Today’s Herald reports that the driver of the bin lorry involved in the tragedy in Glasgow’s George Square in December 2014 cannot be prosecuted given statements which Crown Office have already made to the effect that no criminal proceedings would be taken against him (or Glasgow City Council), criticising that decision in the light of evidence led during the ongoing Fatal Accident Inquiry. What follows is a note of the legal rule on which that article is based and the problems it creates.
What is the legal rule here?
In a case called Thom v HM Advocate (1976 JC 48) the High Court said that where the prosecution had made an unequivocal and unqualified statement that they would not prosecute a person, that barred any prosecution at a later date. Put simply, having decided not to prosecute, the Crown could not change its mind. This is often referred to as renunciation of the right to prosecute.
Is this a sensible rule?
Probably not. It’s worth comparing England, where the Code for Crown Prosecutors states (para 10.2) that:
“People should be able to rely on decisions taken by the CPS. Normally, if the CPS tells a suspect or defendant that there will not be a prosecution, or that the prosecution has been stopped, the case will not start again. But occasionally there are reasons why the CPS will overturn a decision not to prosecute or to deal with the case by way of an out-of-court disposal or when it will restart the prosecution, particularly if the case is serious.”
This doesn’t mean that English prosecutors can arbitrarily decide to take up a case again. The courts can throw a case out as an “abuse of process” if a prosecutor does that without very good reason. But it does give English prosecutors a safety valve for cases where there turns out to be good reason to reverse a decision not to prosecute. In Scotland, however, the courts have been reluctant to interfere in prosecutorial discretion and so have not recognised an “abuse of process” rule. Instead, they have simply given an absolute and final effect to a decision not to prosecute.
Has this caused problems before?
Occasionally, yes. The most high-profile case by far was what was known as the “Glasgow Rape Case” in the early 1980s, which caused Nicholas Fairbairn’s resignation as Solicitor-General, although for a slightly different reason. There, Crown Office had elected not to prosecute a number of men accused of rape on the basis that the victim was not fit to give evidence and there was no reasonable prospect of this changing. (Fairbairn’s resignation was based on prematurely advising a reporter to this effect.) Subsequently, and rather sooner than might have been expected, the victim was in a position to give evidence. The Crown could do nothing. Lawyers acting pro bono on the victim’s behalf, however, sought and were granted permission from the High Court to bring a private prosecution (X v Sweeney 1982 JC 70), which led to convictions. Private prosecutions are exceptionally rare in Scotland: there have been few applications for permission to bring one since and none has been granted.
Did the Crown actually get it wrong in this case?
It should be noted that the Herald report says expressly that “Crown Office were fully aware of the evidence which has been led at the inquiry”. Second-guessing a decision such as that taken here – which will doubtless have been considered very carefully – on the basis of press reports of some evidence led during an FAI, before the FAI has concluded and the evidence assessed by the sheriff, is unlikely to be helpful. It’s worth noting that although the renunciation rule protects someone against prosecution, it can operate against their interests if it makes the public wrongly believe that they would have been prosecuted if only the Crown hadn’t somehow blundered.
Does this rule prevent a prosecution taking place in this case?
The lawyers quoted in the Herald all say it does. They are almost certainly correct, but I would not have been willing to answer the question quite as unequivocally as that, because the terms in which Crown Office wrote to Mr Clarke are not a matter of public knowledge. If the Crown write to someone indicating (for example) that they do not intend to prosecute, that does not prevent them changing their position. It is only an unequivocal renunciation of the right to prosecute that has that effect. It might be, however, that the courts would say that if there has been a clear public renunciation (and the Crown Office February statement does seem to amount to one), it is irrelevant whether the Crown have expressed their position differently in private correspondence.
What if a victim of crime challenges a Crown decision not to prosecute?
From 1 July of this year, victims of crime have the right to request a review of Crown decisions not to prosecute. This applies only to decisions taken on or after that date, so it could not be exercised in this case. One interesting aspect of the right to review policy is the following statement:
“On some occasions, we may have told the accused or their solicitor that the accused will not be prosecuted for a particular matter. If that is the case, we cannot prosecute the accused for that matter and so the decision cannot be reviewed.”
This is simply a restatement of the Thom renunciation rule. But it’s difficult to see how it is compatible with the EU Victims’ Directive which the right of review is designed to implement. Article 11 of the Directive says that alleged victims of crime must have the right to request a review of a decision not to prosecute. If the Thom rule bars that review, it is surely incompatible with the Directive.
In practice, it may be that Crown Office will simply seek to avoid this problem by always saying that any decision not to prosecute is subject to the right of review procedure, thus disapplying Thom (at least to some extent). It might have been better, however, to say publicly that all decisions are necessarily subject to that procedure. There should be no possibility whatsoever of the Thom rule barring the right of review.
If this is a bad rule, are the Crown to blame for it?
No: it’s a creation of the courts, not the Crown. But two points should be noted. First, the rule is based entirely on the Crown’s own decision to renounce the right to prosecute: renunciation cannot be forced upon the Crown. Secondly, the courts have also said that general statements by the Crown can be binding: so, for example, the Crown has been held in the past to a public statement (since revoked) that it would not bring any prosecutions for drink-driving based on breath/alcohol readings below a certain level (Lockhart v Deighan 1985 SLT 549). Given that, it’s not clear that there’s anything which would stop the Crown simply saying that it no longer recognises the Thom rule, that it always reserves the right to change a decision not to prosecute in exceptional cases – perhaps even setting out criteria and a procedure for doing so – and that any statements it made in individual cases must be read as subject to that policy.
At the same time, the Lord Advocate might think that such a policy is too much of an innovation within the framework laid down by the courts, and that any change should require legislation. There are also good arguments in support of the Thom rule. Having the possibility of criminal prosecution hanging over you is stressful and debilitating, and people should be able to rely on statements from the Crown that they will not be prosecuted.