A woman convicted of offences related to brothel keeping and possession of criminal property, whose application to the Scottish Criminal Cases Review Commission for a review of her conviction was refused, has failed in her bid for a judicial review of the Commission's decision as her petition was held to have been brought out of time.

Lady Clark of Calton in the Court of Session held that Margaret Paterson was outside the three month time limit for seeking a judicial review as she had known since May 2016 that the Commission was partly relying on material provided by Crown Office but not fully disclosed to her, which was the basis of her complaint of procedural unfairness and lack of natural justice, although the final decision challenged, following a review, was dated 27 January 2017 and the petition was presented on 25 April 2017. It was also not equitable to extend the time limit.

The petitioner was convicted in 2013 and sentenced to five years' imprisonment in total. Leave to appeal was granted against sentence only and her appeal was subsequently refused. In December 2014 she applied to the Commission alleging miscarriage of justrice on various grounds. After investigation the Commission issued a decision and statement of reasons in September 2015, a decision and supplementary statement of reasons in May 2016, and a further decision and statement of reasons dated 27 January 2017 in response to an application for review by the petitioner dated 19 December 2016. It decided not to refer any of the grounds she raised to the High Court.

The basis of the petitioner's challenge was that the Commission decided not to make a reference after taking into account material, in the form of two letters from Crown Office, which she had not seen, relating to a Crown Office policy about prosecution. It was not disputed that this information played a central part in the Commission's decision to refuse to refer the petitioner’s case in respect of one of the grounds raised by the petitioner.

For the petitioner it was argued that there was sufficient new information relating to a Crown policy of non-prosecution put forward in her final application to the Commission that she was not simply asking the Commission to remake an earlier decision: it strongly suggested that the policy was potentially more widely framed than had been represented by Crown Office and had been in place at all material times. Hence the petition was not prima facie time barred. IN any event there were equities on both sides regarding an extension, and the case raised some important points of principle regarding disclosure of information by the Commission.

Lady Clark said that in terms of the Court of Session Act 1988, s 27A it was "necessary to identify 'the date on which the grounds giving rise to the application first arise'". She held: ""It is clear from the factual history... 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 my opinion it is irrelevant to the issue of the time limit under the 1988 Act whether the information provided by the petitioner in the application dated 19 December 2016 was new information or not."

Regarding the equitable considerations over extending the time she added: "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 the petitioner. 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."

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