SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

 

CASE REF No B490/11

 

 

JUDGMENT

 

OF

 

RICHARD HAMILTON McFARLANE

PART-TIME SHERIFF SITTING AT GLASGOW

 

IN THE

 

SUMMARY APPLICATION

 

BY

 

A, c/o TAYLOR & KELLY, Court Solicitors, 3 Main Street, Coatbridge

 

APPELLANT

 

 

AGAINST

 

 

STEVEN HOUSE, QPM, Chief Constable of Strathclyde Police, Pitt Street, Glasgow

 

RESPONDENT

 

 

Act: Professor Anthony J Kelly, solicitor, Coatbridge

Alt: Mrs Rhona Stannage, solicitor, Glasgow

 

 

 

 

 

 

GLASGOW: 23rd April 2012

 

The Sheriff having resumed consideration of the cause finds that (a) the summary application has not been timeously lodged as required in terms of Section 88G of the Sexual Offences Act 2003 as amended and (b) there is no power to exercise discretion to relieve the appellant from such failure; SUSTAINS the first plea in law for the respondent; DISMISSES the application as being incompetent; ASSIGNS a hearing on expenses on a date to be afterwards fixed.

 

 

 

 

 

NOTE:

 

Introduction

 

  1. This is an appeal by way of summary application whereby the appellant appeals the decision of the respondent dated 21st January 2011 to make him the subject of a Notification Continuation Order in terms of Section 88D of the Sexual Offences Act 2003 ("the 2003 Act") as amended by the Sexual Offences Act 2003 (Remedial)(Scotland) Order 2010 ("the 2010 Order"). The appeal is purportedly made under Section 88G of the 2003 Act.

 

  1. The respondent's first plea in law is to the effect that the application is time-barred and should be dismissed.

 

  1. The question of time-bar was debated before me on 13th February 2012. At the conclusion of the debate I made avizandum to consider the submissions for the parties and to issue a written decision.

 

Background

 

  1. With reference to the Record it appears that on 22nd December 1993 the appellant, then aged 14, was convicted at the High Court in Airdrie of two charges of assault with intent to ravish; theft and malicious damage. In due course he was sentenced to four years detention backdated to 10th September 1993. The sentence expired on 9th September 1997.

 

  1. In terms of Section 10(5) of Part 1 of the Sex Offenders Act 1997 ("the 1997 Act"), as the appellant had been convicted of a sexual offence he became subject to the notification requirements of that Act for an indefinite period. The 1997 Act was subsequently repealed. The appellant then became subject to the (new) notification requirements in terms of Section 81 of the 2003 Act, again, for an indefinite period.

 

  1. In an earlier process the appellant successfully challenged the indefinite notification period as being incompatible with his Convention Rights. As a consequence of this, on 25th October 2010 the Scottish Ministers made the Sexual Offences Act 2003 (Remedial)(Scotland) Order 2010 ("the 2010 Order") which was repealed and replaced by the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2011 ("the 2011 Order") on 27th January 2011. Both orders provided a mechanism for the periodic review of the indefinite notification requirements.

 

  1. On 21st January 2011 the respondent made a Notification Continuation Order in respect of the appellant in terms of Section 88D of the 2003 Act.

 

  1. In terms of either the 2010 Order or the 2011 Order the appellant may appeal that decision within 21 days.

 

  1. This summary application was warranted for service on 22nd February 2011. A copy of the summary application was served on the respondent that day.

 

  1. The legislative provisions anent notification orders and their appeal appear in sections 88A - 88I of the 2003 Act - these sections were inserted into the 2003 Act by the 2010 Order - they came into effect on 25th October 2010. The 2011 Order repealed and replaced the 2010 Order. It also amended the 2003 Act by inserting sections 88A - 88I but in slightly different terms. As this appeal is taken against a decision dated 21st January 2011 it is governed by the 2003 Act as amended by the 2010 Order.

 

  1. The appellant avers that the notification continuation order was made in terms of section 88C of the 2003 Act - this is admitted by the respondent. Parties are agreed reference should have been made to section 88D

 

The legislative framework

 

 

  1. The relevant parts of the 2003 Act (as amended) for the purposes of this appeal are as follows:-

 

88A review of indefinite notification requirements: applicable persons

 

(1)  Sections 88B to 88H apply to -

(a)   a person, on or after the date on which this section comes into force, becomes subject to the notification requirements of this Part for an indefinite period by virtue of section 80(1) or a notification order made under section 97(5); and

(b)  a person who immediately before that date was subject to the notification requirements of this Part for an indefinite period by virtue of-

(i)             section 80(1)

(ii)           section 81(1); or

(iii)         a notification order made under section 97(5).

(2)  A person who falls within subsection (1)(a) or (b) is referred to in sections 88B to 88G as a "relevant sex offender".

 

88B Review of indefinite notification requirements: date of discharge and further date of discharge

 

(1)  For the purposes of this part, the date of discharge is-

(a)..................

(b) where the relevant sex offender was aged under 18 on the relevant date, the date falling 8 years after that date...........

 

(2)  Where a notification continuation order made under this Part has effect in respect of the relevant sex offender, for the purposes of this Part the further date of discharge is the date of expiry of a fixed period specified in that order...............

 

(3)  In this section and section 88D "relevant date" -

 

(a)   in relation to a relevant sex offender who is subject to the notification requirements of this Part for an indefinite period by virtue of section 80(1) or 81(1), has the meaning applicable to that sex offender specified in section 82(6)(a) to (c);

(b)  in relation to a relevant sex offender who is subject to the notification requirements of this Part for an indefinite period by virtue of a notification order made under section 97(5), has the meaning applicable to that offender specified in section 98(2).

 

88C Review of the indefinite notification requirements: procedure and grounds

 

(1)  The relevant chief constable must no later than the date of discharge-

(a)   make a notification continuation order in respect of the relevant sex offender; or

(b)  notify the relevant sex offender that the offender ceases to be subject to the notification requirements of this Part on the date of discharge.

(2)  A notification continuation order is an order making the relevant sex offender subject to the notification requirements of this Part for a fixed period of not more than 15 years from the date which would, but for the order, have been the date of discharge.

(3)  The relevant chief constable may make a notification continuation order only if satisfied, on the balance of probabilities, that the relevant sex offender poses a risk of sexual harm to the public, or any particular members of the public, in the United kingdom..........

(8) In this section and sections 88D to 88G, "relevant chief constable" means the chief constable of the police force for the police area in which the relevant sex offender resides.

 

88D Review of indefinite notification requirement, transitional arrangements

 

(1)   This section applies to a relevant sex offender falling within sections 88A(1)(b)(ii) if the person -

(a) was aged under 18 on the relevant date;

(b) after disregarding any time referred to in subsection (2), has been subject to the notification requirements of Part 1 of the Sex Offenders Act 1997 and this Part for a total period of at least eight years on the date on which this section comes into force...........

(3) The relevant chief constable must no later than the applicable date-

(a) make a notification continuation order in respect of the relevant sex offender; or

(b) notify the relevant sex offender that the offender ceases to be subject to the notification requirements of this Part on the applicable date.

(4) Section 88C(2) to (8) applies to this section, but a reference to the date of discharge is to be read as a reference to the applicable date.

(5) In this section, the "applicable date" is the date falling 3 months after the date on which this section comes into force.

 

88E Review of indefinite notification requirements: further review

 

(1)  Where a notification continuation order has been made, the relevant chief constable must no later than the further date of discharge-

 

(a)   make another notification continuation order in respect of the relevant sex offender; or

(b)  notify the relevant sex offender that the offender ceases to be subject to the notification requirements of this Part on the further date of discharge.

(2)  Section 88C(2) to (8) apply in relation to this section, but a reference to the date of discharge is to be read as a reference to the further date of discharge............

 

88G Review of indefinite notification requirements: appeals

(1)  The decision of the relevant chief constable -

(a)   to make a notification continuation order; and

(b)  setting the fixed period of the notification continuation order,

may be appealed by the relevant sex offender within 21 days after the date specified in subsection (3).

(2) An appeal under subsection (1) is to be made by summary application to the sheriff in whose jurisdiction the relevant sex offender resides.

(3)  The date is-

where the appeal is brought against the decision of the relevant chief constable made under section 88C(1), the date of discharge;

(a)   where the appeal is brought against the decision of the relevant chief constable made under section 88D(1), the applicable date; or

(b)  where the appeal is brought against the decision of the relevant chief constable made under section 88E(1), the further date of discharge........................"

Authorities

 

  1. The following authorities were referred to:-

 

  1. Macphail : Sheriff Court Practice (3rd Edition,)

Simpson v Assessor for Selkirkshire 1948 SC 270,

National Commercial Bank of Scotland v Assessor for Fife 1963 SC 197,

Sinclair v Lothian Regional Council 1981 SLT (Sh Ct) 13,

T, Applicant v Secretary of State for Scotland 1987 SCCR 65,

Charles v Judicial and Legal Service Commission 2002 UKPC 34,

Ghaidan v Godin-Medenoza 2004 2 AC 557,

Mucelli v Albania 2009 UKHL 2

R v Soneji 2006 1 AC 340

R (On the application of F) v Secretary of State for the Home Department 2011 1 AC 331

Wang v Commissioner of Inland Revenue 1994 1 WLR 1286,

Roberts v Chief Constable, Central Scotland Police (unreported Stirling Sheriff Court 2002),

WY v Law Society Of Scotland 2009 SC 430 and

Holmes v Nursing and Midwifery Council 2009 CSIH 2010,

Hume v Nursing and Midwifery Council SC 644,

Collins v Scottish Minister 2004 SLT 228,

London & Clydesdale Estates Ltd v Aberdeen District Council 1980 1 WLR 1286,

Borland v Mental Health Tribunal for Scotland 2011 SLT (Sh Ct) 135

Shahid v Scottish Ministers 2011 CSOH 192

Manchester City Council v Pinnock 2010 3 WLR 1141

AXA General Insurance Ltd, Petitioners 2011 CSIH 31; and

Rabone & Anor v Penine Care HNS Trust 2012 UHSC 2

 

 

Submission on behalf of the respondent

 

  1. Mrs Stannage detailed the history of the circumstances culminating in the appellant becoming subject to the notification requirements of the sexual offences legislation as set out in paragraphs 4 to 7 above.

 

  1. She then took me through the pertinent parts of the relevant legislation. Mrs Stannage observed that due to the length of his sentence the appellant became liable to the notification requirements for an indefinite period in terms of section 1(3)(b) and (4) of the 1997 Act.

 

  1. The 2010 Order came into force on 25th October 2010 at 17:00 hours which amended the 2003 Act. In the context of this amended act the appellant satisfied the criteria of a "relevant sex offender". As such it became incumbent on the "relevant chief constable" no later than the "applicable date" to "(a) make a notification continuation order in respect of the relevant sex offender; or (b) notify the relevant sex offender that the offender ceases to be subject to the notification requirements of this Part on the applicable date."

 

  1. As the appellant was aged 14 on the date of his conviction and as he had been subject to the notification requirements for a period of more than 8 years as at 25th October 2010, the respondent, as the relevant chief constable, required by no later the applicable date to make a notification continuation order in respect of the appellant or to notify him that he ceased to be subject to the notification requirements on the applicable date.

 

  1. The "applicable date" is the date falling 3 months after the date on which the requirement devolving on the respondent comes into force, namely 25th January 2011.

 

  1. Mrs Stannage stated that the respondent had made a Notification Continuation Order on 21st January 2011 in respect of the appellant for a period of 5 years from 25th January 2011 to 24th January 2016. Thereafter it would be reviewed and either a further notification continuation order would be made or the appellant would be discharged from the need to comply with the notification requirements of the 2003 Act.

 

  1. The amended legislation provided the appellant with a right of appeal by summary application to the sheriff in whose jurisdiction he resides, against the decision of the relevant chief constable to (a) make a notification continuation order and (b) setting the fixed period of the notification order within 21 days of the date of the decision.

 

  1. Mrs Stannage submitted that the appellant had 21 days from 25th January 2011 to appeal the respondent's decision. She calculated that the period to initiate an appeal expired on 15th February 2011. The summary application in respect of this appeal had been lodged in court on 22nd February 2011. It was outwith the time limit. It therefore followed that his appeal was time-barred.

 

  1. She also submitted that if the 2010 Order applied in this case then in terms of section 88G the 21 day period ran from 25th January 2011 being the "applicable date" in terms of section 88D. She noted that the 2011 Order came into force on 27th January 2011. She submitted that the 2010 Order applied in this case.

 

  1. Mrs Stannage submitted that the 2003 Act made no provision for the exercise of discretion to hear an appeal although late. She referred to Rule 2.3(1) and Rule 2.6 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999 ("the Summary Application Rules") which are in the following terms:-

 

"Rule 2.3 (1)The sheriff may relieve a party from the consequences of failure to comply with a provision in this Part which is shown to be due to mistake, oversight, or other excusable cause on such conditions as he sees fit........

 

Rule 2.6 (1) This rule applies to a summary application where the time limit within which the application being an appeal under statute or an application in the nature of an appeal may be made is not otherwise prescribed.

 

(2) An application to which this rule applies shall be lodged with the sheriff clerk within 21 days after the date on which the decision, order, determination, refusal or other act complained of was intimated to the pursuer.

 

(3) On special cause shown, the sheriff may hear an application to which this rule applies notwithstanding that it was not lodged within the period prescribed in paragraph (2)."

 

Mrs Stannage submitted that Rule 2.6 only applies to summary applications where a time limit is not otherwise prescribed. This rule did not apply in this case as the 2003 Act provided a specific time limit. It followed that I could not exercise discretion to hear the appeal as it had been made after the prescribed time limit had expired. This is consistent with the commentary in Macphail "Time-limits" at paragraph 26.17

 

  1. With reference to Simpson she referred me to page 272 where Lord Jamieson inter alia states "........ it is perfectly clear with regard to the last date on which appeals may be lodged; and, where the Act says that appeals are to be lodged not later than a certain date, it seems to me that it means just what it says, and that, if an appeal is not lodged by that time, then it is not a competent appeal". Mrs Stannage acknowledged that the approach taken in this case had not been followed in the case of National Commercial Bank where Lord Patrick and Lord Sorn each expressed the view that in the particular circumstances of that case it was appropriate to exercise discretion especially where there were exceptional circumstances or where it would be grossly unfair to enforce a strict time limit. Such an approach was adopted in the case Sinclair which involved an appeal in terms of the Education (Scotland) Act 1962 and the appeal had been lodged after the 14 day statutory time limit had expired.

 

  1. Mrs Stannage observed that such an approach had not been followed by Sheriff Principal Dick in the case of T Applicant, where the applicant had failed to timeously appeal an order made under the Mental Health (Scotland) Act 1984 transferring him to the State Hospital at Carstairs. The application had been lodged 15 days after the 21 day time limit as prescribed by section 29 of that Act had expired. The Sheriff Principal determined that as "special cause" had not been made out in respect of the late lodging of the appeal he could not exercise discretion to allow the appeal to be heard. She argued that the circumstances of that case are very much in point with the circumstances of this case.

 

  1. Similarly in the Roberts case an appeal taken under the required summary application in terms of the Firearms Act 1968 was lodged one day late. The sheriff had determined that the mandatory time limit of 21 days applied and that he had no discretion to relieve the appellant of his failure to timeously lodge the appeal. He took the view that as the Firearms Act stipulated a 21 day period in which to lodge an appeal Rule 2.3(1) of the Summary Application Rules did not apply.

 

  1. In the case of W.Y. the court refused to allow an appeal against the decision of the Disciplinary Tribunal of the Law Society of Scotland to be heard as it had been presented outwith the statutory time-limit in circumstances where the common law could not be applied in such a way as to allow late receipt of the petition.

 

  1. Mrs Stannage concluded her reference to authorities with reference to the Holmes case. This was a case where there was no adequate explanation for allowing a late appeal where the Midwifery Order 2001 stipulated that an appeal against an order the Health Committee of the Nursing and Midwifery Council must be brought within 28 days of the date of service of the order. The question of the competency of the appeal did not require to be decided as there was no adequate explanation for the late lodging of the appeal - the motion to allow the appeal late was refused.

 

  1. In conclusion Mrs Stannage submitted that I did not have discretion to allow this appeal to be heard. There was nothing before me that would allow me to exercise discretion in terms of the Summary Application Rules or at common law. She invited me to determine that the appeal is time-barred - it is not competently before the court and I should dismiss it.

 

Submission on behalf of the appellant

 

  1. As the appellant had been convicted of two charges of assault with intent to ravish, Prof Kelly acknowledged that the appellant became subject to the notification requirements of the 1997 Act for an indefinite period. The appellant continued to be subject to those notification requirements notwithstanding the repeal of the 1997 Act which had been replaced by the 2003 Act.

 

  1. Prof Kelly recognised that the factual basis giving rise to this appeal was as stated by Mrs Stannage. He also agreed that Mrs Stannage had correctly identified the relevant parts of the legislation.

 

  1. By virtue of amendments to the 2003 Act, the respondent was required to review the appellant's case. He had to decide whether or not the appellant should remain subject to the notification requirements under the 2003 Act and Scottish Statutory Instruments made thereunder. Dependent on his decision, the respondent was required either to make a notification continuation order or to notify the appellant that he was no longer subject to the notification requirements.

 

  1. On 24th January 2011 a detective superintendent of the police force of which the respondent is the Chief Constable decided to make a continuation order.

 

  1. Prof Kelly confirmed that the appellant appeals that decision. He seeks to quash the notification order dated 24th January 2011 as he does not pose a risk of sexual harm to the public or any members of the public. In this regard he referred to the final paragraph of Section 12 of the "Review of indefinite notification requirements" attached to the respondent's decision letter which reads as follows:-

 

"After lengthy discussion it was agreed that apart from his domestic sexual incident no other sexual offences had been committed and that any future management should centre around the risk he poses as a domestic abuser. As such consideration should be given to removing him from the Sex Offenders Register but work should still be undertaken to ensure the continued safety of Yvonne McAvoy."

 

  1. Prof Kelly submitted that as the appellant was aged under 18 on the relevant date he was a person to whom section 88D of the 2003 Act applied. He was a person who was subject to the notification requirements indefinitely prior to section 88D(1) came in to force as provided by section 88A(1)(b)(iii) and he had been subject to the notification requirements for at least 8 years.

 

  1. In terms of subsections 88D(3) to (5) the respondent required to make a notification continuation order in respect of the appellant within three months after the date on which the section came into force i.e. within 3 months of 25th October 2010. The respondent is the relevant chief constable in terms of section 88C(8).

 

  1. In appeals against decisions made in terms of section 88D of the 2003 Act the date specified in subsection (3) is the "applicable date" - namely 25th January 2011. Prof Kelly calculated that the time limit in the 2003 Act expired on 15th February 2011. He confirmed that the summary application had been lodged with the court on 22nd February 2011 and forthwith served on the respondent.

 

  1. Prof Kelly submitted that the issue for the court was whether any power exists to enable the court to allow the appeal to proceed notwithstanding the failure to obtemper the time limit contained in the 2010 Order or as argued by the respondent is the application time-barred and should it therefore be dismissed?

 

  1. In considering this question he referred to the Rules of Court, the Common Law and the Human Rights Act 1998.

 

The Rules of Court

 

  1. He too referred to Rule 2.6 of the Summary Application Rules and agreed with Mrs Stannage that this rule probably did not apply as section 88G(1) 2003 Act prescribed the time limit in which the appeal is to be brought and the dispensing power in Rule 2.6(3) does not apply.

 

  1. However with reference to the case of Hume he observed that in not dissimilar circumstances the dispensing powers in the Court of Session Rules could apply. That case distinguished the case of Collins which was to the opposite effect. In the case of Collins the presence in the legislative scheme of a limited ouster clause was held to be crucial. In the Hume case the Court determined that the absence of such a clause meant that the timetable laid down in the Nursing and Midwifery Order 2001 became subject to the procedural requirements of the applicable rules which allowed the court to exercise its dispensing power.

 

The Common Law

 

  1. In opening this part of his submission Prof Kelly referred to the "suggestion" in Macphail at Paragraph 26.17 where the court might have a power at common law to "disregard failure to comply with a time-limit provision which is only directory and regulative of procedure, provided that no substantial prejudice has been caused to the opposite party, and the lateness of the application is due to exceptional circumstances of such a nature that it would be grossly unfair to enforce the time-limit strictly".

 

  1. Prof Kelly submitted that this "suggestion" had its roots in the National Commercial case. That case had considered the Simpson case. Both cases involved appeals against decisions of valuation committees. In the Simpson case the committee decided not to entertain an appeal because it had not been lodged within the time limit laid down by the applicable statute which provided "All appeals.....shall....be lodged not later than 10th September in each year. The court rejected an argument that the provision was not imperative but merely directory and refused the appeal. He too referred to the passage Mrs Stannage quoted from Lord Jamieson's opinion at page 272.

 

Prof Kelly noted that other judges agreed, one with reluctance (p 276).

 

  1. With reference to the National Commercial Bank case Prof Kelly observed that the valuation committee had refused the appeal as it had not been timeously lodged. The appellant had argued that the time limit was not peremptory and therefore the committee had discretion to entertain a late appeal. This argument had been accepted by the court. At page 202 Lord Patrick regarded the provisions as being "directory and regulative of procedure, literal compliance with which is not to be demanded if the effect would be to perpetrate manifest injustice". He held that the committee had discretion where the failure to comply has been caused by excusable mistake, or some cause over which he who has failed had no control.

 

  1. Prof Kelly also observed that these passages from Lord Patrick's opinion were applied by the sheriff in the case of Sinclair - a case where the statutory provisions were similar to section 88G(1) of the 2003 Act providing that an aggrieved person "may within 14 days .... Appeal....to the sheriff". The sheriff decided that what Lord Patrick had said is not confined to valuation appeal cases but, rather is "to be taken as applying equally in any other case, provided only that there is not, in such other case, any express provision statutory or otherwise, which would make these principles inoperative". The sheriff principal in the case of T Applicant did not follow the reasoning in the cases of National Commercial Bank or Sinclair. In the unreported Stirling Sheriff Court case of Roberts the Sheriff held that compliance with the time limit stated was fundamental and failure to abide by it vitiated the application and essentially deprived the court of jurisdiction to entertain the appeal.

 

  1. Prof Kelly then referred to the case of Charles, a Privy Council case where failures to observe time limits laid down by regulations dealing with discipline and conduct in the public service were considered. At Paragraph 9 reference was made to the leading authority of Wang in which reference was made to the speech of Lord Hailsham of St Marylebone LC in the case of London & Clydesdale Estates where his Lordship had discouraged the use in this field of rigid legal classifications like "mandatory and directory". Lord Slynn then said:-

 

"..their Lordships consider that when a question like the present one arises - an alleged failure to comply with a time provision - it is simpler and better to avoid these two words "mandatory" and "directory" and to ask two questions. The first is whether the legislature intended the person making the determination to comply with the time provision, whether a fixed time or a reasonable time. Secondly, if so, did the legislature intend that a failure to comply with such a time provision would deprive the decision maker of jurisdiction and render any decision which he purported to make null and void?"

 

At Paragraph 16 reference was again made to Lord Hailsham's speech in London & Clydesdale Estates Ltd in the context that the issue is seldom "black and white". Lord Hailsham had referred to a spectrum of possibilities:-

 

"At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint.

His Lordship added that most cases will fall somewhere in the middle and it will be for the courts to assess. If a complaint is made about the non-fulfilment of a time limit the giving of relief will usually be discretionary. This discretionary element to which Lord Hailsham referred underlines the fact that problems arising from the breach of time limits and other like procedural flaws are not generally susceptible of rigid classification or black and white a priori rules. With this in mind their Lordships note that in the present case the delays were in good faith, they were not lengthy and they were entirely understandable. The appellant suffered no material prejudice; no fair trial considerations were or could have been raised, and no fundamental human rights are in issue. "

 

  1. Prof Kelly submitted that the distinction employed in National Commercial Bank and Sinclair between mandatory and directory statutory requirements has fallen out of favour and that the issue is what parliament intended to be the consequences of non-compliance with reference to "A new perspective" as articulated by Lord Steyn in R v Soneji 2006 1 AC 340 at paragraphs 15-23, 52 and 61 with particular emphasis on Paragraph 23 which he quoted as follows:-

 

"Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness, as held in Attorney General's Reference (No 3 of 1999), the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction. In my view it follows that the approach of the Court of Appeal was incorrect."

 

  1. He observed that this approach had been followed in the cases of Borland at paragraph 30 and Shahid.

 

  1. However Prof Kelly recognised that the case of WY was against him where an Extra Division had held that it did not have the power at common law to receive a statutory appeal late. The applicable statute provided, "Any person aggrieved by a decision ... may within 21 days....appeal against the decision to the court." Reference in that case was made to the following passage from Lord Jamieson's opinion in Simpson:-

 

"Simpson was considered in National Commercial Bank of Scotland v Assessor for Fife. In the rubric, the reporter, states that it disapproved of the earlier decision. However, by the time of this case the terms of sec7 of the 1876 Act, which had been deemed to be imperative in Simpson, were no longer applicable. The time-limit for lodging an appeal was not expressed in primary legislation. Rather it had been regulated by sec 13 of the Valuation and Rating (Scotland) Act 1956, which permitted the Secretary of State to prescribe the relevant date. He had done so in the Valuation Timetable (Scotland) Order No 2 Order 1962 by making the relevant date 15 September (a Saturday), Lord Patrick analysed the reasoning of the three judges in Simpson before pointing out that the terms of the original sec 7 of the 1867 Act were no longer under consideration. Rather, the right of appeal under sec 9 of the 1854 carried with it no time-limit set within the main body of the primary legislation. The limits were contained in a Schedule and subject to alteration by the Secretary of State. In these circumstance, he considered (p202) the provisions to be "directory and regulative of procedure" and not imperative. It is only Lord Kilbrandon who states specifically that Simpson was wrongly decided and, even then, he acknowledges that it was dealing with different provisions. In short, National Commercial Bank of Scotland v Assessor for Fife cannot be taken as stating that the court, or other relevant body, has a power to override time-limits for appeals contained in the primary sections of Acts of Parliament. Simpson on the other hand is clear authority that they cannot.............."

 

Prof Kelly noted that conclusion, as recorded in the final paragraph of the judgment, had been reached even though the court was "....conscious that in other cases, the absence of a general power to relieve parties from the consequences of their failures to comply with strict time-limits may lead to injustice".

 

  1. Prof Kelly submitted that there was no clear line of authority from the Inner house. Hume had been decided to the opposite effect from WY. The time-limit in section 88G(1) of the 2003 Act is contained in a primary section of an Act of Parliament - albeit one that was inserted by an order under section 12 of the Convention Rights (Compliance)(Scotland) Act 2001.

 

  1. In concluding this part of his submission Prof Kelly posed the question "Did Parliament intend invalidity (incompetence) of an appeal taken beyond the time-limit contained there?" - in answer he suggested it is a question of statutory interpretation.

 

The Human Rights Act 1998

 

  1. In opening this part of his submission Prof Kelly posed another question - does the court have the power at common law to override the time limit for the appeal fixed by section 88G(1) of the 2003 Act?

 

  1. He then made reference to section 3 of the Human Rights Act 1998 ("HRA") which provides:-

 

"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights."

 

He submitted that this provision is the principal remedial measure in the HRA. There is a strong rebuttable presumption in favour of an interpretation consistent with Convention rights as discussed in the case of Ghaidan at paragraphs 39 and 50. The courts therefore could read statutory language restrictively or expansively, or read words into it, to make it compatible with the Convention Rights. With reference to paragraphs 30-33, 35 and 121-122 of that case the limit is that the court must not read in words that either (a) contradict the scheme, principles or thrust of the legislation or (b) depend on it having made decisions for which it is not equipped. In carrying out that interpretation exercise Prof Kelly argued that section 3(1) of the HRA requires "The precise form of words read in for this purpose is of no significance - it is their substantive effect which matters." Accordingly this section of the HRA requires section 88G(1) of the 2003 Act to be "read down" to include a dispensing power.

 

  1. In developing this part of his submission Prof Kelly maintained that the Convention Rights in said section 3(1) include Articles 6 and 8 with reference to section 1 of the HRA. When a court is deciding what is compatible with the Convention Rights it should follow any clear and constant line of decisions of the ECtHR the effect of which is not inconsistent with some fundamental, substantive or procedural aspect of domestic law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle as discussed in Manchester City Council at paragraph 48.

 

  1. Prof Kelly acknowledges that this did not mean that the court cannot reach a conclusion that a Convention Right has been violated on facts that have not been before the ECtHR - the court must apply the broad principles stated by the ECtHR in judging the circumstances of the cases brought before it as discussed in AXA General Insurance Ltd, Petitioners at paragraph 37 and with reference to the opinion of Lord Brown in Rabone & Anor where inter alia he states:-

 

"Nobody has ever suggested that, merely because a particular question which arises under the Convention has not been specifically resolved by the Strasbourg jurisprudence, domestic courts cannot determine it - in other words that it is not necessary to await an authoritative decision of the ECtHR more or less directly in point before finding a Convention violation. That would be absurd".

 

  1. In light of these authorities Prof Kelly submitted that courts should "bend over backwards" to give effect to these human rights. There is a remedy whereby I could exercise discretion either at common law, under the rules of court or under the HRA.

 

  1. He candidly stated that there was no explanation for the delay.

 

  1. As to whether the appeal should proceed he invited me to be mindful of the presumption in favour of finality and certainty - such issues ought not to be able to be brought up routinely when there is much to be said for settling of the matter and not continually re-opening it.

 

  1. In this case the period of delay is slight. The prejudice suffered by the respondent is negligible. There is no prejudice to the public interest as the notification requirements remain in place until the issue is determined (section 88F(8)).

 

  1. Fundamental human rights are however an issue in this case. In particular Prof Kelly argued that the notification requirements amount to an interference with the appellant's right to respect for his private life within the meaning of Article 8 with reference to the opinion of Lord Steyn in R (F) where within paragraph 51 is stated:-

 

"......This case turns, however, turns on one critical issue. If some of those who are subject to lifetime notification requirements no longer pose any significant risk of committing further sexual offences and it is possible for them to demonstrate that this is the case, there is no point in subjecting them to supervision or management or to the interference with their Article 8 rights involved in visits to their local police stations in order to provide information about their places of residence and their travel plans. Indeed subjecting them to these requirements can only impose an unnecessary and unproductive burden on the responsible authorities.........."

 

Prof Kelly invited me to consider how this contrasted with the provision applied by the respondent in making the continuation notification order in terms of section 88C(3) of the 2003 Act which provides that "the relevant chief constable may make a notification continuation order only if satisfied, on the balance of probabilities, that the relevant sex offender poses a risk of sexual harm to the public, or to any particular members of the public, in the United Kingdom."

In these circumstances Prof Kelly submitted that there is a challenge - foreshadowed in the detail of the Order itself and clear from the contradiction between the Supreme Court decision and the provisions of the Order. He suggested that it would take a relatively short period to resolve - possibly a further hearing without the necessity of leading evidence. In the event that the appellant is not allowed to mount a challenge, he is the subject of these restrictions for a period of 5 years. That, he stated, would be a manifest injustice standing what is said in the Order given there was a body of opinion - even among police officers and others - to the effect that the appellant ought not to be subject to the requirements.

 

  1. In conclusion Prof Kelly invited me to repel the respondent's preliminary plea and to determine that the application is competent.

 

Reply by Mrs Stannage

 

  1. In response to Prof Kelly's submission re the rules of court Mrs Stannage observed that the two cases he referred to namely Hume and Hulme were Court of Session cases where the court exercised its discretion to entertain late appeals as provided for in a statutory instrument and not primary legislation. She reminded me that I was dealing with a summary application where there was a prescribed time limit for proceeding with an appeal which precluded invoking the provisions of Rule 2.6. Accordingly I was precluded from exercising my discretion to allow the appeal to proceed. She invited me to disregard these cases on the premise that they were not relevant to this case.

 

  1. With regard to the submissions made by Prof Kelly with reference to the common law Mrs Stannage explained that she had not made reference to the cases of Charles and Soneji because she considered that they dealt with situations where there had been a failure to comply with a provision before a power was exercised in the case of Charles by officials, in the case of Soneji by a judge. The case of Borland involved a situation where a report required in connection with a compulsory treatment order had not been timeously lodged - it had been lodged 15 hours outwith the time-limit.

 

  1. With reference to these cases she asked me to keep in mind what the overriding point of the legislation was. The purpose of the amendments to the sexual offences legislation was to allow for a review of the notification order. Indefinite notification requirements are now subject to review which she argued was a very important aspect to this case and I was to keep in mind what parliament had intended in this regard. Against the background of Lord Steyn's comments in Soneji where he stated "....the emphasis ought to be the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity." And with reference to paragraph 26:17 of Macphail -"The sheriff has no discretion under the Summary Application Rules to hear an application lodged later than the time prescribed by any statutory enactment under which the appeal is presented..." Mrs Stannage submitted that the 2003 Act could have allowed for discretion - the Scottish Parliament did not allow discretion - it therefore followed that Parliament intended total invalidity if an appeal was lodged late.

 

  1. In the context of human rights Mrs Stannage submitted that the purpose of the amendment to the 2003 Act was to ensure that indefinite orders were reviewed. If this appeal was unsuccessful, the notification requirement would require to be reviewed in 2016. It followed the shortcomings in the legislation have been addressed with the introduction of the review.

 

  1. She also submitted that the wording of the 21 day time limit to proceed with an appeal is unambiguous. Whilst I might be entitled to interpret these unambiguous provisions as incompatible with the human right legislation I should have regard to the case of Ghaidan. In this case there was no need for me to interpret the section on time-limits for appeals as it was clear and unambiguous.

 

  1. With regard to the exercise of discretion, Mrs Stannage submitted that if the appellant was unsuccessful the notification order he was subject to would be reviewed in another four years. She recognised that from the appellant's point of view it would be of great importance to him as it has an affect on his liberty which would be no different for others subject to the discipline and requirements of other legislation such as in the case of T Applicant where the sheriff had no discretion re the transfer of patients to the State Hospital.

 

  1. With regard to the making of the continuation order she noted the date it was made was on 24th January 2011 although the letter addressed to the appellant along with the decision was per incuriam dated 24th January 2011 - that letter had clearly stated the time-limit for making an appeal. The letter had been hand delivered to the appellant on 25th January 2011.

 

  1. With reference to Prof Kelly's submission that the order should not have been made, Mrs Stannage observed that he was not saying that he should not be the subject to the notification requirement. The purpose of the amended legislation was to ensure that indefinite periods of the notification requirements are reviewed.

 

Final observation by Prof Kelly

 

  1. Prof Kelly referred to section 88G(1) of the 2003 Act which sets the time-limit for appealing the respondent's decision to make the notification continuation order. Service had been effected about the time the order came into effect.

 

  1. The importance of the matter to the appellant is something that Lord McFadyen took into account in the Hume case at paragraph 18.

 

  1. Prof Kelly agreed with Mrs Stannage that the purpose of the amended legislation is to provide a review of an indefinite notification order. The review however is undertaken by a chief constable and a right of appeal to the court is given - it is this right which is capable of being frustrated if I did not exercise discretion.

 

Considerations and reasons for my decision

 

  1. It appears that the sole issue I require to address is in short compass - namely is this appeal competently before the court?

 

  1. For the purposes of this decision the factual position with regard to the sequence and timing of events does not appear to be controversial.

 

  1. By virtue of the conviction for inter alia assault with intent to ravish recorded against him on 22nd December 1993 and the sentence of 4 years detention in a Young Offenders Institute the appellant became subject to the notification requirements of the sexual offences legislation for an indefinite period (initially in terms of Part 1 of the 1997 Act: section 1(4) and thereafter in terms of section 82 of the 2003 Act).

 

  1. The appellant has been successful in having the legislation revisited and subsequently amended as a result of his earlier case (A v The Scottish Ministers) in which it was argued on his behalf that being subject to the notification requirements indefinitely was incompatible with his human rights.

 

  1. A consequence of this decision was an amendment to the 2003 Act by virtue of the 2010 Order which was subsequently revoked and replaced by the 2011 Order. Both Orders introduced a process whereby a chief constable is required to review an indefinite notification order and either continue it or discharge the offender from it. Where the order is reviewed the offender has a right of appeal to the sheriff in whose jurisdiction he resides.

 

  1. In this case the appellant seeks to appeal the decision of the respondent dated 21st January 2011 to make a Notification Continuation Order. Whilst it is a matter of admission on record that the date of the decision was indeed 21st January 2011, on a perusal of the respondent's decision attached to the principal Summary Application it appears that the decision date is 24th January 2011 with notice that the duration of the notification order is to be 5 years from 25th January 2011. The covering letter to the appellant is incorrectly dated 21st January 2010. I was informed by Mrs Stannage that the decision was intimated to the appellant by hand delivery.

 

  1. Be that as it may all these dates pre date the coming into force of the 2011 Order on 27th January 2011. Accordingly for the purposes of this application I agree with Mrs Stannage and Prof Kelly that the procedure is regulated by the 2003 Act as amended by the 2010 Order.

 

  1. Section 88G of the 2003 Act provides the appellant with a mechanism to proceed with an appeal. He may appeal within 21 days of the date of the respondent's decision to make the Notification Continuation Order by summary application.

 

  1. The summary application in this case was warranted for service on 22nd February 2011. I note that the warrant "Reserves the question of time bar" until the date of the first calling of the application on 8th April 2011. The application was served on 25th February 2011 - the date the order came into effect - "the applicable date". The summary application has been proceeded with outwith the 21 day time-limit - the parties are agreed that the last date for proceeding with it would have been 15th February 2011.

 

  1. Prof Kelly readily accepted that the summary application was outwith the 21 day time-limit.

 

  1. When I pressed Prof Kelly about a reason or explanation for the apparent failure to comply with the time-limit he candidly informed me that no explanation was to be advanced. Simply put I was to consider allowing the appeal to proceed although it was outwith the time-limit and that in the absence of any explanation for that failure to comply with the time-limit. The contention that the appeal is time-barred in Answer 6 of the Record is not addressed in Article 6 thereof.

 

  1. In considering the submissions for the parties I consider that it would be appropriate to follow the structure adopted by Prof Kelly under the three headings he identified in approaching his responses to the position adopted on behalf of the respondent anent time-bar.

 

  1. I do so on the premise that the legislation has deemed it appropriate to fix a time limit for an individual such as the appellant to proceed with an appeal. In appeals of this nature it has been deemed appropriate to allow a 21 day period "within which" to proceed with an appeal. Whilst the appellant quite properly has the right to appeal the respondent's decision, the respondent is entitled to assume that there is to be no appeal if it is not proceeded with within the period allowed by the legislation. The respondent is entitled to certainty in the matter. It was not argued that the respondent would be substantially prejudiced if the appeal was allowed to proceed.

 

The Rules of Court

 

  1. The procedure in this appeal is regulated by the Summary Application Rules. As Mrs Stannage identified Rule 2.3 contains a dispensing power where a party may be relieved of the consequences of a failure to comply with a provision of the rules due to mistake, oversight or other excusable cause.

 

  1. In this case Prof Kelly has not argued that there has been any mistake, oversight or other excusable cause which could otherwise be a precursor to the court being in a position to consider exercising discretion.

 

  1. Rule 2.6 however addresses the situation where an appeal is available by way of a summary application where the time limit is not prescribed under statute or otherwise - on special cause shown the court has discretion to hear such an application which has been lodged outwith the time limit as prescribed by Rule 2.6(2).

 

  1. As Mrs Stannage observed the 2003 Act provides the 21 day time-limit. I agree with her that Rule 2.6 does not apply in this case. I also agree with her other observation that the 2003 Act does not contain any provision for the exercise of discretion for the court to hear an appeal lodged late.

 

  1. With reference to Macphail at paragraph 26.17 inter alia the learned author states "The sheriff has no discretion under the Summary Application Rules to hear an application lodged later than the time prescribed by any statutory enactment under which the appeal is presented......."

 

  1. I understand that Prof Kelly accepted that this was the case. He did however refer to a number of cases - specifically the case of Hume where the Rules of the Court of Session had been construed in favour of the appellant and leave to appeal late was held to be competent. In that case the respondents had not opposed the motion and the court determined that the appellant's delay in presenting his appeal was excusable. These two factors are absent in this case.

 

  1. Accordingly it appears that the appeal process in this case is regulated by the provisions of the 2003 Act independent of the Summary Application Rules. There is no provision in the legislation for the court to exercise discretion where an appeal has been lodged out with the lime-limit. There is therefore nothing in the rules of court that assist the appellant in overcoming the failure to comply with the 21 day time-limit in which to lodge his appeal.

 

 

The Common Law

 

  1. In considering the common law both Mrs Stannage and Prof Kelly referred to Macphail at paragraph 26.17 wherein the learned author states, and this is continuing the sentence in paragraph 91 above, ".......nor has he any discretion at common law to dispense with any time-limit prescribed by statute which is mandatory rather than directory in character except perhaps with the consent of the parties. It might be that he has discretion at common law to disregard failure to comply with a time-limit provision which is only directory and regulative of procedure, provided that no substantial prejudice has been caused to the opposite party, and that lateness of the application is due to exceptional circumstances of such a nature that it would be grossly unfair to enforce the time-limit strictly. The possession of such a discretionary power would appear to be particularly appropriate where the sheriff's decision on the merits of an application is final."

 

  1. On that latter point the decision of the sheriff is not final as, in terms of section 88G(4) of the 2003 Act, there is provision for an appeal to the sheriff principal.

 

  1. It appears from this extract from Macphail and the cases referred to by Mrs Stannage and Prof Kelly that an overriding feature to attempt to persuade a court to exercise discretion and allow an appeal to proceed where it has been initiated outwith a finite period of time is an explanation for the appeal being lodged late. This is conspicuous by its absence in this case.

 

97.      Lord Jamieson was clear in Simpson "...........if an appeal is not lodged by that time, then it is not a competent appeal." In that case there was no explanation for the late appeal although the respondent made it clear that he had not been prejudiced in any way. That case had not been followed in National Commercial Bank where Simpson had been disapproved and the court determined that an appeal was not incompetent merely because it was not lodged timeously - a case where there was an explanation. Lord Patrick referred to it as an excusable mistake, and there had been no prejudice to the respondent. Lord Patrick also stated "I do not suggest that such provisions are lightly to be disregarded; but where the failure to comply has been caused by excusable mistake, or by some cause over which he who has failed had no control, I hold that the Valuation Committee, and this Court have a discretion to disregard the failure, provided always that no substantial prejudice has been caused to the opposite party." This reasoning was followed in Sinclair but not in T Applicant or Roberts. In T Applicant the Sheriff Principal considered that the decision in Sinclair was not in accordance with the law.

 

98.      Be that as it may Prof Kelly, with reference to the case of Soneji, argued that the law has "moved on" and that the distinction between "mandatory" and "directory" statutory requirements had been overtaken and that courts should concentrate on the consequences of non-compliance. Whilst this approach had been followed in Borland and Shahid it had not found favour in WY. In WY the court revisited Simpson in some detail and in doing so considered the case of Mucelli. The decision in WY is to the effect that the decision of the respondents had been intimated in accordance with the required procedure, the appeal against that decision had not been timeously submitted even although the Petitioner was not aware of the decision until after the time for appealing had passed. The court held that neither the Rules of Court nor the common law could be applied in such a way as to allow late receipt of the petition in face of a strict statutory time-limit. In refusing the petition the court recognised that the petitioner might have another remedy available to him - it did however recognise that "........in other cases, the absence of a general power to relieve parties from the consequences of their failures to comply with strict statutory time-limits may lead to injustice. But it is a matter for the Parliament which sets these limits to decide whether such a power should be conferred upon the courts. At present, no such power exists."

 

99.      In my view the case of WY brings the earlier, not necessarily the previous, thinking and the present day thinking on appeals presented outwith time-limits together.

 

100.   In this case parliament decided that there should be a time-limit. It selected a not unreasonable period of 21 days within which an appeal is to be made. It also decided that there was not to be discretion to allow a late appeal. I agree with Mrs Stannage that parliament did indeed intend total invalidity if an appeal was lodged late.

 

101.   For these reasons I reject Prof Kelly's submissions opposing the time-bar argument under the common law.

 

The Human Rights Act 1998

 

102.   Prof Kelly submits that human rights are in issue in this case. He argues that the notification requirements amount to an interference with the appellant's human rights within the meaning of Article 8. He refers to the case of R(F) and to the quotation from the opinion of Lord Phillips as set out in paragraph 62 above.

 

103.   This case however is about the respondent's decision to make the said notification continuation order. Ex facie having made the order the respondent has been satisfied on the balance of probabilities that the appellant poses a risk of sexual harm to the public, or any particular members of the public, in the United Kingdom (section 88C of the 2003 Act).

 

104.   By way of observation the respondent made the continuation order for a period of 5 years as from 25th January 2011- not for the maximum period available to him under section 88C(2) of the 2003 Act of 15 years. There is no factual basis averred on Record as to why the appellant asserts that he no longer poses a risk of sexual harm to the public or any member of the public as other than in his plea-in-law. (This aspect of the pleadings was not part of the subject matter of the debate which might otherwise have been debated with reference to the respondent's second plea in law.)

 

105.   As Mrs Stannage emphasised by making the notification continuation order for 5 years the respondent has committed himself to review the order in early 2016. This in itself is compatible with the appellant's human rights. As averred on Record the appellant's Petition challenging the indefinite period of the notification requirements succeeded when his reclaiming motion was conceded by the Scottish Ministers in the Inner House of the Court of Session on 16th November 2010.

 

106.   Consistent with his human rights the appellant has the right to appeal the making of a notification continuation order within what I consider to be a mandatory time limit. For no reason the appellant missed the deadline for making the appeal.

 

107.   Prof Kelly however argues that it would be a manifest injustice if the appellant is not able to challenge the making of the continuation order - an order which he continues to be the subject of its restrictions for 5 years.

 

108.   From the material available to me and with reference to the passages in Ghaidan that Prof Kelly referred me to I cannot see any basis upon which I can properly depart from the unambiguous meaning of the applicable legislation in this case. I cannot see how section 88G(1) of the 2003 Act requires to be "read down" or interpreted in a way to include a dispensing power.

 

109.   The terms of section 88G of the 2003 Act are unambiguous. The appellant had 21 days in which to lodge an appeal. This is what Parliament intended. In structuring the legislation as it has Parliament did not legislate for a situation where an appeal is lodged late for whatever reason. As the notification order is to be reviewed 5 years after the date it was continued I cannot see how this is not compatible with the appellant's Convention Rights where he failed to timeously lodge an appeal.

 

 

Concluding remarks anent discretion

 

110.   I observe in the Explanatory Note to the 2010 Order (not part of the order) inter alia states "Any appeal of a decision must be brought within 21 days." - it is silent on the topic of the consequences when an appeal is not timeously brought.

 

111.   The over arching aspect in this case is that there is no attempt made by the appellant to explain why the appeal was lodged late.

 

112.   The Summary Application Rules provide for the exercise of discretion where an appeal has been lodged late, not on cause shown but on "special cause" shown. Macphail refers to exceptional circumstances..

 

113.   The cases referred to in the context of the common law all appear to have an explanation as to why appeals were not timeously proceeded with in terms of the applicable legislation. The more substantive the explanation, the more it appears courts have been prepared to explore avenues whereby appeals were allowed to proceed although late especially where undue prejudice would otherwise be suffered by the appellant.

 

114.   That approach has not been universally followed as exemplified in the cases of, for example XY and Roberts where the statutory time-limits for proceeding with appeals had not been complied with and notwithstanding explanations for the appeals being late the courts refused to entertain them.

 

115.   As advocated in the decision of Soneji I also require to consider the consequences for the appellant were I to decide that his appeal is not competent. The respondent in making the Notification Continuation Order has decided that the appellant continues to pose a significant risk of committing further sexual offences and to review whether that continues to be the case in 5 years time. Accordingly a consequence for the appellant is that he continues to subject to the order until it is next reviewed. I do not see any prejudice to the appellant, having missed the time-limit for proceeding with his appeal continuing to be subject to the notification requirements for that period.

 

Conclusion

 

116.   In the circumstance of this case I do not see any basis that would allow me to exercise discretion to allow the appeal to proceed although late.

 

117.   Section 88G of the 2003 Act sets the mandatory time-limit of 21 days for appealing the decision of the respondent. There is no discretion to allow an appeal outwith this period.

 

118.   As the time-limit is prescribed within the 2003 Act, the Summary Application Rules do not apply.

 

119.   There is no common law power to exercise discretion in this case.

 

120.   As the respondent's decision is compatible with the appellant's Convention Rights the Human Rights legislation does not fall to be interpreted in such a way to allow that decision to be appealed outwith the statutory time-limit.

 

121.   It therefore follows that this appeal is time-barred and not competently before the court.

 

122.   Accordingly I accede to the respondent's motion and dismiss the appeal.

 

Expenses

 

123.   As the question of expenses was not discussed I have assigned a hearing.