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Petition by Craig Murray for Judicial Review of the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2025 (Court of Session)
Factual and Procedural Background
On 4 July 2025, the Secretary of State made an order proscribing three organisations, including Organisation A, under the Terrorism Act 2000. The order took effect on 5 July 2025, making membership of, or inviting support for, Organisation A a criminal offence. The Petitioner had previously expressed support for and participated in protests organised by Organisation A. [1][2]
The Petitioner commenced judicial review proceedings challenging the legality of the order and seeking declaratory relief, reduction, and interim suspension. Parallel proceedings were brought in England and Wales and Northern Ireland. [3]
The present appeal concerned the Lord Ordinary’s decisions to sist the Scottish proceedings pending the outcome of related proceedings before the UK Supreme Court and to refuse to report the whole cause to the Inner House under Rule 34.1(1). [4][5] The proceedings had involved permission, closed-material procedure, applications for interim suspension, and successive decisions concerning whether the case should be sisted. [6][7]
The English proceedings had resulted in judgments at first instance and on appeal, with permission subsequently granted for an appeal to the Supreme Court, scheduled for 4 and 5 November 2026. [8][9][10]
Legal Issues Presented
- Whether the Court of Session had power to sist judicial review proceedings despite the provisions concerning speedy determination in Rule 58.4. [11][12][13][14]
- Whether the Lord Ordinary erred in exercising his discretion by sisting the proceedings pending the Supreme Court’s decision in the related proceedings. [11][15][16][17]
- Whether Rule 34.1(1) permitted the Lord Ordinary to report the whole cause to the Inner House before any decision had been made in the Outer House, in effect bypassing a stage of the court hierarchy. [15][18][19][20]
Arguments of the Parties
Petitioner's Arguments
- No rule of court authorised a sist in judicial review proceedings, and the specific provisions concerning sists excluded the Court’s inherent procedural power by the principle expressio unius est exclusio alterius. [12]
- A sist was inconsistent with the requirement for speedy determination in Rule 58.4 and should not be used so as to reduce the Rules of Court to mere procedural guidelines. [12]
- Even if competent, the sist was an improper exercise of discretion because public-law challenges should be resolved quickly, the Scottish proceedings had already been delayed, and the Scottish case raised matters not considered in the related proceedings. [21]
- The courts of one jurisdiction were not obliged to follow another jurisdiction’s decision, and the Scottish court should determine the issues it considered correct before any possible appeal to the Supreme Court. [21]
- The Lord Ordinary should have reported the cause to the Inner House or fixed an urgent timetable in the Outer House to preserve the possibility of an appeal before the Supreme Court hearing. [22]
Respondent's Arguments
- Sisting was the most expeditious and economical means of resolving the Petitioner’s claims, given the imminent Supreme Court hearing in the related proceedings. [23][24]
- The Court possessed an inherent common-law power to sist judicial review proceedings, and that power had previously been exercised. [24]
- The Supreme Court’s decision would be highly persuasive concerning an order applying throughout the United Kingdom, while any unresolved issues could be addressed when the Scottish proceedings resumed. [24]
- Reporting the whole cause was inappropriate and had not been used for that purpose in modern times. The rule was not intended to create a leapfrog procedure absent specific procedural rules. [25][26]
- Any distinct Scottish matters could have been advanced by an application to intervene in the Supreme Court proceedings. [27]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R (Ammori) v Secretary of State for the Home Department [2026] EWHC 292 (Admin); [2026] HRLR 9 | First-instance decision concerning the legality of Organisation A’s proscription. | Provided the parallel proceedings whose outcome was awaited. [8] |
| R(Ammori) v Secretary of State for the Home Department [2026] EWCA Civ 721; [2026] WLR(D) 326 | Appellate decision concerning the policy and Convention-rights challenges. | Its further appeal to the Supreme Court formed the basis for the sist. [9] |
| R (Jwanczuk) v Secretary of State for Work and Pensions [2025] UKSC 42; [2026] AC 699 | Argument concerning decisions between different UK jurisdictions. | Considered in the Petitioner’s argument, but not adopted as requiring immediate Scottish determination. [21] |
| Cherry v Advocate General for Scotland [2019] UKSC 41; [2020] AC 373 | Example relied on for expedited appellate procedure. | Distinguished from the present procedural circumstances. [22] |
| Borland v Borland 1947 SC 432 | Historical example of reporting a whole cause to the Inner House. | Demonstrated that such reporting had fallen into desuetude and was likely to be rare. [25][28][19] |
| Tonner v Reiach and Hall [2007] CSIH 48; 2008 SC 1 | Existence and scope of the Court’s inherent jurisdiction. | Supported the conclusion that the Court’s inherent powers exist independently of specific procedural rules. [29][30] |
| Hall v Associated Newspapers Ltd 1979 JC 1 | Inherent power to do what is necessary to discharge the Court’s responsibilities. | Supported recognition of the Court’s residual procedural powers. [31] |
| Hepburn v Royal Alexandra Hospital [2010] CSIH 71; 2011 SC 20 | Inherent power to maintain the Court’s character as a court of justice. | Supported the distinction between inherent jurisdiction and rule-making power. [12][32][33] |
| Newman Shopfitters Ltd v MJ Gleeson Group plc 2003 SLT (Sh Ct) 83 | Inherent powers include imposing or recalling a sist, subject to statutory limits. | Supported the conclusion that the Court of Session could impose or recall a sist. [30][34][13] |
| Greenpeace Ltd v Advocate General for Scotland [2025] CSOH 10; 2025 SLT 303 | A judicial review may be sisted pending clarification of the law by the Supreme Court. | Illustrated that a sist can promote speedy determination rather than frustrate it. [14][35] |
| Gould v Gould 1966 SC 88 | Use of reporting for an evidential issue. | Illustrated the varied circumstances in which Rule 34.1 reporting has been used. [36] |
| Tonner v FT Everard & Sons Ltd 1994 SC 593 | Use of reporting concerning evidence on commission. | Provided a further example of reporting an incidental matter. [36] |
| Taylor v Marshalls Food Group 1998 SC 841 | Reporting concerning the vires of a rule of court. | Illustrated the rule’s use for authoritative resolution of uncertainty. [36] |
| Wisely v John Fulton (Plumbers) Ltd 2000 SC (HL) 95 | Reporting concerning conflict of authority in the Outer House. | Supported the identified underlying purpose of resolving uncertainty. [36][37] |
| Heasman v JM Taylor & Partners 2002 SC 326 | Reporting concerning compatibility of jury trial with Article 6. | Provided an example of an important incidental matter reported to the Inner House. [36] |
| Secretary of State for Business, Enterprise and Regulatory Reform v UK Bankruptcy Ltd [2010] CSIH 80; 2011 SC 115 | Reporting concerning a company director’s right of audience. | Illustrated the established use of reporting for authoritative decisions on incidental issues. [36] |
| Struk v Secretary of State for the Home Department 2004 SLT 468 | Reporting concerning an alleged conflict between Scottish and English decisions. | Provided an example of a report made on the parties’ joint motion. [36] |
| Trump International Golf Club Scotland Ltd v Scottish Ministers [2013] CSOH 166 | Reporting of a discrete competency issue in judicial review. | Supported the conclusion that expedition could favour allowing the first hearing to proceed rather than reporting the issue. [36] |
Court's Reasoning and Analysis
The Court held that the Scottish courts possess an inherent jurisdiction independent of any specific rule of court. That jurisdiction includes the power to impose or recall a sist, provided it is not inconsistent with statute or statutory rules. [29][31][33][13]
Rule 58.4’s requirement that the Lord Ordinary have regard to speedy determination did not expressly or impliedly exclude the inherent power to sist. Speedy determination may, in appropriate circumstances, be advanced by awaiting authoritative guidance from a higher court. The rule also required consideration of avoiding unnecessary expense and using court resources efficiently. [14][38][39]
The Court therefore rejected the challenge to the competency of the sist. [40]
As to discretion, the Court acknowledged the regrettable delay but identified the closed-material procedure and the parallel proceedings as its principal causes. The date of the expedited Supreme Court hearing was known when the re-sist decision was made. [41]
The Lord Ordinary had considered speed of final determination, minimisation of legal expense, and efficient use of court resources. The Supreme Court’s decision would be highly persuasive concerning an order applying throughout the United Kingdom, even though it would not formally bind the Scottish courts. [17][42]
The Court regarded the Petitioner’s assumption that further matters would necessarily require a later Supreme Court decision as premature. The central Convention-rights issues were already before the Supreme Court. If Scottish aspects required presentation, intervention in the existing Supreme Court proceedings could be a more expeditious course. The decision to sist was therefore not irrational or plainly wrong. [42][43]
Regarding Rule 34.1, the Court accepted that reporting a whole cause might remain competent in an appropriate case, although such cases would be rare. The rule’s ordinary purpose was to obtain authoritative guidance on an uncertain or conflicting issue, not to bypass the Outer House before it had made a decision. [28][19][37]
The proposed report was not a conventional leapfrog appeal: there was no decision in the Scottish proceedings to appeal against, and the Petitioner sought to have the Inner House determine the case instead of the Lord Ordinary. Rule 34.1 had not previously been used in that manner, and any Scottish leapfrog procedure would require specific rules comparable to those existing in England and Wales. [20]
Because the sist was upheld, no urgent Outer House timetable was required at that stage. Further procedure would be considered after the Supreme Court’s decision. [20]
Holding and Implications
RECLAIMING MOTION REFUSED. The Court upheld the competency and discretionary exercise of the sist pending the Supreme Court’s decision in the related proceedings, and upheld the refusal to report the whole cause to the Inner House. Expenses were reserved. [44]
The direct consequence was that the Scottish judicial review remained sisted pending the Supreme Court’s judgment, with any unresolved issues to be addressed thereafter. The decision affirmed the Court of Session’s inherent power to sist judicial review proceedings and clarified that Rule 34.1 could not be used to create an unprovided-for leapfrog procedure. [43][20][44]
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