Her Majesty’s Advocate v. Paul Cooney [2022] HCJAC 10

Crown appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- On 2 November 2021 the sheriff at Kilmarnock upheld the respondent’s plea that the Lord Advocate, through the Procurator Fiscal Depute at Kilmarnock, had renounced the right to prosecute him by letter dated 21 December 1992, and that the indictment should be deserted simpliciter. The Crown appealed against that decision it being contended that the full-bench decision of Thom v HMA 1976 JC 48 was wrongly decided, and that a bench of seven judges should be convened to reconsider the decision. The letter of 21 December 1992 was in the following terms:-“Dear Sirs, Mr Paul Cooney, I refer to your letter of 18 December 1992. No criminal proceedings are being taken against Mr Cooney in connection with this matter”. It was agreed that the letter was an intimation to the respondent that no further proceedings were to be taken against him in respect of the acts forming the subject matter of the present indictment. On behalf of the appellant it was submitted:- (1) That Thom was wrongly decided and the proposition that a statement by the Lord Advocate could constitute a binding renunciation of the right to prosecute was not supported by the Institutional writers and the matter should not be determined by means of a plea in bar of trial under an absolute rule as in Thom but rather as part of a plea of oppression by an accused; (2) Thom was no longer good law and should not be followed, having regard to the public interest in the suppression and prosecution of crime and greater recognition of the rights, including Convention rights, of complainers; and (3) Thom should have been distinguished on its facts leading to a different result. The court noted that the making of such a 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. The court considered that the law as expressed in Thom is entirely consistent with the observations of the Institutional writers and that it could not be said Thom was wrongly decided. The court observed that the test to be met for the establishing of oppression is a high one and would require to be re-examined if the appellant’s submissions were to be accepted. Here the court considered that all three questions should be answered in favour of the respondent and that there was no basis for considering that the sheriff erred in failing to distinguish Thom on the facts and the court refused the appeal and affirmed the decision of the sheriff.