feel it necessary to set out this context before turning to HM Advocate v Cooney [2022] HCJAC 10 (9 February 2022), where the Crown sought to have a bench of seven judges convened to reconsider Thom. A letter had been sent to the respondent by the procurator fiscal in December 1992 renouncing the right to prosecute.

The respondent was a former teacher who was indicted in 2020 with a charge of lewd, indecent and libidinous practices towards a pupil between 1977 and 1980. A docket annexed referred to unlawful intercourse with the pupil around the same time.

Matters were reactivated in 2016 when the education authority initiated disciplinary proceedings. It sought information from the police, who could find no record of the 1992 case. The respondent was detained in 2017, placed on petition in November 2019 and an indictment was served with a first diet in June 2020. At a debate in November 2021 the sheriff had no difficulty upholding a plea in bar of trial.

The Solicitor General asserted at appeal that the 1992 decision was made in ignorance of evidence that would have been available had there been a reasonably competent and diligent investigation. The court refuted this given the absence of police records, although it was alleged the complainer had not been interviewed in the earlier investigation.

Submissions that Thom was not supported by the institutional writers were rejected, citing the powers of the Lord Advocate summarised by Lord President Clyde in what remains of Hester v MacDonald 1961 SC 370 at 377. While the virtually absolute power of the Lord Advocate disables the court from examining the exercise of discretion, it is able to consider situations where the Lord Advocate has apparently reneged on an earlier decision not to proceed in circumstances which may amount to oppression.

References in the case to changes in the Crown Office regulations show the growth of the “no proceedings meantime” marking, where many cases were apparently held in suspended animation, no doubt in the hope that the accused would get drunk one night in the pub and blurt out the whole story.

The Crown did not want to depart from the general rule in Thom “save in extreme circumstances”, but this was rejected as unworkable. It would leave an accused having to establish oppression many years after proceedings had been abandoned, during which time papers might have been destroyed and potential witnesses died.

ECHR arguments were dismissed too, with the court pointing out that the complainer could potentially raise a private prosecution, seek compensation from the authorities or raise a civil action. The public interest in the investigation and suppression of crime has not changed since Thom, and modern developments such as the rights of complainers to challenge decisions by the Lord Advocate can only be raised for decisions taken after July 2015.

Most obviously, as the sheriff pointed out at the earlier debate, by 1992 fiscals had been instructed to be cautious, abandoning cases as “no proceedings at this time” or on present information to preserve a position, but significantly this was not done.

As I recall from my days in Crown Office, if you wished to try to advance the law in your favour you could wait for the right case to come along – there were lots to choose from. The present case did not seem an ideal basis to alter what was thought to be a longrunning sore.

The Scottish Parliament was advised last December that it may take four or five years to clear up the COVID case backlog: surely that should be the focus, and the timing of this appeal was unfortunate to say the least.

Electronic bail monitoring

The second bit of good news I bring is that statutory instruments have been laid so that prior to the third anniversary of the Management of Offenders (Scotland) Act 2019, electronic monitoring of accused and offenders will be expanded from 17 May 2022.

This has been a long saga which I have raised previously. Many crocodile tears have been shed by the establishment about the number of accused persons on remand and the time they spend there, partly due to the lack of proper alternatives to enable family life to continue.

An inordinate amount of timewasting has taken place before these changes were finally announced. I hope ears are burning from the feedback from the bail consultation earlier this year. Hopefully stakeholders are now organised to cope with the changes, and two financial years have passed so funds should be in place. Better still, police can be redeployed from curfew bail patrols at domiciles, which often led to families ejecting loved ones as they could not cope with nightly interruptions.

Since these proposals were first considered, technology has moved on, and simple electronic curfew or “stay away” bail conditions could more readily incorporate GPS or real time monitoring – the public have been exposed to this with smartphones and COVID sign-ins at cafés etc. I expect a mass of bail reviews on 17 May, and in due time the law of bail will be refocused to keeping complainers and witnesses safe and keeping families together. This will lead to a less punitive Scotland and bring down our prison numbers, which remain among the highest in Europe.

Child pornography

There are some interesting observations by Lord Doherty in Webster v HM Advocate [2022] HCJAC 8 (1 February 2022) at para 20. The appellant, who was aged 24, pled guilty to possessing child pornography and breaching bail by failing to provide a search history of his internet devices to police. The latter charge attracted a sentence of eight months’ imprisonment, reduced to six months, but the Civic Government Act charges attracted an extended sentence of 66 months, being 30 months consecutive reduced from 40 months, and a 36 month extension period. There were over 3,700 category A images, involving children of both sexes aged one to 15.

The appellant had experienced a difficult upbringing, had expressed suicidal thoughts and had spent a spell in a mental hospital. He expressed thoughts of wanting to shoot people and see them suffer.

As had been explained in Wood v HM Advocate 2017 JC 185, extended sentences are not available for so called “non-contact offences”.

The appellant was immature and had health issues. Most non-contact offenders do not progress to contact sexual offences. The extended sentence period was quashed, but the headline sentence of 40 months was upheld due to the other aggravating factors.

Youth of the appellant

In light of the recent sentencing guideline for young people under 25, an example of the High Court approach can be seen in Stewart v HM Advocate [2022] HCJAC 9 (1 February 2022).

The appellant was 19 at time of sentence, on a single charge of being concerned in supplying MDMA to a girl aged 15 or 16 who subsequently died. There was information that the appellant had been a supplier of small quantities of drugs to others of his peer group when he was 16 or 17. He was sentenced to 45 months’ imprisonment and had served three months prior to the appeal.

He had had a difficult background and was said to be badly affected by the tragedy. The court concluded that the sheriff was influenced by information beyond what was contained in the charge. The appellant now abstained from drugs, had secured employment and had moved away from a negative peer group. The court quashed the sentence and imposed a 12 month, 100 hour community payback order.