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Cite as: [2005] ScotCS CSIH_25, 2005 SLT 305, 2005 SC 342, [2005] CSIH 25
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Beggs v. The Scottish Ministers [2005] ScotCS CSIH_25 (15 March 2005)
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Macfadyen Lady Cosgrove
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[2005CSIH25] P1337/03 OPINION OF THE COURT delivered by THE LORD PRESIDENT in MINUTE For WILLIAM BEGGS Minuter; And ANSWERS For THE SCOTTISH MINISTERS Respondents: _______ |
Act: O'Neill, Q.C., Collins; Balfour & Manson (for Taylor & Kelly, Coatbridge) (Minuter)
Alt: Brailsford, Q.C., Muir; R. Henderson (Respondents)
15 March 2005
Introduction
[1] The minuter seeks certain orders from the court on the ground that the respondents should be found in contempt of court in respect of a breach of an undertaking given to the court by the respondents in proceedings at his instance for judicial review.The undertaking and the background to it
[2] In September 2003 the minuter presented a petition for judicial review in which he complained of interference with his privileged correspondence while he was a prisoner in H M Prison Peterhead, being correspondence to him from his legal advisers and the Scottish Prisons Complaints Commissioner (the Commissioner), and the failure of the prison authorities to enforce a policy to avoid such interference. He claimed that the respondents had acted in a manner incompatible with his rights under Articles 6 and 8 of the European Convention on Human Rights, and accordingly unlawful under section 6 of the Human Rights Act 1998 and/or section 57 of the Scotland Act 1998. He sought, inter alia, an order interdicting the respondents and the Governor of HMP Peterhead from requiring him, when in their care in detention in prison in Scotland, 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 their care in prison in Scotland, and 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 (the 1947 Act). [3] It may be noted that rule 50 (3) of the Prisons and Young Offenders Institutions (Scotland) Rules 1994, as amended, provides, subject to certain exceptions with which we are not concerned, that any letter or package which is sent to a prisoner at a prison by a legal adviser is not to be opened by a prison officer. The Scottish Prison Service Circular No. 79/1994, which relates to the Commissioner, states at paragraph 13 that correspondence with the Commissioner should be accorded the same privileged status as correspondence between prisoners and their legal advisers. Paragraph 15 states that the letters from the Commissioner would be in a sealed envelope bearing the Commission's logo, adding that "the envelopes will be readily identifiable from the logo and should not be opened". [4] On 6 February and 20 March 2003 prison officers opened letters to the minuter from the Commissioner in the minuter's presence. On 26 March 2003 the minuter was required by a prison officer to open a letter from his solicitors when the prison officer was present. On 24 July 2003 a prison officer opened a letter to the minuter from his solicitors in the minuter's presence. In each instance the minuter received an apology from the Governor in charge. [5] In the case of the letters from the Commissioner, the minuter was assured that the residential staff would be reminded that such letters, which were contained in envelopes which were clearly marked with a prominent stamp, should be handed unopened to the prisoners to whom they were addressed. The reminder was given in a circular from the Governor in charge to residential staff dated 17 February 2003. In a report dated 28 February 2003 the Commissioner upheld a complaint by the minuter, observing that it was evident that there had been a failure of understanding on the part of at least one member of the prison staff. She recommended that all staff should be reminded of the special privilege attached to correspondence between the Commissioner and prisoners. This recommendation was accepted by the Chief Executive of the Scottish Prison Service, after which a circular dated 25 April 2003 was issued to all Governors in charge in which they were reminded that all replies from the Commissioner bore the Commission's logo, and that therefore they should be easily identifiable and should not be opened. [6] In regard to letters from solicitors, at a meeting of residential managers the Governor in charge pointed out the importance of following the correct procedure. He issued a notice to all operational managers dated 28 July 2003 stating that he was concerned that the Rule 50 procedure was not being adhered to across the establishment, and pointing out that it was not the case that prisoners must open legal correspondence in the presence of staff. On or about 3 September 2003 he arranged for the posting of a notice to prisoners on prison notice boards setting out the terms of a letter to be sent to all legal advisers about adherence to the protocol relating to the marking of legal correspondence. [7] The minuter's petition came before the Lord Ordinary on 5 September 2003, when counsel for the minuter sought a first order, and interim orders in terms of the petition. The respondents tendered to the Lord Ordinary an undertaking in the following terms:"The Scottish Ministers hereby undertake that, until the date on which the first hearing is commenced in the present petition:-
(A) (i) letters or packages sent to the petitioner at HMP Peterhead by any of his legal advisors, and addressed to him in the manner set out in the schedule hereto, being the manner agreed between the Scottish Prison Service and the Law Society of Scotland and published in the Journal of the Law Society of Scotland in February 2002, shall not be opened by any officer of the Scottish Prison Service, except where rule 50 (5) of the Prisons and Young Offenders Institutions (Scotland) Rules 1994 (as amended) applies, and (ii) the petitioner shall not be required by any officer of the Scottish Prison Service to open such letter or package in the presence of any such officer; and
(B) (i) letters or packages sent to the petitioner at HMP Peterhead by the Scottish Prisons Complaints Commissioner bearing the Commission's logo shall not be opened by any officer of the Scottish Prison Service and (ii) the petitioner shall not be required by any officer of the Scottish Prison Service to opened such letter or package in the presence of any such officer.
Schedule
The letter or package shall be sealed in a plain envelope addressed to the petitioner. That envelope shall also bear the name, address and telephone number of the firm and a reference number, the words ' legal correspondence' and the signature of the legal adviser or his/her assistant. Alternatively, this information shall be contained in a covering letter to the prison authorities at HMP Peterhead. In either case, the letter or package shall be sealed in an outer envelope addressed to the Governor of HMP Peterhead"
The system of "double enveloping" referred to in Part A of the undertaking was informally agreed between the Law Society of Scotland and the Scottish Prison Service in 1998.
[8] The Lord Ordinary pronounced a first order, but refused the petitioner's motions for interim interdict and interim declarator. In his Opinion he stated that he considered that he was bound by section 21 of the 1947 Act and the decision in McDonald v Secretary of State for Scotland 1994 S.C. 234. Further, standing the fact that the Governor of HMP Peterhead had required that legal correspondence should be so marked, there was no prima facie case for interim interdict. In any event, in view of the undertaking which had been given, the balance of convenience was not in favour of the granting of interim interdict. With the leave of the Lord Ordinary the minuter reclaimed against his interlocutor, in so far as it refused the interim orders.Events after the undertaking
[9] On 6 September 2003, the day after the undertaking was given, a prison officer sought to open, and partially succeeded in opening, a letter addressed to the petitioner from his legal advisers, despite the fact that the words "strictly private and confidential legal correspondence", and the stamp of the advisers giving their name, address and telephone number, were marked on the envelope.
[10] Following the giving of the undertaking the Governor in charge briefed his management team about it and emphasised the importance of its being observed. However, he did not disseminate the terms of the undertaking to other member of staff. He commissioned a full review of the procedures for handling privileged mail, as a result of which a revised process for mail handling was instituted. The review was carried out by the residential manager who was responsible for the administration and distribution of incoming mail. However, he was not made aware of the undertaking or its terms. [11] As a result of the review the Governor in charge on 9 September 2003 issued written instructions setting out the responsibilities of the mail administrator. The instructions stated:"In order to comply fully with the rules governing prisoners communications the mail administrator will comply fully with the rules set out below.
1. Ensure compliance with the Prisons and Young Offenders Institutions (Scotland) Rules 1994
- Ensure compliance with local instructions (Process Map) for Legal Correspondence".
The circular thereafter set out instructions in three sections, the second of which related to the opening and reading of correspondence to and from legal advisers. The third stated as follows:
"Correspondence from the Complaints Commissioner
Mail from the Complaints Commissioner to a prisoner should NOT be opened under any circumstances. It should be processed through the Legal Correspondence Register and MUST be given to the prisoner concerned UNOPENED".
According to the process map, which was to be complied with, incoming mail was to be sent to the Administration Department for processing. There it was to be split into two categories, legal and personal. Legal mail included mail entering under the Law Society protocol and any other mail which the mail administrator considered was "legal correspondence" and was to be stamped accordingly. The process map made no specific provision for correspondence from the Commissioner.
[12] On 4 May 2004 the minuter was transferred to HMP Edinburgh in connection with proceedings in court. On 7, 10 and 15 May 2004 letters addressed to the minuter, in a double envelope, and bearing the words "strictly private and confidential legal correspondence" as well as the stamp of the minuter's solicitors giving their name, address and telephone number were opened in his presence. On 18 May 2004 the minuter's solicitors were informed by the respondents that an error had been made in the handling of his legal correspondence. This was due to inadvertence and a failure on the part of the unit manager in the prison. The unit manager had apologised to the minuter, and the Governor had on 17 May issued a notice to all staff reminding them of the terms of rule 50. What had happened at HMP Edinburgh was drawn to the attention of the court on 19 May, when the respondents offered an undertaking which was similar to that which had been given in respect of HMP Peterhead, but was restricted to the current period of the minuter's imprisonment in Edinburgh. On 24 May 2004 the Scottish Prison Service issued a notice to all Governors in charge drawing attention to the notice dated 25 April 2003 to which we referred in paragraph [5] above.The breach of the undertaking
[13] The breach occurred on 26 November 2004 at HMP Peterhead, to which the minuter had been returned on 7 July. A letter to the minuter from the Commissioner was opened in his presence by a residential officer. The envelope bore the logo of the Commissioner. It had been placed with personal mail. It had not been identified as privileged mail and had not been stamped "legal correspondence". The residential officer who was responsible for issuing mail to prisoners treated the letter as a piece of ordinary correspondence and opened it as he would have opened an item of personal correspondence, in order to check that the contents did not include an illegal or prohibited article or inappropriate material. He did not check the envelope before opening it, but in any event he believed that the only mail which was not to be opened was mail which was stamped " legal correspondence". The mail was normally processed by an experienced member of the administration staff. It appears that at this time the mail administrator was on annual leave, and two other members of the administration team were on sick leave. Another member of the administration team sorted the mail in addition to performing her normal duties.
[14] It should be added that in response to a formal complaint made by the minuter, the residential officer confirmed that the letter had not been opened in error, but that, as far as he was aware, he was entitled to open it as it was not a letter from a solicitor. A further complaint by the minuter to the residential manager was rejected on the ground that the officer had made no mistake in opening the letter, since "it did not follow the proper protocol which governs legal correspondence". It is clear, and was not in dispute, that neither the residential officer nor the residential manager was aware of the undertaking or properly understand the procedure applicable to correspondence from the Commissioner. [15] At a hearing on 16 December 2004 counsel for the respondents admitted the breach of part B of the undertaking and tendered their unreserved apologies to the court. However, he denied that the respondents had been in contempt of court. Thereafter the minuter presented his minute in which he sought (i) an order that the respondents appear personally to answer for their breach of undertaking; and (ii) a finding that they were in contempt of court. In due course the court heard argument on the minute and the answers for the respondents. [16] It was not in dispute that the breach of an undertaking to the court could constitute a contempt of court. In Graham v Robert Younger Ltd 1955 J.C. 28 the Lord Justice Clerk (Thomson) said at page 32:"Mr Sloan argued that a breach of such an undertaking was not contempt of Court and that before a man could be convicted of contempt he must be in breach of some specific interlocutor or order. Certainly no authority was cited to us where breach of such an undertaking was regarded as contempt of Court. But the taking of such undertakings from parties, either personally or through their counsel, is a common and convenient step in our procedure and it would rob undertakings of any usefulness if there were no sanction and if the giver of an undertaking, the terms of which were clearly understood, could proceed immediately to ignore it".
Is it competent for the respondents to be found in contempt of court?
[18] For the respondents Mr Brailsford founded on the terms of section 21 of the 1947 Act, which states:
"(1) 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 injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties;
...
(2) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown".
Section 38(2) of the 1947 Act, as amended by the Scotland Act 1998 (the Scotland Act), states that "officer", in relation to the Crown, includes "any servant of His Majesty, and accordingly (but without prejudice to the generality of the foregoing provisions) includes a Minister of the Crown and a member of the Scottish Executive".
[19] Mr Brailsford submitted that in Scots law proceedings against the respondents fell to be regarded as proceedings against the Crown. There was in any event no need for the court to make orders for interdict or specific implement against the respondents since the Crown always obeyed the orders of the court. By reason of proviso (a) to section 21(1) of the 1947 Act the court had no jurisdiction to make a coercive order against the Crown. That pointed to the conclusion that it had no jurisdiction to find the respondents in contempt. At common law there was no distinction in Scotland between the Crown as sovereign and the departments or agencies of the Crown. The Crown was regarded as one and indivisible, from which it followed that prior to the 1947 Act an action of damages did not lie against the Crown in respect of the wrongful act of one of its servants (Macgregor v Lord Advocate 1921 S.C. 847). While section 21(1) enabled the court to make such orders against the Crown as it could make in proceedings between subjects, this was subject to the proviso which excluded the granting of orders for interdict and specific performance. This had been interpreted as applying to cases in which proceedings had been brought in accordance with the Crown Suits (Scotland) Act 1857 (B.M.A. v Greater Glasgow Health Board 1989 S.C. (H.L.) 65, per Lord Jauncey at page 95), and as excluding the making of such orders against a Minister in his representative capacity (McDonald v Secretary of State for Scotland). The court in Davidson v Scottish Ministers 2002 SC 205 had taken the same view in regard to an order for specific implement, although the decision had been set aside on another ground (Davidson, Petitioner 2004 SLT 895). [20] For the minuter Mr O'Neill submitted that, whatever may have been the position at common law, it had been superseded by the 1947 Act and the Scotland Act. Properly understood, the proceedings against the respondents were, for the purposes of section 21, proceedings against officers of the Crown, and not against the Crown. Subsection (2) of that subsection indicated that it was possible to bring proceedings against officers of the Crown without at the same time proceeding against the Crown in itself. In regard to the distinction between the two he referred to Wade and Forsyth, Administrative Law, Ninth edition, page 46:"The settled practice of conferring powers on the designated ministers therefore greatly assists the operation of legal remedies. The minister is treated in law as an ordinary person, with no special privileges. He is liable to compulsory remedies, such as injunctions, and he may be made liable for contempt of court. This is the essence of the rule of law".
Under the Scotland Act the respondents had a sufficiently distinct legal personality to render them, whether individually or collectively, amenable to proceedings for contempt. They were the collective employers of the civil servants in the Scottish Administration, and they were collectively responsible for the acts and omissions of each of them. Under section 57 (2) of the Scotland Act, any act of the respondents which was incompatible with a Convention right was not simply unlawful (by virtue of section 6(1) of the Human Rights Act 1998), but a nullity (R v H.M. Advocate 2003 SC (PC) 21, Lord Rodger of Earlsferry at paragraph 126). The decision in McDonald v Secretary of State for Scotland predated the Scotland Act. The effect of the Scotland Act had not been argued in Davidson v Scottish Ministers. Mr O'Neill also drew an analogy with M v Home Office [1994] 1 A.C.377, in which it was held that a finding of contempt of court could be made against a government department or a minister of the Crown in his official capacity. At page 395 Lord Templeman observed that "the argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War". Mr O'Neill pointed out that the decision in M. v Home Office proceeded on the basis that the court found that a valid court order had been pronounced against the Home Secretary. In the present case there was no need for such a finding since the contempt was not based on a breach of a court order but on the breach of an undertaking given voluntarily by the respondents, the validity of which was not in question. Moreover proceedings in respect of contempt were not truly "civil proceedings", but were sui generis.
[21] We do not consider that section 21 of the 1947 act makes it incompetent to find the respondents in contempt of court by reason of the breach of an undertaking to the court. In the first place it is, strictly speaking, unnecessary to determine in this case whether it is competent for the court to grant an interdict or make an order for specific implement against the respondents, since we are concerned with the breach of an undertaking. Whether or not that undertaking was given in the hope of persuading the Lord Ordinary not to grant an interim order is of no relevance. The validity of the undertaking is not in question. We should add that a finding that the respondents were in contempt would not necessarily be followed by any form of compulsive order against them. As Lord Woolf pointed out in M. v Home Office at page 425, the ability of a court to make a finding of contempt is of itself of great importance, demonstrating that a government department has interfered with the administration of justice. [22] In the second place, and more fundamentally, we are not satisfied that the proceedings against the respondents, whether on the petition or the minute, represent proceedings against the Crown. The Scottish Ministers are the members of the Scottish Executive which was instituted in accordance with section 44 of the Scotland Act. Along with other office-holders and the members of staff appointed by them under section 51 they form the Scottish Administration (section 126 (6)-(8)). Rights and liabilities may arise between the Crown in right of Her Majesty's Government in the United Kingdom and the Crown in right of the Scottish Administration by virtue of a contract, by operation of law or by virtue of an enactment as they may arise between subjects (section 99 (1)). As was noted by Lord Hope of Craighead in Davidson, Petitioner, at paragraph 36, the evident reason for the extension of the definition of "officer" in section 38 (2) of the 1947 Act was to make it clear that the Scottish Administration should have the status of, in effect, her Majesty's Government in Scotland in relation to devolved matters. [23] The functions conferred on a Minister of the Crown by any pre-commencement enactment, so far as they are exercisable within devolved competence, are to be exercisable by the respondents instead of by a Minister of the Crown (section 53). Statutory functions of the respondents are to be exercisable on behalf of Her Majesty (section 52(2)). They are to be exercisable by any member of the Scottish Executive, and any act or omission of, or in relation to, any member of the Scottish Executive is to be treated as an act or omission of, or in relation to, each of them (section 52 (3) and (4)). Section 57 (2) provides that a member of the Scottish Executive has no power to do any act, so far as the act is incompatible with any of the Convention rights or with Community law. [24] From these and other provisions of the Scotland Act it is clear that the powers of the respondents, who were created by the statute, are circumscribed both by the limits of devolved competence and by reference to compatibility with Convention rights and community law. The validity of the acts of the respondents may be determined by a court of law as a devolution issue. In this respect the respondents may be compared with the Scottish Parliament, which is not sovereign but is subject to the laws and hence to the courts (Whaley v Watson 2000 SC 340, Lord President Rodger at page 350). In the present case we are concerned with the exercise by the respondents of their statutory functions under the Prisons (Scotland) Act 1989. While the exercise of such statutory functions on behalf of Her Majesty is devolved to the Scottish Ministers, it is erroneous, in our view, to regard proceedings against them in respect of any of those functions as proceedings against the Crown itself. We reach this conclusion without requiring to rely on the reasoning in M v Home Office, although the result is the same. Whether or not McDonald v Secretary of State for Scotland was correctly decided, it falls to be distinguished in respect that it was not concerned with the acts of the respondents under the Scotland Act.What is the test for determining whether the respondents have been in contempt of court?
[25] In this case the undertaking which was given by the respondents was breached by the action of an official of the Scottish Prison Service. The parties were in dispute as to the test which should be applied in determining whether the respondents should be held on that account to have committed a contempt of court.
[26] It is convenient to begin by considering the test which would be applied in the case of an individual who had done what he had undertaken to a court, or been ordered by a court, not to do. [27] Mr Brailsford pointed out that in a number of cases the court had stated that for contempt there required to have been wilful defiance of the court. Thus in Pirie v Hawthorn 1962 J.C.69, in which it was held that an accused was not in contempt for having failed to appear when his case was called, the Lord Justice General (Clyde) said at page 74:"There was no wilful defiance of the Court at any stage and no wilful failure to appear at the proper time or to explain why appearance was not made in the morning. The essential element in contempt of Court is thus absent".
The same approach was adopted in other cases of late arrival at court (McKinnon v Douglas 1982 S.L.T. 375 and Caldwell v Normand 1994 S.L.T 489). In McMillan v Carmichael 1994 S.L.T. 510, which was concerned with the behaviour of the accused in the courtroom, the Lord Justice General (Hope) stated at page 511:
"The Lord Advocate said that it would be unwise to regard the element of intent as essential to a finding of contempt, as gross neglect of orders of the court might well result in a finding of contempt. He submitted that gross recklessness, such as a failure to obtemper an order of the court which was clearly expressed, might have the same result. But in our opinion an intention to challenge or affront the authority of the court or to defy its orders is a necessary element without which it cannot hold that contempt of court has been committed... A finding that the conduct was wilful may, of course, be based on inference. If it is necessary to resort to inference, the question to be considered is not whether the conduct was reckless or amounted to gross neglect but whether, in all the circumstances, it can be held to have been a wilful challenge, or a wilful failure, in defiance of the authority of court".
"It would be undesirable in this case to endeavour to define the limits of conduct which may be held to constitute contempt of court. The variety and quality of the acts or omissions which in particular cases may fall within that description are not capable of precise delimitation or formulation. On the other hand it may be said that where there has been in fact a failure to obey or obtemper an order or requirement of a court such a failure demands satisfactory explanation and excuse, and in the absence of such may be held to constitute a contempt of court of varying degree of gravity. I can see no reason in principle and there is certainly none in authority, for an assertion that failure due to carelessness alone may in no circumstances constitute contempt of court. The question in my opinion is essentially one of fact and circumstances, in which the position and duties of the party alleged to be in contempt are necessarily material considerations".
[30] It is clear that, in order to constitute contempt of court, conduct requires to be wilful and to show lack of respect or disregard for the court. It would not qualify as contempt if the conduct complained of was unintentional or accidental. What should be held to establish contempt plainly depends upon the nature of the case. Thus, for example, in the case of a person in court - where there is no question of any court order or undertaking - it would require to be held, if necessary by inference, that his conduct was not merely inappropriate but displayed an attitude which was intended to be offensive to the dignity and authority of the court. The remarks of Lord Justice General Hope in Macmillan v Carmichael, should, we consider, be understood in that context. Where, on the other hand, a person has been ordered, or has undertaken, that he will not do something, the very fact that he does so implies, on the face of it, a lack of respect for the order or undertaking, and hence for the authority of the court, as in Muirhead v Douglas.
[31] When we turn to the case in which a corporate body or other organisation has been ordered, or has undertaken, that a certain act will not be done by it or by any of its servants or agents, we encounter more complex situations. If, for example, the act is done by a servant or agent intentionally and not accidentally, but without knowledge of the order or undertaking, is the corporate body to be held in contempt of court? [32] There is a dearth of Scottish authority on the liability of a corporate body for contempt of court based on the actions of its servants or agents. However, the orders made by courts in Scotland in regard to contempt of court by publication of prejudicial material (such as in MacAlister v Associated Newspapers Limited 1954 S.L.T.14) imply such a liability. [33] Mr O'Neill founded on a number of English decisions. It is convenient to begin by referring to Stancomb v Trowbridge UDC [1910] 2 Ch 190, which was concerned with whether a corporation had "wilfully disobeyed" a judgment or order. At page 194 Warrington J said:"In my judgment, if a person or a corporation is restrained by injunction from doing a particular act, that person or corporation commits a breach of the injunction, and is liable for process for contempt, if he or it in fact does the act, and it is no answer to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order. I think the expression ' wilfully' in the Order 42, r 31 is intended to exclude only such casual or accidental and unintentional acts as are referred to in Fairclough v Manchester Ship Canal Co [1897] W. N 7".
"Where the court is satisfied that the conduct was not intentional or reckless, but merely casual and accidental and committed under circumstances which negative any suggestion of contumacy, while it might visit the offending party with costs and might order an inquiry as to damages, it would not take the extreme course of issuing an order either of commitment or of sequestration. To justify so serious a proceeding the court must be satisfied that contempt of court has been committed - in other words, that its order has been contumaciously disregarded".
"The question to be considered is whether the disobedience was 'wilful' in accordance with the established meaning of that word in relation to contempt of court by disobedience to an order of the court. It is important to note that there is no question here of contumacious or insulting behaviour or interference with the administration of justice. There has been simply a disobedience to the court's injunction by the party restrained by the injunction, and the disobedience has been committed by that party through its agents"
In considering the established meaning of 'wilful' for the purposes of the law of contempt, Lord Wilberforce reviewed a number of authorities, in the light of which he said, at page 109, that the statement of the law by Warrington J in Stancomb which we have quoted had acquired high authority. He continued:
"It is also the reasonable view, because the party in whose favour an order has been made is entitled to have it enforced, and also the effective administration of justice normally requires some penalty for disobedience to an order of a court if the disobedience is more than casual or accidental and unintentional".
"In my opinion, further, the act need not be done by the person himself. In the case of a corporation it cannot be done by the corporation itself, at any rate in the case of such a corporation as an urban district council. Such a body can only act by its agents or servants; and I think, if the act is in fact done, it is no answer to say that, done, as it must be, by an officer or servant of the council, the council is not liable for it, even though it may have been done by the servant through carelessness, neglect, or even in dereliction of his duty".
At page 481 Lord Nolan stated:
"Given that liability for contempt does not require any direct intention on the part of the employer to disobey the order, there is nothing to prevent an employing company from being found to have disobeyed an order 'by' its servant as a result of a deliberate act by the servant on its behalf. In my judgment the decision in Stancomb's case is good law, and should be followed in the present case. The employees of the respondents have, by their deliberate conduct, made their employers liable for disobeying the orders of 14 March 1978 and 29 March 1979. The respondents are therefore guilty of contempt of court".
"In our view where a company is ordered not to do certain acts or gives an undertaking to like effect and a director of that company is aware of the order or undertaking he is under a duty to take reasonable steps to ensure that the order or undertaking is obeyed, and if he wilfully fails to take those steps and the order or undertaking is breached he can be punished for contempt. We use the word ' wilful' to distinguish the situation where the director can reasonably believe some other director or officer is taking those steps".
Woolf LJ went on to say at page 938:
" If there has been a failure to supervise or investigate or wilful blindness on the part of a director of a company his conduct can be regarded as being wilful and Ord 45, r.5 can apply. In Re Galvanized Tank Manufacturers' Association's Agreement [1965] 1 W.L.R. 1074 makes clear the importance of this. Megaw J said , at p.1090:
'We would, however, emphasise that a company, which has given an undertaking to the court, must be treated as having failed lamentably and inexcusably in its elementary duty if it fails to take adequate and continuing steps to ensure, through its responsible officers, that those officers themselves, and anyone to whom they may delegate the handling of matters which fall within the scope of the undertaking, do not forget or misunderstand or overlook the obligations imposed by such an undertaking.'(Emphasis added)".
It may be noted that the rule referred to by Woolf LJ related to the method of enforcing the law against bodies and persons who were otherwise liable for contempt of court under the general law (Director-General of Fair Trading v Buckland [1990] 1 W.L.R. 920 at page 924).
[38] Woolf LJ also referred to Hone v Page [1980] F.S.R. 500 as containing a clear statement of the principle where a company was not involved. At page 936 he said:" That case concerned the failure of a proprietor of a minicab firm to comply with the undertakings which he had given "by himself or by his servants or agents or any of them or otherwise howsoever" (1) not to describe or advertise his firm by a particular name and (2) not to distribute advertising material involving a particular colour. Slade J. decided that as the employer merely gave 'formal instructions' to his drivers to comply with the undertaking he had not taken all reasonable steps to prevent the distribution of the advertising material and that the defendant could reasonably have foreseen that his instructions would be disregarded as happened and that he was in contempt. In his judgment Slade J. set out the position in these terms, at p. 507:
'In the absence of authority, I am prepared to assume in favour of the defendant that the form of undertaking does not expose the giver of the undertaking to absolute liability for the acts of his servants or agents. Nevertheless, again in the absence of authority, I think that a man must be deemed to do a relevant act ' by his servants or agents' within the meaning of an undertaking given in this form, if (a) the persons who did the acts were his servants or agents, (b) the acts were done in the course of the service or agency, and (c) he either (i) authorised the acts or (ii) could reasonably have foreseen the possibility of such acts and failed to take all reasonable steps to prevent them'".
"In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them".
[42] A similar approach had been taken in the case of executive agencies, of which the Scottish Prison Service was an example. Thus in R v Secretary of State for Social Services ex parte Sherwin (1996) 32 BMLR 1; affirmed by the Court of Appeal [1996] EWCA Civ 524, it was held that the Carltona principle applied in the case of the Benefits Agency.
[43] However, Mr Brailsford submitted, this did not provide a foundation for vicarious liability. In this connection he pointed out that in Bhatnager v Canada (Minister of Employment and Immigration) [1990] 2 S.C.R. 217 the Supreme Court of Canada at page 229 rejected the argument that, "on the basis of some form of vicarious liability, variously referred to as the principle of delegation and the theory of identification" the ministers should be held liable in contempt in the absence of knowledge of the order which had been breached. [44] Mr O'Neill pointed out that, by virtue of section 51 of the Scotland Act, the members of the staff of the Scottish Administration were appointed by the respondents. If the Carltona principle applied, the civil servant acted as the alter ego of his minister in the performance of his functions. That principle was not based on delegation or vicarious liability, nor was it based on employment or agency, but on the fact that the work of government could not be carried out on any other basis. However, the corollary was that ministers were answerable and responsible for the acts of their civil servants. The English decisions showed that the particular nature of the body which was the subject of the court order or undertaking was of little materiality or relevance to the finding of contempt. What was important was that the organisation, or those who held responsibility within it, would be found in contempt where action contrary to the order or undertaking had occurred, unless that action could be excused as being wholly inadvertent, not intended, casual or accidental. [45] These arguments raise, in the first place, a question as to the responsibility of the respondents for the actions of their civil servants. We would not expect that any of the respondents would necessarily have been personally involved in authorising the undertaking to the court. No doubt, in accordance with the Carltona principle, that would be done by senior civil servants in their name. Likewise it would fall to civil servants to take steps with a view to ensuring that the undertaking was adhered to at the stage when the prisoners' mail was being handled at HMP Peterhead. Accordingly, whatever may be the precise legal relationship between the respondents and civil servants at different levels within the Scottish Administration, there is no doubt that it was implicit that the respondents undertook that their civil servants would take adequate steps to that end, and, in so far as there may have been any failure in that respect, they are responsible. No doubt that accounts for the apology which was tendered by respondents' counsel on 16 December 2004. This does not require the invocation of vicarious liability or agency: it arises from the terms of the undertaking, against the background of the way in which the work of government is done. [46] The second question is as to the correct approach to the question of contempt. In the present case, as we have already narrated, the prison officer who opened the letter was not aware of the undertaking. It is also evident that he was not aware of the relevant Scottish Prison Service circular relating to the privilege to be accorded to the Commissioner's letters to prisoners. Accordingly there is no question of his having opened the letter in wilful disregard of the undertaking which had been given by the respondents. However, in our view, the respondents would be in contempt of court if civil servants in discharging the functions of the respondents failed to take reasonable steps to ensure that the undertaking was adhered to, and if that failure was so gross as to demonstrate a disregard for the importance which should have been attached to the undertaking. The general approach which we take is similar to that adopted by Woolf L.J. in Att-Gen for Tuvalu v Philatelic Distribution Corporation Ltd. In the light of the speech of Lord Wilberforce in Heatons Transport (St. Helens) Ltd v T.G.W.U -- which may be compared with the approach of Lord Cameron in Muirhead v Douglas -- we consider that in the case of the doing of an act prohibited by a court order or an undertaking given to the court it does not require to be shown that civil servants acted contumaciously, that is to say with the intention of the undertaking being breached.Were the respondents in contempt of court?
[47] There is no suggestion that the undertaking was otherwise than clear in its terms. It was to the same effect as the Scottish Prisons Service circular. Further there is no suggestion that there was any difficulty about implementing it for all prisoners at HMP Peterhead.
[48] Mr O'Neill submitted that the need for an effective system for adherence to the terms of the undertaking was underlined by the history of failure to adhere to rule 50(3) and to the circular, followed by ineffective reminders and circulars. That suggested a systemic problem. It was also right to bear in mind the fundamental nature of a prisoner's rights to respect for privileged correspondence under the general law (see, e.g. Watkins v Secretary of State for the Home Department [2004] 4 All ER 1158) and the European Convention (Campbell v U.K. (1993) 15 EHRR 137 and Niedbala v Poland [2000] 1 Prison Law Reports 381). There had been a failure to accord due seriousness to the implementation of the undertaking. There was nothing to show that the respondents themselves had taken any action or interest in the matter, which had been left to the local management. However, the Governor in charge had chosen not to disseminate the terms of the undertaking beyond his management team. While he instructed the residential manager to carry out a review of the system for the handling of mail he did not inform him of the undertaking, let alone its terms. He approved the scheme which resulted from that review when it did not properly reflect the terms of the undertaking (or, for that matter, the Scottish Prison Service circular), and therefore was liable to give rise to confusion and error on the part of prison officers who were to operate it. The fact that it did not do so until the breach of the undertaking occurred was due to the fact that the mail administrator was not operating the approved system but was treating letters from the Commissioner as privileged mail. The arrangements were over-reliant on one experienced member of staff. [49] Mr Brailsford emphasised that there was no question of a deliberate attempt to flout the authority of the court. He accepted that the system which the Governor had approved was unclear, but it was a genuine effort. The court should conclude that there had not been any wilful failure. [50] We consider that the submissions made by Mr O'Neill are well founded and that the conduct of the civil servants, and in particular the Governor in charge at HMP Peterhead, was such as to meet the test which we set out in paragraph [46]. The history of repeated breaches of the minuter's right that letters from his legal advisers and from the Commissioner should be free from interference had brought matters to such a pass that it proved necessary for an undertaking to be given to the court on behalf of the respondents. In these circumstances it was abundantly obvious that close attention would have to be given to seeing that the undertaking was honoured. The respondents had received a strong warning of the need for a system which clearly distinguished privileged letters from personal mail, and ensured that the former were handed unopened to the prisoner. It is hard to understand how the Governor in charge could have thought it was not necessary to inform staff, and the manager who was to carry out the review, of the existence and terms of the undertaking. As it was, he approved a system in which there was a mismatch between the process map and the written instructions. It was a flawed system which sooner or later would lead to error. The prisoner officer who handled the letter from the Commissioner was unaware of the privilege attaching to such letters. For that there appears to be no satisfactory explanation. The undertaking was simply not taken seriously enough. We have been provided with a full explanation of the circumstances. In our opinion the respondents were in contempt of court.The order of the court
[51] In the circumstances of the present case we do not consider it is appropriate for us to impose any penalty on the respondents. The finding of contempt is of itself a matter of great importance. Accordingly we do not require to be addressed in regard to mitigation. However, we consider that we should make an order for appearance so that the court can make a formal finding of contempt in open court. [52] It is not necessary or appropriate for us to accede to Mr O'Neill's motion that the court should order the appearance of one or more of the Scottish Ministers. It is, however, right that it should order the appearance of the Chief Executive of the Scottish Prison Service and the Governor in charge of HMP Peterhead. We order the attendance of the Chief Executive on the basis that he is the civil servant who should be regarded for present purposes as representing the alter ego of the respondents. We order the attendance of the Governor in charge on the basis that he is responsible for the failure to take reasonable steps to ensure that the respondents' undertaking was complied with.