McDONALD v Secretary of State for SCOTLAND
| Jurisdiction | Scotland |
| Judgment Date | 26 January 1996 |
| Docket Number | No 16 |
| Date | 26 January 1996 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Administrative lawPrisonsJudicial reviewRules governing searches of prisoners issued by Secretary of State through Scottish Home and Health DepartmentWhether challenge to validity of rules amenable to judicial review
JurisdictionSheriff courtAction by prisoner alleging rules governing searches issued by Secretary of State through Scottish Home and Health Department were ultra viresWhether action appropriate for sheriff courtWhether action should be one for judicial reviewPrisons (Scotland) Act 1952 (15 & 16 Geo VI and I Eliz II, cap 61)
PracticeSheriff court practiceCompetencyAction by prisoner alleging rules governing searches issued by Secretary of State through Scottish Home and Health Department were ultra viresWhether action appropriate for sheriff courtWhether action should be one for judicial reviewPrison (Scotland) Rules 1952, rule 1(2) and 14 (1952 SI No 565)
Rule 1(2) of the Prison (Scotland) Rules 1952 provided that any direction under the rules was to be assumed to be given by the Secretary of State for Scotland unless otherwise provided for in the rule. Under rule 14 every person was to be searched on admission and at such times subsequently as may be directed. A standing order (Fb5) was issued to governors of prisons whereby the Secretary of State directed circumstances in which prisoners were to be searched.
A prisoner raised an action in the sheriff court against the Secretary of State in which he averred that he had been subjected to many illegal searches, and sought declarator, interdict and damages. A motion for interim interdict was refused. The prisoner founded upon standing order Fb5 issued by the Scottish Home and Health Department and contended that it had been issued without Parliamentary approval and had no status other than guidelines. The sheriff dismissed the action on the basis that it was a case for judicial review which process was incompetent in the sheriff court because that court lacked jurisdiction. The pursuer appealed to the sheriff principal who held that the pursuer's averments amounted not to the Secretary of State exceeding or abusing his powers but to his exercising them, which was a proper subject of inquiry for the sheriff court. The Secretary of State appealed to the Court of Session.
Held (1) that the pursuer had directed the court action against the Secretary of State himself and not against the actings of the prison officers, his claim being that there was no legal justification for the treatment complained of; (2) that as the pursuer had both acknowledged that the standing orders had been issued and averred that they were of no legal status, it could not be said that the Secretary of State had not exercised his powers of issuing them; and (3) that that raised the question of the validity of the standing orders which could only be challenged by way of judicial review in the Court of Session; and appealallowed.
James McFarlane McDonald, a prisoner, brought an action of declarator, interdict and damages in the sheriffdom of Tayside, Central and Fife at Stirling against the Secretary of State for Scotland. He sought interim interdict against the Secretary of State or anyone acting on his behalf from searching a prisoner without lawful authority.
The cause called before the sheriff on the pursuer's motion for interim interdict.
At advising, on 19 August 1993, the sheriff refused the motion.
The pursuer appealed to the sheriff principal.
At advising, on 31 August 1993, the sheriff principal refused the appeal.
The pursuer appealed to the Court of Session.
At advising, on 17 December 1993, the Second Division refused the appeal [see: McDonald v Secretary of State for Scotland 1994 SLT 682].
The cause was thereafter remitted to the sheriff court and came before the sheriff for debate on the preliminary pleas-in-law of the defender. The defender argued that the sheriff court had no jurisdiction in the matter to try the case and that the action was accordingly incompetent.
At advising, the sheriff sustained the defender's preliminary pleas-in-law and dismissed the action.
The pursuer appealed to the sheriff principal who allowed the appeal.
The defender appealed to the Court of Session.
Cases referred to:
Brown v Hamilton District CouncilSC 1983 SC (HL) 1
West v Secretary of State for ScotlandSC 1992 SC...
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