Andrew Somerville+samuel Ralston+ricardo Blanco+william Cairns+david Henderson V. The Scottish Ministers For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lady Smith |
| Neutral Citation | [2005] CSOH 24 |
| Date | 08 February 2005 |
| Docket Number | P1056/02 |
| Court | Court of Session |
| Published date | 08 February 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 24 | |
| P1056/02 P573/03 P1596/03 P1651/03 P828/04
| OPINION OF LADY SMITH in the Petitions of ANDREW SOMERVILLE, SAMUEL RALSTON, RICARDO BLANCO, WILLIAM CAIRNS and DAVID HENDERSON Petitioners; against THE SCOTTISH MINISTERS Respondents: for Judicial Review ________________ |
Petitioners: O'Neill QC, Collins, Carmichael; Balfour & Manson
Respondents: Brailsford QC, Wolffe, Ross; Richard Henderson, Solicitor to Scottish Executive
8 February 2005
Introduction:
[1]The petitioners are or were convicted prisoners who have, at times, been removed from association ("segregated") whilst in prison under and in terms of Rule 80 of The Prisoners and Young Offenders Institutions (Scotland) Rules 1994 (as amended) ("the prison rules")', the provisions of which include the following:
" (1) Where it appears to the Governor desirable for the purpose of -
- maintaining good order or discipline;
- protecting the interests of any prisoner;
- ensuring the safety of other persons,
he may order in writing that a prisoner may be removed from association with other prisoners, either generally or during any period the prisoner is engaged or taking part in a prescribed activity........
................
(5) A prisoner who has been removed from association generally or during any period he is engaged in or taking part in a prescribed activity by virtue of an order made by the Governor in terms of paragraph (1) shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority on the application of the Governor, prior to the expiry of the said period of 72 hours.
(6) An authority granted by the Scottish Ministers under paragraph (5) shall have effect for a period of one month commencing from the expiry of the period of 72 hours mentioned in paragraph (5) but the Scottish Ministers may, on any subsequent application of the Governor, renew the authority for further periods of one month commencing from the expiry of the previous authority."
[2]In these five petitions for judicial review, the petitioners seek various declarators in respect of past decisions to segregate them, and damages.
Public Interest Immunity ("PII"):
[3]Commission and diligence had been granted to the petitioners in July and August 2004 in respect of specifications of documents lodged. The calls sought to recover various documents relating to the background to and the making of the decisions to segregate the petitioners. The respondents were the only havers. They produced several hundred documents in response to the various calls. In many instances there were, however, parts blacked out so as to delete certain references, names and passages. In some cases, entire pages were blacked out. The reason for that was that the Justice Minister had formed the view that the disclosure of these sections would be contrary to the public interest in that it would cause real harm to the work of the Scottish Prison Service. PII certificates were lodged in each case which set out in detail the fact that she had formed that view and the reasons why disclosure would cause such harm. In particular, the certificates state:
" 7. The reason why disclosure would cause such harm is that the relevant parts of the documents in the Annex include information of one or more of the following kinds:
(a)information relating to persons providing information or assistance in confidence to SPS staff, disclosure of which would endanger or risk endangering the persons concerned or other persons or would impair or risk impairing their ability or willingness to continue providing information or assistance, or the ability of SPS staff to obtain information and assistance from the persons concerned or other persons;
(b)information relating to the identity, appearance, deployment or training of members of SPS staff, disclosure of which would endanger or risk endangering them or other individuals or would impair or risk impairing their ability to operate effectively as members of SPS staff or the ability of those services to recruit and retain staff in the future ;
(c)information received in confidence by SPS from outside sources, disclosure of which would jeopardise or risk jeopardising the provision of such information in the future;
(d)information relating to operations and the capabilities of SPS staff, disclosure of which would jeopardise present and future intelligence - gathering operations and capabilities;
(e)information relating to any method, technique or equipment deployed by SPS staff, disclosure of which would reduce or risk reducing the value of the method, technique or equipment in current or future operations;
(f)other information likely to be of use to prisoners or their families or contacts, and disclosure of which would impair or risk impairing the performance by SPS of their functions.
(g)information as to the methods by which information and intelligence is gathered directly or indirectly by SPS staff, and as to the methods by which information or intelligence material is recorded, analysed, assessed and internally presented or reported and the use made of intelligence material.
(h)information relating to the management or incidents of disruptive behaviour, disorder or concerted action on the part of prisoners; the role and deployment of SPS staff and other agencies in response to such incidents; and the strategies, tactics, techniques and resources for dealing with such incidents."
[4]The respondents also lodged an affidavit by Mr Michael Duffy, Director of Prisons, Scottish Prison Service ('SPS'), extending to twenty five paragraphs in which he explains the reasons why PII has been asserted. He has management responsibility for security and intelligence systems in SPS and responsibility for its operational stability. He explains how and why the gathering of intelligence can be crucial to managing a prison effectively, why it is necessary to maintain confidentiality regarding intelligence, why it is necessary to restrict access to and knowledge of intelligence systems, and why it is necessary to restrict access to knowledge of the prison service's incident management strategies and capacity. It is clear that the effective management he has in mind concerns, largely, the avoidance of violence, escapes, exclusion of illicit articles, disruptive incidents, and bullying. He explains that SPS use a standard form, known as an IIR form, for reporting intelligence and information gathered by staff which is a crucial element within the system. A significant number of the documents with blacked out parts are IIR forms. Disclosure of the full information contained in such a form would allow identification of the person who had submitted the information, the evaluation of it and the action taken as a result. The evaluation code enables a degree of identification of the source of the information in respect that it can be deduced whether the source is a prisoner or a prison officer, something which may be enough to enable a prisoner to work out which individual has provided the information. Mr Duffy also expresses concern that disclosure of the blacked out parts of the IIR forms would enable prisoners to work out SPS's methodology and strategies for dealing with particular types of intelligence, which could have serious outcomes. Mr Duffy deals specifically with documents produced that relate to certain incidents at HMP Shotts and HMP Glenochil which are referred to in the pleadings. He explains that if the parts of these documents that have been blacked out are disclosed, given the need to protect the confidentiality of the strategies, tactics, resources and equipment used and available for dealing with such incidents, individuals would be put at serious risk of harm and SPS's ability to manage incidents safely and effectively would be compromised.
[5]The petitioners, however, insist in seeking to recover these documents in an unedited form except, it was conceded, insofar as the blacked out parts expressly disclose the identities of any of the persons referred to in the certificates. An issue arose, accordingly, as to whether or not such production should be ordered.
[6]Before turning to the submissions of parties, I should record the procedure that was entered into as between parties once the specifications had been approved. A protocol was agreed between the petitioners and respondents which was dated 18 August 2004 and was in the following terms:
"1. Aidan O'Neill QC and Simon Collins and Ailsa Carmichael, Advocates (hereinafter "the petitioners counsel") will be permitted to examine documents in respect of which PII is asserted for the purposes of considering whether or not to advance any argument that the Court should over-ride the Lord Advocate's assertion of PII in respect of any of those documents or any of their contents. This protocol sets out the basis upon which they will be permitted to do so.
2. The documents which the petitioners' counsel will be permitted to examine are those documents which fall within the calls of the specification and in respect of which PII is asserted. The documents which they will be permitted to examine will be marked so as to obscure the names and addresses of: (a) any informer; and (b) any other person whose identity, if disclosed, would put that person at risk of harm, whether physical or otherwise.
3. The examination will take place at SPS Headquarters, The Gyle Edinburgh at a time to be agreed. A room will be made available to the petitioners' counsel where they will be permitted to examine the documents outwith the presence of any other person. Counsel for the Lord Advocate, a solicitor from OSSE and an appropriate member or members of SPS staff will be available (but not present in the same room) to provide any explanation which may be requested by the petitioners' counsel as to why PII...
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