Photo by Karl Bewick on Unsplash
We have an independent criminal prosecution service in Scotland headed by the Lord Advocate (a Scottish Government Minister). James Wolffe QC, the current Lord Advocate, has responsibility for the Crown Office and the Procurator Fiscal Service.
Yesterday, the role of the Lord Advocate came under intense media scrutiny as a result of the decision of the Crown Office not to prosecute several Police Scotland officers who had been accused of causing the death of a man who had been taken into custody in 2015.
The deceased was 31 year old Sheku Bayoh, who was arrested by Police officers in the Scottish town of Kirkcaldy. It was later established in a post mortem that Mr Bayoh had consumed drugs (MDNA and Flakka).
On a more sinister level, Mr Bayoh was found to have 23 different physical injuries. The Bayoh family and their solicitor (Aamer Anwar) always maintained that the actions of Police officers had caused the death and that they should face prosecution for their actions.
To the dismay of the Bayoh family, the Lord Advocate has declined to pursue criminal charges against the Police officers as this would not be in the public interest.
Today, Humza Yousaf, the Scottish Government Cabinet Secretary for Justice decided to convene a public inquiry into the circumstances of Mr Bayoh’s death – which may be some small consolation to his still grieving family.
The Bayoh family may also be considering the possibility of a civil action for compensation against the Police officers who they are alleging have responsibility for the death.
This case is a timely reminder that it is the State (or the Crown) which has the ultimate power to determine who will be prosecuted for crimes – not the victim or the family of the victim.
The possibility of the Bayoh family being granted the right to initiate a private prosecution against the Police officers is unlikely. The High Court of Justiciary must grant permission, by way of a Bill of Criminal Letters, for any private prosecution to proceed in the first place.
It should go without saying that the prosecutor in a private prosecution will still have to prove the allegations against the accused.
Two fairly recent attempts to raise private prosecutions in Scotland have been rejected out of hand by the High Court of Justiciary (see Bill for Criminal Letters by (1) John and Linda Stewart and (2) Allan and Aileen Convey Against William Payne AND (1) Matthew McQuade and Jaceline McQuade and (2) Yvonne Reilly Against Henry Clarke [2016] HCJAC 122 HCA/16-2/XM HCA/16-3/XM).
A link to the Opinion of the High Court of Justiciary in respect of these matters can be found below:
https://www.scotcourts.gov.uk/search-judgments/judgment?id=d26a25a7-8980-69d2-b500-ff0000d74aa7
The most famous, partially successful private prosecution in Scotland in was the affair which became known popularly as the Glasgow Rape Case. In 1982, a rape victim was permitted to raise a private prosecution against three of her alleged assailants (see X v Sweeney (1982) JC 70).
Prior to this legal action, there had been one, other private prosecution in Scotland during the 20th Century and that matter had been concluded as far back as 1911 (the actual Bill of Criminal Letters was granted in 1909 – see J & P Coats Ltd v Brown 1909 6 Adam 19).
A link to a story about the Lord Advocate’s decision can be found on the BBC Scotland website:
Sheku Bayoh: Family feel ‘betrayed’ over decision not to prosecute officers
His family said they felt betrayed over the decision not to bring criminal charges against police officers.
Copyright Seán J Crossan, 12 November 2019
Seán Crossan's Scots Law 