In The Petitions Of Andrew Somerville, William Cairns, Samuel Ralston, Ricardo Blanco And David Henderson V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Macfadyen,Lord President,Lord Nimmo Smith |
| Judgment Date | 03 November 2006 |
| Neutral Citation | [2006] CSIH 52 |
| Court | Court of Session |
| Published date | 03 November 2006 |
| Date | 03 November 2006 |
| Docket Number | P1056/02; |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Macfadyen Lord Nimmo Smith | [2006] CSIH 52 P1056/02; P573/03; P1596/03; P1651/03 and P828/04 OPINION OF THE COURT delivered by THE LORD PRESIDENT in THE PETITIONS of ANDREW SOMERVILLE, WILLIAM CAIRNS, SAMUEL RALSTON, RICARDO BLANCO and DAVID HENDERSON Petitioners and Respondents; against THE SCOTTISH MINISTERS Respondents and Reclaimers: _______ |
Alt: Brailsford, Q.C., Wolffe, Ross; Office of the Solicitor to the Scottish Executive (Respondents and Reclaimers)
3 November 2006
Introduction
[1] This is the Opinion of the Court to which each of its members has contributed substantially.
[2] On 8 February 2005 the Lord Ordinary pronounced, in each of five petitions for judicial review, an interlocutor in which she gave effect to her decisions on certain legal issues earlier argued before her. The Scottish Ministers, who are respondents to each of the petitions, have reclaimed against the interlocutor pronounced in the petitions at the instance of David Henderson, Ricardo Blanco and William Cairns in so far as each interlocutor repelled certain pleas advanced by them (pleas 1, 3 and 4) directed to issues of time-bar. These issues were not raised in the petitions at the instance of Andrew Somerville or Samuel Ralston. Each of the petitioners has, in respect of a range of other issues, cross-appealed against the Lord Ordinary's interlocutor in his case.
[3] The petitioners were each convicted of serious crimes and sentenced to custodial terms: Somerville, Ralston, Blanco and Henderson to long terms of imprisonment and Cairns to a long period of detention in a Young Offenders Institution. While in custody each was, for a period or for a number of distinct periods, removed from association with other prisoners ("segregated") in implement of orders purportedly made under Rule 80 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994 (SI 1994/19310 (as amended) ("the 1994 Rules"). The petitioners each contend that the order or orders affecting him, together with the grants and renewals of authority extending the length of the relative period or periods of segregation, were unlawful. These contentions are advanced at common law and on the basis of alleged infringements of the petitioners' rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). They seek certain remedies, including declarators and awards of damages.
[4] Rule 80 of the 1994 Rules, in so far as material, provides:
"(1) Where it appears to the Governor desirable for the purpose of -
(a) maintaining good order or discipline;
(b) protecting the interests of any prisoner; or
(c) ensuring the safety of other persons,
he may order in writing that a prisoner shall be removed from association with other prisoners, either generally or during any period the prisoner is engaged or taking part in a prescribed activity.
(2) If the Governor makes an order under paragraph (1) in relation to a prescribed activity, he may specify only one prescribed activity in the order.
[Rule 80(3) defines each of six prescribed activities.]
...
(4) If the Governor makes an order under paragraph (1), he shall -
(a) specify in the order whether the removal from association is -
(i) in general; or
(ii) in relation to a prescribed activity;
(b) if the removal is in relation to a prescribed activity, specify which
activity the order relates to;
(c) specify in the order the reasons why he is making it;
(d) record in the order the date and time it is made; and
(e) explain to the prisoner the reasons why the order is made and provide
him with a copy of the written order.
(5) A prisoner who has been removed from association generally or during any period he is engaged in or taking part in a prescribed activity by virtue of an order made by the Governor in terms of paragraph (1) shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority on the application of the Governor, prior to the expiry of the said period of 72 hours.
(6) An authority granted by the Scottish Ministers under paragraph (5) shall have effect for a period of one month commencing from the expiry of the period of 72 hours mentioned in paragraph (5) but the Scottish Ministers may, on any subsequent application of the Governor, renew the authority for further periods of one month commencing from the expiry of the previous authority.
...
(8) The Governor -
(a) may -
(i) cancel an order under paragraph (1) at any time if he considers
it appropriate to do so;
(ii) vary an order made under paragraph (1) in terms of which
the prisoner has been removed from association generally in order to restrict the effect of that order to removal from association during any period the prisoner is engaged in or taking part in any one or more prescribed activities as he may specify in the variation order;
(iii) if appropriate, further vary an order under paragraph (1) which
has previously been varied under subparagraph (ii) above by further restricting the number of prescribed activities to which removal from association applies; or
(b) shall cancel any order under paragraph (1) if a medical officer advises on medical grounds that he should do so.
...
(9) If a prisoner is moved by the Scottish Ministers from any prison to any other prison in terms of section 10 of the Act, any order under paragraph (1), or any authority under paragraph (5), made or granted in relation to the prisoner while confined in the former prison shall cease to have effect, but without prejudice to the power of the Governor of the prison to which the prisoner is moved to make a new order under paragraph (1).
... ."
[5] The issues which were raised by the parties in the reclaiming motion, and which are discussed in the following sections of this Opinion, are given these headings: Recovery of documents and Public Interest Immunity (paragraphs [6] to [21]); Statutory time-bar (paragraphs [22] to [89]); Mora (paragraphs [90] to [95]); Carltona (paragraphs [96] to [105]); Proportionality (paragraphs [106] to [126]; Adequacy of reasons (paragraphs [127] to [167]); and Procedural and pleading issues (paragraphs [168] to [175]).
Recovery of documents and Public Interest Immunity
Introduction
[6] In this section we consider the relationship between the petitioners' entitlement to recover certain documents and a decision of the Minister for Justice that a claim for Public Interest Immunity (PII) ought to be made for some of these documents, in whole or in part. Some months prior to the substantive hearing before the Lord Ordinary commission and diligence was granted to the petitioners for recovery of the documents called for in various specifications of documents lodged on behalf of each of the petitioners. We have not been invited to consider the full terms of these specifications, but it appears from the Lord Ordinary's Opinion that the documents in question related to the background to and the making of the decisions to segregate the petitioners. Mr C J MacAulay QC was appointed Commissioner.
[7] The Scottish Ministers were the only havers. They produced several hundred documents in response to the various calls. In many instances there were, however, parts blacked out so as to delete certain references, names and passages. In some cases, entire pages were blacked out. This was because the Minister for Justice had formed the view that the disclosure of these parts would be contrary to the public interest in that it would cause real harm to the work of the Scottish Prison Service ("SPS"). PII certificates were lodged in each case which set out in detail the fact that she had formed that view and the reasons why disclosure would cause such harm. The relevant passage, which is the same in all the PII certificates, is set out below. (It appears that the expression which has come to be used for the process of blacking out passages in documents in circumstances such as the present so as to render these passages illegible is "redaction". This seems to be derived from that sense of the word which relates to putting a written work into appropriate form for publication; we use it out of deference to the fact that it was used by the Minister for Justice and by counsel before us.)
[8] The petitioners, however, insisted on seeking to recover the documents in an unredacted form, except in so far as the redacted parts expressly disclosed the identities of any of the persons referred to in the PII certificates. By agreement between the parties, and in accordance with a protocol, the terms of which are set out below, counsel for the petitioners were able to consider the redacted parts of the documents, with the exception of those parts in respect of which the above concession had been made. They had, accordingly, prior to the hearing before the Lord Ordinary, had sight of all the documents for which PII was claimed in an unredacted form, apart from the redaction of identities as provided for in the protocol. It should also be mentioned that in the course of the proceedings before the Commissioner certain other passages were redacted because they contained material which was confidential to third parties and which was not within the terms of the specifications. No issue was taken with this. The Lord Ordinary heard submissions about the outstanding issues in camera, the only persons present being the parties' counsel and agents. In her interlocutor dated 8 February 2005 in each petition the Lord Ordinary, inter alia, refused to order that the documentary material covered by the relative PII certificate be produced for inspection by the court or to the petitioner. The petitioners now appeal against this...
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