Introduction

The case of JS (AP) v Scottish Ministers [2021] ScotCS CSOH_23 was adjudicated by Lady Poole in the Scottish Court of Session's Outer House on March 4, 2021. This judicial review petition was brought by the petitioner, JS (AP), against the Scottish Ministers, challenging their actions concerning the prosecution of serious sexual offences amidst the Covid-19 pandemic. The central issues revolved around the adherence to statutory time limits for judicial reviews under Section 27A of the Court of Session Act 1988, the application of the Public Sector Equality Duty (PSED) under the Equality Act 2010, and the impact of pandemic-induced legislative changes on ongoing criminal proceedings.

The petitioner's case was primarily based on the delayed commencement of her trial for rape, which was affected by the Scottish Ministers' policy decisions during the pandemic. The petitioner sought a judicial review of the ministers' actions, arguing that the removal of judge-only trials adversely impacted her case and violated her rights under the European Convention on Human Rights (ECHR) and the PSED.

Summary of the Judgment

Lady Poole concluded that the petition was submitted beyond the statutory three-month period outlined in Section 27A(1) of the Court of Session Act 1988, which sets strict time limits for judicial review applications. The court found that the petition was not only late but also failed to meet the criteria for an equitable extension under Section 27A(1)(b). Despite recognizing the significant impact of delays on complainants of serious sexual offences, the court emphasized the importance of adhering to procedural time limits to ensure good governance and prevent perpetual litigation.

The judge evaluated the petitioner's arguments, including claims of ongoing acts and omissions by the Scottish Ministers and the applicability of exceptional circumstances due to the pandemic. However, these were insufficient to warrant an extension of the time limit. Additionally, the petitioner’s reliance on CEDAW was dismissed as CEDAW is not incorporated into domestic law. The court ultimately dismissed the petition, reinforcing the necessity of strict compliance with judicial review procedures.

Analysis

Precedents Cited

The judgment referenced several important precedents to support its reasoning:

• O'Neill and Lauchlan, Petitioners [2020] CSOH 28: Highlighted the importance of punctuality in filing petitions and set a precedent for assessing the reasonableness of delays.
• Wightman v Advocate General for Scotland 2018 SC 388: Discussed the procedural requirements for judicial reviews and the treatment of complex legal arguments.
• R(JS) v SSWP 2015 1 WLR 1449: Addressed the enforceability of international conventions like CEDAW within domestic law, reinforcing the necessity for incorporation.
• VC v Italy (2019) 69 EHRR 13: Emphasized the balance between individual rights and public policy considerations under the ECHR.
• R (3 Million Ltd) v Minister for the Cabinet Office [2021] EWHC 245 (Admin): Provided insights into the application of PSED in specific contexts.

These precedents collectively underscored the court's commitment to procedural rigor and the limited scope for equitable extensions, even in cases involving significant public interest and procedural delays.

Legal Reasoning

Lady Poole's legal reasoning centered on the strict interpretation of Section 27A of the Court of Session Act 1988, which imposes a rigid three-month deadline for filing judicial review petitions. She meticulously analyzed whether the petition met the criteria for being timeous or whether an equitable extension was warranted.

The judge noted that the petitioner failed to specify the date when the grounds for the petition first arose, a fundamental requirement under Section 27A(1)(a). The petition merely referred to ongoing acts and omissions without pinpointing a specific commencement date. Consequently, the court determined that the grounds arose on June 2, 2020, the date when the Scottish Ministers publicly declared they were not pursuing judge-only trials, making the petition late when filed on February 9, 2021.

Regarding equitable extension under Section 27A(1)(b), Lady Poole considered factors such as the petitioner's lack of awareness, the importance of the issues raised, the potential prejudice to the Scottish Ministers, and the strength of the case. While acknowledging the severe impact of delays on victims of sexual offences, she concluded that these factors were outweighed by the substantial delay and the petitioner's partial responsibility for it.

Additionally, the judge addressed the petitioner's reliance on CEDAW, clarifying that as an unincorporated international treaty, CEDAW does not hold direct legal standing in domestic courts unless explicitly incorporated into national law.

Impact

This judgment reinforces the judiciary's adherence to procedural deadlines, emphasizing that exceptions are rare and must meet stringent criteria. It serves as a precedent for future cases where applicants may seek equity to bypass time limits by highlighting ongoing administrative actions or significant public interest issues.

For practitioners and petitioners, the case underscores the critical importance of timely filing and precise identification of when grounds for judicial review arise. It also illustrates the court's reluctance to deviate from established procedural norms, even in extraordinary circumstances like a pandemic.

Moreover, the dismissal of CEDAW as a basis for judicial review in domestic courts reiterates the necessity for international treaties to be incorporated into national legislation to have enforceable legal effects.

Complex Concepts Simplified

Section 27A of the Court of Session Act 1988

This provision sets strict time limits for bringing judicial review applications. Specifically, it requires that petitions be filed within three months from the date the grounds for the application first arise. There is a limited provision for extending this period if the court finds it equitable to do so, based on the circumstances of the case.

Public Sector Equality Duty (PSED)

Under Section 149 of the Equality Act 2010, PSED requires public bodies to eliminate discrimination, advance equality of opportunity, and foster good relations between different groups. In this case, the petitioner argued that the Scottish Ministers' actions disproportionately affected women, thereby violating PSED.

Equitable Extension

This refers to the court's discretionary power to allow a judicial review petition to proceed even if it's filed after the statutory deadline. The court assesses factors such as the reason for the delay, the importance of the case, and any prejudice to the respondent before deciding whether to grant this extension.

European Convention on Human Rights (ECHR) Articles 3, 8, and 14

- Article 3: Prohibits torture and inhuman or degrading treatment.
- Article 8: Protects the right to respect for private and family life.
- Article 14: Prohibits discrimination on various grounds, including gender.
In this case, the petitioner claimed that delays in her trial violated Articles 3 and 8, and that the Scottish Ministers' policies constituted indirect gender discrimination under Article 14.

Conclusion

The judgment in JS (AP) v Scottish Ministers emphasizes the judiciary's commitment to upholding procedural requirements, particularly the adherence to time limits set forth in judicial review statutes. While acknowledging the significant impact of administrative delays on individuals, the court maintains that procedural integrity and the principles of good governance necessitate strict compliance with established deadlines.

This case serves as a crucial reminder for legal practitioners and petitioners about the paramount importance of timely and precise filings in judicial reviews. It also highlights the limited scope for judicial discretion in extending time limits, even in scenarios involving public health crises or significant public interest matters. Furthermore, the dismissal of reliance on non-incorporated international treaties like CEDAW underscores the necessity for explicit legislative incorporation to wield legal force within domestic courts.

Overall, JS (AP) v Scottish Ministers reaffirms the balance courts must maintain between flexibility in equitable extensions and the need to uphold procedural rigor, ensuring that the judicial system remains fair, predictable, and efficient.