Glasgow woman accused of assaulting her four children fails to petition nobile officium of Court of Session

It was alleged that the petitioner, SU, had repeatedly assaulted and wilfully ill-treated her children along with her partner. The petitioner’s partner, SA, and two of her four children, HA and SS, appeared as respondents. At the time the petition was made, proceedings in relation to the grounds of referral were pending at Glasgow Sheriff Court.

The petition was heard by Lord Woolman, Lord Doherty, and Lord Matthews. Also appearing as respondents to the petition were the Locality Reporter Manager for Glasgow within the Scottish Children’s Reporter administration and the Lord Advocate.

Section 179 application

Neither the petitioner nor her partner, who were both the subject of criminal proceedings in respect of the conduct alleged, accepted the grounds of referral or the supporting facts. Originally, the criminal proceedings brought against them were summary proceedings, but following a review by the COPFS, these were discontinued, and petition proceedings were commenced against them.

In August 2021, the petitioner’s agents emailed the COPFS to enquire as to whether it had made any request of the Principal Reporter to make available to it information from the referral proceedings under section 179 of the 2011 Act. A reply was received stating that while no such application had been made to date, the Crown could not rule out the possibility that such an application might be made. A request for a Crown undertaking not to exercise the section 179 power was later declined.

It was averred by the petitioner that the prospect of the Crown exercising the section 179 power infringed her rights under articles 6 and 8 of the ECHR, as it precluded her effective participation in the referral proceedings. The nobile officium was her only remedy, as the sheriff had refused to discharge a proof diet fixed for February 2022 or sist the proceedings.

Counsel for the petitioner submitted that there was no right of appeal against the decision of the sheriff not to sist the case as it was an interlocutory decision. The circumstances were unusual and unforeseen in light of the criminal charges faced by the petitioner and could not have been foreseen by the Scottish Parliament when drafting section 179 of the 2011 Act, which may be outside of its legislative competence.

It was further submitted that it was in the best interests of both the petitioner and her children that her participation in the referral proceedings was not affected by the constraint that not sisting the criminal proceedings would create.

In response, it was submitted on behalf of the Locality Reporter that the petition was incompetent and that an alternative remedy existed in the Outer House of reduction of the sheriff’s interlocutor. It was an all-too-common situation that a relevant person in referral proceedings was also an accused in criminal proceedings, and the interests of the petitioner and her children did not coincide in this case.

Not devoid of a remedy 

Delivering the opinion of the court, Lord Doherty observed: “The proposition that section 179 is outside the competence of the Scottish Parliament is an audacious one. It raises a devolution issue. However, neither the petitioner’s averments nor her submissions articulate, why, if the proposition is correct, the sheriff ought to have granted the motion for a discharge and sist.”

Turning to the petitioner’s more developed submissions, he said: “The cornerstone of the petitioner’s submissions is that section 163 of the 2011 Act expressly excludes not only any right of appeal against interlocutors such as the sheriff’s interlocutor of 23 August 2021, but also any corrective remedies which might otherwise have been available at common law. In our opinion, on a proper construction of section 163 it does no such thing. Nor in our view does section 163 impliedly exclude the availability of such possible remedies.”

He explained further: “We do not think it necessary or appropriate to consider all of the remedies which might be available to the petitioner if her complaints are well founded. It suffices to say that reduction would be competent if she could show that it is necessary to avoid a miscarriage of justice or to produce substantial justice. Thus, for example, if the petitioner is correct that the sheriff’s decision contravened her Convention rights and is unlawful, reduction of that decision would be competent.”

Dismissing the petition, Lord Doherty concluded: “The concurrence of criminal proceedings and referral proceedings was foreseen by the legislature. It could hardly not have been, given that criminal proceedings against relevant persons were and are far from uncommon. Section 179 clearly contemplates the possibility of such concurrence. Since the petitioner is not devoid of a remedy, we are not persuaded that she may invoke any aspect of the court’s nobile officium, the parens patriae jurisdiction or otherwise.”

Representation:

Petitioner: M Hughes; Campbell Smith LLP
First Respondent: M Ross QC, Findlater; Anderson Strathern LLP
Second Respondent:  Kerrigan QC; Balfour + Manson LLP
Third Respondent: Allison; Drummond Miller LLP
Fourth Respondent: Guinnane; Rutherford Sheridan
Sixth Respondent: Stuart QC; Scottish Government Legal Directorate