High Court rules Crown unequivocally renounced right to prosecute man for six allegations of assault on wife

About this case:

• Citation:
  [2023] HCJAC 20
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

JM, the respondent, had appeared on petition charged with six allegations of assault on his wife in a period from 1991 to 2018, but in 2021 it was decided not to prosecute him due to a lack of evidence. Following a review of the decision not to prosecute instigated after action by the complainer, an indictment was served in 2022.

The appeal was heard by the Lord Justice General, Lord Carloway, together with Lord Pentland and Lady Wise. L Ewing KC appeared for the Crown and Renucci KC for the respondent.

Authority to send

Following the respondent’s appearance on petition in December 2020, his case came up for prosecution just over a year later. As a non-sexual solemn offence case, the case was reported to the Procurator Fiscal rather than the Crown Office. On 16 December 2021 an indicter marked the case as “no further action” because of a lack of sufficient evidence.

On 21 December 2021, the respondent’s agents emailed the Crown office asking for an update on the status of the case. A reply was received on 23 December stating “There are to be no further proceedings in this case.” However, a letter was also sent to the respondent’s agents dated 21 December 2021 saying that no further action would be taken “at this time” while reserving a right to prosecute “at a future date”.

On 1 April 2022, an indictment libelling the assaults was served upon the respondent after the decision not to prosecute was reviewed by the Crown Office following action taken by the complainer. A plea in bar of trial was lodged by the respondent based on renunciation of the right to prosecute. The sheriff found that the email of 23 December was a clear and unequivocal renunciation of the right to prosecute, finding support for her decision in HM Advocate v Cooney (2022) and Thom v HM Advocate (1976).

The advocate depute submitted that the sheriff had failed to take into account all the circumstances, including the caveats found in the letter of 21 December that had not been present in the email. The letter was sent on the instructions of a legally qualified person with authority to issue it, while the fiscal officer who sent the email did not have authority to do so.

Properly authorised decision

Lord Carloway, delivering the opinion of the court, said of the case authority relied upon by the sheriff: “In HM Advocate v Cooney (2022) it was acknowledged, following Thom v HM Advocate (1976), that the Lord Advocate was entitled to renounce the right to prosecute and that a clear and unequivocal renunciation will be binding. It was the equivalent of a desertion simpliciter in cases in which a process on indictment was in dependence. The making of a public statement or the writing of a letter is ‘a deliberate and voluntary decision taken by the Lord Advocate or those with her authority in the full awareness of the consequences’.”

He continued: “When considering a letter or email containing an apparent renunciation, it is, of course, necessary to look at the surrounding circumstances, but that will seldom involve having regard to events which occurred after the letter or email has been received by the accused.”

Examining the circumstances of the case, Lord Carloway said: “Here, there was a properly authorised decision not to prosecute the respondent. Whatever the Crown’s general operating instructions or ready reckoner might say, that decision was recorded digitally on the COPFS system. The fiscal officer may not have been authorised to take any decision not to prosecute on behalf of the Lord Advocate, but she was authorised to communicate decisions which had been duly made by a PFD. That is what occurred.”

He concluded: “A letter received after that communication had been made to the accused is not capable of altering matters where the email received earlier contains an unqualified statement that there ‘are to be no further proceedings’ in the case. The words used in the email, in the context in which the email was sent, are clear and unequivocal. They amount to a renunciation of the right to prosecute.”

The appeal was therefore refused.