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Cite as: [2003] ScotSC 49
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M, Re [2003] ScotSC 49 (09 September 2003)
SW82/03
SW83/03
SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT DUNFERMLINE
JUDGMENT OF IAN C SIMPSON, SHERIFF
IN THE CASE OF
M, Appellant
Act: Sandeman, Sandemans, Solicitors, Falkirk. Alt: Campbell, Reporter to the Children's Hearing; Walker, Nelsons, Solicitors, Falkirk (for a parent).
DUNFERMLINE 9 September 2003
1. In these cases, the Appellant seeks to appeal to the Sheriff under section 51 of the Children (Scotland) Act 1995 against a decision of a Children's Hearing to make a supervision requirement in relation to two children.
2. The date of the hearing was Wednesday 30 July 2003.
3. The appeals were lodged with the Sheriff Clerk in Dunfermline on Wednesday 20 August 2003.
4. The Reporter contended that the appeals had been lodged one day too late and I held an early hearing to deal solely with the time-bar point.
5. The provisions of section 51, so far as relevant to these appeals and the arguments of parties are as follows:
"(1) ............. a child or a relevant person ............. (a) may, within a period of three weeks beginning with the date of any decision of a Children's Hearing, appeal to the Sheriff against that decision ..............
(7) .............. the Sheriff ............... may order that no subsequent appeal ............... shall lie until the expiration of twelve months beginning with the date of the order. .......
(8) An appeal under sub-section (1) above in respect of the issue of a warrant by a Children's Hearing shall be disposed of within three days of the lodging of the appeal;
(13) An application to the Sheriff .............. to state a case ............. shall be made within a period of 28 days beginning with the date of the decision appealed against."
The foregoing provisions are those parts of the section which relate to time limits.
6. Those parts of section 51 which are pertinent to this appeal have been lifted, unchanged, from sections 49 and 50 of the Social Work (Scotland) Act 1968.
7. In Scotland, the normal rule regarding time limits is that the date of the decision to be appealed against does not count as part of the period specified (Ashley v Magistrates of Rothesay (1873) 11M 708, Lord President Inglis at pages 716 and 717, Frew v Morris (1897) 24 R (J) 50, Lord Justice-Clerk MacDonald at pages 51 and 52, Stair Memorial Encyclopaedia, Volume 22, paragraph 822). The general rule was promulgated in relation to statutory wording such as "within two months after the cause of action arose" which are different from "beginning with the date of any decision" which we are dealing with here.
8. Judicial opinion on the phrase "beginning with the date of any decision" is divided. In Scotland, the leading case is S. Appellants, 1979 SLT (Sheriff Court) 37 in which Sheriff Kermack, construing the identical provisions of the Social Work (Scotland) Act 1968, held that the day of the decision of the Children's Hearing was the first day of the three week period. He dismissed an appeal which, had the general rule applied, would have been lodged in the final day of the three week period. In the instant case we are dealing with an identical factual situation. Sheriff Kermack based his decision on two English authorities, Hare v Gotcher (1962) 2QB 641 and Trow v Ind Coope (West Midlands) and Another (1967) 2QB 899. In the latter case, Lord Denning dissented from the views of his colleagues and held that the general rule which applied in England, that the date from which a period of time ran fell to be excluded from the calculation, should apply even in a case where the relevant rule specified the period as "beginning with the date of". Lord Denning refused to hold that the specified date should be included in the calculation, taking the view that the distinction in language was too subtle for his liking. At 929, Salmon LJ, expressing the majority view, said: "It is no doubt a pity that this inconvenience should arise from the use in the rule of the word "with" instead of the word "from". But even the shortest single word can affect the whole meaning of any enactment. I do not think that the proposition that a period stated as "beginning with" a certain date does begin on that date depends upon any fine distinction, legal subtlety or empty formality. In my view it depends on the plain and natural meaning of ordinary English words. This Court has no power to rectify the rule, it cannot change the words in which it was expressed - however convenient it might be to do so".
9. The decision in S, Appellants has been criticised by Sheriff Kearney in the second edition of his book Children's Hearings and the Sheriff Court at para 50.09, Tudhope v Lawson 1983 SCCR 435 and McCormick v Martin 1985 SLT (Sheriff Court) 57. In this area of the law in particular, Sheriff Kearney's views are entitled to great respect. In J v Caldwell 2001 SLT (Sheriff Court) 164 Sheriff Ross at Dumfries declined to follow S, Appellants, preferring the views of Sheriff Kearney. In C, Appellant, (unreported) Sheriff J R Smith at Stranraer, 6 September 2002, S Appellants was followed. In his decision, Sheriff Smith drew attention to the whole terms of Section 51, in particular, the provisions relating to appeals against warrants. He also drew attention to the fact that within the section different time limits are described in different words and it is therefore to be presumed that these different words have different meanings.
10. At the hearing before me, the Solicitor for the Appellant sought to persuade me that Sheriff Ross, Sheriff Kearney and Lord Denning were correct. On the other side, the Reporter and the Solicitor for the other parent asked me to follow the majority of the Appeal Court in England and Sheriffs Kermack and Smith.
11. Apart from commending the reasoning of Sheriff Ross to me, the Solicitor for the Appellant referred to a letter from the Children's Reporter dated 4 August which gave imprecise, and possibly misleading, information to the Appellant concerning the time limit for any appeal. While this is unfortunate, it cannot affect this appeal as the issue concerns the words of the statute and it was common ground that there is no discretionary power in the Sheriff to allow a late appeal. In relation to the point that different wording of expressions relating to time within the same section should be given different meanings, the Solicitor for the Appellant pointed out that the context was wholly different. Sub-section 8 dealt with the period within which the Court required to deal with an appeal against a warrant, whereas the other sub-sections with time limits were concerned with periods of time of an entirely different character. The Solicitor for the Appellant made the novel point that if the day of the hearing were to be included in the computation, the period of three weeks specified in sub-section (1)(a) would in fact be a period of 20 days and a fraction of a day. If the Children's Hearing made its decision in the late afternoon or evening, as sometimes happens, the Appellant would have a whole working day less than the prescribed time within which an appeal might be marked. In his submission, as the three weeks began to run on 31 July, his appeals, lodged on 20 August, were lodged on the last possible day.
12. The Reporter responded by referring me to the over-arching principles enshrined in the 1995 Act. With particular reference to the situation regarding warrants, no child should be held for longer than was necessary and if a Children's Hearing made a decision during the first part of the working morning, it was entirely appropriate that the appeal might be lodged and dealt with, possibly, that very day. If the three week period did not begin until the day after the hearing, then whatever the logistics, it would be incompetent to appeal and have the appeal heard on the same day as the hearing.
13. The Solicitor for the other parent supported the Reporter's submission and stressed the plain meaning of the words of sub-section (1). He stressed the point made by Sheriff Smith that the use of different words to describe a similar concept within one section of a statute strongly implied that each form of words carried its own meaning. The rights of appeal specified in the various sub-sections of section 51 were appeals that fell to be dealt with at the earliest possible moment. The right to appeal should, accordingly, run from the earliest possible moment. If the day of the hearing's decision fell to be excluded from the computation, not only would a same-day appeal be rendered incompetent, but a decision of a Hearing taken on a Friday would entail a period of inactivity extending over the weekend. In relation to the point that, if the day of the hearing was included, the period of 21 days was, effectively, shortened by a day, the Solicitor for the other parent submitted that, while there was a slight reduction in the time available within which to appeal the decision, far more prejudice would accrue to the various parties affected by any decision if an appeal could not be immediately lodged.
14. In my view, the words in question were correctly interpreted in S, Appellants. The day of the hearing was the first day of the three week period and so Tuesday 19 August was the last day on which an appeal could competently be lodged. These appeals must therefore be dismissed as they were lodged one day late.
15. My primary reason for coming to this view is that it corresponds with the plain meaning of the words in the sub-section. I respectfully agree with the views of the majority of the Court of Appeal in Trow v Ind Coope (West Midlands) Ltd and Another. The fact that this interpretation means that the time actually available to an appellant for lodging the appeal might be restricted to 20 days rather than the full 3 weeks does not affect the ordinary meaning of the words. Wagner's Ring Cycle begins with Das Rheingold, not Die Walkurie. A round of golf begins with the drive from the first tee, not the second hole.
16. My second reason for coming to the view I have is that the use of different words within the same section to describe periods of time strongly suggests that these different words have separate meanings. "From the general presumption that the same expression is presumed to be used in the same sense throughout an Act or a series of cognate Acts, follows the further presumption that a change of wording denotes a change in meaning." (Maxwell on Interpretation of Statutes, 12th edition, page 282). In terms of sub-section (8) of section 51 an appeal in respect of the issue of a warrant by a Children's Hearing "shall be disposed of within three days of the lodging of the appeal." The general rule relating to computation of time applies to this sub-section, thus the day on which the appeal is lodged is excluded from the calculation; further, the three days are three days calendar days not court days (B v Kennedy (1992) SLT 870). If the time limit in sub-section 8 is covered by the general rule, it seems to me to follow that the other sub-sections which prescribe periods of time should be given a meaning that is different from that general rule. I do not think that the distinction between the different types of time period has any importance.
17. When section 51(1) is seen in context, the interpretation accorded to it in S, Appellants, appears to me to be compelling. The whole tenor of section 51 is to make the speedy disposal of appeals a priority. In particular this is so, as has already been noted, in relation to appeals against warrants. It seems inconceivable to me that the legislature should make it incompetent to lodge an appeal on the very day of the hearing by providing that the appeal can be lodged only "within a period of three weeks beginning with the date of any decision" if that is to be interpreted as the day following the hearing. The words "beginning with the date of any decision" are clearly designed to specify the time when the three week period commences or they have no meaning at all. There are, accordingly, time "goal posts" at either end of the three week period and anything prior to the commencing time is as much outwith the three week period as is anything after the finishing time. In the context of appeals against warrants, in particular, it would be absurd to disallow the lodging of an appeal on the same day as the issuing of the warrant complained of on the basis that the period of time within which the appeal required to be lodged had not yet commenced.
18. It therefore seems to me that the interpretation of the phrase in question by Sheriff Kermack is consistent with plain English, a principle of statutory interpretation and the context in which the words are used.
19. Should the dismissal of these appeals appear to be harsh, bearing in mind that I have no discretion to allow a late appeal, I draw comfort from the fact that there is, in any event, due to be a review hearing, I am told, some time in October.