EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Macfadyen
Lord Sutherland
Lord Marnoch
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[2006] CSIH 17
P791/04
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OPINION OF THE COURT
delivered by LORD
MACFADYEN
in
RECLAIMING MOTION FOR THE PETITIONER
in
the petition of
WILLIAM FREDERICK IAN
BEGGS,
Petitioner and Reclaimer;
against
THE SCOTTISH MINISTERS,
Respondents:
for
Judicial Review.
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Act: the petitioner and reclaimer in person.
Alt: Sheldon; Solicitor to the Advocate General for Scotland.
10 March 2006
Introduction
[1] The petitioner was convicted of murder
and, on 12 October 2001,
was sentenced to life imprisonment with effect from 28 December 1999, with a punishment part of
twenty years. He has appealed against
conviction and sentence. The note of
appeal was lodged on 2 July 2002. After sundry procedure he was granted leave
to appeal. A date for the hearing of the
appeal has not yet been fixed, although it is expected that a procedural
hearing will take place shortly.
[2] The present petition was presented in
June 2004. At that stage the petitioner
was detained in HM Prison, Edinburgh.
From May 2002 until 4 May 2004
he had been detained in HM Prison, Peterhead.
On the latter date he had been transferred on a temporary basis to HM
Prison, Edinburgh, in order that he might have readier access to his legal
advisers in connection with the pending criminal appeal and a related petition
to the nobile officium of the High
Court of Justiciary. On 28 May 2004 the deputy governor of HM
Prison, Edinburgh, intimated to the petitioner's solicitors that he was to be
transferred back to HM Prison, Peterhead.
This petition for judicial review was presented on 3 June 2004 in order to challenge the validity
of that decision, and a motion for interim
orders was heard on that date. That
motion was refused on 18 June 2004. By then, the petitioner had already, on 4 June 2004, been returned to HM
Prison, Peterhead.
[3] A first hearing in the petition took
place on 9 March 2005. Having heard the petitioner in person and
counsel for the respondents, the Lord Ordinary made avizandum and, by
interlocutor dated 24 March 2005,
sustained the respondents' second plea in law (to the effect that the petition
did not raise a live issue) and dismissed the petition. The petitioner has reclaimed against that
interlocutor.
Preliminary issues
[4] Shortly before the summar roll hearing
in respect of the reclaiming motion was due to take place the petitioner
enrolled a motion raising two preliminary issues. It was arranged that that motion would be
heard on the date appointed for the summar roll hearing.
(a) Independent and impartial tribunal
[5] It is convenient to address these
preliminary issues in reverse order. The
second issue invited the court to consider whether it constituted an
independent and impartial tribunal within the meaning of Article 6 of the
European Convention on Human Rights ("the Convention"). The respondents opposed that aspect of the
motion. That prompted the petitioner to
lodge a devolution minute challenging the respondents' entitlement to take up
that position. When the case called for
hearing of the motion, however, the petitioner intimated that he did not seek
to insist in that part of his motion or in the devolution minute. That being so it is unnecessary for us to say
more on the matter. We refuse that part
of the motion, and dismiss the devolution minute, in each case for want of
insistence.
(b) Prejudicial publicity
[6] The first issue raised in the
petitioner's motion was expressed in the following terms:
"The Petitioner & Reclaimer is an Appellant
against conviction and sentence in criminal proceedings. Since December 1999 the Petitioner and
Reclaimer has been the subject of a media campaign in Scotland
and elsewhere in the United Kingdom
which he maintains has had the aim of prejudicing the outcome of the said
criminal proceedings. Much of the
reporting has been wildly inaccurate or deliberately misleading. The instant proceedings have been
inaccurately reported. The nature of the
offence for which the Petitioner & Reclaimer was indicted has
been repeatedly misrepresented in the media.
The risk of prejudice in the instant proceedings and in other
proceedings may accordingly arise. The Petitioner
& Reclaimer respectfully invites the Court to evaluate and manage
that risk."
[7] In the course of his submissions in
support of the motion, the petitioner accepted that he could not say that there
was a substantial risk that we would be prejudiced in our dealing with the
reclaiming motion by any inaccurate or misleading reporting. Equally, he accepted that he could not say
that there would be a substantial risk that the judges who hear his appeal in
the Appeal Court of the High Court of Judiciary would be prejudiced in dealing
with the appeal by any such reporting.
The petitioner, however, figured the eventuality of his appeal
succeeding and authority being granted to the Lord Advocate to bring a new
prosecution (Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"), section 118(1)(c)). In that eventuality, he submitted, there was
a risk of the jury in the new prosecution being prejudiced by inaccurate and
misleading reports.
[8] On that basis the petitioner invited us
to make an order under section 4 of the Contempt of Court Act 1981, postponing
the publication of any report of the proceedings in the reclaiming motion until
after the criminal appeal had been disposed of and, in the event of a new
prosecution being authorised, until after the conclusion of the proceedings therein. Alternatively, he suggested that we might
order that the reclaiming motion be heard in
camera with representatives of the press excluded from the courtroom.
[9] Mr Sheldon, who appeared for the
respondents, submitted that we should take neither of the suggested
courses. He drew our attention to the
terms of section 4(2), which are as follows:
" ... the court may, where it appears to be necessary for
avoiding a substantial risk of prejudice to the administration of justice in
those proceedings, or in any other proceedings pending or imminent, order that
the publication of any report of the proceedings, or any part of the
proceedings, be postponed for such period as the court thinks necessary for
that purpose."
He
submitted, first, that there was no "substantial risk of prejudice"; and
secondly, that any trial following the authorisation of a new prosecution could
not be said to be "pending or imminent".
He also submitted that we should not exclude the press from the hearing
of the reclaiming motion.
[10] We had no hesitation in concluding that we
should not take either of the steps proposed by the petitioner. As we have already recorded, he accepted that
there was no substantial risk that we, in hearing the reclaiming motion, or the
judges of the Criminal Appeal Court,
in hearing the criminal appeal, would be so affected by inaccurate or
misleading reports that the petitioner's right to a fair hearing in either
court would be prejudiced. The likely
effect of publicity arising from this reclaiming motion on the minds of jurors
taking part in a new trial authorised following a successful appeal must be
evaluated in the context of the adverse publicity which is alleged already to
have taken place (and is the subject matter of part of the criminal appeal), as
well as the lapse of time likely to occur before any such trial might take
place. In all the circumstances, we did
not consider that the petitioner had made out a case that in the eventuality
which he contemplated there would be a substantial risk of prejudice to the
interests of justice. In any event, it
is clear that any such re-trial cannot at this stage be said to be "pending or
imminent". For these reasons, there is
no ground for an order under section 4(2) of the sort that the petitioner
suggested. Nor did we consider that it
would be right for us to order the reclaiming motion be heard in camera with the press excluded. The relevant general principle is that court
proceedings should be held in public (Article 6 of the Convention). In circumstances in which it is thought
proper to exclude the public, it is normal to allow representatives of the
press to be present to preserve the public nature of the proceedings. It would be an extreme step indeed for us to
exclude the press. The considerations which
led us to conclude that a section 4 order would not be appropriate lead us also
to the additional conclusion that it would be inappropriate to exclude the
press from the hearing of the reclaiming motion. We therefore decided to refuse the petitioner's
motion in both of its branches.
The reclaiming motion
[11] By the time the petition came before the
Lord Ordinary for the first hearing, matters had moved on somewhat from the
stage referred to in the petition. As we
have already indicated, the petitioner was returned to HM Prison, Peterhead, on
4 June 2004. The petitioner, having been granted only
limited leave to appeal at first sift under section 107(1) of the 1995 Act and
at second sift purportedly under section 107(5) of the 1995 Act, sought to challenge
the latter decision by petition to the nobile
officium of the High Court. The
outcome of that petition was that it was held that the purported application to
the second sift under section 107(4) had been incompetent, and that if the
petitioner wished to broaden the scope of the grounds of appeal which he could
argue, he required to make an application under section 107(8) (Beggs, Petitioner 2005 JC 174). That was the stage which the criminal appeal
proceedings had reached when the Lord Ordinary dealt with the first hearing in
the present petition on 24 March 2005. Thereafter an application under section
107(8) was presented to the High Court and on 25 November 2005 (2006 SCCR 25) leave was granted to
argue the whole grounds of appeal not already identified as arguable.
[12] The remedies sought by the petitioner in
the present petition for judicial review are set out in statement IV of the
petition. They are:
(a)
declarator that the decision of 28 May 2004 to return
the petitioner to HM Prison, Peterhead, was, in all the circumstances of the
case, incompatible with Article 6 of the Convention, because it interfered
disproportionately with the petitioner's fundamental right of access to the
court and his legal advisers;
(b)
an order interdicting the governor of HM Prison,
Edinburgh, and the respondents from implementing the decision to transfer the
petitioner back to HM Prison, Peterhead, until the conclusion of his appeal, or
alternatively for an order declaratory of his right to such an order; ... and
(c)
such other relief or remedy or orders as the Court
considers just and appropriate in all the circumstances of the case, at common
law and in terms of section 8(1) of the Human Rights Act 1998 et separatim section 100 of the Scotland
Act 1998.
[13] The Lord Ordinary, as we have already
noted, sustained the respondents' second plea in law, holding that the petition
did not raise any live issue. In his
opinion of 24 March 2005,
the Lord Ordinary (at paragraph [12]) expressed the following view of the
situation:
"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 the 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, means 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 had 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 discussions."
[14] In moving us to grant the reclaiming
motion, the petitioner first drew attention to the fact that in their answers
the respondents maintain that HM Prison, Peterhead, is the appropriate prison
of classification for the petitioner, since the crime of which he was convicted
included a sexual element. He submitted
that he had been convicted of a charge of murder, and that it was wrong to
treat him as if he had also been convicted of sodomy. We do not consider that there is any merit in
that submission. The charge of murder of
which the petitioner was convicted contained an averment that he did:
"penetrate his [the deceased's] hinder parts with [his, i.e.
the petitioner's] private member".
Given
that the charge was thereby giving specification of an assault committed by the
petitioner on the deceased, we fail to see how it can be interpreted otherwise
than as a finding that he had committed sodomy.
We have no doubt that in these circumstances the respondents were
entitled to treat him as having been convicted of a crime containing a sexual
element.
[15] Recognising that the remedies mentioned in
statement IV of the petition concentrated on the decision of 28 May 2004, which had been implemented, the
petitioner sought to develop a more general point aimed at settling his right
to be held in a prison convenient for access to his advisers. He referred to statement XXXII of the
petition. He drew our attention to a
draft minute of amendment which is printed at pages 6 et seq of the Supplementary Appendix. That draft included a proposal to add a new
subparagraph (b) to statement IV of the petition, claiming:
"declarator that subsequent failures on the part of the
Respondents to secure to the Petitioner adequate guarantees of ready access to
his legal advisers by transferring him to HMP Edinburgh at their request in
terms of the affidavit sworn by Ms M Scott, QC are incompatible with Article 6
of the Convention - and accordingly ultra
vires the Scottish Ministers by virtue of section 57(2) of the Scotland Act
1998 - as resulting from a decision which disproportionately interferes with
the petitioner's fundamental right of access to the Court and to his legal
advisers."
The
petitioner did not, however, move us to allow the petition to be amended in
terms of the draft minute of amendment.
He stated that it was not yet in a form which he wished to move.
[16] In his submissions, the petitioner
formulated a declarator which he submitted we should pronounce. It involved recognition of an entitlement "to
expect to be transferred to a prison convenient to the court a reasonable time
before any hearing or application connected with his criminal appeal hearing
and the appeal hearing itself"; specification that what would constitute a
reasonable time would depend on the nature of the hearing; and that he should
be entitled to such transfer "at such other times as his presence at a location
convenient to the court is required by senior counsel acting in the case, so
far as is within the operational competence of the Scottish Prison Service".
[17] Having considered the submissions made by
the petitioner, we have concluded that nothing he said showed that the Lord
Ordinary erred in disposing of the petition in the way he did. The focus of the petition was exclusively on
the decision of 28 May 2004, and the circumstances prevailing at that
time. That decision having been
implemented, and the procedure in relation to the criminal appeal having moved
on substantially, the Lord Ordinary was in our opinion fully entitled to regard
the petition as lacking any practical purpose.
In the absence of any minute of amendment tendered to him, the Lord
Ordinary was in our opinion entitled to dismiss the petition.
[18] Since the petitioner did not move to amend
the petition before us, the position remains the same: the petition as
presently formulated lacks practical purpose.
The present circumstances are even further removed from those focused in
the petition than were those which prevailed at the time of the hearing before
the Lord Ordinary. We do not consider
that, without amendment, it would be appropriate for us to consider the
submission that the declarator which the petitioner formulated orally before us
should be granted. The petitioner
indicated that he had been led by a member of the staff of the court to believe
that he could not amend his pleadings pending the reclaiming motion. If that occurred it is, no doubt,
unfortunate. But it does not alter our
conclusion. If an application had been
made to amend the petition in the manner indicated in the draft minute of
amendment contained in the Supplementary Appendix at pages 6 et seq, or in the terms formulated
orally by the petitioner, we would have refused that motion. We would have done so on the basis that the
amendment would have altered the petition from one challenging the validity of
the decision of 28 May 2004 to one seeking to set up a general proposition as
to the petitioner's right to be transferred to a convenient prison whenever his
legal advisers so requested. That is a
wholly different issue from the one originally focused in the petition. It is one which has not been discussed in the
Outer House. It is not an issue which we
would have regarded it as appropriate to entertain by way of such radical
amendment of the petition.
[19] There is one remaining point that we
require to deal with. The petitioner
submitted that he had been led to believe that the first hearing on 9 March
2005 would not be a substantive hearing, and that he was therefore prejudiced
when the Lord Ordinary proceeded to dismiss the petition. He drew our attention to the minutes of
proceedings of 2 and 16 February 2005.
The minute of proceedings of 2 February 2005 (when the petitioner was
legally represented) recorded inter alia the
following:
"[Counsel] for the Respondents ... stated ... that if the
Petition cannot be amended to enable the petition to be insisted upon, his
motion will be to dismiss the petition.
It was recognised by both parties that the continued First Hearing
of 16 February 2005 would not result in a substantive hearing on that
date. If the Petition was not to be
dismissed a further substantive diet for a continued First Hearing would
require to be fixed.
The Court observed that substantial amendment would be
required in any event to bring the petition up to date and Continued the diet
of First Hearing until 16 February
2005."
On 16
February the first hearing was further continued to 9 March. On the former date the minute of proceedings
recorded that the continuation was "to enable the petitioner to consider
amendment of the pleadings and the provision of a relative affidavit". It was again indicated that the hearing on 9
March would be of a procedural nature.
Counsel for the respondents reiterated that "in the absence of further
developments" he would be seeking dismissal.
[20] In our opinion it was made clear that at
the hearing on 9 March the respondents would, in the absence of amendment,
seek, and the court would entertain the application for, dismissal. Although on 9 March affidavits were
available, no minute of amendment was tendered.
The respondents' counsel therefore did what he had warned he would do,
namely moved for dismissal. The basis
was that the petition was out of date and did not address the current
circumstances. It was on that basis that
the Lord Ordinary granted decree of dismissal.
We do not consider that, on a fair reading of the minutes of proceedings,
the petitioner is entitled to claim to have been taken by surprise by that
course of events. In any event, if he
was, this reclaiming motion has afforded the opportunity for him to address, if
he chose so to do, any issue which he was not able to address properly on 9 March 2005.
Result
[21] For the reasons which we have set out we
refuse the reclaiming motion and adhere to the Lord Ordinary's interlocutor of 24 March 2005 dismissing the
petition.
