Judicial Review

Kevin Fotheringham for Judicial Review of the Scottish Football Association Discipline Appeals Tribunal [2008] CSOH 170

Wed, 17 Dec 2008 17:42:00 GMT

On 2 January 2008 the petitioner was playing for East Fife in a Scottish Football League Championship third division match against Stranraer Football Club at East Fife's home ground of New Bayview Stadium, Methil. At the end of the match there was a heated argument between both sets of players that continued in to the dressing room area of the ground. In his match report the referee stated:- "the phrase "black bastard" coming from the direction of the home dressing room door although I could not identify who said the words." Subsequently, the petitioner was identifed as having been responsible for making the remark. Thereafter the Disciplinary Committee met at Hamden Park on 29 January 2008 to consider a number of matters, including the complaint against the petitioner. The Committee decided that in view of the nature of the comments he had made the petitioner was guilty of misconduct of a sectarian, racist, sexual or other discriminatory nature and decided to suspend him from playing in the next eight East Fife first team competitive matches. The petitioner appealed against the decision on a number of grounds:- (1) Mr Shaw was tainted by apparent bias; (2) the hearing was unfair because it was not open to the Disciplinary Committee to take account of written statements provided by witnesses; (3) the hearing was unfair because the petitioner had been denied the right to cross-examine witnesses and (4) the reasons given by the Disciplinary Committee for its decision were inadequate. The Appeals Tribunal decided unanimously to refuse the appeal. The petitioner applied to the court here and sought reduction of the decisions of the Appeals Tribunal and of the Disciplinary Committee. It was submitted on behalf of the petitioner that there was bias on the part of Mr Shaw as chairman of the Disciplinary Committee and there was unfairness in the procedure at first instance and the petitioner had not received a fair hearing.

Petition of D.L. Against the Parole Board for Scotland and Others for Judicial Review [2008] CSOH 168

Wed, 10 Dec 2008 07:41:00 GMT

Judicial Review:- On 21 February 2003 the petitioner was sentenced at the High Court to six years imprisonment in respect of two charges of lewd, indecent and libidinous practices and behaviour towards a male and female step-child of the petitioner. The sentence will expire in February 2009. With effect from 21 February 2007 the petitioner was released on licence. On 27 March 2007 the Parole Board recommended that the petitioner be recalled to custody. In due course his licence was revoked and following repeated refusals by the Parole Board to reorder his release these refusals formed the subject of challenge by judicial review. It was submitted on behalf of the petitioner that the Parole Board and the Scottish Ministers were not entitled to reach those decisions because the petitioner was seeking contact with J through the mechanism of a court order and the use of a legal process meant that condition 12 was not breached, thus decrees of declarator and reduction as sought should be pronounced. On behalf of the respondent it was submitted that it was clear that the petitioner had breached condition 12 of his licence.

Petition of D.L. Against the Parole Board for Scotland and Others for Judicial Review [2008] CSOH 168

Wed, 10 Dec 2008 07:28:00 GMT

East Lothian Council for Judicial Review [2008] CSOH 137

Wed, 17 Sep 2008 05:18:00 GMT

Petition for Judicial Review of an Interlocutor dated 22 August 2008 of the Sheriff at Haddington under section 28F of the Education (Scotland) Act 1980:- Section 28 of the Education (Scotland) Act 1980 sets out the general principle that "so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents." Section 28A states:- "(1) Where the parent of a qualifying child makes a written request to an education authority to place his child in the school specified in the request, being a school ... under their management, it shall be the duty of the authority, subject to subsections (2) (3) (3A) and (3F) below, to place the child accordingly." Section 28A(3)(a)(1) contains an exceptions which entitles an authority to refuse a placing request occurs where to place the child in a specified school would make it necessary for the authority to take an additional teacher into employment. In December 2007 Mr. and Mrs D made a placing request to have their twins attend Primary B. The authority refused the request and allocated the twins places in Primary A. An appeal by Mr. and Mrs D to the Education Appeal Committee was refused after a hearing on 28 May 2008. Mr. and Mrs D appealed to the Sheriff under section 28F. The authority defended the decision primarily on the basis that placing the twins in Primary B would make it necessary for it to take an additional teacher into employment. It was submitted on behalf of the petitioners that the decision was flawed and susceptible to judicial review by disregarding Scottish Executive policy and guidance, the sheriff had failed to take into account a material consideration. On behalf of the respondents it was submitted that the motion for reduction should be refused and the interim suspension of the sheriff's decision should be recalled and that would enable the twins to start at Primary B. Here the court considered whether the sheriff was entitled to hold that the term "necessary" required to be interpreted in accordance with the 1999 regulations.

Petition of K.O. for Judicial Review of a Decision of the Secretary of State for the Home Department[2008] CSOH 126

Tue, 09 Sep 2008 18:21:00 GMT

The petitioner, a Nigerian citizen who arrived in the UK illegally in 2000, was arrested on suspicion of committing an offence in May 2007 and claimed asylum. The petitioner claimed to have a well founded fear of persecution in Nigeria. By letter dated 15 October 2007 the Secretary of State refused the petitioner's claim for asylum and his human rights claim. The Secretary of State concluded that there was no real threat to the petitioner and in any event he could relocate to another part of Nigeria and that it would not be unduly harsh for him to do so. The Secretary of State certified the claims under section 94(3) of the Nationality, Immigration and Asylum Act 2002. Counsel for the the petitioner sought reduction of the decision to certify the claim in terms of section 94(3) as being unreasonable and irrational and reduction of the decision to certify the claim would leave open to the petitioner the possibility of exercising his right of appeal to the tribunal. Here the court considered whether the Secretary of State was entitled to conclude that the claims were such as would be bound to fail and to certify the claims under section 94(3) of the 2002 Act.

M.G. (AP) for Judicial Review of a Decision of the Secretary of State for the Home Department [2008] CSOH 115

Thu, 14 Aug 2008 08:28:00 GMT

Here the petitioner sought judicial review of a decision of the respondent contained in a letter dated 14 March 2008 refusing to treat submissions made on her behalf in a letter from the petitioner's solicitors dated 13 March 2008 as a "fresh claim" for asylum and the respondent's decision was made under error of law.The "new evidence" took the form of three documents:- (1) a Terrorist Declaration bearing to be issued by Police Headquarters, Algiers, and recording a complaint by a member of the petitioner's family of two visits by groups of armed persons looking for the petitioner and her husband; (2) an affidavit signed by a number of the petitioner's friends and family declaring that the petitioner and her husband "are threatened in Algeria because of her position at the Ministry"; and (3) a statement confirming a complaint made by M.G. on 26 December 2007 in relation to the first of the two visits by groups of armed persons. In response to the claim made by letter of 13 March 2008, an official acting on behalf of the respondent, made a decision contained in a letter of 14 March 2008 sent to those acting for the petitioner that stated inter alia:- "...In asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied upon. However, even if the documents are accepted as valid, they imply a reliance on legal processes which represent a framework for legal protection. Taking all of your client's evidence in the round, including her ability to not provide a truthful account in her appeal, it is not considered that reliance should properly be placed on these documents...Because we have declined to reverse the decision on the earlier claim and have determined that your submissions do not amount to a fresh claim, your client has no right of appeal against this decision from within the United Kingdom." It is against that decision that the petitioner sought to challenge. It was submitted on behalf of the petitioner that the respondent had applied the wrong tests in coming to a view as to the reliability of the information contained in three documents presented as new evidence in support of the submissions made on behalf of the petitioner, and in determining whether the submissions amounted to a fresh claim. Here the court considered whether the respondent's decision was unreasonable.

Laureen Joan Fargie for Judicial Review of the Eligibility Criterion of the Skipton Fund as Agreed to and Determined by the Scottish Executive [2008] CSOH 117

Thu, 14 Aug 2008 08:27:00 GMT

This was an application to the supervisory jurisdiction of the court by Mrs Laureen Jean Fargie, the widow and next surviving kin of the late George Fargie. In March 2001 whilst undergoing surgery it became apparent that George Fargie had contracted Hepatitis C previously during a blood transfusion at the time of either a heart by-pass operation or an operation for the amputation of his leg. He died on 7 March 2003. Since the coming into operation of the Skipton Fund there has been enacted section 28 of the Smoking, Health and Social Care (Scotland) Act 2005, which came into force on 17 October 2005. On 24 April 2007 the Scottish Ministers adopted the Skipton Fund as a scheme under section 28 which provides for payments to certain persons infected with hepatitis C as a result of NHS treatment. Here the petitioner challenged the lawfulness of the provision of the non-statutory Fund that no payments will be made in respect of those who have died before 29 August 2003, in particular, that the decision under challenge was unreasonable, irrational, disproportionate and defeated the petitioner's legitimate expectation to an ex gratia payment. Here the court considered whether the decision under challenge could be held to be unreasonable or irrational.

Kevin McCahery v. Aberdeen City Council for Judicial Review [2008] CSOH 73

Fri, 23 May 2008 06:25:00 GMT

Petition for Judicial Review:- In this petition for judicial review the petitioner suffered from spina bifida and diabetes and was confined to a wheel chair. The Choices Day Centre in Aberdeen was operated for many years as a facility for, amongst others, persons with physical and sensory disabilities. The petitioner attended the Choices Day Centre for two days each week. The duty in relation to the needs of the petitioner arose under section 2(1) of the Chronically Sick and Disabled Persons Act 1970. In October 2007, the respondents' officials produced a report which made thirty one recommendations including "Reduce... the number of day care places to 135 over a 3 year period, with the principle that 50% of the savings will be redirected into personalised care". The report was considered at a meeting of the respondents on 1 October 2007 and the recommendations were approved. From 21 April 2008, the Choices Day Centre closed on Fridays. From 12 May, it was to close on Mondays with the final closures on Wednesdays and Thursdays scheduled for 26 May 2008 and 2 June 2008. Here the petitioners sought interim interdict to prevent the respondents from "taking any step to proceed with the phased closure of Choices Day Centre". Further the petitioner sought reduction of the respondents' decision on 1 October 2007 to approve the report and the decision on 14 February 2008 to close the Centre. On behalf of the petitioner it was submitted that (1) the respondents failed to carry out meaningful consultation in their decision making process leading to their decision of 1^{st October 2007; (2) the respondents failed to comply with section 49A of the Disability Discrimination Act 1995; (3) the respondents failed to comply with their own Disability Equality Scheme published pursuant to regulation 2 of the Disability Discrimination (Public Authorities)(Statutory Duties)(Scotland) Regulations 2005 (SSI 565); (4) the respondents acted unreasonably (and possibly unlawfully and "ultra vires").}

Apollo Engineering Limited v. James Scott Limited [2008] CSOH 39

Wed, 12 Mar 2008 11:19:00 GMT

Petition for Judicial Review:- This petition followed the appointment by the petitioners and the respondents of an adjudicator to arbitrate in relation to a sub-contrct which the petitioners entered in to with the respondents whereby they would provide services for the construction of a jetty. The arbiter had been given express powers, however, the parties were unable to agree on a set of arbitration rules. On 26 September 2006 the arbiter pronounced an interlocuter that the petitioners would be liable for the expenses of the amendment procedure. In the petition here it was submitted on behalf of the petitioners that the arbiter had no power to make the award of expenses contained in that order and, further, it was submitted that this power did not extend to an additional fee and certification of skilled witnesses, nor to the remit to the auditor for taxation. Here the court considered whether the arbiter's implied power to deal with expenses could only be exercised at the very end of the arbitration. The petitioner also sought review of the final draft opinion of 18 May 2007, which the arbiter issued after a debate on the relevancy of both parties' pleadings in which the arbiter indicated that he intended to dismiss the bulk of the petitioners' claims. It was submitted on behalf of the petitioners that it was not open to the arbiter to reach that decision. It was also submitted on behalf of the petitoners that there was alleged real or apparent bias on the part of the arbiter in the conclusions reached. The court considered whether there was any merit to these challenges.

Petition of Professor The Much Honoured Stephen Pendaries Kerr of Ardgowan, Baron of Ardgowan for Judicial Review of a Decision of the Lord Lyon King of Arms [2008] CSOH 36

Mon, 25 Feb 2008 11:37:00 GMT

Judicial Review:- The petitioner was the heritable proprietor of the Land and Barony of Ardgowan in the County of Renfrew. By petition dated 24 May 2004 in the name "The Much Honoured Stephen Kerr of Ardgowan, Baron of Ardgowan" the petitioner petitioned Lyon for rematriculation of his father's arms with baronial additaments in respect of his Barony of Ardgowan. By letter to the petitioner dated 21 January 2005 the respondent refused to recognise officially the petitioner in that surname. The petitioner sought reduction of the decision of respondent dated 21 January 2005 and an order ordaining the respondent to recognise him officially in the surname "Kerr of Ardgowan". It was submitted on behalf of the petitioner that the respondent's jurisdiction was not to grant authority to a person to change his name, but only to recognise a name which the person had already chosen and the respondent had only a limited discretion to refuse to recognise a change of name, and that was where the change was a capricious one in the case of a non-armigerous person. For the respondent it was submitted that he could refuse to accept a change of name to a territorial designation if the person had no substantial nexus with the lands in question. Here the court considered whether the respondent had any jurisdiction to impose a restriction on a change of name which he has been asked to recognise.

Eur ING David Ayre of Kilmarnock, Baron of Kilmarnock for Judicial Review of a Decision of the Lord Lyon King of Arms [2008] CSOH 35

Mon, 25 Feb 2008 11:35:00 GMT

Judicial Review:- The petitioner was the heritable proprietor of the Lands, Lordship and Barony of Kilmarnock. The petitioner corresponded with Lyon about the barony and the design for his coat of arms. He presumed, in light of previous decisions of the respondent, that, in granting him a coat of arms with baronial additaments, he would recognise him in the name Ayre of Kilmarnock.When he received the draft text for the Letters Patent he noted that he had not been officially recognised in the name Ayre of Kilmarnock and wrote to the respondent on 19 October 2003 asking to be given the territorial designation "of Kilmarnock". The respondent replied to the petitioner by letter dated 21 October 2003 which stated:- "The position is that, as you say, my policy is not to grant a territorial designation to a feudal baron where the barony is based on a superiority title, as yours is...I am afraid, therefore, that you must accept that it is not possible for the territorial designation 'of Kilmarnock' to be used by you." Here the petitioner sought judicial review of that decision. Here the court considered whether the respondent had any jurisdiction to impose a restriction on a change of name which he has been asked to recognise.

Martin Stephen James Goldstraw of Whitecairns for Judicial Review of a Decision of the Lord Lyon King of Arms [2008] CSOH 34

Mon, 25 Feb 2008 11:34:00 GMT

Judicial Review: The petitioner was the heritable proprietor of the superiority of All and whole the Lands and Estate of Whitecairns. As a result of the acquisition of that superiority the petitioner adopted the name Martin Stephen James Goldstraw of Whitecairns as his proper name, by which he became commonly known. He announced his adoption of that name in the Edinburgh Gazette of Tuesday 22 July 2003. The petitioner presented a petition to the Lord Lyon King of Armsin the name of Martin Stephen James Goldstraw of Whitecairns and the Petition prayed that it might:- " ... please your Lordship to Authorise the Lyon Clerk to add a docquet to the entry in the Public Register of all Arms and Bearings in Scotland in the name by which the Petitioner is now commonly called and known." The respondent replied by letter dated 5 November 2004:- "The legal position is that your surname is Goldstraw of Whitecairn but that no official recognition of this has been given by me. There are many examples of cases where individuals have legally adopted a name but this has not been given official recognition by the Lord Lyon. I am not willing to make an exception in your case." The respondent therefore recognised that the petitioner's legal surname was Goldstraw of Whitecairns but at the same time was not willing to grant official recognition of it as by interlocutor of 7 February 2005 the respondent refused to docquet an entry in the Register of all Arms and Bearings in Scotland in the name by which the petitioner was commonly called and known. Here the petitioner sought judicial review of that decision. Here the court considered whether the respondent had any jurisdiction to impose a restriction on a change of name which he has been asked to recognise.

Co-Operative Group (CWS) Limited for Judicial Review of a Decision by the Highland Council [2008] CSOH 28

Thu, 21 Feb 2008 09:09:00 GMT

Judicial Review:- Here the petitioners sought a judicial review of a decision by the Highland Council to grant planning permission to Tesco Stores Limited for a superstore at Wick. Following upon the issue of planning permission on 28 April 2006 Tesco completed the building of the store and filling station and they opened for business on 27 November 2006 and have traded since then. Tesco have incurred building costs of £13.5 million and substantial stocking costs, and they employ some 300 staff in the operation of the store. In this petition for judicial review the petitioners sought declarator that the decision to grant planning permission was ultra viries, and they sought reduction of the decision and the planning permission. The court here considered three issues:- (1) the way in which the respondents approached the decision (which was itself divided into retail considerations and parking considerations); (2) the petitioners' title and interest to sue and (3) mora, taciturnity and acquiescence.

Mrs F.N.G. for Judicial Review of a Decision of the Secretary of State for the Home Department [2008] CSOH 22

Wed, 06 Feb 2008 18:25:00 GMT

Judicial Review:- Here the petitioner, a 23 year old deaf Liberian man, sought judicial review of decisions of the Secretary of State for the Home Department to certify her decision to refuse the Petitioner's application on human rights grounds to remain in the United Kingdom, in terms of Section 94(2) of the Nationality Immigration and Asylum Act 2002, and to decide to remove the Petitioner from the United Kingdom. On 27 February 2007 the petitioner sought asylum under the Geneva Convention relating to the Status of Refugees as amended by the 1967 Protocol . He also submitted that an order removing him from the United Kingdom would, if implemented, be a breach of articles 3, 8 and 14 of the ECHR. By letter dated 24 July 2007 an official on behalf of the Secretary of State for the Home Department refused his application for asylum and concluded that his removal would not be contrary to the United Kingdom's obligations under the ECHR. The official also certified under section 94(2) of the Nationality, Immigration and Asylum Act 2002 that both the asylum claim and the human rights claim were clearly unfounded. This certification had the effect that the petitioner could not appeal the Secretary of State's decision through the statutory appeal framework while remaining in the United Kingdom. Here the petitioner sought to challenge the certification in relation to his ECHR claim and thereby open his right of appeal to the Asylum and Immigration Tribunal. It was submitted on behalf of the petitioner that:- (1) the statutory test for certification was a high one and required that before certifying the claim as clearly unfounded the Secretary of State should put herself into the mind of an immigration judge who might take an unusually generous view of the facts provided that that view was not perverse. Unless the Secretary of State could be satisfied that the unusually generous immigration judge would necessarily find against the claimant, the claim could not be certified as clearly unfounded. Had the Secretary of State considered the matter in this way, she would not have certified the claim as clearly unfounded; (2) in the context of returning a person to another country a claim under article 8 of ECHR should have regard to the physical and moral integrity of the claimant and that circumstances which did not amount to a breach of article 3 could nonetheless be a breach of article 8; (3) the Secretary of State had erred in failing to treat a country guidance case on Liberia by the Immigration Appeal Tribunal and the case revealed that conditions in Liberia in the aftermath of the civil war were such that it might amount to a breach of article 3 or article 8 of ECHR if a deaf person were to be returned there; and (4) the decision to certify was vitiated by the absence of a proper basis in fact for the Secretary of State's findings of fact about the activities in Liberia of certain non-governmental organisations whose activities included the provision of assistance to deaf people. Here the court considered whether the Secretary of State's decision to certify under section 94(2) of the 2002 Act was lawful.

Skye Winfarm Action Group Limited for Judicial Review of a Decision of the Highland Council [2008] CSOH 19

Wed, 06 Feb 2008 18:19:00 GMT

Judicial Review:- Here the petitioners, a company which seeks to prevent inappropriate development of onshore wind power stations, challenged the decision of the Highland Council on 16 May 2007 to grant planning permission to a wind farm at Edinbane, Skye. AMEC Project Investments Ltd applied in 2001 to develop a wind farm at Edinbane comprising 28 turbines. Due to concerns raised by local people, ornithologists and environmentalists the project was amended in August 2006 when AMEC proposed a development comprising 18 turbines. The main nature conservation issue which caused concern was the effect of the wind farm on the golden eagle and other bird species at Edinbane. Following the grant of the amended planning permission here the petitioners submitted that:- (1) the environmental statement which AMEC had prepared was defective in its form and also in substance in its failure to consider alternatives and flooding risk; (2) certain planning conditions in the permissions for the wind farm and the borrow pits were illegal; (3) the Council had acted illegally in considering the borrow pits applications separately from that for the wind farm; (4) they had failed to give proper consideration to a non-statutory document called "Highland Renewable Energy Strategy and Planning Guidelines" that the Highland Council had approved in 2006; and (5) the Council had failed to conduct a proper assessment of the effect of the proposal on the Cuillins SPA.

Rosaleen Kennedy & Jean Black v. The Lord Advocate [2008] CSOH 21

Wed, 06 Feb 2008 18:18:00 GMT

Judicial Review:- Here the petitioners, the daughter of Mrs. Eileen O'Hara, who died on 7 May 2003, and Mrs Jean Black, the widow of the Reverend David Black, who died on 31 October 2003, sought the judicial review of the decsion of the Lord Advocate and the Scottish Ministers not to hold fatal accident inquiries nor hold public inquiries into the deaths of Mrs. O'Hara and Mr. Black. Mrs. O'Hara and Mr. Black were amongst more than 4000 individuals who became infected with the Hepatitis C virus during the 1980s, as a consequence of their being transfused with blood or blood products contaminated with the Hepatitis C virus. The Scottish National Blood Transfusion Service did not introduce any screening test for blood donations to determine whether they were contaminated with the Hepatitis C virus until 1 October 1991. On 15 June 2006, the Lord Advocate decided not to seek Fatal Accident Inquiries into the deaths of Mrs. O'Hara and Mr. Black. On 16 June 2006 the Health Minister of the Scottish Executive advised that the Scottish Ministers were refusing to hold a full judicial inquiry into the infection of patients with Hepatitis C in Scotland through NHS treatment. Here the court considered whether, since the deaths of Mrs. O'Hara and Mr. Black, the Lord Advocate and the Scottish Ministers had acted in a manner incompatible with the Convention rights of the deceased under Article 2 of the European Convention of Human Rights that states:- " everyone's right to life shall be protected by law...".

Derek Campbell for Judicial Review of the Decision of the Parole Board dated 13 March 2007 [2008] CSOH 16

Thu, 31 Jan 2008 07:50:00 GMT

Judicial Review:- On 5 September 2002 the petitioner was convicted in the High Court at Edinburgh of an offence under the Misuse of Drugs Act 1971 and sentenced to nine years imprisonment from that date and thus a long term prisoner within the meaning of section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. From March 2005 to January 2007 he served his sentence in open prisons granting him periods of home leave. In December 2006 the second respondents referred the petitioner's case to the Parole Board for consideration in terms of Section 1(3) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. On 9 January the Parole Board considered his case and agreed to recommend his release on parole with effect from 6 March 2007. At its meeting of 13 March the Parole Board decided to withdraw its recommendation that the petitioner be granted parole following a report that the petitioner had breached his licence conditions whilst on home leave. Here the petitioner sought to judicially review that decision. On behalf of the petitioner three grounds of review were argued:- (1) The Parole Board's decision of 13 March 2007 was unfair at common law as it was made without giving the petitioner an oral hearing; (2) The Parole Board's decision of 13 March was unfair at common law as a consequence of the combination of two factors:- (i) The Parole Board's failure to provide the petitioner with more information about the report which it had received from Lothian and Borders Police and (ii) The Parole Board's failure to appoint a special advocate to make representations on the petitioner's behalf in respect of the report from Lothian and Borders Police; and (3) The reasons given by the Parole Board for its decision of 13 March 2007 were inadequate.

Petition of Mr. A. for Judicial Review against The Scottish Ministers & The Advocate General for Scotland [2007] CSOH 189

Wed, 28 Nov 2007 18:45:00 GMT

Judicial Review:- Here the petitioner sought a judicial review of the imposition on him of an indefinite period of notification without provision for review in terms of the Sex Offenders Act 1997 and the Sexual Offences (Scotland) Act 1976. On 22 December 2003, when he was aged 15, the petitioner pled guilty to inter alia two charges of assault with intent to rape. On 10 January 1994 a cumulo sentence of 4 years detention in a Young Offenders' Institution was imposed. In terms of the Sex Offenders Act 1997 young sex offenders committing a sexual offence which resulted in a sentence of 30 months detention or more, as with adult offenders, were to be subject to the notification requirements for an indefinite period. In this petition for judicial review the petitioner sought inter alia declarator that the continued application of the provisions of sections 81 and 82 of the 2003 Act, without the possibility of any review to consider the variation or ending of his obligation to comply with the notification requirements, was incompatible with his right to respect for private and family life in terms of Article 8 of the European Convention on Human Rights. Article 8(2) of the Convention states:- "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedoms of others."

Petition of Deejays Nightclub & Dennis F. Forsyth Jnr for Judicial Review [2007] CSOH 188

Wed, 28 Nov 2007 18:43:00 GMT

Judicial Review:- Here the petitioner sought judicial review of a decision of Aberdeen Licensing Board. The petitioners had applied to the Abderdeen Licensing Board for a regular extension of permitted hours from 11pm on Fridays until 3am on Saturday mornings, and from 11pm on Saturdays until 3am on Sunday mornings. On 27 June 2007 the application was objected to by the Chief Constable. Subsequently, the board granted extensions until 2am on Saturdays and Sundays, rather 3am as the petitioners had sought. Here the petitioners sought reduction of that decision. The basis for the Board's opposition to the application was a report detailing incidents of vandalism which had occurred in Fraserburgh between 1 June 2006 and 31 May 2007 and also a letter from the police that was sent to the petitioners complaining about certain other incidents of public disorder in the vicinity of the licensed premises. It was submitted on behalf of the petitioners that the board's conclusions were flawed in that no reasonable licensing board, properly applying itself to the law, could properly have reached those conclusions on the evidence before it. Here the court considered the vandalism offences report to see if there was any causative link between the vandalism and the applicants' premises and whether the Board reached a conclusion that the evidence before them could legitimately support.

T.H. v. The Secretary of State for the Home Department for Judicial Review of a Decision by the Respondent to Certify a Claim for Asylum by the Petitioner [2006] CSOH 181

Tue, 20 Nov 2007 19:10:00 GMT

Petition for Judicial Review of a Decision by the Respondent to Certify a Claim for Asylum by the Petitioner:- On 3 January 2000 the petitioner arrived in the UK in the back of a lorry and was arrested. As an Iranian national born in 1967 he claimed asylum on the basis that he had been spying in Iran for an Iraqi Kurd who worked for the CIA and the petitioner feared persecution by the Iranian authorities on his return. Following sundry procedure and a criminal conviction that resulted in the petitioner being sentenced to twenty one months imprisonment, on 15 May 2006 he was served with a deportation notice. An appeal against the notice was heard by the Asylum and Immigration Tribunal on 13 June 2006 and was subsequently refused stating that the petitioner's actings displayed "a pattern of dishonesty and deceit”. On 25 October 2006 the petitioner intimated a third claim for asylum stating that he had converted to Christianity. The respondent refused the claim in a letter to the petitioner dated 21 May 2007. The respondent certified the claim under section 96(1) of the Nationality Immigration and Asylum Act 2002 namely that an appeal against a decision was not competent. Here the court considered whether the respondent's decision to certify the case was unreasonable, in that it was a case which no reasonable immigration authority, properly directing itself, could have reached.

Petition of B.G. for Judicial Review Against a Determination of an Immigration Appeal Adjudicator and the Refusal of an Application for Leave to Appeal

Tue, 20 Nov 2007 19:09:00 GMT

Judicial Review:- In this petition for judicial review the petitioner sought review of a determination of the Immigration Appeal Tribunal dated 20 January 2003 refusing leave to appeal against the determination of an adjudicator dismissing the petitioner's appeal against the decision of the Secretary of State for the Home Department in refusing his application for asylum. Counsel for the petitioner submitted that:- (1) the IAT erred because no reasonable immigration tribunal could have found that the petitioner had no reasonable prospect of success in that the adjudicator did not apply the correct standard of proof when determining the petitioner's application and the adjudicator's repeated use of the word "believe" , "believable" and "plausible" did not satisfy the reasonable likelihood test; (2) the adjudicator had failed to make adequate findings in fact and give adequate reasons for her decision and (3) the IAT erred in not concluding that the petitioner's appeal had a real prospect of success

Alice Emms for Judicial Review of the Lord Advocate’s Refusal to hold a Fatal Accident Inquiry [2007] CSOH 184

Tue, 20 Nov 2007 19:05:00 GMT

Petition for Judicial Review of the Lord Advocate's refusal to hold a Fatal Accident Inquiry:- This petition, by the mother of the deceased, arose out of the refusal of the procurator fiscal at Linlithgow to hold an FAI in respect of the death of the deceased. Further, the Lord Advocate also refused to order that such an inquiry be held. The deceased who had learning difficulties died in hospital on 8 September 2004 after he suffered an infection following the insertion of a feeding gastric tube due to difficulties he had swallowing. Here the petitioner sought:- (1) reduction of the respondent's decision of 6 June 2007; (2) declarator that the respondent's refusal was incompatible with Article 2 of the European Convention on Human Rights and that the petitioner is entitled to an independent, effective and reasonably prompt public inquiry into the death of the late George Emms, at which his next of kin can be legally represented, provided with the relevant material and able to cross examine the principal witnesses; and (3) an order ordaining the respondent to cause such an inquiry to be held. It was submitted on behalf of the petitioner that the state had an obligation to hold an inquiry that was prompt, comprehensive and allowed for the participation of the next of kin, that was prepared on a proper evidential basis and that was effective in result. Here the court considered whether there had been a breach of the petitioner’s convention rights.

Argyll and Bute Council for Judicial Review of the Scottish Public Services Ombudsman [2007] CSOH 168

Thu, 18 Oct 2007 07:32:00 GMT

Petition for Judicial Review of a Decision of the Scottish Public Services Ombudsman:- William McLachlan complained to the Ombudsman that Argyll and Bute Council had failed to provide a service to his father between February and June 2006 in that they had not provided funding for his personal care when, in February 2006, Mr McLachlan placed his father in a private care home and claimed that his father was entitled to free personal care. The Council told him that their annual spending budget had been reached, however, eventually, the Council contributed £145 per week towards his personal care costs with effect from 28 June 2006 until he died on 4 April 2007. Mr McLachlan complained to the Ombudsman who conducted an investigation and issued a report stating that the Council had been obliged, by the terms of the Community Care and Health (Scotland) Act 2002, to provide Mr McLachlan's father with free personal care. Here the Council applied to the Court for judicial review of the Ombudsman's decision. This was the first time an application has been presented to the Court of Session for judicial review of a decision by the Scottish Public Services Ombudsman. It was submitted on behalf of the council that (1) the obligation to pay for personal care arose only where it was provided by the local authority and (2) the Act forbade a local authority to charge for personal care, but did not impose an obligation to make any payment. Here the Court considered whether the Ombudsman's decision that the Act placed a statutory duty on the Council to provide funding was correct and whether a local authority were entitled to make payments in respect of personal care in accommodation provided by them.

N.S. & F.S. v. The Scottish Legal Aid Board [2007] CSOH 116

Fri, 06 Jul 2007 00:00:00 GMT

Judicial Review

Petition of Ian Latimer Chief Constable Northern Constabulary for Judicial Review of a Decision of Police Appeals Tribunal [2007] CSOH 99

Tue, 12 Jun 2007 23:00:00 GMT

Judicial Review of a Decision of Police Appeals Tribunal dated 8 September 2006

David Laidlaw v. The Parole Board for Scotland for Judicial Review of a Decision of the Parole Board for Scotland [2007] CSOH 98

Tue, 12 Jun 2007 00:00:00 GMT

Petition for Judicial Review

S.D. for Judicial Review of a Decision by the Secretary of State for the Home Department [2007] CSOH 97

Tue, 12 Jun 2007 00:00:00 GMT

Judicial Review

Petition of Abdul Khaliq Besmel for Judicial Review of a Determination of the Immigration Appeal Tribunal to Refuse Permission to Appeal [2007] CSOH 101

Tue, 12 Jun 2007 00:00:00 GMT

Petition for Judicial Review

Hyaltech Limited for Judicial Review of a Final Determination of the Secretary of State for Health [2007] CSOH 84

Tue, 15 May 2007 00:00:00 GMT

Judicial Review of a Final Determination of the Secretary of State for Health as the UK Licensing Authority established by section 6 of the Medicines Act 1968, acting by The Medicines and Healthcare Products Regulatory Agency

Alan Hartley Burgon & Muriel Burgon & Stewart Connolly & Lorna Connolly for Judicial Review of a Decision of the Highland Council as the Planning Authority [2007] CSOH 70

Wed, 04 Apr 2007 00:00:00 GMT

Petition for Judicial Review

Dr. John Hunter Miller for Judicial Review of a Determination of the Arm Board Dated 12 March 2005 [2007] CSOH 86

Mon, 12 Mar 2007 00:00:00 GMT

Petition for Judicial Review of a determination of the Army Board dated 12th March 2005

Patrick Donnelly v Advocate General for Scotland for Judicial Review [2007] CSOH 01

Wed, 10 Jan 2007 00:00:00 GMT

Judicial review

Charlene Claire Morgan v. Stirling Council [2006] CSOH 154

Mon, 09 Oct 2006 23:00:00 GMT

Petition for Judicial Review

Charlene Claire Morgan v. Stirling Council [2006] CSOH 154

Mon, 09 Oct 2006 23:00:00 GMT

Petition for Judicial Review

Ye Hung Wu for Judicial Review of a Decision by the Secretary of State for the Home Department[2006] CSOH 124

Fri, 11 Aug 2006 00:00:00 GMT

The petitioner sought declarator that the decision of the respondent dated 18 August 2005 to remove the petitioner from the United Kingdom, was unlawful, and for reduction of that decision based on (1) that the petitioner had not, on a proper interpretation, breached the conditions of his work permit (2) that, in any event, the decision represented an improper exercise of discretion by reason of a failure to have regard to relevant guidelines and (3) that the order to remove the petitioner from the United Kingdom in circumstances where his wife was entitled to remain constituted a breach of the petitioner's right to respect for his family life, as guaranteed by article 8 of the European Convention on Human Rights. Here the Court considered whether the case was exceptional and therefore that the decision to remove the petitioner was disproportionate.

Petition of Dumfries & Galloway Council for Judicial Review [2006] CSOH 119

Wed, 02 Aug 2006 00:00:00 GMT

Judicial Review of medical certificate issued unde

L Rowland & Company (Retail) Limited v. The National Appeal Panel & Healthcare Pharmacies Limited for Judicial Review [2006] CSOH 113

Fri, 21 Jul 2006 00:00:00 GMT

Judicial Review

Shelagh McCall v. The Scottish Ministers

Tue, 29 Nov 2005 00:00:00 GMT

Judicial Review

Ian Wiles +Mrs Jennifer Wiles + Mrs Margaret Allan v. Bothwell Castle Golf Club + DR G I Crwaford + MR A Whyte + Mrs I S MaCauslane + MR C Gibbons + MR D Harvey + MR R M Henry + MR A B Braidwood + Miss F F Scott + MR A R Buttery

Mon, 08 Aug 2005 00:00:00 GMT

For Judicial Review of a Decision Of 4 November 2003 By Bothwell Castle Golf Club

Robert Bruce Wright v. The Scottish Ministers

Fri, 27 May 2005 00:00:00 GMT

Petition For Judicial Review:Extradition:

Leonard Harris v. Robert Fyfye +Professor T.A. Lee + W.T. Stevenson + N. Menzies + J.M. Greene + T. Gilmour + Mr. Chapman Comprising the Appeal Committe of ACAS

Wed, 04 May 2005 00:00:00 GMT

Judicial Review:

Petiton for Mahmood Afzal (AP) For Judicial Review of a Determination of Immigration Appeal djudicator

Fri, 08 Apr 2005 00:00:00 GMT

Asylum

Robert Francis Phipps for a Judicial Review of a Decision of the Royal College of Surgeons of Edinburgh to Withdraw the Petitioners Specialist Accreditation

Wed, 30 Mar 2005 00:00:00 GMT

Judicial Reviews

Spey District Fishery Board v. Scottish Ministers + Fred Olsen Renewables Limited + Pauls Hill Wind Limited

Thu, 24 Mar 2005 00:00:00 GMT

Petitioners seek judicialreview of a decision by the Scottish Ministers to discharge conditions 3.3 and 3.4 attached to a consent granted by the Scottish Ministers in terms of section 36 of the Electricity Act 1989 for the construction and operation of a wind-powered electricity generating station at Pauls Hill Morayshire.