Reaffirmation of 'Exceptional Circumstances' Requirement for Private Prosecutions in Scottish Law

Introduction

The case of AB against Paul Cooney ([2024] HCJAC 40) adjudicated by the Scottish High Court of Justiciary explores the stringent criteria required for initiating private prosecutions in Scotland. The complainer, A.B., alleged that Paul Cooney, a teacher, engaged in lewd and indecent conduct during her adolescence between 1977 and 1980. Despite initial investigations in the early 1990s and subsequent inquiries in 2016 and 2019, the complainer sought to pursue a private prosecution after the Lord Advocate declined to prosecute. This case delves into the legal thresholds for private prosecutions, particularly the necessity of demonstrating "exceptional circumstances" when public prosecution avenues are unavailable.

Summary of the Judgment

The High Court ultimately refused the complainer's application for criminal letters, which would have enabled a private prosecution against Paul Cooney. The court held that the complainer failed to establish the required "exceptional circumstances" necessary to override the Crown's renunciation of prosecution. Despite the Lord Advocate not opposing the Bill, the absence of extraordinary conditions meant the application did not meet the legal standards for proceeding with a private prosecution.

Analysis

Precedents Cited

The judgment extensively referenced several key cases that shape the landscape of private prosecutions in Scotland:

HM Advocate v Cooney (2022 HCJAC 10): Established that without concurrence from the Lord Advocate, private prosecutions must meet stringent criteria.
Stewart v Payne (2017 JC 155): Clarified that "exceptional circumstances" are mandatory for private prosecutions, rejecting mere errors in judgment.
J & P Coats Limited v Brown (1909) 6 Adam 19: Highlighted historical perspectives on private prosecutions and their exceptional nature.
X v Sweeney (1982 JC 25) and C v Forsyth (1995 SLT 905): Reinforced the necessity of exceptional circumstances and the limited scope for private prosecutions.

These precedents collectively underscore the judiciary's consistent stance that private prosecutions are exceptional remedies, reserved for cases where public prosecution mechanisms are insufficient.

Legal Reasoning

The court's legal reasoning rested on several pillars:

Renunciation by the Lord Advocate: The Lord Advocate's decision to renounce prosecution barred her from conceding the Bill, adhering to precedents that prevent interference when public prosecution is officially declined.
Exceptional Circumstances: The complainer needed to demonstrate conditions that were unusual, atypical, or beyond ordinary circumstances. Mere dissatisfaction with the initial decision or alleging errors in judgment did not suffice.
Balancing ECHR Rights: The court weighed the complainer's rights under Articles 3 and 8 of the European Convention on Human Rights (ECHR) against the respondent's rights under Article 6, ensuring that any prosecution respects the fundamental rights of all parties.
Sufficiency of Evidence: While there was prima facie evidence against the respondent, the absence of exceptional circumstances meant that the legal threshold for proceeding with a private prosecution was not met.

This intricate balancing act ensured that private prosecutions do not undermine the established public prosecution system, maintaining judicial integrity and public trust.

Impact

This judgment reinforces the high bar set for private prosecutions in Scotland, emphasizing that such actions are reserved for truly exceptional cases. Future litigants seeking private prosecutions must meticulously demonstrate circumstances that are significantly out of the ordinary. Moreover, the decision upholds the primacy of the Lord Advocate in the prosecution process, ensuring that the public prosecution system remains robust and unencumbered by potential overreach through private legal actions.

Additionally, the ruling provides clarity on the interpretation of "exceptional circumstances," narrowing the scope for private prosecutions and safeguarding against potential abuse of the legal system.

Complex Concepts Simplified

Private Prosecution: A legal process where an individual (not a public prosecutor) initiates and conducts a criminal case against someone.
Criminal Letters: A legal document that permits an individual to prosecute someone privately when public prosecution is not pursued.
Exceptional Circumstances: Unusual or extraordinary conditions that justify bypassing normal legal procedures, such as public prosecution, to pursue a private case.
Concurrence of the Lord Advocate: Approval or agreement from the Lord Advocate, Scotland’s chief legal officer, which is typically required for prosecutions to proceed.
Prima Facie Sufficiency of Evidence: Evidence that is sufficient to establish a fact or raise a presumption unless disproven.
ECHR Articles 3, 6, and 8: Provisions from the European Convention on Human Rights:
- Article 3: Prohibition of torture and inhuman or degrading treatment.
- Article 6: Right to a fair trial.
- Article 8: Right to respect for private and family life.

Understanding these terms is crucial for grasping the nuances of the judgment and its implications for Scottish criminal law.

Conclusion

The High Court of Justiciary's decision in AB against Paul Cooney serves as a pivotal reaffirmation of the stringent requirements governing private prosecutions in Scotland. By meticulously upholding the necessity of "exceptional circumstances," the court ensures that private legal actions do not undermine the established public prosecution framework. This judgment not only clarifies the boundaries within which private prosecutions can be pursued but also reinforces the essential role of the Lord Advocate in maintaining the integrity of the criminal justice system.

For legal practitioners and litigants alike, the case underscores the critical importance of meeting high evidentiary and circumstantial thresholds when seeking private prosecutions, thereby preserving the balance between individual rights and the collective interests of justice.