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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Beggs, Re Petition for Judicial Review [2003] ScotCS 245 (23 September 2003)
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Cite as: [2003] ScotCS 245
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Beggs, Re Petition for Judicial Review [2003] ScotCS 245 (23 September 2003)
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OUTER HOUSE, COURT OF SESSION |
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P1337/03
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OPINION OF LORD JOHNSTON in Petition of WILLIAM BEGGS Petitioner; for Judicial Review
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Petitioner: O'Neill, Q.C.; Balfour & Manson (Taylor & Kelly, Solicitors, Coatbridge)
Respondent: Mure; R. Henderson, Solicitor
23 September 2003
[1] This petition called before me for a first order and for interim interdict in terms of paragraph 3(c) of the petition which is in the following terms:
"An order interdicting the Scottish Ministers and the Governor of H.M. Prison Peterhead from requiring the petitioner, during his present period of detention in the said prison, to open or have opened in the presence of a prison officer or prison officers except on due cause shown, all and any privileged correspondence sent to him while detained in H. M. Prison Peterhead; and for interdict ad interim; which failing, an order declaratory of the right of the petitioner to such an order, but for the terms of Section 21 of the Crown Proceedings Act 1947".
[3] I refused interdict for three reasons.
[4] In the first place the case raises the general question of competency already focused in the recent petitions of Scott and Davidson which I heard at first instance and issued a judgement on 26 October 2001. Inter alia I determined that I was bound on the question of competency in respect of an interdict against the Crown or now Scottish Ministers by the terms of section 21 of the Crown Proceedings 1947 and by a decision of the Second Division in the Macdonald v Secretary of State for Scotland 1994 S.C. 234. I refer to my reasoning in that opinion.
[5] Davidson is on appeal but has not yet resolved the issue of competency for various reasons. In my view therefore the position I took in Davidson was one I required to take again at this stage in this case. I therefore ruled for the reasons given in that case that the application is incompetent.
[6] In the second place I do not consider a prima facie case has been made out. Despite the length and complexity of the pleadings the only issue that was focused before me claiming to raise an interdict question was the fact that the prison governor in the various announcements has required that legal correspondence to avoid being opened must be marked as such on the outside of the envelope. This, Mr O'Neill maintained went beyond the rules applying to prisoner's correspondence and in turn amount to a breach of his client's human rights in terms of the European Convention on Human Rights.
[7] I am quite unable to accept this submission. It seems to me that even if the rules do not expressly deal with it, the requirement amounts to no more than common sense. If the complainer wishes his legal correspondence to be protected as such, it should be identified. The imposition of the burden so called by adding the words "legal correspondence" to the relevant envelope cannot be regarded as substantial. So far from prejudicing the rights of the petitioner it seems to me to enhance them. I therefore regard the application based on this ground as a technicality bordering upon absurdity.
[8] Thirdly, if I am wrong in the second place it seems to me that the balance of convenience does not favour the granting of interdict. Counsel for the Scottish Ministers tendered at the bar an undertaking which makes it clear that it provided the correspondence in question is so marked, the Governor himself would ensure that it is not opened and is passed directly to the prisoner. Here again, accordingly, the adding of the two relevant words provides an alternative remedy making interim interdict unnecessary. Mr O'Neill vaguely suggested that the interdict was actually to stop mistakes but if a mistake is genuinely such, it would not be stopped by a court order since it would not be an intentional breach of the rules. Insofar as an interdict would enforce the present position, it therefore seems to me to be quite unnecessary.
[9] For these reasons I refused the motion.
[10] If the only issues before me had related to the second and the third matters, I would not have granted leave to reclaim. However, the unresolved matter which I focused on the first place is an important issue and because of that I granted leave to reclaim in respect of the whole application.