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Submission from Minister for Community Safety of 21 December 2021

PE1860/D - New legislation for Prescription and Limitation Act

Thank you for your further letter of 24 November 2021 seeking further information from the Scottish Government.

The Committee asks the Scottish Government about data on the courts’ use of discretion under section 19A of the Prescription and Limitation (Scotland) Act 1973. As mentioned in earlier correspondence, this information is held by the Scottish Courts and Tribunals Service (SCTS). I will raise this matter with SCTS so that I can provide the Committee and others with as clear a picture as practicably possible on the courts’ exercise of discretion under section 19A.

As the Committee recognises, it is important to understand the circumstances in which a court exercises its discretion under section 19A. Section 19A empowers the court to dis-apply the time limit and this discretion is unfettered, and so what matters is the circumstances in which the courts have exercised the discretion, not necessarily the number of times it has been exercised. For example, the facts of the cases considered could be very weak. The very nature of the unfettered discretion means that the outcome of each case turns on its own facts and judges have tended to develop a similar approach to considering such applications which provides an understanding to legal (and other) professionals what circumstances and factors are likely to move a court to exercise its discretion.