High Court refuses permission for private prosecution of teacher after right to prosecute renounced in 1992

About this case:

• Citation:
  [2024] HCJAC 40
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Complainer AB alleged that respondent Paul Cooney had used lewd, indecent and libidinous practices towards her while he was a teacher and she was a pupil at a school in Ayrshire between 1977 and 1980. The Lord Advocate, who had renounced her right to prosecute the respondent, took a neutral position on the bill, while the respondent argued that the exceptional circumstances required to pass the bill were not present.

The bill was considered by the Lord Justice Clerk, Lady Dorrian, together with Lord Pentland and Lord Matthews. The Lord Advocate, Bain KC, appeared for the Crown, Mitchell KC for the complainer, and Moir KC for the respondent.

Material not known

It was 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 was 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, which was upheld by the sheriff and again on appeal.

It was a matter of agreement that the complainer had title and interest to bring a prosecution, and that the evidence disclosed a sufficiency of evidence against the respondent on the charge in question. Having renounced the right to prosecute, the Lord Advocate could not grant concurrence to the bill but did not oppose it.

Senior counsel for the complainer accepted that the court had to be satisfied that exceptional circumstances justified the granting of the bill and submitted that this test was met. This was not a case where the Lord Advocate had refused to prosecute, but instead could not do so because of the 1992 letter of renunciation. Under Article 3 and 8 ECHR, the complainer was entitled to an effective investigation and prosecution of the crimes alleged. Granting the bill was the only way to enable her to assert these rights.

For the respondent it was submitted that the material on which the decision to renounce the right to prosecute was not known, distinguishing this case from X v Sweeney (1982). What was required was an egregious failure by the Crown in 1992. Further, it was not clear how refusal of the bill would breach the complainer’s Convention rights, her submissions not having demonstrated any systemic deficiency or substantial error in investigation.

Proper informed averments

Lady Dorrian, delivering the opinion of the court, said of the need for exceptional circumstances: “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, 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.”

She continued: “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 indirect means. Most significantly it would seriously undermine our established system of public prosecution, developed and honed over hundreds of years.”

Assessing whether such circumstances did exist in this case, Lady Dorrian said: “No party in this case has made, or could make, proper and informed averments about what gave rise to [the 1992] 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.”

She concluded on the ECHR argument: “The Convention does not guarantee the complainer a right to secure the prosecution of a third party or for prosecution to result in conviction. 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.”

For these reasons, the court refused to pass the bill.