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Beggs, Re Application for Judicial Review [2004] ScotCS 145 (18 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 incompetent, because of the terms of proviso (a) to section 21(1) of the 1947 Act. The wording of the proviso is very clear: "the court shall not grant an [interdict]..., but may in lieu thereof make an order declaratory of the rights of the parties". The proviso was considered by the Second Division in McDonald v Secretary of State for Scotland, 1994 SC 234. Lord Justice Clerk Ross referred to the terms of section 21 and continued (at 239):

"It is thus clear that certain restrictions are imposed by s 21 upon the granting of interdict in any civil proceedings against the Crown. The Act of 1947 in this respect changed the law of Scotland. Prior to the passing of the Act of 1947, the court in Scotland did on occasion pronounce interdict and interim interdict against the Crown (Russell v Magistrates of Hamilton, 1897, 25 R 350; Bell v Secretary of State for Scotland, 1933 SLT 519).... As is observed in Fraser's Constitutional Law (2nd ed), at p 165, interdict procedure is especially valuable because it includes procedure for obtaining an immediate interim interdict, either to preserve the status quo pending the final decision of the court or to prevent the commission of a threatened wrong. In both the cases cited interim interdict was pronounced against the Crown....

I accordingly agree with counsel that one effect of the Crown Proceedings Act 1947 has been to deprive litigants in Scotland of a right which they previously had, namely, a right to obtain interdict and interim interdict against the Crown".

The opinion of Lord Sutherland is to similar effect. McDonald was followed by Lord Johnston in Scott and Davidson, 26 October 2001, where it was treated as authority for the proposition that an interim order for specific performance against the Scottish Ministers was incompetent. In these circumstances I consider that the law is very clear, and that neither interdict nor interim interdict can be granted against the Crown.

[9] In McDonald a further argument, based on the terms of the definition of "civil proceedings" in section 38(2) of the 1947 Act, was presented by the amicus curiae who had been appointed by the court. The definition of "civil proceedings" is as follows:

" 'Civil proceedings' includes proceedings in the High Court or the county court for the recovery of fines or penalties, but does not include proceedings on the Crown side of the King's Bench Division".

In Scotland, references to the High Court and county court are to be construed as references to the Court of Session and Sheriff Court: section 43(a). The argument for the amicus curiae, which is set out at page 243 of the report of McDonald, was that interim interdict might be available in proceedings for judicial review in the Court of Session on the basis that such proceedings did not constitute civil proceedings against the Crown within the meaning of section 21(1). In England, the exclusion of proceedings on the Crown side of the King's Bench Division in section 38(2) made it clear that proceedings by way of the prerogative orders, including judicial review, did not constitute civil proceedings for the purposes of the Act. While the supervisory jurisdiction of the Court of Session was not expressly excluded by the definition of "civil proceedings", the effect in the two jurisdictions should be similar, and proceedings for judicial review should be excluded from the ambit of section 21. Counsel for the petitioner adopted this argument. In doing so, he made reference to Murray v Comptroller-General of Patents, 1932 SC 726, where Lord Fleming construed a reference in the Patents and Designs Act 1907 to procedure by originating summons, a distinctively English form of procedure, as covering equivalent proceedings in Scotland.

[10] In McDonald, the Lord Justice Clerk observed (at 1994 SC 243) that there appeared to be formidable difficulties in the way of the submission that the supervisory jurisdiction of the Court of Session did not constitute civil proceedings within the meaning of section 21. It was not, however, necessary to determine that matter in the case under consideration, because it involved proceedings that had been begun in the sheriff court. In my opinion of the argument based on the definition of "civil proceedings" faces two insuperable obstacles. In the first place, the 1947 Act applies to Scotland as well as to England and Wales, and it makes express provision for Scots law where that is necessary. The supervisory jurisdiction of the Court of Session had been clearly established for many years prior to 1947. In these circumstances, if it had been the intention of the Act to exclude proceedings under the supervisory jurisdiction from the ambit of section 21, that would have been done directly, by an express reference either to the supervisory jurisdiction of the Court of Session or to proceedings for judicial review. Thus the supervisory jurisdiction might have been expressly excluded from the definition of civil proceedings in section 38(2), in the same way as proceedings on the Crown side of the King's Bench Division. Alternatively, the interpretation section applicable to Scotland, section 43, could have provided an equivalent for the reference to the Crown side of the King's Bench Division. No such provision appears, however, and the obvious inference is that proceedings by way of judicial review fall within the definition of civil proceedings for the purposes of the Act.

[11] In the second place, it is not apparent to a Scottish court what the scope of the Crown side of the King's Bench Division was in 1947. I understand that that expression included the prerogative writs, now known as prerogative orders, of mandamus, prohibition and certiorari, but it is obvious that these form a very technical area of English law and procedure. I am by no means satisfied that there is any direct equivalence to the supervisory jurisdiction of the Court of Session, nor that there is any equivalence between any of the prerogative orders and the Scottish remedy of interdict. Moreover, the highly technical nature of this area of law is a strong indication that the reference to English forms of procedure cannot have been intended to extend from one jurisdiction to the other merely by implication. The decision in Murray can readily be distinguished. That case involved a section of the Patents and Designs Act 1907 that permitted an application to extend a patent in certain circumstances. A subsection inserted by the Patents and Designs 1919 provided that, where by reason of hostilities a patentee had suffered loss and damage, an application under the section might be made by "originating summons" instead of by petition. The expression "originating summons" was unknown in Scots law. Nevertheless, Lord Fleming held that a Scottish patentee was entitled to the same privilege enjoyed by English patentees, notwithstanding the use of the technical English expression. In this case the reference to a distinctively English form of procedure was plainly incidental to the substantive right conferred by the relevant provision; moreover, it was obvious that a particular forum of procedure, namely an application by petition, was available as an equivalent in Scotland. Both of these features distinguish the case from the present. In these circumstances I reject the argument that the supervisory jurisdiction of the Court of Session is excluded from the definition of "civil proceedings" for the purposes of the Act.

[12] The second order sought by the petitioner refers in the alternative to an order declaratory of the right of the petitioner to an order for interdict. That form of declarator does not appear particularly well expressed, but its purpose is clearly that the court should pronounce a declarator that the Governor of HM Prison Edinburgh and the Scottish Ministers are not entitled to transfer the petitioner from HM Prison Edinburgh until the conclusion of his appeal against conviction and sentence. Counsel for the petitioner sought an interim declarator in terms of that provision. Section 21(1)(a) of the 1947 Act refers to the court's making an order declaratory of the rights of the parties in lieu of an order for interdict. It does not, however, make any reference to interim declarator. I am nevertheless of opinion that it is competent, in an appropriate case, for the court to pronounce an interim declarator under this section. The matter is touched upon to some extent in McDonald v Secretary of State, supra, where the Lord Justice Clerk referred (at 1994 SC 239) to the opinion of Lord Fraser in his work on Constitutional Law. Lord Fraser stated (2^nd ed, page 166):

"Presumably it will be possible in future to obtain an interim declaratory order, corresponding to an interim interdict, for these purposes, but the point is not altogether clear from the terms of the Act".

The Lord Justice Clerk further referred, in the passage quoted at paragraph (8) above, to the utility of interim interdict in preserving the status quo pending a final decision or preventing the commission of a threatened wrong. These are clear practical advantages of the remedy. Two further considerations also appear relevant. First, the remedy of interim interdict is one that is generally competent in any case where a final interdict is sought. Secondly, prior to 1947 both interdict and interim interdict were competent against the Crown in Scotland. When, therefore, section 21(1)(a) refers to an order declaratory of the rights of the parties being made in lieu of an order for interdict, I am of opinion that that is intended, in appropriate circumstances, to include an order for interim declarator as well as a final declarator. It is necessary, however, to consider with some care the approach that should be taken to interim declaratory orders pronounced under section 21.

Interim declaratory orders pronounced under section 21(1)(a)
[13] In my opinion the general approach of the court to interim declarators pronounced under section 21 should be the same as the approach to interim interdict. The party seeking interim declarator must demonstrate a prima facie case, and it must also appear that the balance of convenience favours the grant of an order ad interim. In relation to the balance of convenience, the need to preserve the status quo may be a relevant consideration. So may the respective strengths of the parties' arguments. In addition to these general considerations, however, two specific considerations appear to me to be of importance in any application for interim declarator under section 21.

[14] First, the court should not grant an interim declarator that prejudges the merits of the case. At the stage where an interim order is considered, the factual information and arguments put before the Court will normally be limited in scope, and in those circumstances the Court cannot form any definitive view of the parties' rights and obligations. Moreover the party seeking an interim declarator will usually do so on the basis that his factual and legal contentions are correct. Any declarator pronounced on that basis, however, will be hypothetical, because the factual basis on which it proceeds has not been, and indeed at that stage in the litigation cannot be, determined by the Court. This is illustrated by the decision of Lord Fraser in Ayr Town Council v Secretary of State for Scotland, 1965 SC 394, and also by the earlier decision of Lord Strachan in Robertson v Lord Advocate, reported as an appendix to Lord Fraser's decision at 1965 SC 400. In Ayr Town Council v Secretary of State, the pursuers sought to challenge a proposed Order regulating the water supply in their area. Their first conclusion was for declarator that the relevant Order was ultra vires of the statutory powers under which it bore to be enacted and that accordingly the Secretary of State was not entitled to make such an Order. There followed a conclusion for declarator and interim declarator that it was the duty of the Secretary of State to refrain from causing any local inquiry to be held into the proposed Order, and for interdict and interim interdict in similar terms. It was argued for the Secretary of State that the holding of an inquiry was mandatory under the relevant legislation, and that it was accordingly impossible for the court to declare that it was his duty to refrain from holding an inquiry. Counsel for the pursuers submitted in reply that the whole procedure followed by the Secretary of State was bad for reasons averred by the pursuers, namely that there was no evidence before the Secretary of State to entitle him to come to the conclusion that the fundamental conditions specified in the Act for the making of an Order were satisfied. Lord Fraser continued (at 1965 SC 399):

"But that is the very question which is raised by the first conclusion of the summons and I am not in a position to decide it at this stage. Until I have decided whether the procedure taken by the Secretary of State is vitiated by the error averred..., I do not see how I can declare the rights of parties with regard to the holding of a local inquiry. It seems to me that what the pursuers are really asking me to do is to treat their averments, so far as relating to the first conclusion, pro veritate, and, upon the assumption that those averments are correct, to make an order declaratory of their rights in relation to the second and third conclusions as to an inquiry. Such an order would be hypothetical and the Crown Proceedings Act, 1947, does not, in my opinion, entitle me to make such a hypothetical declaratory order of the rights of parties".

Robertson was cited in support. The critical point was that the interim order sought by the pursuers in terms of the conclusion for declarator was based on the assumption that the proposed Order was ultra vires of the legislation. The validity of the Order was the main issue in the case, however, as focused by the first conclusion of the summons; consequently any interim declarator would be based on a hypothesis that was sharply in dispute between the parties but had not been adequately tested in the argument before the court. Any order would accordingly involve prejudging the merits of the case, which is the expression used by Lord Strachan in Robertson (at 1965 S.C.402).

[15] Secondly, in considering the balance of convenience the court must recognise that at the stage of an interim order consideration of the issues in dispute is of necessity of a provisional and incomplete nature. In view of that limitation it is important that, at least in cases where a public authority has purported to act under statutory powers, the court should be slow to direct how those powers should be exercised, and should not act in such a way as to foreclose significant budgetary decisions. In Scottish Milk Marketing Board v Paris, 1935 SC 287, Lord President Clyde stated (at 298) "the balance of convenience seems to lie in favour of maintaining the public administration... free of interference or obstruction, in accordance with the interpretation officially given to it by its administrators". That passage was cited with approval by Lord Strachan in Robertson (at 1965 SC 402).

Merits
[16] Before I deal with the merits of the present application, I should refer to the statutory background against which it is made. Under section 1 of the Prisons (Scotland) Act 1989, as amended by the Scotland Act 1998, the Scottish Ministers exercise general control over prisons in Scotland. Section 10 of the same Act is in the following terms:

"(1) A prisoner may be lawfully confined in any prison.

(2) Prisoners shall be committed to such prisons as the Scottish Ministers may from time to time direct, and may be moved by the Scottish Ministers from any prison to any other prison".

Section 10(3) provides that the foregoing provisions are without prejudice to section 117 of the Criminal Procedure (Scotland) Act 1995, which deals with the transfer of prisoners in connection with the hearing of criminal appeals. The latter provision is obviously designed to secure the attendance of prisoners at their appeals; in my opinion it has no bearing on the construction of the remainder of section 10. The effect of section 10 is to confer a general discretion on the Scottish Ministers as to the prison in which a prisoner serves his sentence. The predecessor of section 10, section 9 of the Prisons (Scotland) Act 1952, was considered in Thomson, 1989 SLT 343. In that case, Lord Dervaird made the following comments (at 344L-345C):

"I find myself in agreement... that as a matter of principle a decision of the Secretary of State to transfer a prisoner under s. 9 of the Prisons (Scotland) Act 1952 might the reviewable. But I also agree... that the policy of the statutory provision is to confer an absolute discretion within the law on the Secretary of State to make such executive decisions as he thinks fit in this respect for operational and security reasons. Accordingly it would only be reviewable if it could be shown that in exercising that very wide discretion he had misdirected himself in law.... [I]t would in my opinion be a rare and exceptional case in which the occasion of such a review would arise, and strong averments would require to be made by a convicted prisoner to bring himself within the ambit of judicial review".

I respectfully agree with that approach.

[17] For the petitioner it was argued that the discretion conferred by section 10(2) to determine the prison in which a prisoner was to be detained was subject to the requirements of article 6 of the European Convention on Human Rights. In particular, article 6(3) provides that everyone charged with a criminal offence has a right to adequate time and facilities for the preparation of his defence. The argument for the petitioner is, in short, that proper preparation of the petition to the nobile officium and the subsequent appeal is impossible if he is confined in HM Prison Peterhead and his advisers are in central Scotland.

[18] In the circumstances of the present case I am of opinion that interim declarator should be refused, for a number of reasons. In the first place, I consider that the present case cannot be distinguished from Ayr Town Council v Secretary of State, supra, and Robertson v Lord Advocate, supra. The first declarator sought in the present petition is to the effect that the decision to remove the petitioner from HM Prison Edinburgh to HM Prison Peterhead is incompatible with article 6 and accordingly ultra vires of the Scottish Ministers as a decision that disproportionately interferes with the petitioner's right of access to the court and to his legal advisers. That is the fundamental issue raised in the present petition. The second declarator sought by the petitioner is, in effect, that implementing the decision to transfer the petitioner from HM Prison Edinburgh is unlawful. The remedy that is now sought by the petitioner is an interim order in terms of the second declarator. Any declarator that the transfer is unlawful must assume that the decision to make the transfer is unlawful. The validity of the underlying decision, however, has not been the subject of full argument at this stage of the petition. The result is that the petitioner asks the court to assume that his averments relating to the unlawfulness of the decision to transfer are correct in fact and in law, and to pronounce an interim declarator accordingly. That is exactly what Lord Fraser refused to do in Ayr Town Council v Secretary of State, on the ground that it involved prejudging the merits of the case and pronouncing an interim declarator on a hypothetical basis.

[19] In the second place, I am of opinion that the petitioner has not disclosed a prima facie case that the proposed transfer from HM Prison Edinburgh would be unlawful. Under section 10 of the Prisons (Scotland) Act 1989, the Scottish Ministers are given a general discretion as to the prison in which a prisoner serves his sentence. That discretion is obviously exercised in accordance with set criteria. In the present case, because of features of the offence of which he has been convicted, the petitioner is classified as a sex offender, and he is obviously a long-term prisoner. HM Prison Peterhead is the prison that has been designated for long-term male sex offenders. One prison is designated for the accommodation of long-term sex offenders for a number of reasons. HM Prison Peterhead has a very specialised régime, designed to deal with such offenders. It provides programmes that address offending behaviour, with appropriate psychological help. The prison officers include specially trained staff. The discretion conferred on the Scottish Ministers to allocate prisoners to particular prisons is clearly necessary to enable the Scottish Prison Service to be managed effectively. In this connection the remarks of Lord Dervaird in Thomson, supra, are highly pertinent. Consequently, I consider that special circumstances must be demonstrated if that discretion is to be curtailed. In the present case I am not persuaded that the petitioner's ability to prepare for his appeal and the relative application to the nobile officium is significantly hindered by his confinement in HM Prison Peterhead. While his legal advisers are in central Scotland, he should not find it difficult to communicate with them by post or by telephone, and the distance to Peterhead is not so great as to prevent face-to-face consultations when they are reasonably necessary. To the extent that there is any interference with the petitioner's ability to prepare for his appeal, such interference is not in my opinion disproportionate to the requirements of the effective management of the Scottish Prison Service.

[20] It is true that the petitioner has had difficulties with his correspondence in the past. In part these were caused by over-zealous action on the part of prison officers. I am satisfied that that particular problem has been dealt with through the intervention of senior officers or by instructions given to the prison staff. In part the difficulties were caused by the failure of the petitioner's legal advisers to mark correspondence as privileged. This, with respect, appears an elementary requirement, and if there is a failure to observe it the petitioner has no ground of complaint if his mail is opened. Telephone calls may be monitored for security purposes. It is easy to understand why that is so. Nevertheless, if a prison officer listened to a telephone conversation between the petitioner and his legal advisers in connection with the appeal proceedings, it would clearly be quite improper for that officer or any other official of the Scottish Prison Service to disclose anything about the conversation to Crown Office, or indeed anyone else. The monitoring of calls is for security purposes only, and if there is nothing that threatens prison security the content of a call is plainly confidential. For this reason I do not think that the possible monitoring of telephone calls is any threat to the proper preparation of the appeal.

[21] It is clear that the petitioner has had a significant number of face-to-face consultations with his legal advisers since he was moved to HM Prison Peterhead. Since June 2002 33 visits by legal advisers appear to have taken place, although several of those were by agents in Aberdeen. Nevertheless, there is no obvious sign that consultations have been impossible, or nearly so. In addition, the petitioner has been given a period of one month in HM Prison Edinburgh to assist in the presentation of his appeal. I was informed that the petitioner had had seven meetings with his advisers during that period, and I must assume that the time in Saughton has been used effectively. In the circumstances I do not think that the difficulties involved in travelling to Peterhead can reasonably be considered a material obstacle to the petitioner's preparations for his appeal and the relative application to the nobile officium.

[22] I am further of opinion that the balance of convenience is strongly against the grant of an interim declarator in the present case. In the first place, the considerations discussed above at paragraph (15) are relevant. It is clearly essential, in the interests of the proper management of the prison system in Scotland, that the Scottish Ministers should be able to allocate prisoners to appropriate prisons. Consequently the court should only interfere with a decision about the allocation of a prisoner if strong grounds exist for holding that decision to be wrong. In the second place, even if I am wrong in holding that the petitioner has not stated a prima facie case, I am of the clear opinion that the argument for the Scottish Ministers is more likely to prevail in the event that the case proceeds to a full hearing on the merits. I do not consider that the petitioner's detention in HM Prison Peterhead is likely to be a material obstacle to the preparation of his appeal. For the reasons discussed above, I consider that he can use the postal service or telephone quite effectively, and can have face-to-face consultations with his legal advisers when those are necessary. In this connection, it is significant that grounds of appeal have already been drafted. It follows that any discussion of the issues that arise in the appeal is likely to be confined to matters of detail, which should not require frequent face-to-face consultations. In addition, it was not suggested that the petitioner had any vital input to the case at this stage without which the appeal or the application to the nobile officium could not be made. No doubt the petitioner would like to be kept informed as to the progress of his appeal and application to the nobile officium, but that can be done quite effectively by post.

[23] For the foregoing reasons I will refuse the petitioner's motions for interim interdict and interim declarator, but will make a first order.