A.B. v. Paul Cooney [2024] HCJAC 40

Bill for Criminal Letters:- The complainer made a number of allegations against the respondent relating to him using lewd, indecent and libidinous practices towards her whilst she was between the ages of 12 and 15 between August 1977 and April 1980 when the respondent was a teacher and the complainer was a pupil at a school in Ayrshire. The police investigated the allegations, however, no prosecution was raised and the respondent was advised of that. Further inquiries in 2016 and 2019 led to service of an indictment on 24 June 2020 when the respondent lodged a plea in bar of trial that the Lord Advocate had renounced her right to prosecute him by the sending of a letter dated 21 December 1992 from COPFS to the respondent’s solicitors intimating to the respondent that no further proceedings were to be taken against him in respect of the acts forming the subject matter of the indictment. The sheriff upheld the plea in bar of trial which decision was upheld on appeal (HMA v Cooney 2022 HCJAC 10). Here the complainer sought authority to bring a private prosecution in an application for criminal letters. In light of the Crown’s decision of 21 December 1992 the Lord Advocate did not provide concurrence to the Bill, however, did not oppose it. It was agreed by joint minute by the parties that the complainer has title and interest and that the evidence discloses a prima facie sufficiency of evidence against the respondent on the charge in question. The parties were also agreed that the focus of the hearing should relate to:- (1) the question of whether exceptional circumstances existed; and (2) the complainer’s right to an effective investigation and prosecution under Articles 3 & 8 of ECHR. The respondent no longer insisted on arguments relating to oppression or delay. It was recognised on behalf of the complainer that the complainer had to establish that the complainer had title and interest, that there was a sufficiency of evidence, that she had applied for the concurrence of the Lord Advocate and the concurrence having been refused, that there were exceptional circumstances to justify granting the bill (Stewart v Payne 2017 JC 155 and Renton & Brown, Criminal Procedure 6th Ed, [para 3-09]). Here the court refused to grant the Bill. The court considered that there were no exceptional circumstances disclosed by the complainer with the circumstances not being unusual and an error of judgement by the Crown in previously proceeding in the way it had was not sufficient to justify the passing of the Bill. In relation to the complainer’s ECHR rights the court stated that the Convention does not guarantee the complainer a right to secure the prosecution of a third party or for prosecution to result in conviction but, rather, an obligation to investigate and the present circumstances did not amount to a failure to investigate and on the basis of the information available to the court it could not be established that there had been substantial errors in the investigation which would constitute a breach of the complainer’s Convention rights.