JS (AP) AGAINST SCOTTISH MINISTERS

Factual and Procedural Background

The Plaintiff reported being a victim of rape to the police in April 2017. The police investigated and a prosecution decision was made. The accused first appeared in court in December 2018. A preliminary hearing occurred in November 2019, and a trial was initially scheduled for 6 April 2020 but did not proceed. A subsequent trial date was set for 29 March 2021. The Plaintiff brought a petition seeking judicial review of actions and omissions by the Defendant Ministers concerning the prosecution of serious sexual offences, including an order under section 45(b) of the Court of Session Act 1988 relating to the public sector equality duty under Section 149 of the Equality Act 2010.

The background to the petition involved the Covid-19 pandemic, which caused suspension of new criminal trials after 17 March 2020 due to social distancing requirements. Emergency legislation, the Coronavirus (Scotland) Act 2020, was enacted to address pandemic-related issues, including provisions for electronic court attendance and remote jury participation. Notably, provisions for judge-only trials were removed during the legislative process. Remote jury centres were established to allow jurors to participate from remote locations, enabling the resumption of trials, including in serious sexual offence cases. Despite this, a backlog of cases and increased waiting times persisted.

The Plaintiff was adversely affected by these delays and challenged the Defendant Ministers' decisions, particularly the removal of judge-only trials as a method to address the trial backlog. The petition was granted urgent consideration, and the court held an oral hearing on time limits and permission to proceed. The Plaintiff argued the petition was timely or that the court should exercise equitable discretion to extend the time limit. The Defendant Ministers contended the petition was out of time, lacked grounds for equitable extension, and did not meet permission criteria.

Legal Issues Presented

1. Whether the petition for judicial review was brought within the statutory three-month time limit under section 27A(1) of the Court of Session Act 1988.
2. Whether, if the petition was out of time, the court should exercise its equitable discretion to extend the time limit under section 27A(1)(b) of the 1988 Act.
3. Whether the petition met the criteria for permission to proceed under sections 27B-D of the 1988 Act.
4. Whether the removal of judge-only trials by the Defendant Ministers violated Articles 3, 8, and 14 of the European Convention on Human Rights and the public sector equality duty under Section 149 of the Equality Act 2010.
5. Whether the petition seeking an order under section 45(b) of the 1988 Act was exempt from the time limits applicable to judicial review applications.

Arguments of the Parties

Plaintiff's Arguments

• The petition was timely or, alternatively, the court should grant an equitable extension of the three-month time limit.
• The petition challenged ongoing acts and omissions by the Defendant Ministers, so the time limit should not run from a single past date.
• The petition sought an order under section 45(b) of the 1988 Act, which the Plaintiff argued exempted it from the three-month time limit, citing relevant case law.
• The three-month period should be calculated from either 14 August 2020, when the Plaintiff became aware of potential grounds via a newspaper article, or 2 June 2020, when the Defendant Ministers publicly confirmed their policy on judge-only trials.
• The Plaintiff only became aware of the possibility of legal action in August 2020 and acted promptly thereafter, including applying for legal aid.
• The petition raised important issues of public interest concerning delays in prosecution of serious sexual offences and their impact on victims.
• The petition was strongly arguable, and there was no delay attributable to the Plaintiff.

Defendant Ministers' Arguments

• The petition was not brought within the statutory three-month period, which expired by 1 September 2020 at the latest.
• The reference to ongoing acts and omissions did not extend the time limit indefinitely; grounds arose when the policy decision was made public on 2 June 2020.
• The petition was not exempt from the time limits despite seeking a section 45(b) order, as judicial review procedural rules applied.
• The Plaintiff had knowledge of potential grounds from 14 August 2020 and could have brought the petition within the time limit, especially given emergency legal aid availability.
• The delay was significant and not reasonably explained, including gaps in applying for and responding to legal aid objections.
• The petition raised issues that, while important, had limited practical effect on the Plaintiff given the imminent trial date.
• Allowing the petition late would prejudice the Defendant Ministers who had invested substantially in the remote jury trial system.
• The petition’s prospects of success were low, and the relief sought would not realistically reduce trial delays.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first identified the governing statutory provisions on time limits and permission for judicial review applications, emphasizing the three-month time limit under section 27A(1)(a) of the 1988 Act and the court's discretion to extend this period equitably under section 27A(1)(b). The court noted procedural rules requiring early determination of time limits and permission.

The court examined the petition’s failure to specify when the grounds first arose and its omission to seek an equitable extension explicitly. The Defendant Ministers contended the grounds arose no later than 2 June 2020, when the policy decision against judge-only trials was publicly confirmed. The petition was lodged on 9 February 2021, well beyond the three-month limit.

The Plaintiff's arguments that ongoing acts and omissions negate the time limit and that the petition was exempt due to seeking a section 45(b) order were rejected. The statutory language requires identifying when grounds first arose, regardless of continuing effects. The court held that judicial review time limits apply to petitions seeking section 45(b) orders.

In considering equitable extension, the court balanced factors favoring extension—such as the Plaintiff’s late awareness of grounds, delays attributable to the legal aid process, and the public importance of the issues—against factors weighing against it, including the significant delay beyond the three-month period, unexplained gaps in the Plaintiff’s actions, availability of emergency legal aid, limited practical effect due to the imminent trial date, and prejudice to the Defendant Ministers who had invested in the remote jury system.

The court also assessed the strength of the petition’s grounds, concluding that the international treaty-based claims (CEDAW) lacked merit and would not pass permission, while Convention rights claims had only modest prospects. The court acknowledged the Defendant Ministers’ margin of appreciation in policy decisions during the pandemic and the complex balance of competing rights and interests.

Ultimately, the court found that the factors against equitable extension outweighed those in favor and that the petition was out of time and should not proceed.

Holding and Implications

The court's final decision was to DISMISS the petition as it was not brought within the statutory time limit and the court declined to exercise its discretion to extend the time limit.

The direct effect of this decision is that the Plaintiff’s judicial review challenge to the Defendant Ministers’ policy on judge-only trials and related matters will not proceed. The court did not grant permission to proceed, and therefore no substantive determination of the petition’s merits was made. No new legal precedent was established beyond clarifying the application of time limits and equitable discretion in this context.