Petition By Kenneth Smith For Breach Of Undertaking
| Jurisdiction | Scotland |
| Judge | Lady Wise |
| Neutral Citation | [2016] CSOH 89 |
| Date | 08 June 2016 |
| Docket Number | P1040/15 |
| Court | Court of Session |
| Published date | 30 June 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 89
P1040/15
OPINION OF LADY WISE
In the petition
KENNETH SMITH
Petitioner;
for
Breach of Undertaking
Petitioner: McBrearty QC, Pirie; Balfour + Manson LLP (for Taylor & Kelly)
Respondents: Lord Advocate, Ross; Scottish Government Legal Directorate
8 June 2016
[1] This is a second petition and complaint by a prisoner Kenneth Smith seeking a finding that the respondents, the Scottish Ministers, are in contempt of Court by breaching an undertaking they gave to this court in judicial review proceedings brought at his instance.
[2] In February 2015 Lord Pentland disposed of the first petition and complaint by making a finding of contempt of Court against the Scottish Ministers who had opposed the making of such a finding.
[3] The circumstances that led to the undertaking being given and the Scottish Ministers being in breach of it are set out in paragraphs 2-11 of Lord Pentland’s opinion, now reported at 2015 SLT 131. In essence, prior to the undertaking being given on 21 February 2013, the prison authorities appear, on at least 14 occasions, to have opened privileged correspondence addressed to the petitioner which they had no authority to open either in terms of their own guidance or as a matter of law. On the face of it the unauthorised opening of privileged correspondence represents an unlawful interference with the petitioner’s article 8 rights.
[4] The undertaking states in terms that “the Scottish Ministers hereby undertake that prison officers in the Scottish Prison Service will refrain from opening or requiring the petitioner to open in their presence letters or packages addressed to the petitioner and bearing the stamps Return Address PO Box 66, Wilmslow, SK9 5AX, or RMA, 25 St James Street, Paisley, PA3 2HQ”, save in circumstances that do not apply in the previous petition and complaint nor in that before me. The undertaking was breached and after a hearing to determine whether that breach constituted a contempt of Court, Lord Pentland, as I have indicated, found that it did.
[5] That finding of contempt of Court was made on 21 February 2015. The circumstances giving rise to the present petition and complaint are that on about 28 March 2015 two prison officers involved in separating the petitioner’s mail into “privileged correspondence” and “general correspondence” failed to categorise an envelope bearing the stamp “PO Box 66, Wilmslow, SK9 5AX” as privileged correspondence and opened it in the presence of the petitioner. The address referred to is that of the UK Information Commissioner, “the ICO”. The respondents accept that in accordance with the undertaking and the rules referred to therein, the envelope should not have been opened. They accept that it constituted a breach of the undertaking. In contrast to the position taken before Lord Pentland the respondents now accept that there were reasonable steps that could have been taken to avoid the breach and that a finding of contempt of Court should accordingly be made. Those concessions having been made the hearing before me essentially addressed issues of mitigation and disposal.
[6] For the Scottish Ministers the Lord Advocate appeared in person as a mark of the gravity of the situation and as a member of the Scottish Government answerable for this second breach. He explained the steps that had been taken following Lord Pentland’s finding of contempt of Court. Amongst other things a review of procedures in place at Her Majesty’s Prison, Edinburgh was carried out. The opinion of Lord Pentland was circulated to all governors and to directors of private prisons. A guidance document entitled “The Management of Incoming Mail received into this establishment, in particular mail addressed to Mr Kenneth Smith” was sent to every senior manager and first line manager at Edinburgh. The governor at Edinburgh held meetings with mail handling staff and managers. The seriousness of the contempt of Court finding was emphasised. A revised version of a guidance document on prisoners’ correspondence and privileged mail was issued in March 2015. The terms of the undertaking were recirculated by email to relevant staff.
[7] In essence, the breach with which this petition is concerned arose because the staff involved checked the letter which is the subject against the guidance available on the Scottish Prison Service intranet but not against the undertaking. The envelope did not bear the logo of the Information Commissioner but the...
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