Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Beggs v. The Scottish Ministers [2005] ScotCS CSOH_41 (24 March 2005)
URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_41.html
Cite as: [2005] ScotCS CSOH_41, [2005] CSOH 41

[New search] [Help]

Beggs v. The Scottish Ministers [2005] ScotCS CSOH_41 (24 March 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 41

PD791/04

OPINION OF LORD CARLOWAY

in the petition of

WILLIAM IAN FREDERICK BEGGS

Petitioner;

against

THE SCOTTISH MINISTERS

Respondents:

for

Judicial Review of a decision to transfer the petitioner from HM Prison, Edinburgh to HM Prison, Peterhead

________________

Petitioner: Party

Respondents: Cullen QC, Mure; Solicitor to the Scottish Executive

24 March 2005

1. Background to the Petition
[1] On 12 October 2001, the petitioner was convicted of murder and sentenced to life imprisonment. He was sent to HM Prison, Peterhead, partly on the basis that the Scottish Prison Service regarded him as a sex offender and Peterhead was the appropriate prison for long-term male sex offenders. A Note of Appeal against conviction was lodged on 2 July 2002. This specified the bases for the appeal as: (i) the prejudicial effect of pre-trial publicity prior to and during the trial; (ii) unlawful extradition of the petitioner from the Netherlands prior to his trial; and (iii) the inadmissibility of certain evidence at the trial. Leave to appeal under section 107(1) of the Criminal Procedure (Scotland) Act 1995 (c 46) was granted by a single "sift" judge on 6 January 2003. However, he commented that only certain grounds were arguable (s 107(8)). On 7 March 2003, the petitioner sought to appeal the first sift decision under s 107(4) of the Act, which deals with the situation where leave to appeal is refused. On 25 August 2003, three "second sift" judges refused this appeal on its merits. Months later, on 31 May 2004, the petitioner lodged a petition to the nobile officium of the High Court complaining about the second sift decision, partly on the basis of alleged inadequacy of reasons. In broad terms, this was the procedural situation at the time when the present petition was lodged.

[2] In the ninth statement of fact, the petitioner maintains that, until such time as his petition to the nobile officium is determined, his substantive appeal cannot proceed. Notwithstanding the existence of the Note of Appeal already lodged, it is said that it will be weeks before the scope of the petitioner's appeal can be determined, far less a date fixed for a final determination. The petition continues by averring that:

"10...detailed and lengthy preparations have been required by the petitioner and his legal advisers in relation to the drafting and planning for the hearing both in relation to the nobile officium petition and of his substantive criminal appeal".

The core of the petitioner's complaint is that:

"...the petitioner's location at HM Prison Peterhead pending the resolution of his criminal appeal has resulted in a disproportionate interference with the petitioner's right to effective access to his legal advisers such as to ensure proper access to the court".

In that regard, the petitioner engaged in a long series of complaints about his continuing to be located in Peterhead. These complaints and the responses to them are set out in great detail in the petition.

[3] On 4 May 2004, the petitioner was transferred to HM Prison, Edinburgh, for a four week period, to enable him to communicate with his legal advisers concerning his appeal. It was not anticipated that his petition to the nobile officium would be disposed of during that period. Counsel had written a Note requesting that the petitioner be kept in Edinburgh meantime, but it was confirmed by letter dated 28 May 2004 that the intention of the Scottish Prison Service was to re-transfer the petitioner to Peterhead on 1 June 2004.

[4] In the thirty second statement of fact, headed in bold "Decision to be reviewed", the petitioner avers that the decision which he wants reviewed is that to re-transfer him to Peterhead, intimated in the letter of 28 May. The basis for this is that this decision constitutes:

"... a disproportionate interference in his fundamental right of access to the court and of his right...to be housed in a prison convenient to the High Court at a reasonable time before the hearing of his appeal or application to that court to allow him more ready and effective access to his legal advisers to ensure that his appeal or application before that court is fully and properly prepared."

In that regard, the averments continue :

"34...the petitioner's legal advisers - in the matter of his appeal against conviction and application to the nobile officium - have been unanimous in the expression of their view to the respondents that the petitioner's continued detention in HM Prison Peterhead in the run up to his appeal has had and continues to have a detrimental effect on their ability to prepare his case."

The specific orders sought by the petitioner in his fourth statement of fact are: (a) a declarator that the decision to remove him from Edinburgh to Peterhead is incompatible with article 6 of the European Convention on Human Rights and Fundamental Freedoms; and (b) an interdict prohibiting that transfer from Edinburgh until the conclusion of the appeal.

2. Events since the Petition
[5] On or about 4 June 2004, the petitioner was transferred back to Peterhead. On 18 June 2004, the Lord Ordinary refused to grant the petitioner an interim declarator that the decision to re-transfer him was unlawful (see Beggs v The Scottish Ministers 2004 SLT 755). On the merits of the case, there was considerable focus on section 10(2) of the Prisons (Scotland) Act 1989 (c.45) which provides that:

"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."

Having observed that this provision confers a wide discretion upon the respondents, the Lord Ordinary concluded (para [19]) :

"...the petitioner has not disclosed a prima facie case that the proposed transfer from HM Prison Edinburgh would be unlawful...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...disproportionate to the requirements of the effective management of the Scottish Prison Service."

The Lord Ordinary noted that, since he had been moved to Peterhead, the petitioner had been visited thirty three times by law agents! Since being transferred to Saughton, there had been a further seven meetings. Therefore, continued the Lord Ordinary :

"[21]...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 relative application to the nobile officium."

The Lord Ordinary's decision (which was not reclaimed) was based upon the facts as they were presented to him nine months ago. The petition has not been amended to include any new substantive material. However, events have, to a degree, moved on procedurally.

[6] On 8 December 2004, the petitioner's application to the nobile officium was granted to the extent that the decision of the second sift judges was "set aside" (Beggs, Petitioner 2005 SLT 165). However, the basis for this was that it had been incompetent for the petitioner to appeal the first sift judge's decision. The correct procedure to adopt was for a party, who had been granted leave but only upon a restricted basis, to proceed with that appeal and seek leave of the court, in due course, to raise any grounds regarded by the first sift judge as unarguable. Effectively then, the appeal returned to the position which it was in when leave had originally been granted in January 2003. No date has been fixed for a hearing of the appeal.

[7] Although three months have passed since the decision in January and the petitioner has long since been returned to Peterhead, the petitioner has not, as noted above, sought leave to amend the petition. He has not asked to adjust it following the lodging of Answers by the respondents. These Answers make a number of substantial averments, including that, since his return to Peterhead, the petitioner has made 540 telephone calls to his law agents and received 111 privileged letters, presumably from them, during this time. The Answers call upon the petitioner to explain what difficulty the petitioner has in communicating with his legal advisers. There has been no formal written response at all.

[8] Meantime, on 5 February 2005, the First Hearing on the Petition and Answers called before me. At that stage, counsel for the petitioner intimated that he was concerned with the factual basis for what was said in the thirty fourth statement (supra). He sought a continuation of the First Hearing to see whether the averments in that statement could be substantiated on the basis that, if they could not, the petition could not continue. The respondents intimated that, whilst they had no opposition to such a continuation, they would be seeking dismissal of the petition if appropriate substantiation was not forthcoming. Having been able to consider the state of the petition and being aware of the judicial decisions in June and December 2004, I observed at that hearing that "substantial amendment" would be required of the petition if it were to proceed, since it was plainly well out of date. I continued the First Hearing until 16 February 2005. On that date, the Hearing called before a different Lord Ordinary. Different counsel for the petitioner moved for a further continuation on the basis that the petitioner had recently changed his law agents and there had been insufficient time for preparation. According to the Minute of Proceedings, the Lord Ordinary observed that :

"perhaps there had been sufficient time and that, given the passage of time and the outcome of the petition to the nobile officium, the current petition had become academic."

The Lord Ordinary continued the First Hearing until 9 March to enable the petitioner to consider amendment and the provision of supporting affidavits. It was contemplated that the affidavits would come from counsel who were to conduct the criminal appeal.

[9] On 9 March 2005, the First Hearing again called before me. The petitioner appeared in person, his new agents in the petition having withdrawn from acting. He explained that he did have agents acting for him in the criminal appeal. The petitioner lodged two affidavits. The first of these is from the petitioner's law agent in the criminal appeal. This states :

"3...Since Mr Beggs move to Peterhead there have been only a few consultations primarily due to Mr Beggs location. Numerous consultations have been cancelled due to the unavailability of Counsel and/or agents...On other occasions when consultations did take place some members of the legal team were absent. The location of the prison makes consulting with Mr Beggs not only inconvenient but often impossible. The impact of this is that there have been only a few consultations with Mr Beggs, a lack of continuity in his representation and a considerable hindrance and delay in the proper preparation of his appeal to date.

4. Face to face consultations are necessary with Mr Beggs not simply because he wishes an input to his own appeal but to allow proper and clear instructions to be obtained and to ensure he understands his appeal. Only Mr Beggs can provide certain information relating to his original trial...The Grounds of Appeal are complex and lengthy...substantial preparation shall be required and Mr Beggs shall have an important contribution to make.

5...If he remains in Peterhead then it will impede the progress of preparations and will interfere with his access to his legal team."

The second affidavit is from counsel. This explains that Peterhead is not a convenient place to consult and that the petitioner's appeal is a complex one. It narrates that, at the last hearing of the case (presumably part of the nobile officium process), the petitioner was brought from Peterhead to Edinburgh on the previous day to enable a consultation to take place. It continues:

"7...the...Justiciary Office...appear to be fixing hearings at short notice. I would anticipate difficulties if this were to happen in the petitioner's case. I would not be able to travel to...Peterhead at short notice and, therefore, a consultation would only be possible if the petitioner was brought to...Edinburgh at such a time, in advance of the hearing, that would allow me to properly consult with him. If the petitioner could be brought to...Edinburgh two days in advance of any hearing (not just one arranged at short notice), then I would anticipate that this would allow me sufficient time to properly consult with the petitioner. If I could not get to properly consult with the Petitioner at...Edinburgh before every court hearing then I would consider that it would be likely that the petitioner's appeal would be significantly hindered...I would probably have to seek to postpone the hearing...

8. I will also require to consult with petitioner at times other than immediately before a court hearing....consulting at...Peterhead is extremely time consuming, difficult to arrange and a general impediment to the preparation of the petitioner's appeal, however, I could not go so far as to say it would prejudice the petitioner's appeal.

9. Essentially, I think that I could properly prepare the petitioner's appeal and any ancillary application thereto if he is brought to...Edinburgh two days in advance of any court hearing. I would also prefer the petitioner being brought to...Edinburgh to consult with me when I thought that was necessary."

The appellant's "Grounds of Appeal" are appended to the affidavit of counsel and appear to be not so much grounds but written argument.

[10] Most of what is said in the affidavits is extremely general. They give no clue as to what real problem exists to prevent or even to hinder the petitioner's legal representatives from arranging a consultation with the petitioner in Peterhead and attending it. Such consultations must occur frequently in many cases without any major difficulty. Peterhead is not exactly a remote location and is easily accessible, amongst other methods, on a day trip basis by car.

[11] At the continued First Hearing, the petitioner asked for a further continuation. The respondents submitted that, against the procedural and factual background narrated above, the petition should now be dismissed, given that there has been no amendment to the petition and it is now redundant. Furthermore, the affidavits did not support the essential parts of the thirty fourth statement, which formed the basis for the case. If, when a date for a hearing of the criminal appeal were fixed, there was any practical problem with consulting then the petitioner could raise a fresh petition.

3. Decision
[12] This petition has been superseded by events and, in the absence of substantial amendment, lacks any purpose. It was raised with a view to challenging a decision by the Scottish Ministers to transfer the petitioner to Peterhead, following a short stay in Edinburgh to enable him to consult more easily with his legal representatives. The decision to return him to Peterhead has been implemented. The petitioner has been back in Peterhead for some nine months. Furthermore, even leaving aside the spent nature of remedies sought, the petitioner's fundamental complaint is that his location at Peterhead, pending the resolution of the petition to the nobile officium and his criminal appeal, mean that his right to effective access to his legal advisers is being denied. However, he has already been brought down to Edinburgh for a month to secure ready access to these advisers. He has also been brought to Edinburgh on at least two occasions since then. The petition to the nobile officium has been disposed of. Many months have now passed, during which there must have been ample time in which to discuss his appeal by way of telephone calls, written correspondence and consultation. A date for an appeal has not yet been fixed, so there will be even further opportunity for such discussion.

[13] As identified by his counsel at the initial calling of the First Hearing, an essential part of the petitioner's case is that his legal representatives in the criminal appeal, notably his counsel, are able to maintain that his presence in Peterhead "in the run up to his appeal has had and continues to have a detrimental effect on their ability to prepare his case". That is (not surprisingly) not supported by his counsel. Rather, what is being maintained, no doubt with some justification, is that some facility to consult a day or two before any hearing will be required. There is no material basis in fact for maintaining that such a facility will not be provided. In that regard, there has been no change to the petition since the Lord Ordinary said, in June 2004, that the petitioner's averments disclosed no prima facie case.

[14] Consultation facilities have been provided hitherto. If they are not provided, especially in relation to the final hearing of the appeal, the petitioner may well be justified in seeking an adjournment of the appeal hearing to enable such a consultation to proceed. There is no basis for supposing that the court would not be sympathetic to such an application if it required to be made. But this type of ultimate problem is not one which is focused in the present petition, nor could it be in the absence of material to support it. If the petitioner reasonably anticipates that he will not be afforded sufficient consultation facilities in advance of his appeal hearing, then it will be open to him to raise a new petition in which such issues are properly focused, having regard to the then current circumstances.

[15] I will sustain the respondents' second plea-in-law, that the petition fails to raise any live issue, and dismiss the petition.