William Beggs (fe) For Judicial Review Of Decisions And Acts Etc

JurisdictionScotland
CourtCourt of Session
JudgeLord Menzies,Lord Carloway,Lord Abernethy
Judgment Date09 May 2006
Neutral Citation[2006] CSIH 34
Date09 May 2006
Docket NumberP1337/03
Published date09 June 2006

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Abernethy Lord Carloway Lord Menzies [2006] CSIH 34 P1337/03

OPINION OF THE COURT

delivered by LORD ABERNETHY

in the Petition of

WILLIAM BEGGS (F.E.)

Petitioner and Reclaimer

for

JUDICIAL REVIEW OF DECISIONS AND ACTS etc.

_______

Act: O'Neill, Q.C., Collins; Balfour & Manson (Taylor & Kelly, Coatbridge) (Petitioner)

Alt: Dewar, Q.C., Mure; Solicitor to the Scottish Executive

9 May 2006

Introduction and background

[1] This petition has a long history. The petitioner is presently detained in HM Prison, Peterhead (hereinafter referred to as "the prison"). The petition concerns acts and failures to act by the Governor of the prison and the Scottish Ministers relative to the interference with the petitioner's privileged correspondence, contrary to the requirements of Article 6 et separatim Article 8 of the European Convention on Human Rights and accordingly unlawful by virtue of Section 6 of the Human Rights Act 1998 et separatim Section 57(2) of the Scotland Act 1998. The respondents are the Scottish Ministers, the Scottish Prison Service being an executive agency of the Scottish Executive Justice Department.

[2] The petitioner avers that privileged correspondence sent to him while detained in the prison was unlawfully interfered with by the prison authorities as follows:

"(i) on or about 6 February 2003, a letter to the petitioner from the Scottish Prisons Complaints Commissioner was opened in the presence of the petitioner by a prison officer, Ms Johnson;

(ii) on or about 20 March 2003, a letter to the petitioner from the Scottish Prisons Complaints Commissioner was opened in the presence of the petitioner by a prison officer, Mr McFarquhar;

(iii) on or about 26 March 2003, the petitioner was required by a prison officer, a Mr Dorans to open a letter from his solicitors in the presence of the prison officer and shake out the contents of the envelope before him for the purposes of inspection;

(iv) on or about 24 July 2003, a letter to the petitioner from his solicitors was opened in the presence of the petitioner by a prison officer, Ms Johnson."

[3] One of the orders which the petitioner seeks is an order interdicting the Scottish Ministers and the Governor of the prison from requiring the petitioner, during his present period of detention in the prison, to open or have opened in the presence of a prison officer or prison officers, except on due cause shown, all and any privileged correspondence sent to him while detained in the prison; and for interdict ad interim; which failing, an order declaratory of the right of the petitioner to such an order, but for the terms of section 21 of the Crown Proceedings Act 1947.

[4] On 5 September 2003 a motion for interdict ad interim and declarator in terms of the order sought was refused by the Lord Ordinary. On 7 October 2003 the petitioner lodged grounds of appeal. Sundry procedure followed thereafter which it is not necessary to notice in detail for present purposes, except in one respect. On 19 May 2004 after allowing a minute of amendment for the petitioner to be received and on a renewed motion by the petitioner for interdict ad interim, the Inner House refused the motion in hoc statu in respect that an undertaking was tendered on behalf of the respondent. The undertaking was in the following terms:

"The Scottish Ministers hereby undertake that, for the duration of the petitioner's present period of detention in HMP Edinburgh:-

(1) letters or packages sent to the petitioner at HMP Edinburgh by any of his legal advisors, and addressed to him in the manner set out in the Schedule hereto, being the manner agreed between the Scottish Prison Service and the Law Society of Scotland and published in the Journal of the Law Society of Scotland in February 2002, shall not be opened by any officer of the Scottish Prison Service, except where rule 50(5) of the Prisons and Young Offenders Institutions (Scotland) Rules 1994 (as amended) applies, and (2) the petitioner shall not be required by any officer of the Scottish Prison Service to open such letter or package in the presence of any such officer.

The Scottish Ministers further undertake that if the petitioner is moved to a prison other than HMP Edinburgh or HMP Peterhead, they will return to court as soon as reasonably practicable to offer a further undertaking in similar terms in respect of such other prison.

Schedule

The letter or package shall be sealed in a plain envelope addressed to the petitioner. That envelope shall also bear the name, address and telephone number of the firm and a reference number, the words 'legal correspondence' and the signature of the legal advisor or his/her assistant. Alternatively, this information shall be contained in a covering letter to the prison authorities at HMP Edinburgh. In either case, the letter or package shall be sealed in an outer envelope addressed to the Governor of HMP Edinburgh."

On 15 December 2004 the Inner House allowed a minute of amendment for the petitioner, No.21 of process, to be received and appointed the respondents to lodge answers thereto, if so advised, within 14 days. On 24 December 2004 the respondents lodged answers (No.23 of process) to that minute of amendment. On 6 January 2005 the Court allowed a minute for the petitioner (No.24 of process) averring a breach of the undertaking to be received and appointed the respondents to lodge answers thereto, if so advised, by 24 January 2005. Answers were lodged by the respondents on that date (No.25 of process). In the meantime the Court had already fixed 27 and 28 January 2005 as the diet for a Summar Roll hearing of the petitioner's reclaiming motion. Instead of hearing the reclaiming motion on those dates, however, the Court appointed parties to be heard on the minute and answers, Nos.24 and 25 of process.

[5] Having heard counsel for the parties, the Court pronounced the following interlocutors:

"Edinburgh 11 March 2005 The Lords, ex proprio motu appoint the cause to call By Order on Tuesday 15 March 2005 at 10.15a.m. and order the attendance thereat of Mr Tony Cameron, Chief Executive, Scottish Prison Service and Mr Ian D.F. Gunn, Governor of H.M. Prison, Peterhead.

Edinburgh 15 March 2005 The Lords, having resumed consideration of the Minute and Answers, and the case having called By Order, Find the respondents in contempt and make no order in furtherance of this finding, and decern; continue the case By Order until Friday 18 March 2005.

Edinburgh 18 March 2005 The Lords, having heard Counsel for the parties, the case having called By Order, and on the respective motions of the parties, (1) find the Respondents liable to the Petitioner and Minuter in the expenses of the Minute and Answers, Nos. 24 and 25 of process, on an agent and client with client paying basis and remit the account thereof, when lodged, to the Auditor of Court to tax and to report; and (2) on the assumption that such leave is required, grant leave to the respondents to appeal the interlocutors of 11 and 15 March 2005.

Edinburgh 18 March 2005 The Lords decern against the Respondents for payment to the Petitioner and Minuter of the expenses referred to in the preceding interlocutor of this date as the same shall be taxed by the Auditor of Court."

[6] By 18 March 2005 the Court of Session had not yet allowed the petition and answers to be amended in terms of the minute of amendment and answers thereto, Nos.21 and 23 of process.

[7] By petition of appeal lodged with the Judicial Office of the House of Lords on 8 June 2005, the respondents appealed against the interlocutors of 11 and 15 March 2005, leave so to do having been granted by the Inner House in the first interlocutor dated 18 March 2005. By interlocutor dated 14 October 2005, the Inner House suspended the order relative to expenses contained in the interlocutors of 18 March 2005. This interlocutor of 14 October 2005 was pronounced pursuant to the powers of the Inner House under section 41(1) of the Court of Session Act 1988 ("the 1988 Act") which provides as follows:-

"41(1) On an appeal to the House of Lords under section 40 of this Act, a copy of the petition of appeal shall be laid by the respondent before the Inner House which may regulate all matters relating to interim possession, execution and expenses already incurred as it thinks fit, having regard to the interests of the parties to the cause as they may be affected by the upholding or reversal of the judgment against which the appeal has been taken."

The hearing of the appeal has been fixed to take place on 11-13 December 2006.

[8] In the meantime on 20 March 2006 the petitioner enrolled a motion in the Single Bills in the following terms:

"On behalf of the Petitioner and Reclaimer for interdict ad interim."

This motion proceeded on the basis of adjustments to the minute of amendment (No.21 of process) in, inter alia, the following terms:

"On 21 February 2006 in HM Prison Peterhead a letter sent to the petitioner by the Clerk to the Second Division of the Court of Session in an envelope clearly franked 'Kilmarnock Sheriff Court' was opened by SPS staff as ordinary correspondence.

...

Rule 49 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994 as amended (hereinafter referred to as 'the Rules') provides so far as relevant as follows:

Opening and reading of correspondence from and to courts

49(1) This rule applies only to letters and packages which -

(a) are addressed to a court and which a prisoner gives to an officer for the purpose of posting to that court; or

(b) are sent to a prisoner at the prison by a court.

...

(3) Any letter or package to which this rule applies shall not be opened by an officer except where paragraph (5) applies.

(4) The contents of any letter or package to which this rule applies shall not be read by an officer.

(5) Any letter or package which a prisoner wishes to send to a court may only be...

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