Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kirkwood Lord Coulsfield Lord Marnoch	Appeal No: C630/02 OPINION OF THE COURT delivered by LORD COULSFIELD in NOTE OF APPEAL by MICHAEL JOHN MURPHY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: R. Watson; Balfour & Manson

Respondent: Targowski, Q.C., A.D.; Crown Agent

2 October 2002

[1] The appellant and two other men have been charged on an indictment which contains a total of 27 charges alleging a variety of assaults and sexual offences carried out on boys at a List "D" school on occasions between 1957 and 1981. Fourteen of the charges are directed against the appellant. The indictment was served on 13 June 2002 and the trial was to be held at the sitting of the High Court in Glasgow commencing on 16 July 2002. A minute in terms of section 73 of the Criminal Procedure (Scotland) Act 1995 was lodged on behalf of the appellant and came before the court at a preliminary diet on 4 July 2002. The minute raised a number of matters, including allegations of oppression and delay. On 4 July 2002, however, argument was heard only in relation to paragraph 3 of the minute, in which it is contended that by a letter dated 15 May 2002, written by the procurator fiscal at Stirling, the Crown had renounced its right to prosecute certain charges; and, in any event, that it had renounced the right to proceed against the appellant otherwise than by summary procedure. Having heard counsel for the appellant and the advocate depute, the judge refused the appellant's application to desert the indictment but granted leave to appeal. The judge also postponed the trial diet and took consequential action in regard to time limits.

1. The charges to which the argument that the Crown had renounced the right to prosecute the appellant was directed are charges 3, 4 and 5 on the indictment. These are the only charges against the appellant which involve a sexual element. Charges 3 and 4 relate to a single complainer, J.F., and to alleged occasions between 1 January 1960 and 31 December 1963. Charge 4 concerns another complainer, M.S., and a period between 1 January 1961 and 31 December 1961. Charges 3 and 5 involve masturbation and other indecent acts: charge 4 is substantially more serious, containing a charge of attempted sodomy.
2. The accused were placed on petition on 2 July 2001. There followed a considerable period of investigation, in the course of which there was correspondence between solicitors acting for the appellant and the procurator fiscal and Crown Office in relation to a number of matters, such as the availability of witnesses and arrangements for obtaining information about them and precognitions from them. There was also mention of potentially prejudicial publicity. On 4 December 2001, the procurator fiscal wrote to the appellant's agents and said, inter alia, that he was now setting out on the precognition process in detail and would hope to have a report prepared within two months or so. The letter continued:

"If the matter proceeds as currently set out on the petition it will be in the High Court and I cannot even begin to predict a date in which such a case would be heard. However, the High Court usually give me a provisional date for trial and once I have heard from them with that date I shall let you know. Precognition of course may result in an indictment in the Sheriff Court or indeed no indictment at all."

Thereafter there was further reference to possible dates for proceedings.

3. There appears to have been no further correspondence until the letter dated 15 May 2002, which is founded on in the minute. That letter began by referring to previous correspondence and continued to give very brief summaries of the contents of statements given to the Crown by the various complainers in the charges directed against the appellant. In regard to M.S., the letter said:

"Was submitted by the accused to electric shocks, force feeding, punching and kicking. He also claims that the accused masturbated him under bedclothes at night. That last allegation is uncorroborated."

With regard to J.F., it said:

"States that he was made subject to electric shocks and struck with leather laces tied in a knot. He also claims that the accused carried out serious sexual assaults on him but again none of these are corroborated."

4. The other complainers spoke only to assaults of a non-sexual nature. Having listed the complainers, and given an indication of what they had said, the letter continued:

"The sexual allegations are uncorroborated. There is clear evidence of the accused submitting a number of children over a number of years to electric shocks, punches and kicks, being struck with leather laces and force fed. Even by the standards of the 1960s and the 1970s such behaviour would be described as an assault and could not be described in any way as reasonable chastisement or indeed reasonable in any way. It is accordingly my intention to proceed against Mr. Murphy on a summary complaint and that will be issued shortly."

5. It should be mentioned that after the letter there was a telephone conversation between the procurator fiscal and the appellant's solicitor in which the fiscal indicated that the letter should be regarded merely as giving his recommendations to Crown counsel and should be read subject to their instructions. That circumstance, however, played no significant part in the argument in this appeal.
6. The contentions of the appellant were set out in the minute in the following terms:

"(Firstly) the Crown having renounced its right to prosecute charges 3, 4 and 5 being charges directed against the minuter and containing 'sexual allegations' and the Crown being personally barred from insisting in prosecution those charges should be deserted simpliciter; and

(Secondly) the Crown having renounced its right to prosecute by way of indictment and proceedings by way of summary complaint being incompetent in the High Court of Justiciary the Indictment should be deserted."

7. The argument before the judge was principally founded upon the decision in Thom v. H.M. Advocate 1976 J.C. 48. In giving his decision, the judge said that he did not regard the letter of 15 May 2002 as happily phrased and that, on one view, it was understandable that the appellant and his agents might have interpreted it as binding the Crown to proceed only by summary complaint on the non-sexual charges. He went on to say, however, that the test for holding the Crown to be personally barred was a high one since the court had to balance the rights of an individual accused against the public interest in bringing crimes to trial. He continued:

"I was satisfied that the correct test to be applied was whether the statement or letter founded on is a public unequivocal and unqualified announcement that the Lord Advocate renounced his right to prosecute an individual on specified charges.

There is no express announcement in the letter of 15 May 2002 that the Lord Advocate will not prosecute the appellant in respect of the sexual allegations. The nearest that the letter comes to this is the first sentence of the last paragraph, namely 'the sexual allegations are uncorroborated'. It does not appear that the author of the letter has considered the application of Moorov. Moreover there is force in Mr. Clancy's (counsel for the appellant) observation that it would be unusual to see such allegations prosecuted by means of summary complaint. Nonetheless, I did not consider that this amounted to a representation of a concluded decision not to prosecute these charges."

8. The judge also rejected the second contention, principally on the ground that there was no concluded decision expressed in the letter, but he added that he was not satisfied that the principles which applied in determining whether the Crown had renounced the freedom to exercise its discretion as to the mode of prosecution were the same as those which applied in determining whether it was bound not to prosecute at all.
9. In the argument in the appeal, it was accepted that the judge had set out the relevant history correctly, and that the test to be applied was also properly set out in the passage which we have quoted verbatim above. The judge's reference to balancing of interests was not properly part of the test to be applied, but it was not suggested that the judge had significantly misdirected himself as to the proper test. It was suggested, however, that if the letter was properly read, it was unequivocal and was a record of a decision not to prosecute the sexual charges at all. The reference by the judge to the case of Moorov was a red herring. The application of the doctrine set out in the Moorov case was a means of providing corroboration, and in stating that the sexual allegations were uncorroborated it could be taken that the writer of the letter was aware of the availability of the Moorov doctrine. The procurator fiscal charged with the precognition of the case had written a reasoned letter after considered enquiry and had expressed an unequivocal conclusion. It was difficult to construe the letter in any way other than as a decision, and, in particular, it could not be construed merely as a recommendation to Crown Office. As regards the second element of the argument, the principle, it was suggested, must be the same, namely that if the Crown had unequivocally renounced a right to prosecute otherwise than by summary procedure, that should be binding, in the absence at least of a material change of circumstances. Counsel accepted, however, that it was competent for the Crown, even when a summary prosecution had been raised, to desert that process and commence a prosecution under solemn procedure, subject of course to any applicable time limits.
10. For the Crown it was submitted that the letter should be read in the light of the circumstances of the case itself, the previous correspondence and the known and established practice of the Crown in deciding whether or not to proceed, and in what form to proceed, following on a petition having been presented. So read, the letter should be regarded as ambiguous and not as setting out a concluded decision not to prosecute, or not to prosecute by solemn procedure. Nothing in the letter, it was submitted, expressed a decision by the Lord Advocate or by Crown counsel. As a matter of construction the last paragraph of the letter was only a statement of intention and a renunciation of any kind must be unequivocal.
11. In addition to Thom supra, reference was made to Stewart v. H.M. Advocate 1980 J.C. 84, but the only significance of that case, for the present purpose, is that Lord Kincraig expressed the view that an unequivocal announcement to the accused himself or person acting for him was sufficient to bind the Crown, without any further announcement to the public generally; and there was no dispute on that point.
12. Thom was a case in which an accused person appeared on petition charged with embezzlement. Two months after the petition, the procurator fiscal wrote to the accused's solicitor a letter in which he said that he had been making a thorough enquiry and continued:

"Although I am left in the end of the day with a strong suspicion that Mr. Thom is responsible for the defalcations in question, I have come to the conclusion, having considered the whole matter, that the case is not good enough to put before a jury, nor for that matter do I think that I could persuade my sheriff to convict on a summary prosecution - because of the number of loose ends that appear to exist in the evidence relating to what occurred in Mr. Thom's former office.

As a result, therefore, I am taking no further steps in this matter and your client accordingly may uplift his bail."

There was also, in that case, a public announcement reported in the press to the effect that no proceedings were to be taken.

13. In the argument before the court, and in the decision of the court itself, it was accepted that it was well-established in law that where the Lord Advocate had publicly relinquished or discharged his right of prosecution, in the case of a particular charge against a particular individual, no prosecution on that charge could competently follow. The argument for the Crown, however, was that such a public relinquishment or discharge must be made in open court. Alternatively, the Crown argued that the letter was not an unequivocal renunciation but only a statement of present intention. In giving the opinion of the Court, Lord Justice General Emslie said that the first question was whether the terms of the letter fell to be construed as an unequivocal public announcement, and the second was whether proceedings only became incompetent if the announcement was made in open court. He said:

"As to the first question, we have no doubt that the letter by itself cannot be read as a mere statement of the intention of the Crown for the time being. Properly construed it constitutes an unequivocal and unqualified announcement on behalf of the Lord Advocate that no further steps are to be taken in respect of the charge on which the applicant appeared on petition, or, putting the matter in another way, that the Lord Advocate has decided not to exercise his right of prosecution in the applicant's case. Such an announcement in our opinion can, like a motion to desert simpliciter, only be regarded as a declaration of relinquishment or discharge of the right to prosecute upon the relevant charge. The announcement to the press thereafter merely reinforces the construction which we are compelled to put upon the letter."

14. Thereafter the court proceeded to consider the second question and to hold that it was not necessary that the renunciation of the right to prosecute should take place in court.
15. The question in the present case, then, is whether the letter of 15 May 2002 does constitute an unequivocal public declaration or renunciation. There is undoubtedly force in the contention on behalf of the appellant that it does. The letter does, as counsel submitted, proceed upon an examination of the available evidence and we accept that it should be assumed that the writer of the letter had taken account of the well-established principles of the law of evidence, including those enshrined in the decision of Moorov. On that basis, the writer of the letter has expressed a clear opinion that there is no corroboration for the sexual charges. Further, there are phrases in the final paragraph which can be regarded as suggestive of a decision rather than an intention or expression of opinion. That is particularly true of the last sentence and especially the last phrase which could be read as saying that a decision has been taken to proceed by summary process. However, even in that last sentence there is no express announcement of a decision. In that respect, the letter of 15 May can be contrasted with the letter which was the subject of the decision in Thom supra. The letter in Thom's case did expressly refer to a conclusion. Further, by inviting the accused to uplift his bail, it gave a clear indication that proceedings could be regarded as at an end. The principle which is set out very clearly in the opinion of the Court in Thom is that there must be an unequivocal renunciation of the right to prosecute if the Crown are to be prevented from proceeding. It is, in our view, correct as the advocate depute submitted that the letter must be looked at against the whole background and circumstances of the case and of the known practice in dealing with cases in which proceedings have been begun by petition. Under that practice, a decision not to prosecute, or to prosecute only at summary level, is taken by Crown Office, not the procurator fiscal. It may be added that it would be very undesirable if correspondence between the procurator fiscal and the agents for an accused person were to be subjected to close scrutiny in order to determine whether it contained anything which could be read as a renunciation of the right to prosecute. It seems to us that when the court in Thom used the expression " "unequivocal announcement", it meant precisely that. In the present case, therefore, in our opinion, although the letter can be regarded as phrased in a way which, as the judge said, might lead a person to suppose that prosecution on the sexual charges would not proceed, and that any proceedings on these or other charges would be summary, it does not, nevertheless, contain the necessary unequivocal declaration on behalf of the Crown. In our opinion, therefore, both branches of the argument for the appellant fail and the appeal must be dismissed.
16. In these circumstances it is not necessary for us to express a view upon the question whether, and if so how, the Crown may become bound to proceed only by summary procedure in a case which might be prosecuted either by solemn or by summary procedure. We would, however, observe that in view of the established practice by which the Crown may, at its discretion, change from a summary to a solemn proceeding even after a complaint has been served, there seems to us to be considerable difficulty in advancing the argument that the Crown can become bound to one form of procedure rather than the other, in the absence of circumstances which might be held to amount to oppression.