Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
P1091/01	OPINION OF LORD HARDIE in the petition of MICHAEL AITKEN Petitioner; for Judicial Review of a decision of the Governor of Shotts Prison to unlawfully detain the Petitioner in custody between 11 December 2000 and 19 July 2001   ________________

 

 

Petitioner: N Mackenzie, Advocate; Bennett & Robertson

Respondents: Howlin, Advocate; Henderson, Solicitor to the Scottish Executive

24 October 2002

1. In this case the petitioner narrates that he was formerly a prisoner in HM Prison Shotts but was released on 19 July 2001. He maintains that he ought to have been released unconditionally on 11 December 2000. The petition was presented on 21 September 2001. It purports to be a petition for judicial review in which the petitioner seeks a declarator that the decision of the Governor of HM Prison Shotts to detain him between 11 December 2000 and 19 July 2001 was ultra vires and that the petitioner ought to have been released on 11 December 2000. There are further claims for damages in the sum of £20,000 and expenses together with the usual reference to the petitioner seeking such further order, decree or orders as may seem to the Court just and reasonable in all the circumstances of the case.
2. This case came before me to enable the respondents to argue a preliminary plea of competence. It was explained that if I repelled the plea to the competence of the petition I should continue the first hearing to enable the respondents to lodge answers to the petition.
3. The facts of the petition are in short compass. The petitioner was sentenced to five years, three months imprisonment at the High Court of Justiciary in Edinburgh on 4 November 1996. The sentence was back-dated to 20 April 1996 and was thus due to expire on 19 July 2001. On 3 December 1998 the appellant was released on licence in terms of section 1(3) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (hereinafter referred to as "the 1993 Act"). On 2 November 1999 the petitioner's licence was revoked in terms of section 17 of the 1993 Act by reason of a suspicion that he had committed further offences. On 15 February 2000 the petitioner pleaded guilty to two charges at Hamilton Sheriff Court. The case was referred to the High Court of Justiciary in terms of section 16 of the 1993 Act and on 10 March 2000 the High Court of Justiciary made an order under section 16 of the 1993 Act returning the petitioner to prison for a period of one year from that date. On 13 March 2000 the sheriff at Hamilton sentenced the petitioner to 18 months imprisonment for the two subsequent assaults, said sentence to run concurrently with the section 16 order.
4. On 8 November 2000 an official in the Scottish Prison Service wrote to the petitioner advising him of the calculation of his sentence. The said letter is 6/1 of process. In terms of that letter the author advised the petitioner that in the absence of a recommendation from the Parole Board to release him on parole from his first term, being the sentence imposed on 4 November 1996 at the High Court of Justiciary at Edinburgh, he would be detained in custody until 19 June 2001. In relation to the second term, being the period specified under section 16 of the 1993 Act and the sentence imposed at Hamilton Sheriff Court on 13 March 2000, the petitioner was advised that the unconditional release date was 10 December 2000. The letter explained to the petitioner that the second term ran in parallel with the first term, from which he was "not entitled to release until 19 July 2001, unless the Parole Board directs otherwise". The letter also referred to a supervised release order with which the petition is not concerned. However, the letter concluded that the matter of sentence calculation is a complex issue and the author suggested that the petitioner should consult his legal adviser about his position.
5. Counsel for the respondent maintained that the petition was incompetent. The appropriate remedy for unlawful detention was an action of damages. Under reference to McDonald v Secretary of State for Scotland 1996 SC 113, counsel for the petitioner submitted that the proper approach was to consider what the present proceedings were truly about and to ask whether they involved the supervisory jurisdiction of the court. If one adopted that approach the present action was in reality a claim for damages in respect of unlawful detention. I was also referred to Walsh v Secretary of State for Scotland 1990 SLT 526. That was a case where an ordinary action of damages was raised in respect of an allegation of wrongful imprisonment. That case was of particular relevance in the present case because it also related to an action raised after the prisoner had been released. There were numerous examples of cases in which the issue in the present petition had been raised in the context of ordinary actions. Reference was made to Duffy v Secretary of State for Scotland 1999 SLT 1372, Williams v Scottish Ministers 2000 SLT 1427 and the unreported opinion of Lord Johnston dated 23 March 2000 in Gary Lane Moore v The Scottish Ministers. In the case of Moore v Scottish Ministers it appears that the pursuer was still in custody because the case came before the Lord Ordinary on a motion for interim liberation. Thus even in cases where prisoners are still in custody, it is possible to deal with all relevant issues, including the question of interim liberation, in the context of an ordinary action for declarator and damages.
6. Counsel for the respondents also referred to West v Secretary of State for Scotland 1992 SC 385 and submitted that the supervisory jurisdiction of the Court was intended to control the manner in which a third party exercised a decision making power which had been conferred upon that third party. In the present case the Governor of HM Prison Shotts had not taken any decision and was not entrusted with any decision making power which was subject to review. The respondents have a duty to release prisoners including the petitioner in accordance with certain statutory provisions. If the respondents erred in the application of these provisions or in the arithmetical calculation undertaken by them prior to their sending to the petitioner the letter dated 8 November 2000 (6/1 of process), this is not a decision which is subject to judicial review. It may give rise to a separate remedy of damages if it can be established that the respondents are, in fact, in error. In such circumstances the proper remedy is an action of damages. In this regard I was referred to an unreported opinion of Lord Marnoch dated 9 March 1994 in the petitions of Paul Maguire and Others for judicial review of decisions by the Secretary of State for Scotland in respect of the date of release of the petitioners.
7. In response counsel for the petitioner submitted that the petition was competent. It had the constituent elements necessary for a petition for judicial review. It was accepted by counsel for the petitioner that the decision complained of must involve the exercise of a discretion in line with the decision in West v Secretary of State for Scotland. The failure to release the petitioner timeously was a decision in that sense. It was submitted that governors of prisons had responsibility for the inmates and had legal custody of them. It was for the governor to decide when a prisoner should be released. If he failed to release a prisoner when he ought to, that was a decision by him, which was subject to the supervisory jurisdiction of the Court. Reference was made by counsel for the petitioner to Regina v Governor of Brockhill Prison, ex parte Evans (No 2) 2000 3 WLR 843. It was further submitted that judicial review is not excluded simply because alternative remedies are available.
8. Having considered the submissions and the authorities referred to I agree with the submission by counsel for the petitioner that a petition for judicial review is not rendered incompetent by the mere fact that an alternative remedy is available to the petitioner. However I consider that, in general, it is desirable that litigants should pursue other remedies available to them before invoking the supervisory jurisdiction of the Court. If that were not the preferred general practice, litigants could gain priority for their cases by electing to proceed by a petition for judicial review in view of the accelerated procedure adopted in such petitions. In the present case the petitioner will have available to him an action of damages, if his allegation that he was wrongfully detained is well founded. It appears from Regina v. Governor of Brockhill Prison ex parte Evans (No 2) that there is strict liability if there has been unlawful detention. I did not consider that case to be of assistance in determining the competence of this petition, having regard to differences in procedure and approach adopted to judicial review in Scotland and England.
9. In the present case the petitioner alleges that the Governor of HM Prison Shotts erred in calculating the petitioner's date of release and the judicial review is taken against his decision to detain the petitioner unlawfully. The calculation of the period to be spent in custody was set out in the letter dated 8 November 2000 (6/1 of process) which advised the petitioner to consult his legal adviser at that date. Moreover it appears from the petition that the Parole Board decided on 21 November 2000 that the petitioner should be detained until the expiry date of his original sentence, namely 19 July 2001. The petitioner does not seek judicial review of the decision of the Parole Board, although in view of their decision dated 21 November 2000 the Governor would appear to have had no alternative but to detain the petitioner. If the respondents have erred, their error is either an arithmetical error or an error based upon a view taken about substantive law. In my opinion neither of these can be regarded as a "decision" susceptible to judicial review, even although the error may have affected the rights of the petitioner. In that regard, for the reasons given by him, I respectfully agree with the views expressed by Lord Marnoch at page 3 of his opinion in the petitions of Paul Maguire and Others.
10. Accordingly I have reached the view that the petition is incompetent. There was no exercise of a discretion on the part of the Scottish Ministers or of the Governor of Shotts Prison in determining the date of release of the petitioner. The respondents purported to calculate the date of release in accordance with the legislation. If they have erred either in their interpretation of the legislation or in the calculation of the period which the petitioner should have served before release, the petitioner will have a remedy of damages against the respondents.
11. In the course of his submissions counsel for the petitioner invited me to permit the petition to proceed because the dismissal of the petition and the subsequent raising of an action of damages would be a waste of public expenditure in view of the fact that the petitioner is in receipt of legal aid. I did not consider this submission to be of any import in my determination of the issue of the competence of the petition. Accordingly I shall dismiss the petition as incompetent.