Introduction

The case of SU v Scottish Government Legal Directorate ([2021] ScotCS CSIH_65) addresses the complexities arising when criminal proceedings intersect with children's referral proceedings under the Children's Hearings (Scotland) Act 2011 ("2011 Act"). The petitioner, M Hughes, challenged the competence of the nobile officium in light of concurrent criminal and referral proceedings involving allegations of child abuse. This commentary delves into the court's reasoning, the legal principles applied, and the implications of the judgment on future cases within the realm of family and criminal law in Scotland.

Summary of the Judgment

The Scottish Court of Session, specifically the Inner House's Extra Division, delivered its opinion through Lord Doherty on December 7, 2021. The petitioner sought to invoke the nobile officium—a discretionary court power—to discharge and suspend the ongoing children's referral proof proceedings pending the conclusion of concurrent criminal matters. She argued that the potential invocation of section 179 of the 2011 Act by the Crown Office and Procurator Fiscal Service (the Service) infringed her rights under Articles 6 and 8 of the European Convention on Human Rights (ECHR).

The court examined whether the nobile officium was an appropriate remedy, considering existing statutory provisions and the availability of alternative remedies such as reduction or suspension of the sheriff's interlocutor. Ultimately, the court dismissed the petition, holding that the petitioner was not without other remedies and that the concurrence of criminal and referral proceedings was foreseeable and contemplated by the legislature.

Analysis

Precedents Cited

The judgment referenced several key precedents influencing its decision:

• H(N) v HM Advocate 2019 SLT 943: Highlighted the potential for summary criminal proceedings to influence referral proceedings.
• Ferguson v P; Ferguson, Petitioner 1989 SC 231: Emphasized the importance of keeping referral proceedings closed to protect the integrity of the process.
• Cumbria County Council v X 2017 SC 451: Discussed the role of parens patriae and the importance of safeguarding children's welfare.
• Man Hen Liu v Andersons Solicitors LLP [2017] CSIH 45: Addressed the competence of reduction in cases to avoid miscarriages of justice.
• Prior v Scottish Ministers 2020 SC 528: Explored the appropriate procedures for challenging interlocutory decisions.

These cases collectively underscored the judiciary's balanced approach to managing concurrent proceedings and the availability of remedies to ensure justice without overstepping legislative boundaries.

Legal Reasoning

The court's analysis hinged on interpreting section 163 of the 2011 Act, which delineates the appeal mechanisms against sheriff decisions in children's hearings. The petitioner argued that section 163 precluded any remedy via appeals or judicial review for interlocutory decisions, thereby making the nobile officium her only recourse.

However, the court interpreted section 163 as not explicitly excluding common law remedies such as reduction or suspension of interlocutory decisions. The judgment emphasized that reduction is a valid remedy in cases where not doing so would result in a miscarriage of justice. Furthermore, the court rejected the notion that the concurrence of criminal and referral proceedings was unforeseeable, noting that section 179 of the 2011 Act was expressly designed to handle such situations by allowing information sharing for the prosecution and prevention of crime.

Additionally, the court addressed the petitioner's ECHR claims, noting that there was insufficient basis at this stage to deem the sheriff's refusal of the motion as a breach of Articles 6 and 8. The primary focus remained on the statutory interpretation and the availability of alternative remedies.

Impact

This judgment reinforces the statutory framework governing children's hearings and the interplay with criminal proceedings in Scotland. It clarifies that the nobile officium is not a catch-all remedy and that existing mechanisms like reduction or suspension remain viable for addressing interlocutory decisions. The court's reaffirmation that concurrent proceedings are anticipated under section 179 provides legal certainty and discourages undue reliance on discretionary judicial interventions. Moving forward, practitioners can be more confident in utilizing reduction or suspension where appropriate, knowing that these remedies are supported by precedent.

Complex Concepts Simplified

Nobile Officium

The nobile officium is a discretionary power of the courts to intervene in cases where no other remedy is available, typically invoked to prevent an injustice that cannot be rectified through standard legal channels.

Reduction of Interlocutory Decisions

Reduction refers to the process of challenging and overturning a decision made by a lower court or official body, such as a sheriff, in higher courts to prevent miscarriages of justice.

Section 179 of the 2011 Act

This section allows the Principal Reporter or the sheriff to share information with the Crown Office and Procurator Fiscal Service if it pertains to preventing or detecting crime, or prosecuting offenders, especially when criminal proceedings involve relevant persons in children's referrals.

Parens Patriae Jurisdiction

Parens patriae refers to the authority of the state to act as guardian for those who are unable to care for themselves, particularly in cases involving the welfare of children.

Conclusion

The judgment in SU v Scottish Government Legal Directorate underscores the judiciary's commitment to upholding statutory interpretations while ensuring that justice is served through available legal remedies. By rejecting the petition to invoke the nobile officium, the court reaffirmed the sufficiency of existing mechanisms like reduction and suspension to address interlocutory decisions. This decision highlights the careful balance courts maintain between legislative intent and judicial discretion, especially in sensitive matters involving child welfare and concurrent criminal proceedings. The ruling serves as a pivotal reference for future cases encountering similar intersections of family and criminal law, ensuring that the rights of all parties are adequately protected within the established legal framework.