Kenneth Smith (ap) Against The Scottish Ministers

JurisdictionScotland
JudgeLord Pentland
Neutral Citation[2015] CSOH 15
Date12 February 2015
CourtCourt of Session
Published date12 February 2015
Docket NumberP281/14

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 15

P281/14

OPINION OF LORD PENTLAND

In the Petition and Complaint and Answers

of

KENNETH SMITH (AP)

Complainer

against

THE SCOTTISH MINISTERS

Respondents

Complainer: Pirie; Balfour & Manson LLP (for Taylor & Kelly, Coatbridge)

Respondents: Ross; Scottish Government Legal Directorate

12 February 2015

Introduction

[1] This case came before me for a hearing on a petition and complaint brought by a convicted prisoner, Mr Kenneth Smith, who is currently serving a sentence of imprisonment at Her Majesty’s Prison, Edinburgh. In the petition and complaint Mr Smith seeks a finding that the respondents, the Scottish Ministers, are in contempt of court because of breach of an undertaking they gave to the court in judicial review proceedings, which Mr Smith previously brought against them. The respondents, who had lodged answers to the petition and complaint, submitted at the hearing that they were not in contempt of court.

The context and circumstances of the case

[2] There was no significant dispute as to the facts of the case or as to the law which applied. In outline, what has led to the present proceedings may be summarised in the following way.

[3] During the complainer’s incarceration in prison he has regularly corresponded with the Risk Management Authority (“the RMA”) and the office of the UK Information Commissioner (“the ICO”). At all times material to these proceedings the ICO sent letters to prisoners in a single envelope; certain other authorities, who require to correspond with prisoners, do so by using a double envelope system. It was not the practice of the ICO to stamp its logo on the envelope. It did, however, stamp its address on the envelope in the following terms: “return address PO Box 66 Wilmslow, SK9 5AX”. The RMA also sent letters to prisoners in a single envelope. It too did not stamp its logo on the envelope. It stamped on the envelope: “RMA, 25 St James Street, Paisley, PA3 2HQ”.

[4] Section 39 of the Prisons (Scotland) Act 1989 (read with section 53 of the Scotland Act 1998) empowers the respondents to make rules for the regulation and management of prisons. In exercise of that power, the respondents made the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011/331)(“the Rules”). Part 8 of the Rules contains detailed provisions governing prisoners’ correspondence and other communications. Rule 59 provides inter alia as follows:

Privileged correspondence

  1. This rule applies only to letters and packages which –

(a) are sent to a prisoner from a person, authority or organisation specified in a direction made by the Scottish Ministers in terms of paragraph (2);

….

(2) The Scottish Ministers may specify in a direction the persons, authorities and organisations with whom a prisoner may correspond subject to the conditions specified in paragraphs (3) and (4).

(3) Subject to paragraph (5), a letter or package to which this rule applies must not be opened by an officer or employee unless –

(a) the officer or employee has cause to believe that it contains a prohibited article;

(b) the officer or employee has explained to the prisoner concerned the reason for that belief; and

(c) the prisoner concerned is present.

(4) The contents of a letter or package to which this rule applies must not be read by an officer or employee except where paragraph (5) applies.

(5) A letter or package to which this rule applies may be opened and, once opened, the contents of the letter or package may be read by the Governor, or by an officer or employee specially authorised by the Governor, where the Governor has reasonable cause to believe that the contents of the letter or package may –

(a) endanger the security of the prison;

(b) endanger the safety of any person; or

(c) relate to a criminal activity.

...."

[5] In exercise of the powers conferred by inter alia rule 59(2), the Scottish Ministers made the Scottish Prison Rules (Correspondence) Direction 2011. Paragraph 8 of the Direction is headed "privileged correspondence". It provides that prisoners are entitled to correspond with certain persons, authorities and organisations subject to the conditions specified in rule 59(3) and (4). The authorities specified for this purpose include the ICO and the RMA.

[6] Between December 2010 and December 2013 the respondents detained the complainer in Her Majesty’s Prison, Dumfries and Her Majesty’s Prison, Edinburgh (“Edinburgh”). Between December 2010 and September 2012 prison officers opened or ordered the complainer to open in their presence a number of items of privileged correspondence addressed to the complainer from the ICO and the RMA in circumstances where they were not entitled to do so. In particular, between about January 2012 and September 2012 there were 14 instances of unauthorised opening of privileged correspondence addressed to the complainer from these authorities. In view of his concerns about the repeated unauthorised opening of his privileged correspondence, the complainer brought proceedings for judicial review against the respondents. The proceedings were settled on the basis that the respondents gave an undertaking to the court in the following terms:

“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 St Paisley PA3 2HQ’ except in the circumstances provided for in rule 59(3) or 59(5) of the Prisons and Young Offenders Institutions (Scotland) Rules 2011”.

[7] By interlocutor dated 21 February 2013 the Lord Ordinary (Lord Armstrong) allowed the undertaking to be received as part of the court process, interponed the authority of the court to it and directed that the undertaking be recorded in the minute of proceedings.

[8] A number of points about the undertaking may be noted. First, it relates only to the ICO and the RMA. Secondly, there is no limit as to its duration. Thirdly, there is no restriction as to the prisons to which it is intended to apply. Fourthly, it extends significantly further than an undertaking to use best endeavours to prevent unauthorised opening of privileged correspondence; it stipulates in absolute and unqualified terms that the respondents undertake that prison officers will refrain from opening or requiring the complainer to open correspondence identified in the undertaking.

[9] In December 2013 the respondents transferred the complainer from Edinburgh to Her Majesty's Prison, Glenochil ("Glenochil"). On or about 10 December 2013 a letter from the RMA addressed to the complainer at Edinburgh was transmitted by the internal mail system, via the headquarters of the Scottish Prison Service, to Glenochil. The letter bore the stamp “RMA, 25 St James St, Paisley, PA3 2HQ”. At the time prisoners' mail arriving at Glenochil was sorted by means of a system intended to ensure that privileged correspondence was identified. The system aimed to deal with all items of privileged correspondence, not merely those covered by the undertaking. It involved a member of staff identifying and stamping privileged correspondence. There was then supposed to be a second check carried out by the head of finance to ensure that privileged correspondence had not been missed. Unfortunately in the case of the letter addressed to the complainer from the RMA, the system did not work on this occasion; the letter was not identified as privileged...

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