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APPLICATION TO AMEND A NOTE OF APPEAL BY HMA AGAINST JM [2023] ScotHC HCJAC_19 (12 May 2023)
URL: http://www.bailii.org/scot/cases/ScotHC/2023/2023_HCJAC_19.html
Cite as:
2023 GWD 21-188,
[2023] ScotHC HCJAC_19,
[2023] HCJAC 19,
2023 SLT 814
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2023] HCJAC 19
HCA/2023/153/XC
Lord Justice General
Lord Pentland
Lady Wise
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in the
APPLICATION TO AMEND A
NOTE OF APPEAL
by
HIS MAJESTY'S ADVOCATE
Appellant
against
JM
Respondent
Appellant: L Ewing KC AD; the Crown Agent
Respondent: Renucci KC; Paterson Bell
12 May 2023
[1]
Section 14 of the Victims and Witnesses (Scotland) Act 2014 required the appellant to
make rules governing a process for reviewing decisions of the Crown not to prosecute a
person. These were published in July 2015 as the Lord Advocate's Rules: Review of a Decision
not to Prosecute.
2
[2]
On 7 December 2020, the respondent appeared on petition at Glasgow Sheriff Court
charged with six allegations of assault on his wife in the years 1991, 1994, 2006, 2011 and
2018. In the Crown narrative of what followed, there is what appears to be an attempt to
distinguish between Crown Office and Procurator Fiscal Service staff at different levels of
administrative authority. Whether that attempt is a legitimate one may be for the court to
consider in due course. What is stated here presumes that a communication to or from the
COPFS, from or to whatever office or department, is one from or to the Crown.
[3]
On 21 December 2021, the respondent's agents emailed the Crown Office asking for
an update on the status of the case. Meantime, on 16 December, a decision had been made
(it is not said by whom) that there would be no further action in respect of the charges
because there was insufficient evidence. On 23 December, the Crown replied to agents by
email that: "There are to be no further proceedings in this case". Two days earlier, on
21 December, a letter had been sent to the agents. This also said that a decision had been
taken that there would be no further action against the respondent, but it added a caveat
that this was "at this time" and the Crown reserved the right to prosecute "at a future date".
Such a cautious approach is in line with internal COPFS policy guidelines. The letter was
received by the agents on or after 27 December.
[4]
The decision not to prosecute was subsequently reviewed by the Crown Office and
reversed. On 1 April 2022, an indictment libelling the assaults was served upon the
respondent. The plea in bar of trial, based on renunciation of the right to prosecute, was
lodged as early as 6 May 2022. Thereafter, a series of First Diets, at which not much seems to
have occurred, followed: 10 June, 4 July, 22 August, 3 October, 10 October, 21 November,
23 January 2023 and 13 February. Eventually, the case called on 27 March. The appellant
argued before the sheriff that the member of staff who had sent the email did not have
3
authority to make a decision not to prosecute. However, the sheriff held that the email had
well-understood consequences (HM Advocate v Cooney 2022 JC 108, approving Thom v HM
Advocate 1976 JC 48). The Crown had unequivocally renounced the right to prosecute the
respondent.
[5]
On 3 April 2023, the appellant lodged a Note of Appeal, signed by Crown Counsel.
The ground of appeal is simply that the sheriff erred in holding that the email of
23 December had amounted to a clear and unequivocal renunciation of the right to
prosecute, having regard to all the relevant circumstances. The Note states that the email
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".
[6]
A hearing on the appeal has been set for 24 May 2023.
[7]
On 3 May, the appellant lodged an application to amend the Note of Appeal by
adding a new ground. This is that
"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;
[8]
In the Crown's written submissions in the substantive appeal, there is an emphasis
on the obligation upon the state to have in place laws that will effectively investigate,
prosecute and punish those guilty of domestic abuse. A breach of the relevant Articles may
be established where there are either systematic or operational defects; the latter only where
4
there have been serious, egregious and significant failures, going beyond simple errors or
isolated omissions. In recent times the European Court of Human Rights has stressed the
need to protect victims of domestic abuse (Volodina v Russia (No 2), 14 December 2921,
The submission came to be that, rather than any renunciation of the right to prosecute being
the sole cause of any Convention breach, it would be the court that had breached the
complainer's rights by not in some way overturning the Crown's renunciation and allowing
the charges to proceed to trial. The law in relation to renunciation should not be applied in
this case.
[9]
Under reference to Singh v HM Advocate 2013 SCCR 337 at para [6], it was submitted
that the reason for the late ground was that matters had been "further considered". The
interaction, between the rules on renunciation and Convention rights, was relevant to the
court's determination of the appeal and was an issue of general importance. On the merits,
the indictment libelled domestic violence, constituting a contravention of Articles 3 and 8.
There would be a failure to discharge these obligations if the prosecution were not allowed
to continue. A system in which an administrative error had the effect of preventing further
prosecution was not one which provided practical and effective protection of the relevant
rights.
[10]
The court emphasised in Singh v HM Advocate that it did not permit amendment as a
matter of routine, but required cause to be shown. This involves a consideration not only of
the reason why an additional ground is proffered late, but also the merits of that ground.
The court requires to be satisfied that the new ground has sufficient strength to merit
invoking the amendment procedure. The grounds must contain "clear and substantial
merit". This application fails on both heads.
5
[11]
First, no sufficient reason has been advanced as to why this application to amend the
grounds has been made. Merely to say that the case has been reconsidered falls short of a
sufficient justification for an amendment, in the absence of clear and substantial merit. The
appellant did not argue the matter of Convention rights before the sheriff. There was ample
time to consider the matter, given the proliferation of apparently pointless First Diets. This
court therefore has no first instance view on the merits of the ground. Were it to allow the
ground to proceed, it would be determining it as a court of first instance; a procedure which
is not normally satisfactory.
[12]
Secondly, the new ground appears to be, in effect, no more than a recapitulation of
the grounds which were recently rejected in HM Advocate v Cooney. In that case, it was
determined that the appellant was entitled to make a decision renouncing an intention to
prosecute. Such a decision is the equivalent of a desertion simpliciter once proceedings on
indictment have commenced. There is no suggestion that there is some form of systematic
error in the way in which decisions to renounce or to continue prosecutions operate as a
generality. What occurred appears to have been an isolated instance in which the
procedures in the Crown Office may have failed (see Commissioner of Police for the Metropolis
v DSD, Lord Kerr at para 29).
[13]
There is no apparent breach of Articles 3 or 8. If there is such a breach, it is one for
which the Crown are potentially liable. The court does not itself create a breach by
upholding the current Convention compliant law in which there is an acceptable system in
which the Crown retain an ability to discontinue prosecutions in appropriate circumstances,
such as a lack of evidence. If a breach were to be established, the complainer has other
remedies both in the civil and criminal courts.
6
[14]
Leave to introduce this matter is therefore refused.
