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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 40
HCA/2024/000002/XM
Lord Justice Clerk
Lord Pentland
Lord Matthews
OPINION OF THE COURT
delivered by LADY DORRIAN the LORD JUSTICE CLERK
in
BILL FOR CRIMINAL LETTERS
by
A.B.
Complainer
against
PAUL COONEY
Respondent
For the Crown: The Lord Advocate (Bain KC), Gill KC AD, MacNeill AD; Crown Agent
Complainer: Mitchell KC, Ross; Livingstone Brown, Glasgow
Respondent: Moir KC, Henry; Levy & McRae Solicitors
___________________
29 October 2024
Introduction
[1]
The complainer alleges that the respondent used lewd, indecent and libidinous
practices towards her whilst she was between the ages of 12 and 15. The alleged offences
took place between August 1977 and April 1980 during which time the respondent was a
2
teacher and the complainer a pupil at a school in Ayrshire. It is admitted that the
complainer's allegations against the respondent were first investigated by the police in the
early 1990s, but for reasons unknown, no prosecution was instructed, intimation to that
effect being given to the respondent. Subsequent inquiries in 2016, and then in 2019, led to
service of an indictment on 24 June 2020. The respondent tabled a plea in bar of trial that the
Lord Advocate had renounced her right to prosecute him. It was agreed that a letter dated
21 December 1992 from the Crown Office and Procurator Fiscal Service to the respondent's
solicitors was an intimation to the respondent that no further proceedings were to be taken
against him in respect of the acts forming the subject matter of the indictment. The sheriff
upheld the plea in bar of trial, and that decision was upheld on appeal (HM Advocate v
[2]
The complainer now seeks authority to bring a private prosecution in an application
for criminal letters. The Lord Advocate, in a letter dated 21 February 2024, informed the
complainer that she "considers herself unable to provide concurrence to the Bill by reason of
the Crown's decision of 21 December 1992 and the Appeal Court's decision of 9 February
2022...". Nevertheless, the Lord Advocate, whilst refusing her concurrence, does not oppose
the Bill.
Background
[3]
The facts relating to the 1991/1992 investigation, insofar as known, may be
summarised thus:
(i)
The complainer lodged a complaint with the education authority in 1991 or 1992;
(ii)
The EA took the complaint seriously and appointed investigators to inquire into it;
(iii)
The complainer was interviewed and stated to them what she later told the police in
2016;
3
(iv)
Minutes were taken of the interview and a report sent to the EA;
(v)
A corroborating witness, DD was also interviewed during the EA investigation; he
also told them what he later told the police in 2016, effectively a contemporaneous
admission by the respondent of conducting a relationship with a female pupil; the
name of the complainer "rang a bell" with DD; contact was made with another
witness in Newcastle, who provided further information;
(vi)
The investigators sent a report to the EA;
(vii)
The matter was reported to the police. The exact circumstances in which this was
done are unclear. In HMA v Cooney the parties proceeded on an inference that the EA
must have done so, in the belief that the complainer had not done so. However the
agreed material before the court suggests that the complainer may well have done so.
The EA investigator was told by the complainer that she had reported the matter to
the police and to the social work department. The complainer certainly knew that it
had been reported to the police, and that there had not been a prosecution. In 2016
the complainer contacted the police asking them to re-open the inquiry. The officer
she spoke to was unable to find any trace of the matter. The complainer told her she
believed she had reported it in 1992.
(viii) The respondent was interviewed by the police during the latter half of 1992; they
must have had sufficient information, either from the complainer or the EA to enable
them to conduct such an interview.
(ix)
A police report must have been sent to the PF or he would not have been able to
answer the solicitor's letter;
(x)
The PF letter has a reference which appears to be both a person reference "JBK/RM"
and a case reference 10442/92; that must have been written on consideration of the
police report;
(xi)
The EA brought disciplinary proceedings against the respondent, who was moved to
an un-promoted post at another school;
(xii) No documentation from 1992/1993 now remains in the hands of COPFS; the police;
the EA; or the Social Work department.
[4]
Following the complainer's approach to the police in 2016 a fresh investigation was
commenced. Numerous potential witnesses were interviewed. The respondent was
detained and interviewed under caution. He made no comment, and was not charged.
Thereafter further investigation was carried out and he was eventually charged on 8 October
2019.
[5]
The parties have lodged a Joint Minute of Agreement and a Joint Note. It is a matter
of agreement that the complainer has title and interest; and that the evidence discloses a
4
prima facie sufficiency of evidence against the respondent on the charge in question. The
respondent no longer insists on arguments relating to oppression or delay. The parties were
further agreed that the primary focus of the hearing should be on the following issues:
(a)
The question of exceptional circumstances;
(b)
The complainer's right to an effective investigation and prosecution under Articles 3
& 8 ECHR.
Submissions for the Lord Advocate
The Lord Advocate's concurrence
[6]
Having renounced the right to prosecute, the Lord Advocate is barred from granting
her concurrence to the bill, which if granted would establish the Lord Advocate as "master of
the process" (Mackintosh v HM Advocate (1872) 2 Coup 236; and Couhoun, cited in Hume,
Commentaries (4th ed) II. 269), entitled to intervene should circumstances so demand. By
virtue of the Crown's renunciation of the right to prosecute the Lord Advocate is unable
either to prosecute the respondent herself or to concur in the complainer's bill. It would be
inappropriate for her to comment on the merits of the bill.
However, having concluded that
the respondent should be indicted and prosecuted, nor does she oppose the passing of the
bill. She appears in this process in the public interest, solely in order to assist the Court as to
the correct test it should apply in considering whether to pass the bill in the circumstances of
the case. Nevertheless, the Lord Advocate's presentation of the indictment, and her lack of
opposition to this bill, mean that she has concluded that there is a prima facie sufficiency of
evidence against the respondent and that prosecuting him would be in the public interest.
These are important considerations.
5
"Exceptional" Circumstances
[7]
Where the Lord Advocate does not oppose a bill, the requirement for establishing
"exceptional" circumstances for the bill to pass do not apply. The institutional writers
recognised that, a system of public prosecution having been established, authorising a
private prosecution was an exceptional step, but did not suggest that exceptional
circumstances were required for the court to take that step. The key issues, apart from
whether the Lord Advocate concurred, seem to have been whether there was a prima facie
case and whether proceeding would be reasonable. Where the authorities made reference to
"exceptionality" it was for the purpose of noting that it was the remedy that was
exceptional, not the circumstances which had to exist for its operation. The statement in X v
Sweeney 1982 JC 25, where the Crown had renounced the right to prosecute, that the test was
whether there were
"very special circumstances which would justify ... the now exceptional step of
issuing criminal letters at the request of a private individual"
was not the subject of reasoned discussion.
Convention rights
[8]
Before the court could pass the bill, it required to be satisfied that there are
circumstances- but not exceptional circumstances- which justified the passing of the bill. In
turn, in considering the application, in which the complainer's article 3 and article 8 rights
were engaged, as were the respondent's article 6 rights, the court required to carry out a
balancing of the conflicting rights of the complainer and the respondent.
6
Submissions for the complainer
[9]
Senior Counsel for the complainer invited the court to grant the bill. Apart from
showing the admitted facts that she had title and interest, and that there was a sufficiency of
evidence, the complainer had to show:
i.
that she had applied for the concurrence of the Lord Advocate; and
ii
that concurrence having been refused, there are exceptional circumstances to justify
granting the bill (Stewart v Payne 2017 JC 155; J & P Coats Limited v Brown (1909) 6 Adam 19
(at 3738); X v Sweeney (at 79); Renton & Brown, Criminal Procedure 6th Ed, [para 3-09]).
Concurrence of the Lord Advocate
[10]
This had been sought and refused, although it was apparent that the Lord Advocate
was sympathetic to the situation the complainer found herself in. The Crown's renunciation
did not affect the private rights of the complainer: it did not render further, private,
prosecution incompetent. There was no reason in principle, or any rule of law, to the effect
that the Lord Advocate could not have granted concurrence to a private prosecution in the
present circumstances.
Exceptional circumstances
[11]
Senior Counsel for the complainer accepted that, where the Lord Advocate refused
concurrence, the complainer had to satisfy the court that exceptional circumstances justified
the granting of the bill (Stewart v Payne, paras 85-87). The exceptionality requirement arose
because in general in the modern era criminal prosecutions in Scotland proceed at the
instance of the Lord Advocate as public prosecutor:
"The case for such a remedy must be the exception to the rule, calling for exceptional
treatment" (Stewart v Payne, para 89).
7
[12]
The requirement of exceptional circumstances does not create an insurmountable
hurdle. It is simply a circumstance that is unusual, atypical or out of the ordinary, involving
facts and circumstances which might take the case out of the norm (M v Procurator Fiscal, Ayr
2009 HCJ 3 para 27). There are three reasons why the complainer's case was exceptional:
(a)
There is a strong public interest in the prosecution proceeding. This is not a case
where the Lord Advocate refused to prosecute. Had it not been for the 1992 letter of
renunciation the prosecution would have proceeded.
(b)
The Lord Advocate, whilst not lending her concurrence, is supportive of the bill.
(c)
Under Articles 3 and 8 ECHR, the complainer is entitled to an effective investigation
and prosecution of the crimes alleged. (MC v Bulgaria 2005 40 EHRR 20; O'Keefe v Ireland
Cooney). As a result of the renunciation letter, a prosecution at the instance of the Lord
Advocate is not now possible. That alternative, civil remedies may be available is not
sufficient to avoid a breach of these rights: the Convention requires a criminal prosecution.
Granting the bill is the only way to enable the complainer to assert her article 3 and 8 rights,
and for the court to comply with its obligations under section 6 of the Human Rights Act
1998.
Submissions for the respondent
The Lord Advocate's concurrence
[13]
Senior Counsel for the respondent agreed with the submissions for the Lord
Advocate, that the Lord Advocate was disabled from concurring in the bill.
8
Exceptional circumstances
[14]
This was a case where the Crown had renounced the right to prosecute in 1992. The
circumstances of the presentation of the indictment in 2020 had to be considered in that
light. The implication of the Lord Advocate's submissions, and those of the complainer, is
that the original decision not to prosecute the respondent was a mistaken one, an exercise of
discretion which should not have been made (HM Advocate v Cooney, at para 23). However,
the material upon which that decision was made is not known, distinguishing the facts from
X v Sweeney and C v Forsyth, 1995 SLT 905 in both of which the reasons for renunciation
were known.
Where it is suggested that the Crown have erred in their assessment of the
sufficiency of evidence against an accused person, there are strong public policy reasons for
the requirement of exceptionality before the court would be entitled to pass a bill for
criminal letters on that basis,
which
would necessarily involve a review of that initial
decision.
[15]
There was a clear line of authority which required the complainer to demonstrate
exceptional circumstances in support of the bill, notwithstanding the Lord Advocate's
decision not to oppose it (McBain v Crichton 1961 JC 25; C v Forsyth; X v Sweeney; Stewart v
Payne).
Whether exceptional circumstances exist
[16]
There were no exceptional circumstances disclosed by the complainer in support of
the bill. The circumstances are not unusual, as noted in HM Advocate v Cooney, para 23;
"A decision was knowingly made in the case...There was a decision. It applied to this
accused. It applied as agreed in the joint minute to the charge against him on the
current indictment. The Crown do not wish to be held to that decision because they
claim that re-examination of the circumstances in 2016 suggest that there is a
sufficiency of evidence, and that this would have been disclosed by a competent
investigation at the time. What is being suggested is that the decision was a mistaken
9
one in other words it was an exercise of discretion which should not have been
made."
An error of judgment by the Crown would not be sufficient to justify passing the bill: see
Stewart v Payne para 91. What is required is an egregious or outrageous failure by the
Crown in 1992. It could not be said one way or the other whether there was a full
investigation and assessment of the evidence by the Crown in 1992. The process before the
court was not one of Judicial Review and the court did not have investigatory powers. The
court could not in the circumstances find that exceptional circumstances existed.
The complainer's convention rights
[17]
There is no provision of the Convention which guarantees the complainer a right to
secure the prosecution of a third party (Öneryildiz v Turkey No 2 (2005) 41 EHRR 20, at paras
96, 147), and it is thus not clear how refusal of the bill would breach her convention rights.
The complainer's submissions do not demonstrate any systemic deficiency; or identify any
conspicuous or substantial errors in investigation such as would constitute a breach of her
Convention rights.
Analysis and Discussion
Whether the Lord Advocate is barred from giving her concurrence
[18]
This is an academic issue, since the Lord Advocate has not given her concurrence.
The complainer's submissions that there is no rule of law or principle preventing her from
having done so seem mainly directed to trying to persuade the Lord Advocate to change her
mind, given that they are not directed to any relevant plea in law. We consider that the
submissions of the Lord Advocate that she is disabled from concurring are correct, since it
would seem strange, in a case where she has renounced the right to prosecute, to concur in a
10
bill for criminal letters in respect of the same behaviour. Given the importance to be
attached to concurrence, were the Lord Advocate able to concur when she has renounced
prosecution, this would significantly weaken and undermine the effect of renunciation.
Both Sweeney and C proceeded on the basis that in such circumstances the Lord Advocate
was unable to give concurrence. We do not necessarily accept the Lord Advocate's
submission as to the effect of Mackintosh and Couhoun: it must be doubted whether the
asserted consequence could ever follow in a case where the Lord Advocate has renounced
the right to prosecute. However, since only very brief submissions were made on the issue,
and determination is not required to accept that the Lord Advocate is, by renunciation,
barred from concurring, we say no more on the matter.
The need for exceptional circumstances
[19]
The Lord Advocate submitted that where she did not oppose the bill, it was not
necessary for a complainer to show exceptional circumstances to justify the granting of the
bill. If the Lord Advocate remains neutral on the matter, whether disabled from consenting
or otherwise, all that would be required, on this argument, would be that the complainer has
title and interest; that there was a sufficiency of evidence; and that to allow the prosecution
would be "reasonable", in the sense that there were no compelling reasons against it, for
example, such as a validly advanced plea of oppression based on delay, or other such
fundamental point. This is a strange and unprecedented submission, the effect of which
would ultimately be to render the concurrence of the Lord Advocate, or lack of it, an
irrelevance. The adoption of a "neutral" position by the Lord Advocate would effectively be
treated as equivalent to concurrence. It would enable a Lord Advocate, barred from
granting concurrence by having renounced the right to prosecute, effectively to concur by an
11
indirect means. Most significantly it would seriously undermine our established system of
public prosecution, developed and honed over hundreds of years.
[20]
The Lord Advocate submitted that it was not clear from Hume's treatment of the
issue that there was any requirement for exceptional circumstances but the passages to
which she refers are those primarily dealing with the identification of the title and interest of
a complainer, rather than any of the additional requirements which might be found
necessary before a bill for criminal letters may be authorised. Even if it be the case that at
the time of Hume there was no strongly developed requirement for exceptional
circumstances, it does not follow that the same applies today, when the system of public
prosecution and the role of the Lord Advocate is so much more entrenched and settled.
Even at the time of J & P Coats this was acknowledged to be the case, as can be seen by the
submissions of the Lord Advocate (Alexandre Ure KC, later Lord Justice-General
Strathclyde) in that case:
"I do not dwell upon the law applicable to the situation with which your Lordships
are now to deal. You will find it very clearly and fully expounded in the opinion of
learned and very experienced judges in the administration of the criminal law in two
cases within comparatively recent times, which, in my humble judgment, supersede
entirely the views which are expressed in the text writers, due, no doubt, to the great
development of the administration of the criminal law and to the improved method
of investigation which is now followed.
The particular cases 1 refer to are the case of
Robertson
[Robertson v HM Advocate (1887) 1 White 468 ]."
The need for exceptional circumstances is emphasised and repeated in a long line of modern
authorities. The matter was explained in Stewart v Payne:
"[85] Scotland has for many centuries had a system of public prosecution in which
the Lord Advocate is recognised as prosecutor in the public interest. By 1961 this
system of public prosecution had become so well acknowledged and respected that
the court was able to say that `private prosecutions have almost gone into disuse'
(McBain v Crichton, Lord Justice-General, p 29). Although it remains open to a private
citizen to apply to the court for permission to bring a private prosecution where the
Lord Advocate has declined to prosecute or grant his concurrence to a private
12
prosecution, the circumstances in which such permission may be granted have
repeatedly been described as exceptional.
[86]
The reasons for the requirement of exceptionality are related to the
constitutional role of the Lord Advocate. In McBain v Crichton the Lord Justice-
General (p 29) observed that the Lord Advocate:
`is the recognised prosecutor in the public interest. It is for him, in the exercise
of his responsible office, to decide whether he will prosecute in the public
interest and at the public expense, and under our constitutional practice this
decision is a matter for him, and for him alone. No one can compel him to
give his reasons, nor order him to concur in a private prosecution. The basic
principle of our system of criminal administration in Scotland is to submit the
question of whether there is to be a public prosecution to the impartial and
skilled investigation of the Lord Advocate and his department, and the
decision whether or not to prosecute is exclusively within his discretion.'
These features were also mentioned by Lord Guthrie (p 31) to explain why it would
only be in `highly exceptional circumstances' that private prosecution will be
authorised.
[87]
This exceptionality is emphasised in every case in which an application for
criminal letters has been made. So, for example, in C v Forsyth (p 912) the Lord
Justice-Clerk (Ross) noted that `[i]t is well recognised that private prosecution is
allowed only in exceptional cases', and in Meehan v Inglis (p 12) the Lord Justice-
Clerk (Wheatley) observed that permission of the court to proceed with a bill for
criminal letters `will only be granted in very special circumstances'."
The case of J & P Coats was referred to as an example where the court did not seem to
require exceptional circumstances. In Stewart v Payne the court explained (paras 92-94) why
J & P Coats was a very particular case. However, it should not be thought that exceptionality
was not an issue. It is obvious, for the reasons explained in Stewart v Payne, that the court
did treat the circumstances as being exceptional. The issue of exceptionality was before the
court: it had been referred to in detail in the Lord Advocate's submissions as a necessary
requirement. Lord McLaren referred to it (p44) as "an extraordinary remedy for an
extraordinary and unprecedented occurrence". Although he was in the minority on the
central issue of whether the Lord Advocate's lack of concurrence could be overridden, there
is no reason to doubt the validity of these comments or that they formed the basis upon
which the majority of the court acted, namely that they did indeed find that there was an
extraordinary and unprecedented occurrence justifying this extreme step.
13
[21]
It is of note that in making her submission on this point the Lord Advocate departed
from her answers to the bill, which state, paragraph 9:
"Only once sufficient admissible evidence to establish the charge beyond reasonable
doubt is established will the Court proceed to determine whether "special
circumstances" are present which entitles the grant of the Bill of Criminal Letters
which is now an exceptional remedy due to private prosecutions having been
rendered rare, such that the remedy is deemed extra-ordinary. Private prosecution is
permitted where special or very special circumstances are present, and no public
prosecution will be raised. MacKintosh v HMA, May 20, 1872, Couper, vol ii, 259,
Robertson v HMA, (1887) 1 White, 468, Coats v Brown, 1909 SLT, 370, 1909 SC (J) 29,
McBain v Chrichton, 1961 J.C. 25, X v Sweeney, 1982 JC 70, C v Forsyth, 1995 SLT 905,
Stewart and Convy v Payne and McQuade and Reilly v Clarke, 2017 JC 155"
In contrast with the submission made that is a correct statement of the law.
Do exceptional circumstances exist?
[22]
It is important not to let the fact that the respondent was eventually indicted obscure
the fact that the Lord Advocate had no right to serve that indictment: the right to prosecute
had been renounced many years before the service of that indictment. What prevents the
Lord Advocate from pursuing a prosecution against the respondent is a decision made on
her behalf in 1992, following a police investigation. We do not know the outcome of the
investigation nor do we know the reason for the decision. No party in this case has made, or
could make, proper and informed averments about what gave rise to that decision being
made, the reasonableness of the decision, the evidence which was considered or the
circumstances in which the letter was issued. To suggest otherwise would be speculation.
Taking the complainer's case at its highest, there may have been an error in judgement in
issuing the letter without reservation as to the future; we simply do not know.
[23]
Senior counsel for the complainer drew attention to the fact that certain witnesses,
identified and interviewed during the post-2016 investigation had not been interviewed by
the police in 1992. It was submitted that this was indicative of a failed and inadequate
14
investigation. However, we do not know the reasons for that. It does not follow from the
fact that the inquiry in 2016 onwards resulted in a decision to prosecute that the earlier
decision to do otherwise was wrong. A report had been made to the police; the police had
carried out an investigation; we do not know the extent of that investigation. The
complainer says she was not interviewed, but the police had enough information to enable
them to detain the respondent and to interview him under caution. We also know that the
police investigation resulted in a report to the Fiscal, who made the no pro decision. The
Fiscal must have considered he had enough information to reach a decision. Given the
known availability of potentially corroborating witnesses in 1992 (DD and the witness in
Newcastle) it cannot be assumed that the decision was made on the basis of insufficiency.
[24]
Even if we assume that the sending of the letter constituted an error, this issue was
also considered in Stewart v Payne where the court stated:
"An error of judgement by the Crown is not sufficient to meet the test of
exceptionality. In our view the test of exceptionality would require to show that the
Lord Advocate's decision not to prosecute had to be viewed in the circumstances as
an egregious or outrageous failure in the exercise of his public duty. For example, as
discussed in J&P Coats Ltd v Brown, if it could be shown that the Lord Advocate had
failed in his public duty, and had acted oppressively, capriciously, or wantonly, the
circumstances might properly be described as exceptional, allowing a bill to be
passed. It is quite difficult to conceive of circumstances in which the court would
pass a bill where the Lord Advocate had examined and investigated the
circumstances of the case and concluded as a matter of informed judgement that the
whole tenor and weight of the evidence did not justify prosecution."
The circumstances of this case come nowhere near meeting that test.
ECHR Considerations
[25]
The complainer's submissions essentially replicate those made by the Solicitor-
General in HM Advocate v Cooney, in respect of which the court (para 29) considered that the
following propositions could be drawn:
15
" Article 3 may give rise to a positive obligation to conduct an official investigation.
A failure properly to investigate allegations may constitute a violation of the
complainer's rights under Arts 3 and 8;
- States have a positive obligation inherent in Arts 3 and 8 to enact provisions which
effectively punish crimes and to apply them in practice through effective
investigation and prosecution;
- In order to be an effective deterrent, laws which prohibit conduct constituting a
breach of Art 3 must be rigorously enforced and complaints of such conduct must be
properly investigated. Enquiries should, in principle, be capable of leading to the
identification and punishment of those responsible. That investigation should be
conducted independently, promptly and with reasonable expedition, allowing
effective participation by the victim;
- A breach may be established through systemic or operational defects, but in respect
of the latter it will be necessary to establish serious failures which were egregious
and significant going beyond simple errors or isolated omissions."
As senior counsel for the respondent submitted, the Convention does not guarantee the
complainer a right to secure the prosecution of a third party
or for prosecution to result in
conviction (Öneryildiz v Turkey No 2 (2005) 41 EHRR 20). An obligation to investigate is not
an obligation of result, but of means: not every investigation should necessarily be successful
or come to a conclusion which coincides with the claimant's account of events; although it
should in principle be capable of leading to the establishment of the facts of the case and, if
the allegations prove to be true, to the identification and punishment of those responsible.
The present case, however, is not one in which the court can conclude that there was a
failure of investigation. It is not possible on the information available to the court to reach a
properly reasoned view that there have been conspicuous or substantial errors in
investigation such as would constitute a breach of the complainer's Convention rights. The
position remains as noted by the court in HM Advocate v Cooney, para 30:
"It has not been suggested that there is any systemic deficiency. There is in place a
system of investigation and public prosecution of crime in Scotland, which at a
general systemic level is compliant with Arts 3 and 8. The process for investigation of
crime incorporates all of the aspects envisaged in O'Keeffe. It is not the fact that 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
16
in the first place, knowing the consequences thereof. Thom does not require the
Crown to issue such letters, nor does it prevent the Crown from attaching suitable
qualifications to any such letters. Rather, the argument is that any potential
contravention of the complainer's Art 3 rights arises by way of human error in the
operation of the system. However, as we have noted above, whether what occurred
in this case merits that description is open to question. On the question whether
operational deficiencies may constitute a relevant breach `only conspicuous or
substantial errors in investigation would qualify' (DSD, Lord Kerr, paras 29, 53, 72;
Lord Neuberger, para 98). It is not possible on the information available to us to
reach a properly reasoned view that there have been failures which meet the test for
operational deficiencies to constitute a breach of Convention rights."
[26] For the reasons given we refuse to pass the bill.
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