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Cite as: [2003] ScotSC 1
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Cook v. Her Majesty's Advocate [2003] ScotSC 1 (15 January 2003)
JUDGMENT OF SHERIFF A.L. STEWART, Q.C.
in causa
DOUGLAS COOK
Minuter
against
H.M. ADVOCATE
Respondent
_______________________________
Act:Williamson of Lawson, Coull & Duncan, Solicitors, Dundee
Alt:Orr, District Procurator Fiscal, Dundee
Dundee 15 January 2003
The minuter is charged on indictment with a common law charge of extortion or alternatively a charge of contravening the Telecommunications Act 1984, section 43(1)(a). The dates of the alleged offences are between 1 March 2002 and 6 March 2002. He has submitted a minute in terms of the Criminal Procedure (Scotland) Act 1995, section 72(1)(b)(i) claiming that the respondent is barred from proceeding against him on the extortion charge under any procedure, and further that the respondent is barred from proceeding against him on the statutory charge except by way of summary complaint. It is not in dispute that a summary complaint on that charge would now be time-barred. The effect of sustaining the minute would therefore be that the whole prosecution against the minuter would fall.
The facts were not in dispute. The minuter first appeared on petition on 14 March 2002. The case was continued for further examination and the minuter was released on bail. On 15 August 2002 a principal procurator fiscal depute wrote to the minuter's solicitor inter alia in the following terms:-
"I am prepared to recommend to Crown Counsel that they accept a [plea of guilty], on summary complaint, to section 43 telecommunications Act 1984. ... Please indicate whether this will be forthcoming. If I do not hear from you within the next three weeks, I will simply start the precognition, but as extortion."
To this letter the minuter's solicitor replied on 21 August 2002 in inter alia the following terms-
"[The minuter] has indicated that in the event of a summary complaint containing the contravention of section 43 of the Telecommunications Act 1984 being served upon him he would plead guilty. We look forward to hearing from you at your earliest convenience."
In fact the minuter's solicitor did not hear from the procurator fiscal's office until the present indictment was served on 13 December 2002. On 18 December the minuter's solicitor telephoned the procurator fiscal depute who had written the letter of 15 August to inquire why the reason for this. The latter explained that there had been a breakdown in communications between the procurator fiscal's office and Crown Office. As I understand it, for whatever reason, the recommendation mentioned in the letter of 15 August had simply not been made to Crown Counsel in time for a summary prosecution to be raised.
On behalf of the minuter Mr Williamson submitted that, looking at all the circumstances of what had occurred, the respondent was barred from proceeding against the minuter. The letter of 15 August constituted an offer. The letter of 21 August was a clear acceptance of that offer. Even though the minuter had been prepared to plead guilty to a summary complaint containing the statutory charge he would be prejudiced by pleading guilty to the same charge on indictment as this would enter his record as a conviction under solemn procedure. The statutory charge could not have appeared by itself on indictment as normally it could be prosecuted only under summary procedure. A summary prosecution had become time-barred by the time the indictment was served. Mr Williamson referred me to the cases of Thom v H.M. Advocate 1976 J.C. 48, 1976 S.L.T. 232 and Murphy v H.M. Advocate 2002 S.L.T. 2002. He accepted that the procurator fiscal's letter of 15 August did not meet the test laid down in these cases, namely that there had been "an unequivocal and unqualified announcement that the Lord Advocate renounced his right to prosecute". However, the circumstances were different where, as here, an offer had been made and accepted.
For the respondent Mr Orr, District Procurator Fiscal submitted, first (as is the case), that the minute did not aver any oppression. Secondly, the concession that the letter of 15 August did not meet the test laid down in Thom and Murphy was fatal to the minuter's position. That was the test which had to be applied. The Crown had erred, and for that Mr Orr apologised, but there had been no unequivocal renunciation of the right to prosecute. The minute should therefore be refused.
While I have a certain sympathy with the minuter's position, I have reached the conclusion that I must refuse the minute. The most that the procurator fiscal undertook to do in his letter of 15 August was to make a recommendation to Crown Counsel. There could be no guarantee that Crown Counsel would accept that recommendation. As is emphasised in Murphy at p. 1419G, a decision on a petition matter is taken by Crown Counsel and not by the procurator fiscal. There was therefore never any renunciation of the right to prosecute, let alone an unequivocal and unqualified one. The fact that the procurator fiscal failed timeously to contact Crown Counsel is most unfortunate, but it is really immaterial.
That is sufficient for disposal of the minute, but I should add that, in my opinion, just as what was said in the procurator fiscal's letter of 15 August can not be treated as binding in any way on the respondent, so can the minuter's professed willingness to plead guilty to the statutory charge contained in his solicitor's letter of 21 August not be binding on him. Mr Williamson prayed in aid the civil law of contract in his submission to me. Using the same analogy, what we have here is a frustrated contract. It is accordingly not enforceable by either party.