William Frederick Ian Beggs For Judicial Review Of A Decision To Transfer The Petitioner From Hm Prison Edinburgh To Peterhead
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young |
| Date | 18 June 2004 |
| Docket Number | PD791/04 |
| Court | Court of Session |
| Published date | 22 June 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| PD791/04
| OPINION OF LORD DRUMMOND YOUNG in the Petition of WILLIAM FREDERICK IAN BEGGS Petitioner; for Judicial Review of a decision to transfer the petitioner from HM Prison Edinburgh to HM Prison Peterhead ________________ |
Petitioner: Bovey, QC; Blair; Balfour & Manson (for Taylor, Kelly Coatbridge)
Respondent: (Scottish Ministers): Brailsford, QC; Mure; R Henderson,
Solicitor to the Scottish Executive
18 June 2004
(1) The petitioner was convicted of murder in the High Court in September 2001. He had previously been extradited to Scotland from the Netherlands to stand trial. He is presently appealing against his conviction and sentence on a number of grounds. First, he contends that pre-trial publicity and publicity in the course of the hearing rendered a fair trial impossible. Secondly, he alleges that his extradition from the Netherlands was unlawful. Thirdly, he challenges the admissibility of certain evidence led at his trial. On 6 January 2003 the sifting judge refused leave to appeal on some, but not all, of the proposed grounds of appeal. In August 2003 the decision of the sifting judge was adhered to at the second sift. In December 2003, the petitioner presented a petition to the nobile officium in order to seek review of the second sift decision. The ground on which that petition proceeds is, according to the averments made in the present petition, that the reasons given by the original sifting judge in limiting the grounds of appeal had been addressed by the provision of new material at the stage of the second sift, but that the judges responsible for the second sift had failed properly to address this new material. I was informed that the petition to the nobile officium is very close to the stage where it will be lodged with the Clerk of Justiciary. Thereafter it will obviously be dealt with by the court, and the scope of the petitioner's grounds of appeal against conviction will finally be determined. The petitioner avers that, in view of the procedural complexity that is involved, it is thought that this will take some time. Thereafter, the substantive appeal will require to proceed in the normal manner.
(2)Following his conviction the petitioner was transferred to HM Prison Peterhead. The reason was that, because of certain aspects of the offence to which he was convicted, he was classified as a sex offender, and HM Prison Peterhead is the prison that is normally used to house long term male prisoners who are sex offenders. Thereafter he made repeated requests to the prison authorities to be transferred to a prison in central Scotland, in order that he could communicate more readily with his legal advisers. Initially, those requests were refused. On 4 May 2004, however, his request was granted and he was transferred from HM Prison Peterhead to HM Prison Edinburgh, but for a four-week period only, in order to facilitate the preparation of his appeal against conviction and sentence. On 28 May 2004 the Deputy Governor of HM Prison Edinburgh wrote to the petitioner's agents to indicate that the transfer to HM Prison Edinburgh was temporary and that the petitioner is due to be returned to HM Prison Peterhead on 1 June 2004.
(3) The petitioner has now lodged a petition in which he seeks, first, declarator that the decision of 28 May 2004 that the petitioner be removed from HM Prison Edinburgh and returned to HM Prison Peterhead is incompatible with article 6 of the European Convention on Human Rights, and is accordingly ultra vires of the Scottish Ministers by virtue of section 57(2) of the Scotland Act 1998. That decision is said to contravene article 6 because it interferes disproportionately with the petitioner's right of access to the court and to his legal advisers. The declarator is also sought ad interim. Secondly, the petitioner seeks an order interdicting the Governor of HM Prison Edinburgh and the Scottish Ministers from implementing the decision to transfer the petitioner from HM Prison Edinburgh until the conclusion of his appeal against conviction and sentence; once again, interdict is sought ad interim. Failing interdict, the petitioner seeks an order declaratory of his right to interdict but for the terms of section 21 of the Crown Proceedings Act 1947. When the case called before me following the lodging of the petition, the order sought by counsel for the petitioner, in addition to a first order, was for interim interdict or interim declarator in terms of the second of the orders specified in the petition.
(4) The petitioner avers that detailed and lengthy preparations are required for his petition to the nobile officium and his substantive criminal appeal. He further avers that these preparations require substantial contact with his legal advisers. It is said that he has only limited access to the telephone, and that all such communications may be monitored by the prison authorities for security purposes. The petitioner further avers that he has had cause to complain in the course of his detention in HM Prison Peterhead about interference by prison officers with his legal correspondence, contrary to the requirements of Prison Rule 50. Following that interference, the petitioner raised proceedings for judicial review, as a result of which the Scottish Ministers gave a formal undertaking to the court to instruct prison staff in HM Prison Peterhead to abide by the terms of Rule 50. I should observe at this point that it is clear that certain prison officers at HM Prison Peterhead were at one time over-zealous in the examination of the petitioner's correspondence. Much of the trouble, however, appears to have arisen because privileged legal correspondence was not marked as such. In any event, when the petitioner complained the senior officers in the prison generally took action to ensure that legal correspondence was not interfered with provided that it was marked appropriately. The petitioner nevertheless avers that he remains apprehensive that his privileged correspondence with his legal advisers in relation to his appeal and application to the nobile officium may be compromised. He accordingly submits that proper preparation for his applications to the court requires direct face-to-face contact in consultation with his legal advisers. While he has been detained in HM Prison Peterhead, face-to-face consultations directly between the petitioner and his counsel and agents have been at far less frequency, it is said, than the complexity of the legal issues raised in the appeal and petition to the nobile officium merit. That has occurred because of the distance between Peterhead and the petitioner's legal advisers, who are located in central Scotland.
(5) In these circumstances, it is said, the petitioner's location at HM Prison Peterhead pending the resolution of his criminal appeal has resulted in a disproportionate interference with his right to effective access to his legal advisers such as to ensure proper access to the court in accordance with article 6 of the European Convention on Human Rights. In support of this submission, counsel for the petitioner pointed out that the Scottish Prison Complaints Commissioner had, in about October 2003, made a formal recommendation to the Chief Executive of the Scottish Prison Service that the petitioner be transferred from HM Prison Peterhead to a prison closer to his legal advisers to facilitate continuing communications with them in preparation for his appeal. Counsel also pointed out that the petitioner had been accommodated in HM Prison Edinburgh for nine months prior to his trial.
(6) Immediately after the present petition was lodged a motion was enrolled for interim interdict which failing interim declarator in terms of the second order sought in the petition. The relevant interdict, if granted, would prohibit the Governor of the HM Prison Edinburgh and the Scottish Ministers from implementing the decision to transfer the petitioner from HM Prison Edinburgh until the conclusion of his appeal against conviction and sentence. Any declarator would be to the same effect. Thereafter I heard a detailed argument on the petitioner's motions. Two areas of law were traversed in the course of the argument. The first was whether the orders sought by the petitioner were competent in view of the terms of section 21 of the Crown Proceedings Act 1947. The second was whether, in the events that the petitioner satisfied the requirements of competency, an interim order was justified having regard to the usual considerations of a prima facie case and the balance of convenience.
Scope of section 21 of the Crown Proceedings Act 1947
(7) Section 21(1) of the Crown Proceedings Act 1947, so far as it is applicable in Scotland, is in the following terms:
"In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:
Provided that: --
(a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of [interdict] or specific performance, the court shall not grant an [interdict] or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties;...".
It is not in dispute that the Scottish Ministers count as the Crown for the purposes of the 1947 Act; that is clear from the definition of "officer" in section 38(2) of the Act, as amended by paragraph 7(2)(c) of Schedule 8 to the Scotland Act 1998.
(8)It is convenient to start with the second order sought by the petitioner, which in its primary form is for interdict against transfer from HM Prison Edinburgh pending the conclusion of the petitioner's appeal against conviction and sentence. In my opinion such an order is...
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