Lady Dorrian

About this case:

• Citation:
  [2022] CSIH 13
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Dorrian

Charles O’Neill and William Lauchlan had their petition of November 2018 refused on the basis that it was time-barred after the Lord Ordinary found that the date on which the grounds of petition first arose was earlier than they claimed. That decision was upheld by the Inner House of the Court of Session in 2021. 

The application was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Doherty and Lord Tyre. O’Neill QC appeared for the petitioners and Reid, advocate, for the Scottish Ministers. 

New argument 

Both petitioners were sentenced to life imprisonment for murder in 2010 and imprisoned in separate institutions. They were originally granted call privileges in order to facilitate another court application they had previously made, which were not initially withdrawn following the case’s conclusion and remained in place until August 2018. 

The petitioners argued before the Lord Ordinary that so long as the current state of affairs persisted there was a continuing breach of their rights and thus no time-bar date could arise. This argument was rejected by the Lord Ordinary, who held that the relevant date was 17 August 2018, outside of the three-month time limit set by section 27A(1) of the Court of Session Act 1988. In a reclaiming motion before the Inner House the decision of the Lord Ordinary was upheld, with the court finding that he was correct to consider the issue of time-bar in the manner that he did.  

In their application for leave to appeal to the Supreme Court, the petitioners made a new argument that, in fact, the section 27A time-bar had no application to their case. Instead, the relevant time-bar was the period of 1 year provided for in section 100 of the Scotland Act 1998, with section 27A of the 1988 Act not qualifying as a rule imposing a stricter time limit to the procedure in question. 

As an esto argument in the event that both time-bar provisions were found to be valid, the petitioners claimed that this created a conflict between competing regimes. A further proposed ground of appeal contended that the court had erred in rejecting a submission that the time-bar did not commence until a complaint the petitioners had made to the Scottish Prison Services Ombudsman had been disposed of. 

Root and branch challenge 

Delivering the opinion of the court, Lady Dorrian said of the first ground of challenge: “This ground of appeal effectively proposes a root and branch challenge to the reach of section 27A in relation to any matter which is claimed to fall within the Scotland Act 1998, section 100(3A). It is too late to raise such a fundamental question when the application proceeded at first instance and on appeal expressly on the basis that the question of time-bar was governed by section 27A. It is not appropriate for such a question to be addressed for the first time at Supreme Court level.” 

Turning to the second, she continued: “No arguable case has been made out that there is a conflict between section 100(3B) and section 27A. For the reasons already stated, no question of vires arises because section 27A does not bear to amend the Scotland Act 1998. Nor is there a conflict which requires section 27A to be “read down” to exclude matters falling within sections 100(3A) and 100(3B) from its scope. The ground is not arguable.” 

Addressing whether the court was right to reject the petitioners’ other arguments, Lady Dorrian observed: “This ground has already been determined by the court which rejected the arguments, which relate only to one of the appellants. This is not an arguable point, and in any event it raises no point of general public importance.” 

She concluded: “The primary issue which arose in this case was a simple question of statutory interpretation. The main arguments which the reclaimers now wish to advance were not only not advanced previously, they contradict the clear position which they previously advanced, and are not in any event arguable. It is not appropriate to grant leave to appeal to the UKSC on such a basis.” 

Leave to appeal to the Supreme Court was therefore refused.