The High Court has refused a Crown appeal against a sheriff’s decision that an indictment against a former teacher should be deserted. 
It was submitted for the respondent, Paul Cooney, that the Lord Advocate had renounced the right to prosecute through a letter dated the 21st of December 1992. The Crown sought reconsideration of the decision in Thom v HM Advocate (1976) to allow the prosecution to continue. 
The respondent was indicted in 2020 in relation to unlawful sexual intercourse which was said to have took place against one pupil on various occasions between 1 August 1977 and 2 April 1980. The respondent lodged a plea in bar of trial and referred to the letter that had been sent to his solicitor in 1992. 
The complainer had made a complaint to the Education Authority and the respondent was interviewed by police. His solicitor at the time wrote to the Crown and was advised that, “No criminal proceedings are being taken against Mr Cooney in connection with this matter.” 
The Crown argued that the position in Thom v HMA, that a statement by the Lord Advocate could result in a binding renunciation of the right to prosecute was wrong. It was stated that this view was not consistent with institutional writers and with the general principle that the Lord Advocate’s power was not subject to the control of the courts. 
Further to this, it was stated that Thom was no longer good law when taking into consideration the public interest in the prosecution of crime and the rights of complainers. 
In providing the opinion of the court, Lady Dorrian stated: “The notion that the Lord Advocate should be held to a clear and unequivocal statement that she will not prosecute a named individual for a particular criminal offence is a corollary of the absolute power of decision making in this area which vests in the Lord Advocate, and which prevents the court from making inquiry into, or interfering with, the exercise of her discretion on such matters.”
Addressing the case of Thom she stated: “It is not possible on the information available to us to reach a properly reasoned view that there have been failures which meet the test for operational deficiencies to constitute a breach of Convention rights. In any event, had we concluded otherwise, it does not follow that an isolated instance such as this should require the law to be restated and a larger court convened to reconsider Thom.”
She went on to say: “It was open to the Crown to qualify any decision not to prosecute with the addition of a simple caveat – ‘at this time’ or ‘on present information’ – to preserve a position. It chose not to do so. That other systems deal with the same issue in a different way is not a reason for the court to consider changing the law. Regard must be had to the context in which the law operates, and in this case the particular and special role of the Lord Advocate as prosecutor in the public interest.”
For these reasons, the appeal was refused.