Petition Of William Beggs For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lady Wolffe |
| Neutral Citation | [2016] CSOH 61 |
| Court | Court of Session |
| Docket Number | P847/14 |
| Date | 26 April 2016 |
| Published date | 20 May 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 61
P847/14
OPINION OF LADY WOLFFE
In the petition of
WILLIAM BEGGS
Petitioner;
for
Judicial Review
Petitioner: Leighton; Drummond Miller LLP
Respondent: Byrne; SGLD
26 April 2016
Introduction
[1] In this petition for judicial review the petitioner, who is a convicted life prisoner detained within HM Prison in Edinburgh, challenges on a number of bases the procedure followed in relation to two charges for alleged breaches of discipline contrary to the Prisons and Young Offenders Institution Rules 2011 (“the Rules”). In particular, the petitioner was charged with:
- a breach of discipline (under reference number ED/1230/14) said to have occurred on 7 August 2014 and said to have involved disrespectful conduct (“the first charge”); and
- a further breach of discipline (under reference ED/1236/14) on 8 August 2014 and which was said to have occurred during a hearing in relation to the first charge and said to have concerned threatening conduct (“the second charge”).
The Scottish Prison Service (“the SPS”) determined that both charges had been established.
[2] The petitioner challenges certain features of the procedure followed and which are said to be unfair in a number of respects. Separately, he argues that a departure from the Rules in one respect constituted an irregularity and that that irregularity vitiates the determination of the charges. He challenges the vires of one of the Rules. In addition to these procedural challenges, he also challenges the determination of the second charge.
[3] There were subsidiary challenges to other matters, but it is necessary first to set out the factual background. The conduct which was the subject-matter of the first charge occurred on 7 August 2014 and in the context of a complaints procedure initiated by the petitioner. As a consequence, the petitioner was served with a complaint setting out the first charge (of disrespect). It was at the disciplinary hearing convened on 8 August 2014 in respect of the first charge that the petitioner’s conduct on that occasion resulted in a second charge and a fresh disciplinary procedure in relation to the second charge. The disciplinary procedures for the first and second charges ran in tandem. For the sake of clarity, however, I will set out separately the procedure in respect of the first charge and the second charge, before turning to the Rules and the legal challenges made.
The factual background
The pre-history: the petitioner’s prior complaint to the Scottish Public Service Ombudsman (“SPSO”)
[4] The petitioner’s counsel did not attempt either in his written or oral pleadings to set out the relevant or full chronology and which must form the necessary context in which to assess a challenge of procedural unfairness. As will be seen, most of the relevant material was not placed before me until the start of the respondent’s submissions, late on the afternoon of the third day of this continued first hearing lasting four days. In the quotations in this opinion from the productions, pleadings or notes of argument I do not correct the grammatical or other infelicities found in those documents.
[5] The petitioner’s counsel did begin with the “pre-history”, as it were, and which was said to relate to the petitioner’s prior complaint to the SPSO in respect of a female member of staff, a Miss K B (“KB”). Part of that complaint alleged a failure on the part of the SPS properly to consider the petitioner’s complaint to it in respect of KB (“the original complaint”). The tenor of the original complaint included (i) that in an email communication KB had been disparaging about something said by the petitioner, (ii) that she should be required to apologise personally to the petitioner; (iii) that the minutes of an internal complaints committee (“ICC”) meeting were inaccurate; and (iv) that the petitioner insisted that KB not be allowed to participate in ICC matters concerning the petitioner.
[6] By its decision dated 28 July 2014 (no 6/1 of process), the SPSO upheld the petitioner’s complaint in part. So far as relevant to what was said to be the background of this petition, the SPSO recommended that the SPS (i) apologise for certain failings identified in the investigation of the petitioner’s complaint; and (ii) it remind staff involved in complaints handling to avoid using language that could be misinterpreted. The date for implementation of the recommendations was 25 August 2014. The second charge had been determined before this date. The first charge was determined on this date. I now require to set out the relevant context in which the petitioner’s legal challenges fall to be assessed.
The first charge
The conduct of the petitioner at the ICC hearing
[7] The petitioner attended an ICC hearing on 7 August 2014. The subject-matter of the petitioner’s complaint being dealt with at that ICC hearing is, for present purposes, irrelevant. KB was present at that ICC hearing. She was not the decision-taker, but had responsibility for taking notes of meetings. There were two employees of the SPSO sitting in at the hearing as part of their training (“the two SPSO employees”). They had no active role to play in those proceedings. As will be seen, one of the issues that arises is the absence of the two SPSO employees at the subsequent disciplinary hearing into the first charge.
[8] The finding in the first charge, as set out in the record of inquiry of the hearing into the first charge (no 7/3 of process) (“the record of inquiry into the first charge”), was that on entering the ICC hearing the petitioner stated that he was unhappy with the fact that no assurances about the supervision of KB had been received and he questioned her ability to be impartial. The petitioner was described as speaking loudly and about KB in her presence. The adjudicator presiding at the ICC hearing described the petitioner’s entry as “ranting” and “unacceptable”, given KB’s presence in the room. The petitioner had attended that ICC meeting with a letter addressed to Andrea Frost with the intention of reading it out. That letter (no 6/2 of process) was in the following terms:
“Dear Ms Frost
ICC MEETING 7 August 2014: Ms [KB] (SPS Notetaker)
You may recall that I have previously raised with you in the context of your ICC chairmanship, issues surrounding the involvement in ICC meetings of Ms [KB].
Standing that successive ICC Chairs were not prepared to deal themselves with the issues surrounding Ms [KB]’s involvement in ICC business (falsification of ICC narrative, offensive e-mail remarks, &c), I pursued a PCF2 complaint about [KB]’s conduct and ultimately receiced a wholly unacceptable response from the Governor, apparently composed by her Deputy. I pursued the matter to the Scottish Public Services Ombudsman (‘SPSO’).
By letter of 28 July 2014 the Ombudsman has confirmed having upheld my complaint in terms that Ms [KB]’s email remarks were suggestive of bias on her part, recommending that the Governor apologise for her failings in responding to my complaint, recommending that staff involved in complaint handling be reminded to use appropriate language, and recommending that a proper explanation be provided vis a vis the falsification of the ICC narrative relative to PCF1 ref: EH/140204/1607.
In the absence of confirmation of any of Ombudsman’s recommendations having been action or of any specific assurances in relation to the future conduct and supervision of Ms [KB] in the handling of this present complaint, I wish to place on record my dissatisfaction at her involvement and thank you for your attention to this matter.”
The first charge and its supporting statement
[9] As a consequence of the petitioner’s conduct the ICC hearing did not proceed and the petitioner was served later that day with a notice of a charge of breach of discipline (“the first charge sheet”). The first charge sheet, produced at no 7/1 of process, alleged that contrary to paragraph 10 of Schedule 1 to the Rules the petitioner had:
“whilst attending the ICC today, subject Miss [KB] to remarks and behaviour from yourself that she and the committee felt was disrespectful”.
Immediately below this is a pre‑printed Note for there to be “enough detail to ensure that the prisoner is fully aware of the circumstances leading to this charge” and two lines further down there is space to provide details of “Other witnesses who may speak to the charge”. The names of three persons were then provided who might speak to the first charge. These included Andrea Frost (the person presiding over the ICC hearing, and referred to variously as a unit manager or adjudicator), and KB. The first charge sheet stated that the first charge would be enquired into the next day, on 8 August 2014, at a time to be advised. The two SPSO employees were not listed on the charge sheet for the first charge.
[10] The first charge sheet is contained on a pro forma the second page of which contains the following passage:
“You will be allowed to hear all the evidence against you, to receive copies of any written statements being submitted in evidence, to question witnesses against you, and to call witnesses on your own behalf (unless the adjudicator is satisfied that a proposed witness would not have relevant evidence to give). If you wish to call witnesses yourself, it will assist if you would advise your gallery officer as soon as possible. Please note that prisoner and non-SPS witnesses cannot be compelled to give evidence. You are also entitled to access to such reference materials as you may need to help you prepare your defence, such a copy of the Prison Rules, and to have writing materials for use in taking notes during the hearing.
The adjudicator may also, in exceptional circumstances, allow you to be represented at the hearing by a legal adviser (Rule 113(9)). If you wish this to be considered in your case, please inform your gallery...
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