“Madam Moneybags’” legal bid for review of conviction for brothel keeping ‘time-barred’ 

Margaret Paterson, dubbed “Madam Moneybags” following her conviction in 2013 of a number of offences relating to aiding prostitution, claimed that the decision not to refer her case was “procedurally unfair” because the SCCRC had taken into account two letters from the Crown Office on its policy on prostitution which she had not seen.

However, a judge in the Court of Session refused the petition for judicial review because the petitioner failed to raise the proceedings within the statutory three-month time limit.

‘Crown Office policy’

Lady Clark of Calton heard that the petitioner, who was sentenced to five years’ imprisonment following her trial in 2013, had sought leave to appeal against her conviction and sentence, but having been granted leave to appeal against sentence only her appeal was ultimately refused.

In December 2014 the petitioner made an application to the respondent and alleged that she had suffered a miscarriage of justice, on the basis of alleged “defective representation, prejudicial pre-trial publicity and judicial misdirection”.

After investigation and further procedure, the respondent issued a decision and statement of reasons dated September 2015 and a decision and supplementary statement of reasons dated 31 May 2016, explaining that it had “finally decided” not refer the case.

Following an application for review by the petitioner dated 19 December 2016, in which her solicitor raised the issue of the “Crown Office policy” not to prosecute individuals operating licensed saunas as brothels, the respondent issued a further decision and statement of reasons dated 27 January 2017, which concluded not to make a reference to the High Court in respect of all the grounds raised.

The petitioner then lodged the petition for judicial review on 25 April 2017 seeking reduction of the respondent’s decision dated 27 January 2017 and an order requiring the respondent to reconsider its decision.

The basis of the challenge was that the respondent had decided not to make a reference after taking into account the two letters from Crown Office, which had not been seen by the petitioner.

The letters explained that in the 1980s there was a local authority licensing scheme in place whereby prosecution for keeping brothels would not take place in certain circumstances, and the petitioner claimed that this “policy” led to the Crown ceasing prosecutions against 11 others accused of similar offences.

But in its statement of reasons the respondent explained that the ground of review was “the same, or substantially the same, as one of the grounds submitted by the applicant’s solicitors to the commission in the course of its previous review” and that there was no good reason for disagreeing with that outcome, as the 1980s scheme was not relevant to the applicant’s case since her convictions did not relate to any premises licensed by the local authority.

‘Miscarriage of justice’

Having been granted permission for her judicial review to proceed, the issue for the court was whether the petitioner had made her application to the court before the end of the period of three months beginning with the date on which the grounds giving rise to the application first arose, as set out in section 27(1)(a) of the Court of Session Act 1988; and/or whether in the circumstances it was equitable to extend the three-month period under section 27A(1)(b).

On behalf of the petitioner it was submitted that the December 2016 application amounted to a “fresh application” and the petitioner was not simply asking the respondent to remake an earlier decision, because “new information” had become available that the “non-prosecution policy” was wider than that described by the respondent in its statement of reasons dated May 2016.

In that event the three-month time limit ran from 1 February 2017 - the date of notification to the petitioner of the decision and statement of reasons dated 27 January 2017 - meaning the petition, having been lodged on 25 April 2017, was “not prima facie time barred”.

In relation to extending the time bar, counsel accepted that there was a public interest in the finality of criminal proceedings, but submitted there was also important considerations in relation to the “interests of justice” if an individual accused was convicted in a “miscarriage of justice”, such as in the case of the petitioner, who had been prosecuted in circumstances where the Crown did not disclose potentially relevant information about a relevant prosecution policy.

However, the principal submission for the respondent was that the application by the petitioner for judicial review was “time barred”. 

The grounds of review were to the effect that the decision was procedurally unfair because it was based on material from the Crown Office letters that had not been seen by the petitioner, but it was plain from the decision and reasons dated 27 May 2016 that it would have been open to the petitioner to raise an action of judicial review from that date.

It was argued that the time limit started to run from 27 May, or, at the latest, 22 August 2016 when the respondent refused a request by the petitioner to provide a copy of the Crown letters about the prosecution policy, but the petition was not lodged until 25 April 2017.

Counsel for the respondent submitted that, if the court did not accept the time bar plea, it was not equitable in all the circumstances to extend the three-month period due to the general public interest in the efficiency of administration; the length of delay; the lack of any fault by the respondent for delay; the availability of legal representation and assistance to the petitioner and the information available to the petitioner on which to raise a judicial review petition timeously.

‘Not equitable to extend time limit’

In a written opinion refusing the petition, Lady Clark said: “My starting point is a consideration of the terms of section 27A(1)(a) of the 1988 Act. In my opinion the statutory wording is perfectly plain. It is necessary to identify ‘the date on which the grounds giving rise to the application first arise’. In some cases this identification might cause some difficulty but not in this case. 

“I consider that the grounds underpinning the petition relate to the decision by the respondent to reach a decision based on material not seen in full by the petitioner. The petitioner claimed that this was procedurally unfair and contrary to natural justice. 

“It is clear from the factual history, which I have summarised, that the petitioner was informed that the respondent relied on the Crown Office letters as partially disclosed in its decision and supplementary statement of reasons dated 31 May 2016. 

“I consider that it was open to the petitioner thereafter to make a timeous challenge by way of judicial review on the grounds which underpin the present petition. The petitioner failed to do so and the present judicial review was not brought within the time limits specified in section 27A(1)(a) of the 1988 Act.”

In considering the arguments in relation to the extension of the time limit under section 27A(1)(b), the judge observed that the expectation of counsel for the petitioner appeared to be that if the full terms of the Crown Office letters could be obtained, somehow this would assist her case.

Lady Clark added: “This expectation seemed to be based on a rather unrealistic hope standing the terms of the prosecution policy which had been disclosed. I take into account that there have been months of delay before raising the present petition and in my opinion no good reason has been advanced to justify such a delay.

“Having considered all the factors prayed in aid by counsel for both parties, I am not persuaded that it is equitable to extend the period of three months selected by the legislature for reasons of good governance and public policy.”