His Majesty’s Advocate v. J.M. [2023] HCJAC 20

Notes of appeal by the Crown:- On 16 December 2021 an indicter marked the respondent’s case as “no further action”. The marking was done digitally and took the form as if it were an instruction from Crown Counsel. On 23 December, the Glasgow PF’s office replied to the respondent’s agents’ request for an update on the case as follows: “Good afternoon, There are to be no further proceedings in this case. Kind regards”. Whilst the email was neither signed in any manner, nor did it name the sender, the e-mail was clearly from the Glasgow PF’s office and from the subject line it was obvious that it related to the charges against the respondent. Following upon a successful review, by the complainer, of the decision under the Lord Advocate’s Rules: Review of a Decision not to Prosecute, the respondent was indicted in April 2022 at which time the marking AD had been unaware of the email of 23 December. A plea in bar of trial was lodged and sustained and the Crown appealed against that decision. Here the appeal was refused. The court reiterated that the Lord Advocate is entitled to renounce the right to prosecute and that a clear and unequivocal renunciation will be binding. The court considered that such a decision was the equivalent of a desertion simpliciter in cases in which a process on indictment was in dependence and 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”. The court looked at all of the background circumstances in the present case. The court noted that there had been a properly authorised decision not to prosecute the respondent which decision was recorded digitally on the COPFS system. Whilst the fiscal officer who made the communication to the respondent’s agents on 23 December was not personally authorised to take any decision not to prosecute on behalf of the Lord Advocate she was nevertheless authorised to communicate properly made decisions of PFDs which she did. The letter contained an unqualified statement that “there are to be no further proceedings in this case” which words, having regard to the context in which they were sent, were clear and unequivocal and amounted to a renunciation of the right to prosecute.