HER MAJESTY'S ADVOCATE v. R.

[2] The history of the case, so far as material, was not in dispute before me and can be summarised as follows.

[3] On 13 August 1995 a girl whom I will refer to as "S" (then aged 7) and another girl whom I will refer to as "L" (then aged 8) made disclosures to the police about indecent behaviour towards them by the accused, who was living at that time with S's mother. The accused was detained the same day and interviewed by the police under caution. He made admissions of touching each of the children inappropriately. At the end of the interview he was cautioned and charged. The charges were in broadly similar terms to charges 1 and 3 on the present indictment.

After being cautioned and charged the accused was released. He was told that a report would be submitted to the procurator fiscal, On 23 August 1995 the police sent a report on the case to the (then) procurator fiscal. On 13 November 1995 the reporting officer received a letter from the procurator fiscal which stated:

"I am not taking proceedings in this matter on the basis of insufficient evidence. If the position changes regarding evidence you will no doubt let me know".

That decision was not intimated to the accused. Early in 1996 however S's mother, with whom the accused was still living, made informal inquiries of the police as to what was happening, and was told that the Crown were not proceeding with the charges. She passed that information on to the accused. That information was not given by the Crown or with its authority, and there is no suggestion that it gives rise to any bar to proceedings on the basis explained in Thom v HM Advocate 1976 J.C.48. From that point onwards the accused believed that the charges were not being proceeded with.