His Majesty’s Advocate v. J.M. [2023] HCJAC 19

Application to amend a note of appeal:- On 3 April 2023, the appellant lodged a Note of Appeal, in which it was contended that the sheriff erred in holding that an e-mail dated 23 December 2021 had amounted to a clear and unequivocal renunciation of the right to prosecute, having regard to all the relevant circumstances and that the e-mail had been sent “by an administrative member of staff who did not have authority to act on behalf of the Lord Advocate to make a decision that no further action was to be taken in a case”. A hearing on the appeal was set for 24 May 2023. On 3 May 2023, the appellant lodged an application to amend the Note of Appeal by adding a new ground, namely:-“The application of the rule regarding renunciation of the right to prosecute... would result in a breach of the complainer’s rights in terms of Articles 3 and 8 of the European Convention.... The state’s positive obligations inherent in articles 3 and 8 include not only a duty to enact laws which criminalise and punish crimes such as rape and domestic abuse but a duty to ensure that they are applied in practice through effective investigation and prosecution (O’Keeffe v Ireland (2014) 59 EHRR 15; MC v Bulgaria (2005) 40 EHRR 20; Commissioner of Police for the Metropolis v DSD [[2019] AC 196])…”. It was submitted, under reference to Singh v. H.M.A. 2013 SCCR 337, that the reason for the late ground was that matters had been “further considered” and that the interaction between rules on renunciation and Convention rights was relevant to the court’s determination of the appeal and was an issue of general importance. It was submitted that if the prosecution was not allowed there would be a failure to discharge the state’s Convention obligations. Here the court refused the application and stated that amendment is not permitted as a matter of routine but required cause to be shown, not only why the additional ground was lodged late but the court also had to be satisfied that the new ground was sufficiently strong to merit the appeal being amended, in other words the additional ground must contain “clear and substantial merit.” Here the court considered that insufficient reason had been put forward as to why the application to amend the grounds of appeal was late when there had been ample opportunity in the lengthy procedure of the case for the matter to be given the necessary scrutiny. In relation to the merits of the application, the court considered that the argument advanced was similar to that rejected in the case of HMA v Cooney 2022 J.C. 108, approving the decision in Thom v HMA 1976 J.C. 48. The appellant was entitled to make a decision renouncing an intention to prosecute, similar to a decision by the court to a desertion simpliciter once proceedings have been raised. As far as the contention that there had been a breach of Articles 3 and 8, the court considered that if there had been any such breach then it would be the Crown that was potentially liable rather than the court which was simply upholding the current Convention compliant law which allows for the Crown to make decisions to discontinue prosecutions in certain circumstances.