Fiscal's 1992 letter bars prosecution now: Appeal Court

A letter in 1992 from a depute fiscal to a suspect's solicitor, simply stating "No criminal proceedings are being taken against [the client] in connection with this matter", was an effective renunciation of the right to prosecute, the Criminal Appeal Court has ruled.

Lord Justice Clerk Lady Dorrian, Lord Pentland and Lord Matthews gave the decision in refusing a Crown appeal against a sheriff's decision to desert simpliciter an indictment against Paul Cooney, a former teacher, containing a charge of lewd, indecent and libidinous practices against a then pupil on occasions between 1977 and 1980. The Crown had argued that the full bench decision in Thom v HM Advocate (1976), that a statement by the Lord Advocate could constitute a binding renunciation of the right to prosecute, was wrongly decided and should be reviewed by a larger court.

By joint minute it was agreed that the complainer made a complaint in 1991 or 1992; Mr Cooney was interviewed by police; the letter was subsequently sent to his solicitor; in 2016 the complainer enquired about the outcome; in 2019 Mr Cooney was arrested, charged and appeared on petition. The court said it was not in a position to reach a view on a Crown suggestion that the 1991-92 investigation had not been properly conducted.

The Crown argued (1) that the ruling in Thom was not supported by institutional writers and was inconsistent with the general principle that the Lord Advocate’s power was not subject to the control of the courts other than on the ground of oppression; (2) that in any event Thom was no longer good law and should not be followed, having regard to the public interest and the greater recognition of the rights, including Convention rights, of complainers; and (3) that in any event, Thom could be distinguished on its facts.

Delivering the opinion of the court, Lady Dorrian said that although Thom proceeded on a concession, it was clear that the judges considered that the concession reflected the law. A public renunciation was equivalent to an act of desertion simpliciter: all Thom did was affirm that it had the same effect. While modern practice was to make it clear that cases would be kept under review, "The notion that the Lord Advocate should be held to a clear and unequivocal statement that she will not prosecute a named individual for a particular criminal offence is a corollary of the absolute power of decision making in this area which vests in the Lord Advocate, and which prevents the court from making inquiry into, or interfering with, the exercise of her discretion on such matters."

If the Crown were able to depart from such a position, serious difficulties would arise if the court were asked to review the decision to do so. There seemed nothing unusual or odd about the circumstances of the present case. The test for establishing oppression was a high one, but the Crown'sposition would place the burden on the accused where it was the Crown that sought to depart from its previous position.

On the second argument, a failure to carry out a proper investigation might breach a complainer's article 3 rights, but it could not be said that that had happened here, and there was no systemic deficiency such as might also infringe the Convention. "It is not the fact that following Thom the Crown may be held to a clear and unequivocal renunciation of the right to prosecute which is the problem, if problem there be, but the Crown decision to issue the letter in the first place, knowing the consequences thereof", Lady Dorrian observed. the public interest had not changed since the time of Thom. Other remedies might be open to the complainer.

On the third point, it was important to note that Thom applied only to statements that fell to be construed as a clear and unequivocal renunciation of the right to prosecute the individual concerned on the relevant charge. Although Mr Cooney had not been charged at the time, there was a clear renunciation, addressed to him, regarding a matter that could be clearly identified.

Click here to view the opinion of the court.