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Cite as: [2018] CSOH 106, [2018] ScotCS CSOH_106

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OUTER HOUSE, COURT OF SESSION

[2018] CSOH 106

P376/17

OPINION OF LADY CLARK OF CALTON

In the cause

MARGARET PATRICIA PATERSON

Petitioner

against

THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

Respondent

for

JUDICIAL REVIEW

Petitioner: McLean; Balfour + Manson LLP

Respondent: Pirie; Scottish Criminal Cases Review Commission

16 November 2018

Summary

[1] In 2013 the petitioner was convicted of a number of connected offences contrary to

the Criminal Law (Consolidation) (Scotland) Act 1995 sections 11(4), 11(5)(a) and (6) relating

to aiding or compelling prostitution and keeping or management of a brothel; the Proceeds

of Crime Act 2002, section 329(1)(c) relating to possession of criminal property, and

section 327(1)(c) relating to conversion of criminal property. The offences were libelled in

terms of section 29 of the Criminal Justice and Licensing (Scotland) Act 2010 between

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specified dates in 2010 and 2011 as aggravated by a connection with serious organised crime.

Sentences of imprisonment, to be served concurrently, of 3 to 5 years imprisonment were

imposed in respect of the offences.

[2] The petitioner sought leave to appeal against conviction and sentence. The court

granted leave to appeal against sentence only. After a full hearing the sentence appeal was

refused.

[3] In December 2014, the petitioner made an application to the respondent and alleged

that she had suffered a miscarriage of justice setting out various grounds. After

investigation and further procedure, the respondent issued a decision and statement of

reasons dated September 2015 and a decision and supplementary statement of reasons dated

31 May 2016. A further decision and statement of reasons dated 27 January 2017 was made

by the respondent in response to an application for review by the petitioner dated

19 December 2016. The respondent concluded for the various reasons given not to make a

reference to the High Court of Justiciary in respect of all the grounds raised by the

petitioner.

[4] In this judicial review petition, the petitioner sought reduction of the respondent’s

decision dated 27 January 2017 and inter alia an order requiring the respondent to reconsider

the decision. The basis of the challenge was that the respondent decided not to make a

reference after taking into account material, in the form of two letters from Crown Office,

which had not been seen by the petitioner. The letters related to a Crown Office policy

about prosecution. It was not disputed that the information from Crown Office played a

central part in the respondent’s decision to refuse to refer the petitioner’s case in respect of

one of the grounds raised by the petitioner and the judicial review focussed on that. The

petitioner alleged in relation to the respondent’s reliance on the Crown Office letters that

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“the respondent afforded an opportunity for injustice to be done, and its decision was

procedurally unfair” (paragraph 12 of the petition).

[5] By interlocutor dated 11 July 2017 permission was granted by the Lord Ordinary for

the judicial review petition to proceed. Thereafter in the course of proceedings, a motion on

behalf of the respondent was enrolled to restrict the hearing to time bar issues raised by the

respondent in their second plea in law and by the petitioner in their second and third pleas

in law. The motion was unopposed and was granted by interlocutor dated 24 April 2018.

The issues to be determined in the judicial review proceedings

[6] The principle issue was whether on the correct interpretation of section 27(1)(a) of

the Court of Session Act 1988 (The 1988 Act) the petitioner made an application to the

supervisory jurisdiction before the end of the period of 3 months beginning with the date on

which the grounds giving rise to the application first arose. The subsidiary issue was

whether in the circumstances of the petitioner’s case, it is equitable to extend the 3 month

period under section 27A(1)(b)

The decision making of the respondent

[7] With the assistance of her solicitors, the petitioner made an application to the

respondent in December 2014 and submitted that she had suffered a miscarriage of justice in

relation, inter alia, to alleged defective representation, prejudicial pre-trial publicity and

judicial misdirection. The respondent investigated and issued a detailed statement of

reasons dated September 2015. The respondent, for the reasons given, did not believe that

there had been a miscarriage of justice and decided not to refer the case to the High Court.

Paragraph 40 stated:

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“The Commission will consider any further submissions in the applicant’s case,

based on the present grounds of review, and may reconsider its decision. All such

submissions should reach the Commission within 28 days of the date of the letter

accompanying this statement of reasons.”

[8] By letter dated 19 November 2015 and received by the respondent 24 November

2015, additional submissions were made by the solicitor acting for the petitioner. The letter

stated:

“…At Edinburgh Sheriff Court a number of accused appeared in relation to an

indictment matter in which they were being prosecuted for similar offences as those

on Ms Paterson’s indictment. Although we have not had an opportunity to consider

the terms of the indictment we understand that the individuals were all accused of

operating saunas in the City of Edinburgh and contravening the Civic Government

(Scotland) Act plus money laundering offences.

The case was withdrawn against all accused.

Although we do not have full details we understand that potentially it related to a

Crown investigation regarding a Crown Office Policy not to prosecute individuals

operating such premises…”

Although the submissions were made outwith the 28 day time limit, the respondent carried

out further investigation. In the respondent’s supplementary statement of reasons in

May 2016, the respondent identified “a new issue” in relation to sheriff court proceedings

relating to brothel keeping in which the Crown had withdrawn the indictment.

Paragraph 24 stated:

“In January 2016, the Commission itself wrote to the Crown, seeking clarification of

the position. The Crown responded to the Commission in a letter dated 24 March

2016, and, at the Commission’s request, provided additional information in a letter

dated 6 April 2016. The second letter maintained that there was no ‘policy restricting

the prosecution of brothel keeping cases’. It did, however, confirm that there was

information available to the Crown about the establishment in the 1980s of a local

authority licensing scheme for premises at which prostitution may have taken place.

The information included reference to a prosecutor taking part in a meeting about

the scheme and discussing the circumstances in which prosecution for prostitution

offences in such licensed premised would not take place. The Commission does not

believe that this information is relevant to the applicant’s case. The applicant denied

that she had been running a brothel of any description. There is no suggestion that

she may have been operating a licensed sauna.”

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The respondent intimated the supplementary statement of reasons by letter dated 31 May

2016 which stated that the respondent had now “finally decided” not to refer the petitioner’s

case to the High Court. The petitioner was informed that she was not prevented from

applying again if she believed that new matters arise which the respondent had not

addressed as part of the application.

[9] On 16 August 2016 there was informal correspondence by email from a relative of

the petitioner in which it was said that the petitioner required further information including

“Crown Office letters” to be sent to her lawyer, “so they can go ahead to see if she can go

down the judicial review:”. The respondent replied by letter dated 22 August 2016 and

stated:

“…The Commission operates within a framework of statutory non-disclosure

provisions, as set out in the Criminal Procedure (S) Act 1995 (CPSA), section 194J,

and the Data Protection Act 1998. Section 194J(1) of CPSA provides that a person

who is or had been a member or an employee of the Commission shall not disclose

any information obtained by the Commission in the exercise of any of its functions

unless the disclosure of the information is excepted from s194J by s194K of CPSA…”

[10] A further application to the respondent dated 19 December 2016 was made

personally by the petitioner, albeit she had some legal advice. The application included part

of the Judge’s charge to the jury; an article from the Daily Record entitled “Lawyer Who

Foiled Massive Police Operation to Close Down Edinburgh Sex Saunas”; and a draft note of

appeal which stated, inter alia:

“…Prior to the trial diet the Crown failed to disclose to the appellant that there was a

Crown Office policy in place that individuals in Edinburgh who traded in

prostitution and brothel keeping would not be prosecuted. Such a policy resulted in

the Crown ceasing prosecutions against 11 individuals… the appellant was unaware

that such a Crown Office policy existed… The Crown therefore failed to disclose

material likely to be of assistance to… the appellant’s defence at trial… If there had

been disclosure there was a real possibility that the jury would have reached a

different verdict…”

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In the additional information, there was no request to the respondent to disclose the Crown

Office policy in full in the form of the Crown Office letters or otherwise and no complaint

was made to the effect that the respondent’s consideration and determination of the issues

was flawed in any way because the petitioner did not have access to the full terms of the

Crown Office policy.

[11] By letter dated 13 January 2017, the legal officer of the respondent wrote to the

petitioner and stated:

“…My summary of your grounds of review is as follows:

(1) Prior to the trial diet the Crown failed to disclose to you and to the public that

there was a Crown Office policy in place that individuals in Edinburgh who

traded in prostitution and brothel keeping would not be prosecuted. Such a

policy resulted in the Crown ceasing prosecutions against eleven individuals

named upon indictments. On one of the indictments (PF Reference ED13137726)

reference was made not only to saunas but to other premises. Prior to your trial

you were unaware that such a policy existed or that there was a meeting in or

around 1986 with the police, the Crown Office and other interested parties to

effectively decriminalise prostitution in Edinburgh. You were aware that

Edinburgh ‘saunas’ operated as brothels. The failure by the Crown to disclose

the details of the original meeting and any policy for non-prosecution was a

material failure on the part of the Crown. The issue of Edinburgh ‘saunas’ arose

during the trial; there was no evidence that the saunas operated as brothels in

the knowledge and with the cooperation of the authorities. The trial judge

directed the jury about the saunas at pages 22-23 of his charge.

(2) The Crown therefore failed to disclose material likely to be of assistance to the

proper preparation and presentation of your defence at trial (McDonald v HMA

2008 SCCR 954). If there had been disclosure there is a real possibility that the

jury might have reached a different verdict (McInnes v HMA 2010 SC (UKSCS) 28;

Fraser v HMA 2011 SC (UKSC) 113). Additional investigation and enquiries

would have been made on your behalf. Evidence could have been led from

police officers and from your accountant regarding the knowledge of the police

in relation to your venture which was advertised and open, in relation to your

contact with the police and to the fact that there was a Crown Office policy.

Evidence was led at trial regarding the saunas which must therefore have been

determined as relevant to the issues at trial despite the trial judge’s directions.

There has been a miscarriage of justice.

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By letter dated 1 February 2017 to the petitioner, the respondent referred the petitioner to

the statement of reasons dated 27 January 2017 to explain the decision not to make a

reference. The respondent stated that the ground of review is “the same, or substantially the

same, as one of the grounds submitted by the applicant’s solicitors to the Commission in the

course of its previous review”; there was no good reason for disagreeing with the outcome

of the earlier review under reference to paragraph 24 of the supplementary statement of

reasons dated May 2016; and at page 3 thereof stated that:

“…Any discussions in the 1980s about the circumstances in which prosecution

would not take place for prostitution offences in premises licensed under a local

authority scheme are not relevant to the applicant’s case. The applicant’s convictions

did not relate to any premises licensed by the local authority. There was no

suggestion in the evidence that the applicant may have been operating a licensed

sauna. The applicant’s position throughout was that she denied running a brothel of

any description.”

The statutory framework governing the operation and decision making of the respondent

[12] The respondent, the Scottish Criminal Cases Review Commission, is a statutory body

which has the remit and powers set out in section 194 of the Criminal Procedure (Scotland)

Act 1995. In terms of section 194C(1) the grounds upon which the respondent may refer a

case to the High Court are that they believe:

“(a) that a miscarriage of justice may have occurred; and

(b) that it is in the interest of justice that a reference should be made.”

In terms of section 194F, the respondent has wide powers which include a power to request

the Lord Advocate for information and under section 194R a power to obtain documents on

application to the High Court. Special provisions also relate to circumstances in which the

respondent may not disclose information without consent in terms of section 194L.

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The time limits in the Court of Session Act 1988

[13] Section 27A of the 1988 Act states:

“(1) An application to the supervisory jurisdiction of the Court must be made

before the end of –

(a) the period of 3 months beginning with the date on which the grounds

giving rise to the application first arise, or

(b) such longer period as the Court considers equitable having regard to

all the circumstances.”

Submissions by counsel for the respondent

[14] The principal submission of counsel for the respondent was that the application by

the petitioner for judicial review was time barred. He addressed the court on the correct

interpretation of section 27A(1)(a) under reference to the interpretation of what he described

as “not materially dissimilar time bar provisions in England and Wales”. Reference was

made to R v Secretary of State for Trade and Industry, ex parte Greenpeace Limited [1998] Env

LR 415 at paragraphs 420-4 and Payne v Secretary of State for the Home Department [1999] Imm

AR 489 at page 492. The approach in the Greenpeace case was followed in R v Commissioner

for Local Administration, ex parte Field, High Court, 29 July 1999. The time bar provisions in

the 1988 Act are framed by reference to “the date on which the grounds giving rise to the

application first arise” that may be a reference to a specific decision challenged but it is

important to consider what is the real substance of the challenge made in the judicial review

process. The legislative objective of the time bar provisions reflected the public interest in

challenges being made promptly. Where such time bar provisions applied, they could not

be defeated merely by a repetition of the substance of the submissions in order to obtain a

later decision. Reference was made to Wightman v Advocate General 2018 SLT 356,

paragraph 33 in which Lord President (Carloway) observed:

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“So far as time bar is concerned, the three month limit in section 27A of the 1988 Act

cannot be circumvented simply by persuading a person to repeat a decision or other

act complained of…”

[15] Counsel identified the grounds of review raised by the petitioner which were to the

effect that the decision was procedurally unfair because it was based on material from the

Crown Office letters that had not been seen by the petitioner. He submitted that it was plain

from the decision and reasons dated 27 May 2016 that it would have been open to the

petitioner from the end of May 2016 to raise an action of judicial review on the basis of the

grounds which now underpinned the present petition. If there was any doubt about that it

was plain such grounds arose when the respondent refused on 22 August 2016 the

petitioner’s request of 16 August 2016 to provide a copy of the Crown letters about the

prosecution policy. The time limit started to run from 27 May or at the latest 22 August

2016. The petitioner missed the 3 month time limit specified in section 27A(1)(a) because the

petition was not lodged until 25 April 2017.

[16] If the court did not accept the submissions about time bar, counsel submitted that it

was not equitable in all the circumstances to extend the 3 month period in terms of

section 27A(1)(b). He relied on the general public interest including the efficiency of

administration; the length of delay; the lack of any fault by the respondent for delay; the

lack of legal or factual complication; the availability of legal representation and assistance to

the petitioner and the existence of clear information available to the petitioner on which to

raise a judicial review petition timeously. Counsel was also critical of the attempt by the

petitioner to make the fresh application on 19 December “to provide necessary clarification”.

There were no new matters or clarification required. No notice was given to the respondent

about the possibility of a judicial review and the respondent was not asked to agree not to

take the time bar point. Reference was made to R (International Masters Publishers Ltd) v

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Commissioners for Her Majesty’s Customs and Excise [2006] EWHC 127 (Admin). No general

principle of public importance arose as the petitioner’s case was very fact specific. Counsel

submitted that the onus lay on the petitioner to give good reasons for an extension and she

had failed in that.

[17] I was invited to uphold the second plea in law which was the time bar plea and

refuse the petition.

Submissions by counsel for the petitioner

[18] The factual history and interpretation of the time bar provisions in the 1988 Act were

set out in detail in written submissions. I understood from oral submissions that counsel

did not dispute the interpretation relied upon by the respondent and in particular he

accepted that merely asking the decision maker to make another decision does not in itself

defeat the time bar provisions. Counsel disputed that the petition was time barred and

made detailed reference to the particular circumstances of the case. He submitted that there

was sufficient new information put forward in the application in December 2017. There was

a challenge to the understanding of the respondent that there was no general Crown policy

of non-prosecution. By October 2017, new information had become available that the

non-prosecution policy was wider than that described by the respondent in its statement of

reasons dated May 2016. There was new information about how specific cases had been

disposed of when the prosecutions were dropped. The petitioner was not simply asking the

respondent to remake an earlier decision. The petitioner was asking the respondent to look

at new information and for a decision to be taken based on that information. The

December 2016 application amounted to a fresh application. That application had as its sole

focus the Crown Office prosecution policy. The information provided by the petitioner

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strongly suggested that the policy was potentially more widely framed than had been

represented by the Crown Office in their letters to the respondent and that the policy had

been in place at all material times. A wide application would be consistent with the aims of

the policy. In summary, counsel submitted that the December 2016 application was

sufficiently different from the earlier application to be regarded as a fresh application. In

that event the 3 month time limit ran from 1 February 2017 (the date of notification to the

petitioner of the decision and statement of reasons dated 27 January 2017). The petition,

having been lodged on 25 April 2017, was not prima facie time barred.

[19] In relation to extending the time bar, counsel accepted that the onus lay upon the

petitioner to persuade the court that it was equitable to extend the 3 month period having

regard to all the circumstances. There were factors both for and against extending discretion

in favour of the petitioner. He emphasised that public interest considerations in this type of

case were different from the considerations which often arose, for example in planning

cases. He accepted there was a public interest in the finality of criminal proceedings, but

submitted there was also a general public interest in prosecutions not being oppressive.

This was a case in which the petitioner had been prosecuted in circumstances where the

Crown did not disclose potentially relevant information and in particular kept private

information about a relevant prosecution policy. There were important considerations in

relation to the interest of justice if an individual accused was convicted in a miscarriage of

justice. The effect of a successful judicial review would be the most realistic way in which

the petitioner could obtain Crown Office letters and the full opportunity to make

representations to the respondent about the policy and its effect on the prosecution of the

petitioner. This was a case in which the hearing had been limited to time bar issues. The

petitioner was entitled to rely on the fact that at an earlier stage of proceedings, the Lord

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Ordinary had allowed the case to proceed to a full hearing of the merits. The case raised

some important points of principle about the extent to which the respondent required to

make full disclosure of information on which its decision making had relied.

[20] Taking into account all the matters raised on behalf of the petitioner, I was invited to

find in favour of the petitioner, by sustaining the second plea in law for the petitioner,

failing which to sustain the third plea in law to the effect that it would be equitable to extend

the 3 month period.

Decision and reasons

[21] My starting point is a consideration of the terms of section 27A(1)(a) of the 1988 Act.

In my opinion the statutory wording is perfectly plain. It is necessary to identify “the date

on which the grounds giving rise to the application first arise”. In some cases this

identification might cause some difficulty but not in this case. I consider that the grounds

underpinning the petition relate to the decision by the respondent to reach a decision based

on material not seen in full by the petitioner. The petitioner claimed that this was

procedurally unfair and contrary to natural justice. It is clear from the factual history, which

I have summarised, that the petitioner was informed that the respondent relied on the

Crown Office letters as partially disclosed in its decision and supplementary statement of

reasons dated 31 May 2016. I consider that it was open to the petitioner thereafter to make a

timeous challenge by way of judicial review on the grounds which underpin the present

petition. The petitioner failed to do so and the present judicial review was not brought

within the time limits specified in section 27A(1)(a) of the 1988 Act.

[22] I note that the respondent in giving reasons stated that the application by the

petitioner dated 19 December 2016 “…is the same, or substantially the same, as one of the

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grounds submitted by the applicant’s solicitors to the Commission in the course of its

previous review”. There is no ground of challenge to that decision in the petition. But

counsel for the petitioner submitted that it was relevant that there was a fresh application

with new information. I consider that the respondent was entitled to reach the conclusion

made but even if the respondent was wrong, that does not affect my decision. The

Commission were not deciding the same issue which I require to decide. In my opinion it is

irrelevant to the issue of the time limit under the 1988 Act whether the information provided

by the petitioner in the application dated 19 December 2016 was new information or not.

[23] In considering the submissions by counsel for the parties in relation to the extension

of the time limit under section 27A(1)(b), it is important to remember the nature of the

proceedings. The proceedings are not a criminal trial. The respondent has statutory and

investigatory powers in relation to matters which may be sensitive and is subject to

disclosure provisions. A fresh application may be brought after a decision by the

respondent.

[24] Counsel for the petitioner fairly accepted that the equitable considerations did not lie

entirely with the petitioner. I understand that at the relevant time after May 2016, the

petitioner was in custody but that she continued to have some legal assistance and advice

about potential further legal action. The petitioner did appear to be aware of the remedy of

judicial review as that was raised on her behalf in the informal correspondence dated

16 August 2016. It was not submitted that the petitioner or her solicitors were unaware of

such a remedy. Counsel for the petitioner raised in his submissions the difficulties for the

petitioner arising from a possible lack of clarity about the remedy, in circumstances where it

was possible to make a fresh application to the respondent. I did not agree with this

submission as I considered that the remedy of judicial review was not only the appropriate

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remedy but a remedy which was under consideration by the petitioner. He also submitted

that there were powerful arguments in favour of the petitioner who was concerned about a

potential miscarriage of justice. That is a serious matter but in the course of submissions it

became apparent that insofar as the Crown Office policy was disclosed, it did not appear to

assist the petitioner. The expectation of counsel for the petitioner appeared to be that if the

full terms of the Crown Office letters could be obtained, somehow this would assist the

petitioner. This expectation seemed to be based on a rather unrealistic hope standing the

terms of the prosecution policy which had been disclosed. I take into account that there

have been months of delay before raising the present petition and in my opinion no good

reason has been advanced to justify such a delay.

[25] Having considered all the factors prayed in aid by counsel for both parties, I am not

persuaded that it is equitable to extend the period of 3 months selected by the legislature for

reasons of good governance and public policy. I therefore refuse the petition reserving all

questions of expenses.