GLASGOW AND STRATHKELVIN AT GLASGOW
CASE REF No B490/11
PART-TIME SHERIFF SITTING AT GLASGOW
A, c/o TAYLOR & KELLY, Court Solicitors, 3 Main Street, Coatbridge
STEVEN HOUSE, QPM,
Chief Constable of Strathclyde Police, Pitt Street, Glasgow
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.
- 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.
- The respondent's first plea in
law is to the effect that the application is time-barred and should be
- 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.
- 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.
- 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subsequently repealed.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.
- 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
- 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.
- In terms of either the 2010
Order or the 2011 Order the appellant may appeal that decision within 21
- This summary application was
warranted for service on 22nd February 2011. A copy of the
summary application was served on the respondent that day.
- 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.
- 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
- The relevant parts of the 2003
Act (as amended) for the purposes of this appeal are as follows:-
of indefinite notification requirements: applicable persons
88B to 88H apply to -
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);
(b) a person
who immediately before that date was subject to the notification requirements
of this Part for an indefinite period by virtue of-
section 81(1); or
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".
of indefinite notification requirements: date of discharge and further date of
(1) For the
purposes of this part, the date of discharge is-
(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" -
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);
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
of the indefinite notification requirements: procedure and grounds
relevant chief constable must no later than the date of discharge-
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.
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.
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.
of indefinite notification requirement, transitional arrangements
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;
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...........
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.
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.
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-
another notification continuation order in respect of the relevant sex
(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.
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
decision of the relevant chief constable -
make a notification continuation order; and
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
appeal is brought against the decision of the relevant chief constable made
under section 88C(1), the date of discharge;
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........................"
- The following authorities were
- Macphail : Sheriff
Court Practice (3rd Edition,)
Simpson v Assessor for Selkirkshire 1948 SC 270,
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,
Chief Constable, Central Scotland Police (unreported Stirling Sheriff Court
WY v Law Society Of Scotland 2009 SC 430 and
Nursing and Midwifery Council 2009 CSIH 2010,
Nursing and Midwifery Council SC 644,
Scottish Minister 2004 SLT 228,
London & Clydesdale Estates Ltd v Aberdeen
District Council 1980 1 WLR 1286,
Mental Health Tribunal for Scotland 2011 SLT (Sh Ct) 135
Scottish Ministers 2011 CSOH 192
Manchester City Council v Pinnock 2010 3 WLR 1141
AXA General Insurance Ltd, Petitioners 2011 CSIH 31; and
& Anor v Penine Care HNS Trust 2012 UHSC 2
Submission on behalf of the
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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
- 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
- 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
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........
(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.
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.
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
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
- 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.
- 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.
- 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
- 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
- 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.
- 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
- 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.
- 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.
- 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
- 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.
- 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
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
- 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.
- 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).
- 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
- 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?
- In considering this question he
referred to the Rules of Court, the Common Law and the Human Rights Act
The Rules of Court
- 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.
- 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.
- 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".
- 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
- 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.
- 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.
- 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:-
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?"
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.
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. "
- 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:-
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."
- He observed that this approach
had been followed in the cases of Borland at paragraph 30 and Shahid.
- 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:-
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.............."
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".
- 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.
- 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
Rights Act 1998
- 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?
- 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."
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
- 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.
- 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:-
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".
- 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.
- He candidly stated that there
was no explanation for the delay.
- 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.
- 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)).
- 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:-
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.........."
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."
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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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
Final observation by Prof
- 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.
- The importance of the matter to
the appellant is something that Lord McFadyen took into account in the Hume
case at paragraph 18.
- 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
Considerations and reasons for
- It appears that the sole issue
I require to address is in short compass - namely is this appeal
competently before the court?
- For the purposes of this
decision the factual position with regard to the sequence and timing of
events does not appear to be controversial.
- 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).
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- Prof Kelly readily accepted
that the summary application was outwith the 21 day time-limit.
- 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
- 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.
- 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 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.
- 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.
- 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).
- 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.
- 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......."
- 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
- 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
- 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."
- 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.
- 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.
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.
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."
In my view the case of WY brings the earlier, not necessarily the
previous, thinking and the present day thinking on appeals presented outwith
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.
these reasons I reject Prof Kelly's submissions opposing the time-bar argument
under the common law.
The Human Rights Act 1998
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
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).
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.)
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.
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.
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.
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.
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
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
over arching aspect in this case is that there is no attempt made by the
appellant to explain why the appeal was lodged late.
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..
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.
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.
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.
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.
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
the time-limit is prescribed within the 2003 Act, the Summary Application Rules
do not apply.
is no common law power to exercise discretion in this case.
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.
therefore follows that this appeal is time-barred and not competently before
I accede to the respondent's motion and dismiss the appeal.
the question of expenses was not discussed I have assigned a hearing.