Bill for Criminal Letters by AB against Paul Cooney (High Court of Justiciary)

Factual and Procedural Background

The Plaintiff alleges that the Defendant engaged in lewd, indecent, and libidinous conduct towards her between the ages of 12 and 15, occurring from August 1977 to April 1980 while the Defendant was a teacher and the Plaintiff a pupil at a school in Ayrshire. Initial police investigations took place in the early 1990s but no prosecution was initiated, with the Defendant receiving formal intimation of this decision via a letter dated 21 December 1992 from the Crown Office and Procurator Fiscal Service. Subsequent investigations in 2016 and 2019 led to an indictment served on 24 June 2020. The Defendant raised a plea in bar of trial based on the Lord Advocate’s prior renunciation of prosecution rights, which was upheld by the sheriff and on appeal.

The Plaintiff now seeks authority to bring a private prosecution through an application for criminal letters. The Lord Advocate declined to concur with the Bill, citing the 1992 renunciation and the 2022 Appeal Court decision, but does not oppose the Bill. The key issues focus on whether exceptional circumstances exist and the Plaintiff’s rights under Articles 3 and 8 of the European Convention on Human Rights (ECHR).

The background includes a summary of the 1991/1992 investigation: the Plaintiff lodged a complaint with the education authority (EA), which conducted an inquiry including interviews with the Plaintiff and witnesses. The matter was reported to the police, who interviewed the Defendant in 1992. A police report was sent to the Procurator Fiscal, who issued the renunciation letter. Disciplinary proceedings were taken by the EA against the Defendant. No records from the early 1990s investigation remain. A fresh investigation commenced in 2016 leading to the Defendant’s charge in 2019.

Legal Issues Presented

1. Whether the court should grant criminal letters to allow the Plaintiff to bring a private prosecution despite the Lord Advocate’s renunciation of prosecution rights and refusal to concur.
2. Whether exceptional circumstances exist to justify granting the Bill for criminal letters.
3. How to balance the Plaintiff’s rights under Articles 3 and 8 ECHR with the Defendant’s Article 6 rights in considering the application.
4. Whether the Lord Advocate is barred from giving concurrence to the Bill after renouncing the right to prosecute.

Arguments of the Parties

Lord Advocate's Arguments

• The Lord Advocate is barred from granting concurrence to the Bill due to the prior renunciation of prosecution rights, which means she cannot prosecute or concur in a private prosecution for the same conduct.
• Despite this, the Lord Advocate does not oppose the Bill and acknowledges a prima facie sufficiency of evidence and public interest in prosecution.
• Where the Lord Advocate does not oppose a Bill, the requirement for exceptional circumstances to justify the Bill does not apply; the key tests are sufficiency of evidence and reasonableness of proceeding.
• The Lord Advocate submitted that concurrence or lack thereof is crucial, and a "neutral" position should not be treated as effective concurrence as it would undermine the public prosecution system.
• The established system of public prosecution in Scotland requires exceptional circumstances for private prosecutions when the Lord Advocate refuses concurrence.

Plaintiff's Arguments

• The Plaintiff has title and interest and there is prima facie sufficiency of evidence against the Defendant.
• The Plaintiff applied for the Lord Advocate’s concurrence, which was refused.
• Exceptional circumstances exist to justify granting the Bill, including the strong public interest in prosecution, the Lord Advocate’s non-opposition, and the Plaintiff’s rights under Articles 3 and 8 ECHR to an effective investigation and prosecution.
• The Crown’s renunciation does not affect the Plaintiff’s private rights to prosecute, and there is no legal rule preventing the Lord Advocate from granting concurrence in these circumstances.
• Exceptional circumstances are not an insurmountable hurdle but require unusual or atypical facts taking the case out of the norm.

Defendant's Arguments

• The Lord Advocate is disabled from concurring in the Bill due to the prior renunciation.
• The original decision not to prosecute was a considered exercise of discretion, not an error, distinguishing this case from precedents where reasons for renunciation were known.
• The Plaintiff must show exceptional circumstances despite the Lord Advocate’s lack of opposition.
• No exceptional circumstances exist here; the case is not unusual or atypical.
• The Plaintiff’s Convention rights do not guarantee a right to prosecution, and there is no evidence of systemic or substantial investigative failure that would constitute a breach of those rights.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the Lord Advocate’s renunciation of prosecution rights in 1992 and her consequent inability to grant concurrence to the Bill for criminal letters. The Lord Advocate’s non-opposition to the Bill was noted as significant but did not equate to concurrence. The court examined whether exceptional circumstances existed to justify granting the Bill despite the lack of concurrence.

The court reviewed the history of investigations, noting the absence of documentation from the early 1990s and the unknown reasons behind the original decision not to prosecute. The court emphasized that mere error of judgment by the Crown is insufficient to meet the threshold of exceptionality. Exceptionality requires an egregious or outrageous failure in the exercise of prosecutorial duty, which was not demonstrated here.

The court balanced the Plaintiff’s Convention rights under Articles 3 and 8 against the Defendant’s Article 6 rights. It recognized positive obligations on the State to investigate and prosecute effectively but found no evidence of systemic or substantial investigative failures amounting to breaches of those rights. The court noted that refusal of the Bill would not violate the Plaintiff’s Convention rights, as there is no guarantee of a right to prosecution.

The court considered the constitutional importance of the Lord Advocate’s role and the established public prosecution system, emphasizing that private prosecutions are an extraordinary remedy requiring exceptional circumstances. The Plaintiff failed to demonstrate such circumstances, and the court rejected the argument that the Lord Advocate’s neutrality should be treated as concurrence.

Holding and Implications

The court's final decision was to REFUSE TO PASS THE BILL for criminal letters.

This decision means the Plaintiff is not authorized to bring a private prosecution against the Defendant in respect of the alleged offences. The ruling upholds the principle that private prosecutions are exceptional and require exceptional circumstances when the Lord Advocate has renounced prosecution rights and refused concurrence. No new precedent was established beyond reaffirming existing constitutional and procedural principles governing private prosecutions and the role of the Lord Advocate.