Crown office decision not to extradite alleged Fettes College abuser branded 'weak' by politicians as South African lawyers question position

Scottish politicians have called on the Crown Office to reconsider a decision not to extradite a former Fettes teacher who allegedly abused boys at the school - after South African legal experts questioned their basis for not doing so.

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Two men told the Edinburgh Evening News previously they were physically and sexually assaulted by the teacher at the junior school in the mid 1970s. One victim spoke of being taken into a changing room and beaten to the extent of “blacking out.” Both said the teacher, who now lives in South Africa, would fondle them at his desk when they went up to receive feedback on their work, and that he would be “openly violent” to pupils during class.

The men have spoken to investigators in the Scottish Child Abuse Inquiry and are expected to give formal statements at a future date - but what they want most is justice.

A letter from the Crown Office to the victims in November last year, seen by this newspaper, stated it would not attempt to extradite the former teacher due to 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 pandemic.

Despite the letter saying the case would likely have been pursued had the accused lived in Scotland, it said it is “not in the public interest” to prosecute. This decision has since been upheld following a request for it to be reviewed by these men, who highlighted that a judgement was made in 2018 by the Constitutional Court in South Africa to lift this time-bar.

In their response, the Crown said that although this was the case, that declaration of invalidity by the court was only made retrospective to April 27, 1994. This would mean any historic sexual offences which happened on April 26, 1974, could not be prosecuted.

However, lawyers in South Africa involved in the legislative process to remove the time-bar have questioned the Crown’s interpretation of their law.

Fettes College in Edinburgh. Pic: Neil Hanna

Gender law specialist, Sanja Bornman said: “The South African legislature, through the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Act of 2020, has 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. 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. She said: “When people are let down like this for the wrong reasons, it’s not acceptable.”

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

'Not acceptable'

A number of Scottish politicians have called for the Crown Office to do more to prosecute the alleged abuser.

Scottish Labour justice spokesperson Neil Bibby said: “The Crown Office’s weak basis for the refusal to extradite an alleged abuser is not acceptable.

“This group of men are bravely seeking justice for these painful historic crimes.

"All efforts should be made to support them in that endeavour.”

Scottish Conservative justice spokesman Liam Kerr said: "For survivors of sexual crimes, it is imperative that all efforts are made to bring alleged perpetrators to justice, and I would urge the Crown Office to pursue this case and at the very least provide a clear explanation if extradition is not sought."

Scottish Liberal Democrats justice spokesperson Liam McArthur said: "I can understand why these men feel they have been let down.

"A series of legal experts have now questioned the Crown Office position in relation to the disputed statute of limitations. For the victims and indeed the wider public, it would be helpful, therefore, if the Crown Office set out in more detail the basis for its decision."

‘Stunned’

One of the men we spoke to said previously they were both “stunned and furious” with the Crown Office decision not to prosecute and believed they must have made an error in their decision.

He said: “They were basically saying in that letter, because he is an older man and went to South Africa it would not be possible to pursue this. Our ages were not considered when we were being abused. Were it to be in this country, they would prosecute, which I find unbelievable.

“For the Crown Office to say they do not think it’s in the public interest to prosecute this man, who has molested boys and beaten some so badly they ended up in hospital - it beggars belief.”

The man said he also wrote to the first minister about the matter to no avail and that he and two others have been considering pursuing a private prosecution of the former teacher.

Both of the men we spoke to also highlighted other high profile cases where people of similar age were extradited to face sexual abuse allegations in Scotland.

One is that of former Catholic monk Dennis Alexander, who was 83 when he was extradited from Australia early last year and appeared in court in Inverness accused of sexually abusing children when he taught at Fort Augustus Abbey school in the 1970s.

The men have also spoken in detail about the impact of their experiences at Fettes. 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.

The other man we spoke to said he was hospitalised for days due to a violent attack by the teacher, and said he has also been diagnosed with severe delayed psychological trauma and has been referred to mental health services, which has come about amid the Child Abuse Inquiry and making his complaint to police.

The men believe that potentially very many boys who went to the Fettes junior school may have experienced abuse from the same teacher and that this has possibly been witnessed by hundreds. They have urged anyone who was abused there to come forward and report it to police and the Child Abuse Inquiry.

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.

A Crown Office & Procurator Fiscal Service (COPFS) spokesperson said: “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 potential proceedings and to preserve the rights of the complainers, the Crown will not comment further at this stage.”

Not all of the requests for review of the Crown’s decision in this case have been completed and so no final decision on the case will be made as a whole until this has been done.

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