Scott and Davidson v Scottish Ministers (No 1)

CourtCourt of Session (Outer House)
Judgment Date26 October 2001

Court:Outer House, Court of Session


Lord Johnston

Scott and Davidson
Scottish Ministers

Appearances:O'Neill QC and Collins (instructed by Drummond Miller) for the Petitioners; Brailsford QC and Mure (instructed by the Solicitor to the Scottish Executive) for the Respondents


Whether an interim order should be granted in judicial review proceedings alleging that the conditions in prison in Scotland breached Art 3 European Convention.


The applicants, a remand prisoner and a serving prisoner at HMP Barlinnie, challenged the conditions in the prison, arguing that they breached Art 3 European Convention (inhuman and degrading treatment) and sought interim orders that they be moved pending the resolution of their applications. The Scottish Ministers contested the factual basis for the allegations; further, they argued that s. 21 Crown Proceedings Act 1947 prevented an order of specific performance being granted against the Crown and that was in effect what was sought.


1. These 2 applications take common ground with only minor factual discrepancies in respect of the detention in Barlinnie Prison in the case of Andrew Scott on remand, and in the case of Scott Davidson in custody serving a term of imprisonment, in conditions which they maintain breach Art 3 of the European Convention on Human Rights (the Convention) which relates inter alia to degrading and inhumane treatment. Both petitioners make a number of factual allegations as to the circumstances in which they are detained which need only be generally rehearsed at this stage since there are matters of fact. They relate principally to overcrowding, lack of sanitation and lack of an appropriate regime. In both cases medical reports are provided which suggest that the conditions in question are affecting the petitioners' health.

2. The matter came before me for a First Order and also on the motion of the petitioners in each case to grant an interim order in terms of para 3(c) of the petition which is in the following terms:

"Ordaining the Scottish Ministers to secure the transfer of the petitioner to conditions of detention compliant with Art 3 of the Convention whether within the prison or any other prison and for such an order ad interim."

Before me counsel for the Scottish Ministers took a preliminary plea in bar relating to the competency of granting such an order against the Crown. The submission was based on s. 21 of the Crown Proceedings Act 1947 ("the...

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1 cases
  • Scott and Davidson v Scottish Ministers (No 1)
    • United Kingdom
    • House of Lords
    • 15 December 2005 section 21 of the Crown Proceedings Act 1947 and no longer competent in Scotland even if it had been before the passing of the Act: 2002 SCLR 166, para 3. On 18 December 2001 an Extra Division dismissed Mr Davidson's appeal: 2002 SC 6 The correctness of that decision is now in issue befo......

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