High Court rejects appeal against decision that right to prosecute ex-teacher had been renounced by Lord Advocate

Lady Dorrian

About this case:

• Citation:
  [2022] HCJAC 10
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

It was pled by the respondent, Paul Cooney, that the Lord Advocate, through the Procurator Fiscal Depute at Kilmarnock, had renounced the right to prosecute him by letter dated 21 December 1992. The Crown sought to convene a bench of seven judges to reconsider the decision in Thom v HM Advocate (1976) in order to allow for the prosecution to continue.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Pentland and Lord Matthews. The Solicitor General, Ruth Charteris QC, and Ewing QC appeared for the Crown, and Jackson QC for the respondent.

No criminal proceedings

The respondent was indicted at Ayr Sheriff Court in 2020 on a charge relating to acts, including unlawful sexual intercourse, said to have been committed against one pupil on various occasions between 1 August 1977 and 2 April 1980. The respondent lodged a plea in bar of trial relying on a letter dated 21 December 1992 sent to his solicitor in 1992.

It was agreed that the complainer had made a complaint to the Education Authority concerning the respondent’s conduct in 1991 or 1992. After he was interviewed by the police, the respondent instructed a solicitor who wrote to the Crown. A reply was received that stated: “No criminal proceedings are being taken against Mr Cooney in connection with this matter.” Internal disciplinary proceedings were later initiated against the respondent by the Education Authority.

In 2016, the complainer contacted police to seek information on the outcome of any investigation into her report. The police were unable to find any record of the complaint and detained the respondent in December 2017. He was later arrested in October 2019 and charged with an offence contrary to the Sexual Offences (Scotland) Act 1976.

It was submitted for the Crown that the case of Thom v HMA, which was authority for the proposition that a statement by the Lord Advocate could constitute a binding renunciation of the right to prosecute, was wrongly decided. That view was inconsistent with the institutional writers and with the general principle that the Lord Advocate’s power was not subject to the control of the courts.

The Solicitor General argued further that Thom was no longer good law, having regard to the public interest in the suppression and prosecution of crime and greater recognition of the rights of complainers, including ECHR rights. Separatim, the current case was distinguishable from Thom on its facts and ought to lead to a different result.

Isolated instance

Delivering the opinion of the court, Lady Dorrian said of the Lord Advocate’s powers: “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.”

She continued: “If she were able to renege on a decision of the kind in question, subject only to consideration of issues of whether to allow the prosecution to proceed would constitute oppression, examination of that issue, given the customary, and indeed constitutional, reticence of the courts to examine the substantive exercise of the Lord Advocate ‘s discretion, would be significantly one-sided.”

Addressing whether Thom remained good law, Lady Dorrian noted: “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. In any event, had we concluded otherwise, it does not follow that an isolated instance such as this should require the law to be restated and a larger court convened to reconsider Thom.”

She went on to say: “It was open to the Crown to qualify any decision not to prosecute with the addition of a simple caveat – ‘at this time’ or ‘on present information’ – to preserve a position. It chose not to do so. That other systems deal with the same issue in a different way is not a reason for the court to consider changing the law. Regard must be had to the context in which the law operates, and in this case the particular and special role of the Lord Advocate as prosecutor in the public interest.”

On whether Thom could be distinguished, Lady Dorrian concluded: “As we have observed, Thom is not based on notions of oppression, but on the concept of renunciation of the right to prosecute. Another distinguished bench in X v Sweeney (1982) confirmed the decision in Thom, and did so under reference to Hume. For the reasons already given, we do not consider that Thom can be said to have been wrongly decided.”

The appeal was therefore refused.