Beggs v Scottish Ministers

JurisdictionScotland
CourtCourt of Session (Inner House)
Judgment Date09 May 2006
Neutral Citation[2006] CSIH 34
Docket NumberNo 28,No 49

Court of Session Inner House Extra Division

Lord Abernethy, Lord Carloway, Lord Menzies

No 49
Beggs
and
Scottish Ministers

Process - Effect of marking appeal - Competency - Whether seeking interim interdict from the Inner House competent when appeal marked to House of Lords - Court of Session Act 1988 (cap 36), secs 40(4), 41(1)

Section 40(4) of the Court of Session Act 1988 provides that on an appeal against an interlocutory judgment of the Inner House to the House of Lords all the prior interlocutors in the cause shall be submitted to the review of the House of Lords. Section 41(1) provides that on an appeal to the House of Lords under sec 40, 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 petitioner was a prisoner at HMP Peterhead. In September 2003 he presented a petition for judicial review in respect of the interference with his privileged correspondence in which he sought, inter alia, an order interdicting ad interim the respondents and the prison governor from requiring him to open or to have opened in the presence of a prison officer any privileged correspondence sent to him while detained in prison. On 5 September 2003 the petition came before the Lord Ordinary at which hearing the respondents tendered an undertaking. Interim interdict was refused and the petitioner reclaimed. On 19 May 2004 the respondents offered the petitioner a further undertaking in respect of his imprisonment in HMP Edinburgh. Following the opening of further privileged correspondence, on 16 December 2004 the respondents admitted a breach of the undertaking and apologised to the court, but denied that they were in contempt of court. The petitioner presented a minute seeking an order for the respondents to appear personally to answer for their breach of undertaking and a finding that they were in contempt of court. The court made the orders sought (2005 1 SC 342). The respondents appealed against these orders to the House of Lords. In March 2006, the petitioner lodged a minute of amendment in which he averred that on 21 February 2006, a letter sent to him by the Clerk to the Second Division of the Court of Session in an envelope clearly franked "Kilmarnock Sheriff Court" was opened by prison staff as an item of ordinary correspondence. On that basis, the petitioner enrolled a motion in the single bills for interdict ad interim. The respondents took a preliminary point to the competency of the motion. The respondents argued that it was not competent for the Court of Session to pronounce further interlocutors in the petition other than under the powers set out in sec 41(1) of the Court of Session Act 1988, the respondents having appealed to the House of Lords. All prior interlocutors were submitted to review, including that originally pronounced by the Lord Ordinary. The petitioner argued that the appeal to the House of Lords was in respect of the court's finding of contempt which arose from a distinct minute and answers procedure. The decision of the House of Lords to reverse or uphold the finding of contempt could have no effect on the substantive issues in the reclaiming motion in the case.

Held that: (1) the finding of contempt by the Inner House was in substance final (para 15); (2) the question of contempt, which was the only matter on which an appeal to the House of Lords had been taken, was a quite separate question from those raised in the petition for judicial review (para 15); and accordingly the motion wascompetent.

William Beggs brought a petition under the judicial review procedure in which he sought, inter alia, an order interdicting the Scottish Ministers and the governor of HMP Peterhead from requiring him to open or to have opened in the presence of a prison officer any privileged correspondence sent to him while detained in their care in prison, and interdict ad interim; which failing an order declaratory of his right to such an order but for the terms of sec 21 of the Crown Proceedings Act 1947 (cap 44). On 5 September 2003 the petition came before the Lord Ordinary (Lord Johnston) at which hearing the respondents tendered an undertaking that such correspondence would not be opened by prison officers, and that William Beggs would not be required to open such correspondence in their presence. The Lord Ordinary refused the motion for interim interdict, and William Beggs reclaimed with leave. At a hearing on 19 May 2004 the respondents tendered a further undertaking in respect of his imprisonment in HMP Edinburgh, following the opening of three letters sent to him there. At a hearing on 16 December 2004 the respondents admitted a breach of the undertaking in respect of a letter opened on 26 November 2004 in HMP Peterhead and apologised to the court, but they denied they were in contempt of court. William Beggs presented a minute seeking an order for the respondents to appear personally to answer for their breach of undertaking, and a finding that they were in contempt of court. These orders were granted by the Inner House on 15 March 2005 (2005 1 SC 342). The respondents marked an appeal in respect of that interlocutor to the House of Lords. On 20 March 2006, William Beggs enrolled a motion in the single bills for interdict ad interim.

Cases referred to:

Advocate (Lord) v Glasgow CorpSC 1972 SC 287; 1973 SLT 153

Ballachulish Slate Quarries Co v GrantUNK (1903) 5 F 1105; 40 SLR 791; 11 SLT 230

Clyde Navigation Trs v Laird & SonsELR (1880) 7 R (HL) 115; (1882) LR 8 App Cas 658

Davidson v Scottish Ministers (No 3) 2005 1 SC (HL) 1

Edinburgh Northern Tramways Co v MannUNK (1891) 19 R 24; 29 SLR 51

Martin v Scottish Transport and General Workers UnionSC1952 SC 92; 1952 SLT 130

Portland (Duke of) v Woods' TrsUNK 1927 SC (HL) 1; 1926 SLT 734; (1926) 26 Ll L Rep 1

Ross v Ross 1927 SC (HL) 4; 1927 SLT 2

Steel Co of Scotland v Tancred Arrol & Co (1889) 26 SLR 465; (1890) LR App Cas 125

Stewart v KennedyUNK (1889) 16 R 890

The cause called before an Extra Division, comprising Lord Abernethy, Lord Carloway and Lord Menzies, for a hearing on the single bills.

At advising, the opinion of the Court was delivered by Lord Abernethy-

Opinion of the Court-

Introduction and background

[1] This petition has a long history. The petitioner is presently detained in HMP 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 Art 6 et separatim Art 8 of the European Convention on Human Rights and Fundamental Freedoms and accordingly unlawful by virtue of sec 6 of the Human Rights Act 1998 (cap 42) et separatim sec 57(2) of the Scotland Act 1998 (cap 46). 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 sec 21 of the Crown Proceedings Act 1947.

[4] On 5 September 2003 a motion for interdictad 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 respondents. 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...

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