Affirming Thom v HMA: The Binding Nature of the Lord Advocate's Renunciation to Prosecute

Introduction

The case of HM Advocate (Appellant) v Paul Cooney (Respondent) ([2022] ScotHC HCJAC_10) represents a pivotal moment in Scottish criminal jurisprudence, particularly concerning prosecutorial discretion and the binding effect of statements made by the Lord Advocate. This commentary delves into the intricacies of the case, examining the background, key legal issues, and the court's reasoned decision to uphold the precedent established in Thom v HMA [1976] JC 48.

Summary of the Judgment

In this case, the Crown appealed against a Sheriff’s decision to uphold Paul Cooney's plea that the prosecution should be deserted simpliciter based on a letter from the Lord Advocate dated December 21, 1992, which renounced the right to prosecute him for offenses committed between 1977 and 1980. The Crown challenged the applicability of the precedent set by Thom v HMA, arguing it was outdated and should be reconsidered by a full bench. The High Court of Justiciary, delivered by Lady Dorrian, upheld the Sheriff’s decision, affirming the binding nature of the Lord Advocate’s renunciation to prosecute as established in Thom.

Analysis

Precedents Cited

The cornerstone of this judgment is the precedent set by Thom v HMA [1976] JC 48, where the court recognized that a clear and unequivocal renunciation of the right to prosecute by the Lord Advocate constitutes a binding desertion simpliciter. Other notable cases referenced include:

• Hester v McDonald [1961] SC 370: Outlined the Lord Advocate’s exclusive discretion in prosecution matters.
• McBain v Crichton [1961] JC 25: Emphasized the Lord Advocate’s sole authority in deciding prosecutions without court interference.
• Walker v Emslie (1899) 3 Adam 102: Reinforced the presumption that absence of prosecution indicates abandonment of the process.
• Weir v HMA (2005) SCCR 821 and Stewart v Payne [2017] JC 155: Discussed the differentiation between renunciation and oppression.

Legal Reasoning

The court meticulously addressed the Crown's three principal submissions questioning the validity of Thom:

1. Challenging Thom's Decision: The Crown contended that Thom was wrongly decided and that statements by the Lord Advocate should not be binding as absolute renunciations. The court rebutted this by clarifying that Thom was never intended to equate procedural desertion with discretionary statements but rather to recognize that unequivocal public renunciations have binding effect.
2. Obsolescence of Thom: Arguing that societal advancements and increased recognition of complainants' rights rendered Thom outdated, the court maintained that the fundamental principle of prosecutorial discretion has not changed, and Thom remains consistent with current legal frameworks and human rights obligations.
3. Distinguishing Thom on Facts: The Crown attempted to differentiate this case from Thom based on factual nuances. However, the court found no substantive difference, reinforcing that clear and specific renunciations by the Lord Advocate should be binding irrespective of contextual variations.

The court underscored the absolute discretion vested in the Lord Advocate, highlighting that courts lack the authority to scrutinize prosecutorial decisions unless there is clear oppression. It emphasized that any renunciation must be unequivocal and specific to be binding, thus preserving the integrity and independence of prosecutorial decisions.

Impact

This judgment reaffirms the doctrine established in Thom v HMA, ensuring that clear statements by the Lord Advocate to not prosecute specific individuals for particular charges remain binding. The ruling preserves the autonomy of the prosecution service, preventing courts from overturning prosecutorial decisions based on assertions of oppression or misapplication of discretion.

Future cases will rely on this precedent to respect prosecutorial communications, emphasizing the need for precision and clarity in any renunciation of prosecution. Additionally, the judgment underscores the limited scope for judicial intervention in prosecutorial matters, thereby shaping the landscape of legal strategy in both prosecution and defense.

Complex Concepts Simplified

Desertion Simpliciter

Desertion simpliciter refers to the complete abandonment of a criminal charge by the prosecution. In the context of Thom v HMA, it implies an unequivocal decision by the Lord Advocate to cease prosecution without qualification.

Plea in Bar of Trial

A plea in bar of trial is a defense strategy where the defendant seeks to prevent the case from proceeding to trial based on legal grounds, such as the prosecution having no right to proceed.

Oppression

In legal terms, oppression occurs when the continuation of prosecution would be unjust or unfair to the accused, often warranting judicial intervention to halt proceedings despite initial prosecutorial intent.

Conclusion

The High Court of Justiciary's decision in HM Advocate v Paul Cooney solidifies the binding authority of the Lord Advocate's renunciations to prosecute specific cases, as established in Thom v HMA. By upholding the Sheriff’s decision, the court emphasized the sanctity of prosecutorial discretion and the necessity for unequivocal communication when renouncing prosecution rights. This judgment not only preserves the integrity of prosecutorial processes but also delineates the boundaries of judicial oversight, ensuring that prosecutorial decisions remain insulated from judicial interference unless clear evidence of oppression exists. As such, this case serves as a critical reference point for future prosecutorial conduct and legal challenges pertaining to prosecutorial discretion in Scotland.