A complainer in a pending rape trial has been refused permission to bring out of time an application for judicial review of the Scottish Ministers' failure to allow prosecutions to proceed without a jury in the wake of the COVID-19 pandemic.

Lady Poole in the Court of Session ruled that the application by JS was out of time under s 27A(1) of the Court of Session Act 1988 and that it was not equitable to grant an extension of time 

JS reported the alleged offence to the police in April 2017. The accused appeared on petition in December 2018 and a preliminary hearing took place in November 2019. Trial was fixed for April 2020 but did not proceed due to the lockdown. A trial diet was now fixed for 29 March 2021.

At the outset of the pandemic, ministers proposed but then withdrew legislation allowing for solemn trials to be held without a jury. They subsequently confirmed to the Parliament that the option was not being explored and that a working group was looking at other ways to restart jury trials, which ultimately resulted in the creation of remote jury centres.

JS claimed that she had been adversely affected, in that she had had to wait longer for the trial in which she was involved to commence. She argued that the petition had been brought timeously, as the time limit did not apply to ongoing acts and omissions. If it was out of time, the court should exercise its equitable discretion to extend the three month period in s 27A(1), as she had acted promptly once she discovered she had a possible remedy, she had required legal aid, she had a strongly arguable case (based on contraventions of the European Convention on Human Rights, and the public sector equality duty), and another case was proceeding on the same grounds.

Lady Poole rejected the argument that the petition had been brought in time.

"It is not sufficient to overcome the time limits in s 27A(1)(a) of the 1988 Act to aver there were continuing acts and omissions", she stated. "The language of s 27A(1)(a) requires the court to decide when the grounds giving rise to the application first arose. If what is being challenged has a continuing effect, that may be relevant to the issue of equitable extension under s 27A(1)(b), but the three month period will apply from when the grounds for the challenge first arose".

The latest date by which the bases for challenge arose was 2 June 2020, when the Justice Secretary confirmed ministers' intentions to the Parliament. The petition was not brought until 9 February 2021.

Considering whether to grant an equitable extension of time, Lady Poole accepted that there were a number of factors weighing in JS's favour. "However," she continued, "there are also weighty factors against it being equitable to grant an extension in this particular case."

These included the public interest in good administration, and decisions being challenged promptly; the significant delay; the short time until the trial diet now fixed, which was unlikely to be reduced by any further order of the court; and the prejudice to the ministers and others if the challenge were allowed to proceed late. Nor did she accept that JS's case was a strong one, and the choice to proceed with remote jury centres was "in my view likely to fall within the margin of appreciation of the Scottish Ministers".

She concluded: "In all the circumstances it appeared to me that there were formidable hurdles facing the petitioner even on the grounds upon which I would have been minded to grant permission", and it was not equitable to extend the three month period by over five months to allow the petition to proceed.

Click here to view the opinion.