SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

 

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in note of Appeal by
	COUNCILLOR PAUL DELANEY
	Appellant
	against
	THE STANDARDS COMMISSION FOR SCOTLAND
	First Respondents
	and
	THE OFFICE OF THE PUBLIC STANDARDS COMMISSIONER
	Second Respondents

 

Act: For the appellant; Party

Alt: For the First Respondents; Ms N Durkin Solicitor, Edinburgh

For the Second Respondents; David Sillars, Solicitor, Edinburgh

For North Lanarkshire Council; Ms A Howson, Solicitor, Motherwell

 

 

AIRDRIE: 6 JANUARY 2012

The Sheriff Principal, having resumed consideration of the cause, refuses the appellant's motion to allow his appeal against the decision of the first respondents dated 14 October 2011 to be received although late;quad ultra dismisses the appeal; finds no expenses due to or by any party in respect of the appeal.

 

NOTE:

 

Background to the appeal

 

1. A hearing took place on 28, 29 and 30 September 2011 before the Standards Commission for Scotland in respect of a report by D Stewart Allan, Public Standards Commissioner for Scotland further to complaint number LA/NL/961 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Paul Delaney of North Lanarkshire Council. At the hearing the appellant was represented by Mr Andrew Gibb, Solicitor Advocate, and the Public Standards Commission for Scotland by Mr Ranald MacPherson, Solicitor Advocate.

 

2. The Standards Commission for Scotland issued their decision in writing on 14 October 2011. They decided to suspend for three months the appellant's entitlement to attend all meetings of North Lanarkshire Council, its committees and sub committees. The date on which the suspension was ordered to commence was 17 October 2011. At the end of the written decision the appellant's attention was drawn to section 22 of the Ethical Standards in Public Life etc (Scotland) Act 2000 which detailed his right of appeal in respect of that decision.

 

3. The section 22(4) of the 2000 Act provides;

"An appeal under sub section (1) above shall be lodged within 21 days of:-

(a)     the sending of the finding under section 18 above to the Councillor or member.

(b)     the imposition of the sanction under section 19(1) above; or, as the case maybe,

(c)     the imposition of suspension under 21(2) hereof.

In terms of section 22(1) of the 2000 Act, an appeal may be made to the Sheriff Principal on the grounds set out in section 22(3).

 

4. On 23 November 2011 the appellant wrote to myself intimating an appeal. The intimation was received in my office on 24 November 2011. The note of appeal ought to have been lodged by 7 November 2011. It was lodged 17 days late.

 

5. I appointed parties to be heard on the appellant's motion that I consider the appeal late. That hearing took place before me in Airdrie Sheriff Court on 20 December 2011.

 

 

SUBMISSIONS FOR THE APPELLANT

 

6. The appellant referred to his intimation of appeal of 23 November 2011 which was in the following terms;

"I request to appeal concerning the decision by the Standards Commission to suspend me from Public Office for a three month period following a hearing at the Civic Centre in Motherwell concluded on Friday 30 October 2011.(this is in fact a misprint as the hearing concluded on 30 September 2011) I ask that you consider this appeal late as I had been informed by the Standards Commission that I had a period of 21 days after the suspension started to launch the appeal.

During the period of 21 days that I had the right to appeal I was involved in a Road Traffic Accident on the 1 November and subsequently due to the injuries I sustained I had to take a considerable period off work to recuperate from my injuries.

I request the appeal on the following three points, procedural impropriety, citing of witnesses and the ECHR ruling of a right to a fair trial. On the latter I would ask you to read the report document that is now online concerning the hearing. In this document the SIO makes clear his opinion based on his findings.

As far as I am aware it is for a panel or jury to decide a person's innocence or guilt based on legal stature. From SIO Mr Sillar's report he clearly offers an opinion and states in the document that he is of the belief that I was guilty. Mr Sillars role was quite clear his position is to collect evidence and provide his findings to a panel or jury, not to taint the evidence in favour of by offering the opinion that I am guilty. There were no facts in the conclusion of the panel committee and I was found guilty on probabilities.

During the hearing Mr Sillars made several comments concerning evidence. These comments are refuted by the physical evidence provided by the Standards Commission itself. Also it could be said that Mr Sillars may have committed perjury in his submission of evidence concerning his approach to the BBC for a video tapped interview. Further enquiries with the BBC have provided physical evidence that is in opposition to and directly contradicts Mr Sillars version of events."

 

7. The appellant had been advised by letter dated 15 December 2011 that it was open to him to be legally represented at the appeal hearing before me. When he appeared at the hearing, the appellant was not legally represented. I asked him if he wished to be legally represented. The appellant indicated he wished to proceed without a lawyer.

 

8. The appellant stated to me that the basis of his appeal was that he believed procedure was not properly followed, both during the hearing and the investigation. He claimed to have evidence which indicated that on three separate occasions the Senior Investigating Officer had misled the Committee regarding evidence obtained during the investigation. He stated he proposed to present evidence to prove beyond doubt that evidence was deliberately withheld from the Committee. He submitted that he believed the motion to allow the appeal to be received late should be granted on the basis that it was in the public interest.

 

9. The appellant informed me that he had been involved in a Road Traffic Accident on 1 November 2011. He was hospitalised. He sustained broken bones in his foot and there was considerable damage to the soft tissue of his right leg. He had been prescribed severe pain killers. He stated that these made him extremely relaxed and he was not in a mental frame of mind to present his appeal.

 

10. The appellant further stated that, as well as being a full time Councillor, he was the full time carer of his elderly mother. She had been very ill and was in receipt of regular medical attention. This had involved a considerable amount of his time.

 

11. In summary, the appellant claimed it was in the public interest this appeal should be heard; the injuries sustained in the Road Traffic Accident on 1 November 2011 had prevented him giving the matter the necessary attention; his mothers health had also contributed to the delay. I was asked to allow the appeal to be received, although late.

 

 

I invited Solicitor for the second respondents to address me first in answer as The Office of the Public Standard's Commissioner had presented the case at the hearing to the first respondents

 

SUBMISSIONS FOR THE SECOND RESPONDENTS

 

12. Solicitor for the second respondents accepted that the appellant had a right of appeal to the Sheriff Principal in terms of section 22(1) of the 2000 Act The grounds of appeal are set out in section 22(3)(a)(i) to (iv). He stated that it would be wrong of him not to formally record his total disagreement with the suggestion made by the appellant that, on oath, and after cross examination by the appellants experienced Solicitor Advocate and by the panel of the Commission, he had in any way misled or attempted to obscure or conceal relevant material from the Commission.

 

13. His principal submission concerned the time limit set in terms of section 22(4). I have set out the terms of that sub section in paragraph 3 hereof. The appellants appeal had been lodged some 17 days late. It was his submission that the terminology in section 22(4) was mandatory. It provided

"an appeal under sub section (1) above shall be lodged within 21 days..."

In this case the 21 days commenced with the date of the imposition of the suspension which was 17 October 2011 (this was accepted by the appellant). It was submitted there was no saving provision or qualification of these terms in the 2000 Act or in any other piece of legislation. There was no room for any exercise of any discretion by me to extend the time limit of 21 days.

 

14. It was submitted that the appellant was effectively seeking relief in terms of rules 2.3(1) and 2.6(3) of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 which state:-

"Relief from failure to comply with rules

2.3(1) the Sheriff may relieve a party from the consequences of failure to comply with a provision in this part which is shown to be due to mistake, oversight or other excusable cause, on such conditions as he thinks fit".

Time limits

2.6(3)on special cause shown, the sheriff may hear an application to which this rule applies not with standing that it was not lodged within the period prescribed in paragraph (2)".

It was argued that these relieving provisions did not apply in this case due to the wording of rule 2.6(1) which states

"this rule applies to a summary application where the time limit within which the application may be made is not otherwise prescribed"

In this case the time limit within which the application may be made was prescribed by the Ethical Standards in Public Life etc (Scotland) Act 2000 section 22(4) which states;

" an appeal under sub section 1(1) above shall be lodged within 21 days of ... (c) the imposition of suspension under 21(2) hereof".

Accordingly it was the second respondent's case that the right of appeal was governed by the time limit prescribed in section 22(4) of the 2000 Act. That Act contained no express provision for dispensing with or stretching that 21 day limit. The provision was mandatory.

 

15. Solicitor for the second respondents then referred to dicta from Jamieson on Summary Applications and Suspensions and Macphail on Sheriff Court Practice. I was referred as follows:-

(i)Jamieson

18-13

Time Limit for the Appeal

Prior to the Act of Sederunt (Statutory Appeals) 1981, there was no general provision for limitation of the time for a statutory appeal. Rule 2(1) of the 1981 Act of Sederunt introduced a 21 day time-limit for all statutory appeals for which no time-limit was otherwise prescribed. The rule is now re-stated as Rule 2.6 of the Summary Applications Rules 1999, which requires the appeal, where no time limit is otherwise prescribed, to be lodged with the Sheriff Clerk within 21 days after the date on which the decision, order, scheme, determination, refusal or other act complained of was intimated to the Pursuer. On special cause being shown, the Sheriff may hear an appeal notwithstanding that it was not lodged within this time period.

 

18-14

The dispensing power contained in Rule 2.6 of the Summary Applications Rules 1999 does not apply in respect of time limits which are prescribed for an appeal other than by the Summary Applications Rules. Some enactments which prescribe a time limit for an appeal also allow the Sheriff a discretion to hear an appeal out of time, on good cause being shown. Most do not. Whether, in these circumstances, a dispensing power can be exercised, so as to excuse non-compliance of the time limit, depends on whether the time limit can be characterised as mandatory or directory in nature. If mandatory in nature, no dispensing power can be exercised; if directory in nature, it can. It is suggested that the correct view is that time limits for statutory appeals to the Sheriff are mandatory, and a dispensing power may be exercised in relation to such a time limit only where the enactment itself so provides. If a time limit for appeal expires because notice of a decision was not intimated to the person affected by it, then that person has indemnity by way of judicial review or reduction or interdict of an ultra vires decision."

 

(ii)Macphail - 25.17

"Time limits

Time limits are prescribed for all summary applications. Where the statutory enactment under which the application is presented prescribes a time within which the application must be made, it must be made within that time. The Summary Application Rules provide that if no time is prescribed, the application must be lodged with the Sheriff Clerk not later than 21 days after the date on which the decision, order, scheme, determination, refusal or otherwise complained of is intimated to the Pursuer, but the Sheriff, on special cause shown may in his discretion hear an application notwithstanding that it was not lodged within the 21 day period. He has no discretion under the Summary Application Rules to hear an application lodged later than the time prescribed by any statutory enactment under which the appeal is presented, nor has he any discretion at common law to dispense with any time limit prescribed by statute which is mandatory rather than directory in character, except perhaps with the consent of the parties. It may be that he has s discretion at common law to disregard failure to comply with a time limit provision which is only directory and regulative of procedure, provided that no substantial prejudice has been caused to the opposite party, and lateness of the application is due to exceptional circumstances of such a nature that it would be grossly unfair to enforce the time limit strictly. The possession of such a discretionary power would appear to be particularly appropriate where the Sheriff's decision on the merits of an application is final."

It was submitted that these dicta supported the second respondent's argument that section 22(4)of the 2000Act was mandatory and that there was no dispensing power contained in the 2000 Act or any other legislation or subordinate legislation.

 

16. Solicitor for the second respondent also referred to the cases of National Commercial Bank of Scotland v Assessor for Fife 1963SC197, Sinclair v Lothian Regional Council 1981SLT(Sh Ct)13 and T (a mental patient) v Secretary of State for Scotland1987SCLR65, In particular he emphasised that the time limit laid down in section 29.4 of the Mental Health (Scotland) Act in the third case was held by Sheriff Principal J A Dick QC to be mandatory.

 

17. I was referred to the unreported decision of Sheriff Principal B A Kerr QC at Paisley Sheriff Court dated 30 May 2006 in the case of Vassie v The Standards Commission for Scotland. The facts of that case were almost identical to the facts of the present case. Councillor Vassie had intimated his appeal against a decision of the Standards Commission for Scotland out with the time limit prescribed in section 22(4) of the 2000 Act. Sheriff Principal Kerr had been referred to the statutory provisions, text book references, and decided cases which I have set out above. The Sheriff Principal concluded

"The statutory time limit in section 22(4) of the Act of 2000 presently under consideration should in my opinion be treated for a number of reasons as mandatory. It is enacted by statute in clear terms and is not accompanied by any express, dispensing or relieving provision conferred on the court. The purpose of the Act of 2000 moreover is very clearly to deal with public matters, as its long title indicates, and it is very desirable that there should be so far as possible be certainty in public affairs. Once it has been decided in accordance with the provisions of the Act that a breach has occurred of a code of conduct applicable to a holder of public office and that a particular sanction should be imposed, it is conducive to the public interest that that decision should be open to challenge, only within a brief time thereafter and that there should not be uncertainty remaining such as would arise from the possibility of its being appealed after a long and indefinite interval. It must in my view have been the intention of the Parliament that in such a sphere the position would become fixed and known to all once the Standards Commission has performed their function in a particular case without the prospect of change unless shortly challenged - hence the enactment of a short period for the lodging of appeal without provision for stretching that time limit at the court's discretion. For these reasons I take the view that I have no discretion to vary or dispense with the time limit enacted in section 22(4) of the Act of 2000 and that Councillor Vassie's motion must accordingly be refused."

 

18. It was submitted that Sheriff Principal Kerr was correct, for the reasons given by him, to regard the terms of section 22(4) as mandatory. I was urged to take a similar view and to hold that there was no discretion open to me in the circumstances of this case to allow the appeal to be received although late.

 

19. It was further argued that, esto I considered that I did have a discretion, it should not be exercised in favour of the appellant. Contrary to what was submitted by the appellant, it was not in the public interest that this matter be extended. The investigation had lasted about two years; the appellant had been given the opportunity to produce the material which he claims he has now discovered. He had the benefit of a three day hearing to produce any material he thought relevant. He was assisted and represented by a much respected firm of Edinburgh Law Agents and an experienced Solicitor Advocate. It was submitted that the second respondents had produced a comprehensive and thorough decision on the evidence. It was submitted that the appellant was seeking in effect to have a re-hearing because he was dissatisfied with the decision of the Commission. This was not in the public interest.

 

20. The appellant had suggested that his personal circumstances, namely his unfortunate injuries and the health of his mother, had prevented the submission of a timeous appeal. It was submitted the appellant had the services of experienced Solicitors and Solicitor Advocate. It would have been a simple matter to telephone them to give instructions to intimate an appeal.

 

21. I was asked to refuse the appellants motion.

 

 

SUBMISSIONS FOR THE FIRST RESPONDENTS

 

22. Solicitor for the first respondents adopted the submissions which had been made by solicitor for the second respondents. I was invited to take the same view of the statutory provisions as Sheriff Principal Kerr. It was submitted it was a clear, in particular from the dicta of Sheriff Principal Kerr in Vassie v Standards Commission for Scotland and Sheriff Principal J A Dick QC in T v Secretary of State for Scotland supra that in this case the provisions of section 22(4) should be regarded as mandatory. It was submitted that was the proper approach to this statutory provision in the circumstances of this case.

 

23. If I took the view that the provision was directory and that I did have a discretion, it was submitted there was nothing exceptional in this case to excuse the delay in marking the appeal and to justify the exercising of my discretion. I was referred to the fact that in the case of National Commercial Bank v Assessor for Fife the delay was one day; in the case of Sinclair v Lothian Regional Council the delay was three days; and in the case of T v Secretary of State for Scotland the delay was seven days. In this case the delay was some 17 days. There had been nothing to prevent the appellant instructing his legal advisers to mark an appeal.

 

 

DECISION

 

24. I find myself in agreement with the conclusion reached by my colleague Sheriff Principal Kerr in the case of Vassie v The Standards Commission for Scotland. It is clear that the provisions of rules 2.3(1) and 2.6(3) of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999 do not apply in this case because of the terms of rule 2.6(1) which provides

"this rule applies to a Summary Application where the time limit within which the application may be made is not otherwise prescribed".

In this case the time limit within which the application may be made has been prescribed by Section 22(4) of the Ethical Standards in Public Life etc Scotland Act 2000. An appeal requires to be lodged within 21 days

 

25. I agree with Sheriff Principal Kerr that this provision is mandatory and not directory and as a result I have no discretion to allow the appeal late. In particular I agree with the following statement:-

"the purpose of the Act of 2000 moreover is very clearly to deal with public matters, as its long title indicates, and it is very desirable that there should as far as possible, be certainty in public affairs. Once it has been decided in accordance with the provisions of the Act that a breach has occurred of a code of conduct applicable to a holder of public office and that a particular sanction should be imposed, it is conducive to the public interest that that decision should be open to challenge only within a brief period of time thereafter and that there should not be uncertainty remaining such as would arise from the possibility of its being appealed after a long and indefinite interval..."

 

26. I take the view that I have no discretion in the matter and it is not open to me to consider granting this motion by the appellant to have his appeal received late. However, I have to say that, if I was wrong in the view I have reached, and the proper construction of the statutory provision is that it should be regarded as directory only, I would have refused to exercise my discretion. The appellant was represented by a well known firm of Edinburgh Solicitors and a highly respected Solicitor Advocate. The decision of the first respondents was reached after three days of evidence. If the appellant was dissatisfied with the decision, which was intimated to him on 14 October 2011, and his suspension, which commenced on 17 October 2011, it was a straightforward matter for him to instruct an appeal to be lodged. He was not involved in the unfortunate Road Traffic Accident until 1 November 2011. He had ample opportunity before that date to consider the decision and decide whether he was content with it. The decision letter which had been intimated to him referred him to the appeal provisions in section 22 of the 2000 Act. Even after his accident and notwithstanding the unfortunate ill health of his mother, in my view it was still open to him to instruct an appeal to be marked on any of the grounds set out in section 22(3)(a) of the 2000 Act. Full specification could be provided at a later date.

 

27. In the event I am not prepared to grant the appellants motion and his appeal is dismissed. I was asked by the solicitors for the first and second respondents to award expenses of the hearing on the appellant's motion in their favour against the appellant. I have given the matter careful consideration and I have come to the conclusion that the appropriate course is to make no award of expenses in respect of this matter the hearing on the appellant's motion.