Crown Office reverse decision to extradite alleged Fettes abuser from South Africa but victims 'livid' over 8-month delay

The Crown Office is now seeking to prosecute a former teacher accused of abusing boys at one of Scotland’s top private schools in what has been described as a major u-turn by victims.

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A number of the former pupils, now men, have been fighting with the prosecution service for months to get justice for the physical and sexual assaults they allegedly suffered at Fettes College junior school in the 1970s.

The Crown Office initially refused to extradite the former teacher from South Africa in November on the basis of there being a time-bar on certain historic abuse crimes, the age of the accused and delays to the extradition process which would be exacerbated by the Covid-19 pandemic. The prosecution service had said it was “not in the public interest to prosecute.” This decision was upheld in January following a review.

Fettes College. Pic: Neil HannaFettes College. Pic: Neil Hanna
Fettes College. Pic: Neil Hanna
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But the men have been challenging the Crown’s refusal ever since, highlighting that a judgement was made by the Constitutional Court in South Africa during 2018 to lift the time bar and that this was enacted in law in December 2020. They say the Crown Office should have been aware of this much sooner than now.

Victims received letters - seen by this newspaper - last week from the Crown stating extradition has now been requested as it has since “come to our attention that South African law has changed” and “new evidence has come to light in the case” which means it is now in the public interest to proceed with the extradition request.

The letter said that the original decision was “taken in good faith, based on the law in South Africa at the time, as advised by the prosecution authorities in South Africa.”

Last night, one of the victims told this newspaper: “I am pleased to receive the letter but absolutely livid it’s taken eight months for them to realise their assumptions about the applicable law were wrong, and that me and the other men who have been pressing them about it have been treated abysmally.

“What is it coming to when a victim has to search online to find out that the law was in the process of being changed and then enacted in December 2020?

“I absolutely believe the initial decision would have stayed the same were it not for us, as a group of tenacious individuals, and the pressure from politicians and media, because they (Crown Office) are unaccountable. I was disgusted when I wrote to the First Minister in February and expected the FM’s office to take responsibility - but they just passed it back to the Crown Office.

“I had to give statements to the Scottish Child Abuse Inquiry and have relived everything at length, and you just expect the right thing to be done and not to have to have to fight with your own justice system.

“It’s a complete u-turn from them, with no apology for their incompetence whatsoever. They have delayed the serving of justice by 246 days. I consider myself lucky that I am able to express myself well but there are lots of other people who are not.”

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The man has also lodged an official complaint with the Lord Advocate criticising the Crown’s handling of the matter and how survivors of historic sexual abuse are treated. He has also questioned who in the South African prosecution authorities initially advised that the alleged abuser could not be extradited.

South African lawyers questioned Crown stance

The Crown Office sent letters to the men in November notifying victims of their initial decision to refuse extradition of their alleged abuser. The decision was later upheld in January following a request for it to be reviewed by the men who highlighted the legislation brought in to remove the time-bar.

In their response, the Crown said that although this was the case, that declaration of invalidity of the court was only made retrospective to April 27, 1994. This would mean any historic sexual offences which happened on April 26, 1994, could not be prosecuted.

However, lawyers in South Africa involved in the legislative process to remove the time-bar questioned the Crown’s interpretation of their law when they spoke to this newspaper back in April.

Gender law specialist, Sanja Bornman, said that the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Act of 2020 made “express provision for the revival of the right to institute a prosecution, of any sexual offence which may have been prescribed at any time before its commencement.”

Ms Bornman added: “This means the right to prosecute sexual offences which took place at any time before 1994 was also expressly revived.”

Bronwyn Pithey, a lawyer at the Women’s Legal Centre based in Cape Town, made formal submissions in the legal process which led to the Amendment Act in 2020.

Ms Pithey, a former prosecutor of 15 years, said the alleged offences at Fettes would be considered unlawful in South Africa but said it should be up to the Crown to prosecute given it happened in Scotland.

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South African extradition lawyer Gary Eisenberg also stated during a BBC Radio Scotland show with John Beattie in December last year that sexual offences, including child molestation, are not time barred in South Africa.

Opposition party politicians in Scotland previously told the Edinburgh Evening News that the Crown had a “weak basis” for their decision and it was “imperative” for survivors of sexual crimes that all efforts are made to bring alleged perpetrators to justice.

Process will ‘take time’

This newspaper spoke to a number of victims previously about the abuse they say they experienced at Fettes and the impact of it. One said it did not really affect him until his early 20s but that it had a major impact on his life, including suffering from depression and inexplicable bursts of rage and problems with drinking.

Fettes College has said previously they want to apologise to anyone who suffered abuse at the school, and stressed they take historic abuse claims “extremely seriously” and will cooperate with the authorities in any case of alleged abuse.

The latest correspondence from the Crown to victims says a court in South Africa will now decide whether the former teacher can be extradited to Scotland.

The letter adds: “If the extradition request is successful, we hope to prosecute him for the alleged offences against you.

“The path from here is not straightforward and the process (which is not under our control) will take some time. The South African authorities are not able to give us a definitive time for the process.”

A spokesperson for the Crown Office and Procurator Fiscal Service said: “It is the duty of the prosecutor to keep cases under review and to respond to changes in applicable law and available evidence.

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“This has been a complex investigation and COPFS appreciates that it has been a difficult time for all those involved.

“Officials from COPFS have maintained contact with the complainers over the status of the case.

“In order to protect any future proceedings and to preserve the rights of the complainers, the Crown will not comment further at this stage.”

A Scottish Government spokesperson said: “We fully understand why this individual would reach out to the First Minister seeking assistance in what is clearly a distressing case. However, it is extremely important that the Crown Office always acts – and is seen to be acting – independently of the Scottish Government in prosecutorial cases.

“For that reason Scottish Ministers cannot comment on, or intervene in, decisions relating to the prosecution of individual cases. Failing to do so risks creating the perception of political interference in the judicial process, which could jeopardise prosecutions. We are sorry that was not made clearer in our original response.”

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