PETITION BY CHARLES O'NEILL AND WILLIAM LAUCHLAN AGAINST THE SCOTTISH MINISTERS

Factual and Procedural Background

In 2010, the Plaintiffs were sentenced to life imprisonment for murder, with minimum terms of 30 years and 26 years respectively, and are also serving concurrent sentences for sexual offences against children. They were imprisoned in separate locations but maintained a relationship that continued after imprisonment. The Plaintiffs sought judicial review against the Defendants' decision to prohibit inter-prison telephone calls between them, alleging a violation of their rights under Article 8 of the European Convention on Human Rights (ECHR). The reclaiming motion concerns the Lord Ordinary's decision dated 3 March 2021, which upheld the Defendants' plea of time bar and dismissed the petition.

Previously, in 2014, the Plaintiffs challenged a refusal of inter-prison visits on similar grounds, which was refused by the court. During those earlier proceedings, inter-prison telephone calls were initially permitted but were later terminated on 17 August 2018 when the Defendants concluded the calls were no longer justified. The Plaintiffs disputed the basis for termination, claiming they were treated as "near relatives," a status which would permit such calls under Scottish Prison Service (SPS) policy. Complaints to SPS and the Scottish Public Services Ombudsman (SPSO) regarding the call restrictions were unsuccessful. The judicial review petition was lodged on 14 February 2019, but the Lord Ordinary granted permission only to determine the time bar issue preliminarily.

Legal Issues Presented

1. Whether the Plaintiffs’ petition for judicial review was barred by the three-month time limit under section 27A of the Court of Session Act 1988.
2. Whether the termination of inter-prison telephone calls constituted a continuing breach of Article 8 ECHR rights, thereby affecting the commencement of the time bar period.
3. Whether the Lord Ordinary erred in refusing to exercise discretion to extend the time limit under section 27A(1)(b) to allow the petition to proceed out of time.
4. Whether ongoing complaints to the SPSO prevented the time bar from commencing.

Arguments of the Parties

Plaintiffs' Arguments

• The termination of telephone calls was a continuing breach of their Article 8 rights, meaning the three-month time limit should not begin until the breach ended.
• The existence of ongoing complaints to the SPSO prevented the commencement of the time bar period, as judicial review proceedings could not safely be initiated until those complaints were resolved.
• The court should exercise its equitable discretion under section 27A(1)(b) to allow the petition to proceed despite being out of time.
• Strict application of the time limit would lead to unjust consequences, effectively excusing unlawful conduct after three months.

Defendants' Arguments

• The grounds for the petition arose on 17 August 2018, the date the calls were terminated and communicated, thus the time bar period commenced then.
• The termination was a discrete act, not a continuing breach, and the time limit cannot be circumvented by alleging a continuing violation.
• The ongoing SPSO complaint did not oust the court’s jurisdiction nor provide an alternative remedy, so it did not delay the time bar.
• The court should not exercise discretion to extend the time limit as the Plaintiffs were promptly aware of the decision and had no reasonable explanation for delay.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory time limit under section 27A of the Court of Session Act 1988, which requires judicial review applications to be made within three months from the date the grounds for the application first arise. The court identified 17 August 2018, the date the telephone call facility was terminated and communicated to the Plaintiffs, as the starting point for the time bar.

The Plaintiffs' argument that the breach was continuing and thus delayed the time limit was rejected. The court distinguished the statutory wording from other human rights legislation and precedent, noting that the cited authorities did not support a continuing breach interpretation in this context. The court emphasized that the time limit cannot be circumvented by repeated acts or correspondence reiterating the original decision.

The court also dismissed the argument that ongoing complaints to the SPSO delayed the time bar, observing that the SPSO process does not oust the court's jurisdiction nor provide an alternative remedy. The judicial review was, in fact, instituted before the SPSO complaint was disposed of.

Regarding equitable discretion to extend the time limit, the court considered all relevant factors, including the Plaintiffs' knowledge of the decision from the date of termination, their prompt action in challenging it, the absence of any reasonable explanation for delay, and the lack of any wider public interest issue. The court found no error in the Lord Ordinary’s refusal to exercise discretion to extend time.

The court further noted procedural guidance emphasizing that time bar issues should be addressed at the permission stage to ensure prompt and efficient resolution of judicial review claims, consistent with the public interest in legal certainty and good administration.

Holding and Implications

The court REFUSED the reclaiming motion, upholding the Lord Ordinary’s decision that the petition was time barred and dismissing the petition.

This decision directly affects the Plaintiffs by preventing their judicial review claim from proceeding due to non-compliance with the statutory time limit. No broader legal precedent was established beyond reaffirming the strict application of section 27A time limits and the procedural expectation that time bar issues be addressed at the permission stage.