CHARLES O’NEILL and WILLIAM LAUCHLAN FOR JUDICIAL REVIEW

Factual and Procedural Background

The petitioners are convicted life prisoners who sought judicial review of a decision by the Scottish Ministers to refuse to reinstate telephone contact between them. The petitioners had previously been allowed inter-prison telephone calls, which were withdrawn on 17 August 2018. The petitioners asserted that they were treated as "near relatives" for the purpose of a policy allowing such calls, a position denied by the respondents, who stated calls were permitted solely to facilitate legal preparations and that the continuation of calls after the litigation ended was a mistake.

The petition was presented on 14 February 2019. Procedural steps included a sist of the petition to allow legal aid applications, restricted permission to proceed on the issue of time bar, and hearings on 12 December 2019 and 12 February 2020 focusing on whether the petition was time-barred under section 27A of the Court of Session Act 1988. The central procedural issue was whether the petition was raised within the three-month time limit following the date when the grounds for the petition first arose.

Legal Issues Presented

1. When did the grounds giving rise to the petition first arise?
2. Has the petition been presented within the time permitted by section 27A of the Court of Session Act 1988?
3. If the grounds arose before the permitted time, is it equitable to allow the petition to proceed out of time?

Arguments of the Parties

Petitioners' Arguments

• The challenge was to a continuing state of affairs, so a new challenge could arise daily, and time limits should not run during continuing defaults.
• The date of 15 November 2018 was the formal intimation of withdrawal of telephone calls, and earlier dates should not be determinative.
• The respondents were barred from raising a time bar plea due to a legitimate expectation created by representations that complaints to the Scottish Public Service Ombudsman (SPSO) must be exhausted first.
• It was equitable to allow the petition to proceed despite any time bar because of factors including representations by respondents, prior allowance of calls, the continuing objectionable nature of the withdrawal, lack of prejudice to good administration, and the importance of telephone contact to the petitioners.
• The petitioners had sought legal advice in good time and had no practical alternative remedy.
• Support was drawn from the case D v the Commissioner of Police of the Metropolis for some of these propositions.

Respondents' Arguments

• The decision to terminate inter-prison telephone calls was made and communicated clearly on 17 August 2018, which is when the grounds for challenge first arose.
• The petitioners were aware of the decision and had complained, with complaints finally determined against them on 4 and 26 October 2018.
• Under section 27A of the Court of Session Act 1988, the three-month time limit for judicial review begins when grounds first arise, here 17 August 2018.
• The principle of legitimate expectation protects against unfairness by public authorities but requires a clear promise or practice, which was not established here.
• The complaint to the SPSO was a separate matter and did not bar judicial review; the SPSO's jurisdiction does not oust the court's jurisdiction.
• No substantive or equitable grounds were advanced to justify extending the time limit, and the court's discretion should not be exercised to allow the petition out of time.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the date on which the grounds for judicial review first arose, rejecting the petitioners' characterization of the withdrawal of telephone calls as a continuing act. The termination of the calls on 17 August 2018 constituted a discrete decision, communicated clearly to the petitioners on that date. The petitioners were aware of the decision and lodged complaints that were resolved against them by October 2018.

The court applied section 27A of the Court of Session Act 1988, which requires judicial review applications to be made within three months of the grounds first arising unless equitable circumstances justify otherwise. The court found no equitable grounds to extend this time limit, noting that the petitioners had sufficient knowledge and opportunity to act earlier, and that no substantive equitable reasons were presented to justify delay.

Regarding the petitioners' claim of legitimate expectation that the respondents would not raise a time bar plea due to representations about the SPSO complaints process, the court found no basis for such an expectation. The continuation of telephone calls was acknowledged as a mistake after litigation ended and did not establish an ongoing entitlement. The SPSO complaint process was held to be separate and did not bar judicial review.

Ultimately, the court upheld the respondents' plea of time bar, concluding the petition was not presented within the statutory period and no equitable justification existed to allow it to proceed out of time.

Holding and Implications

The court's final decision was to UPHOLD THE RESPONDENTS' SECOND PLEA-IN-LAW AND DISMISS THE PETITION.

This decision means that the petitioners' judicial review application was time-barred under section 27A of the Court of Session Act 1988, and no extension of time was granted. The court did not recognize any legitimate expectation or equitable grounds to permit the petition to proceed. No new precedent was established; the ruling reinforces the importance of strict adherence to statutory time limits for judicial review and confirms that complaints to the SPSO do not suspend or oust the court's jurisdiction.