The High Court recently clarified the circumstances in which the Crown (the Scottish public prosecutor) will be permitted to prosecute a person for an alleged offence when it has previously communicated a decision not to do so.


In general, it is for the Crown to decide if and when it will prosecute a person for alleged criminal wrongdoing.

The Crown's decision to prosecute, or not to prosecute, cannot generally be challenged through the courts, although victims now have a statutory right (under the Victims and Witnesses (Scotland) Act 2014) to ask the Crown itself to review a decision it has taken not to prosecute. In not being susceptible to challenge in the courts in respect of certain of its decisions, the Crown is different from almost all other public authorities (whose decisions, in general, can be challenged by statutory appeal or judicial review).

However, since at least 1976, the courts have limited this very broad discretion by holding that, where the Crown makes a "clear and unequivocal" statement that it will not prosecute a person or organisation in respect of particular alleged offences, that constitutes a final and binding renunciation of the Crown's ability to prosecute that person or organisation in respect of those alleged offences.

The challenge

In HMA v Cooney, the Crown sought to prosecute an accused person for alleged offences dating back several decades. The Crown argued that it was not bound by a letter it had issued to the accused's solicitor in 1992 which stated that "No criminal proceedings are being taken against [the accused person] in connection with this matter".

In asserting that the 1992 letter did not prevent the Crown from now prosecuting, the Crown sought to argue that the past cases which suggested the 1992 letter would act as a bar to prosecution were either wrongly decided or could now be departed from because of the public interest in preventing, responding to and prosecuting crime, and the greater recognition in the modern era of the rights of complainers.

The decision

The Court rejected the Crown's argument. It held that the Crown remained bound by clear and unequivocal statements that it will not prosecute a person for an alleged offence. That is so even if new evidence comes to light after the Crown's decision, or if the investigation that informed the Crown's decision was flawed.


In recent years, the Crown has introduced policies to limit the circumstances in which it will renounce the right to prosecute.

At present, where the Crown decides not to prosecute a person or organisation, its standard approach is to indicate that no action will be taken "at this time" and to expressly reserve the right to prosecute the case at a future date. Such a communication means the Crown can revisit its decision if, for example, new evidence comes to light after the original decision is taken.

However, there are still circumstances in which the Crown will give broader undertakings not to prosecute a person or organisation – for example in order to secure their evidence for a trial or Fatal Accident Inquiry.

It will be important for persons or organisations who deal with the Crown in such circumstances to secure the appropriate clear and unequivocal statement so as to protect themselves from future risk of prosecution.

If you would like advice in connection with the issues discussed in this legal update please contact Paul Marshall, Tony Convery or your usual Brodies contact.


Tony Convery