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Cite as: [2006] CSIH 34, 2007 SCLR 1, [2006] ScotCS CSIH_34

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Abernethy

Lord Carloway

Lord Menzies

[2006] CSIH 34

P1337/03

OPINION OF THE COURT

delivered by LORD ABERNETHY

in the Petition of

WILLIAM BEGGS (F.E.)

Petitioner and Reclaimer

for

JUDICIAL REVIEW OF DECISIONS AND ACTS etc.

_______

Act: O'Neill, Q.C., Collins; Balfour & Manson (Taylor & Kelly, Coatbridge) (Petitioner)

Alt: Dewar, Q.C., Mure; Solicitor to the Scottish Executive

9 May 2006

Introduction and background

[1] This petition has a long history. The petitioner is presently detained in HM Prison, Peterhead (hereinafter referred to as "the prison"). The petition concerns acts and failures to act by the Governor of the prison and the Scottish Ministers relative to the interference with the petitioner's privileged correspondence, contrary to the requirements of Article 6 et separatim Article 8 of the European Convention on Human Rights and accordingly unlawful by virtue of Section 6 of the Human Rights Act 1998 et separatim Section 57(2) of the Scotland Act 1998. The respondents are the Scottish Ministers, the Scottish Prison Service being an executive agency of the Scottish Executive Justice Department.

[2 ] The petitioner avers that privileged correspondence sent to him while detained in the prison was unlawfully interfered with by the prison authorities as follows:

"(i) on or about 6 February 2003, a letter to the petitioner from the Scottish Prisons Complaints Commissioner was opened in the presence of the petitioner by a prison officer, Ms Johnson;

(ii) on or about 20 March 2003, a letter to the petitioner from the Scottish Prisons Complaints Commissioner was opened in the presence of the petitioner by a prison officer, Mr McFarquhar;

(iii) on or about 26 March 2003, the petitioner was required by a prison officer, a Mr Dorans to open a letter from his solicitors in the presence of the prison officer and shake out the contents of the envelope before him for the purposes of inspection;

(iv) on or about 24 July 2003, a letter to the petitioner from his solicitors was opened in the presence of the petitioner by a prison officer, Ms Johnson."

[3 ] One of the orders which the petitioner seeks is an order interdicting the Scottish Ministers and the Governor of the prison from requiring the petitioner, during his present period of detention in the prison, to open or have opened in the presence of a prison officer or prison officers, except on due cause shown, all and any privileged correspondence sent to him while detained in the prison; and for interdict ad interim; which failing, an order declaratory of the right of the petitioner to such an order, but for the terms of section 21 of the Crown Proceedings Act 1947.

[4 ] On 5 September 2003 a motion for interdict ad interim and declarator in terms of the order sought was refused by the Lord Ordinary. On 7 October 2003 the petitioner lodged grounds of appeal. Sundry procedure followed thereafter which it is not necessary to notice in detail for present purposes, except in one respect. On 19 May 2004 after allowing a minute of amendment for the petitioner to be received and on a renewed motion by the petitioner for interdict ad interim, the Inner House refused the motion in hoc statu in respect that an undertaking was tendered on behalf of the respondent. The undertaking was in the following terms:

"The Scottish Ministers hereby undertake that, for the duration of the petitioner's present period of detention in HMP Edinburgh:-

(1) letters or packages sent to the petitioner at HMP Edinburgh 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 (2) 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.

The Scottish Ministers further undertake that if the petitioner is moved to a prison other than HMP Edinburgh or HMP Peterhead, they will return to court as soon as reasonably practicable to offer a further undertaking in similar terms in respect of such other prison.

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 advisor or his/her assistant. Alternatively, this information shall be contained in a covering letter to the prison authorities at HMP Edinburgh. In either case, the letter or package shall be sealed in an outer envelope addressed to the Governor of HMP Edinburgh."

On 15 December 2004 the Inner House allowed a minute of amendment for the petitioner, No.21 of process, to be received and appointed the respondents to lodge answers thereto, if so advised, within 14 days. On 24 December 2004 the respondents lodged answers (No.23 of process) to that minute of amendment. On 6 January 2005 the Court allowed a minute for the petitioner (No.24 of process) averring a breach of the undertaking to be received and appointed the respondents to lodge answers thereto, if so advised, by 24 January 2005. Answers were lodged by the respondents on that date (No.25 of process). In the meantime the Court had already fixed 27 and 28 January 2005 as the diet for a Summar Roll hearing of the petitioner's reclaiming motion. Instead of hearing the reclaiming motion on those dates, however, the Court appointed parties to be heard on the minute and answers, Nos.24 and 25 of process.

[5 ] Having heard counsel for the parties, the Court pronounced the following interlocutors:

"Edinburgh 11 March 2005 The Lords, ex proprio motu appoint the cause to call By Order on Tuesday 15 March 2005 at 10.15a.m. and order the attendance thereat of Mr Tony Cameron, Chief Executive, Scottish Prison Service and Mr Ian D.F. Gunn, Governor of H.M. Prison, Peterhead.

Edinburgh 15 March 2005 The Lords, having resumed consideration of the Minute and Answers, and the case having called By Order, Find the respondents in contempt and make no order in furtherance of this finding, and decern; continue the case By Order until Friday 18 March 2005.

Edinburgh 18 March 2005 The Lords, having heard Counsel for the parties, the case having called By Order, and on the respective motions of the parties, (1) find the Respondents liable to the Petitioner and Minuter in the expenses of the Minute and Answers, Nos. 24 and 25 of process, on an agent and client with client paying basis and remit the account thereof, when lodged, to the Auditor of Court to tax and to report; and (2) on the assumption that such leave is required, grant leave to the respondents to appeal the interlocutors of 11 and 15 March 2005.

Edinburgh 18 March 2005 The Lords decern against the Respondents for payment to the Petitioner and Minuter of the expenses referred to in the preceding interlocutor of this date as the same shall be taxed by the Auditor of Court."

[6 ] By 18 March 2005 the Court of Session had not yet allowed the petition and answers to be amended in terms of the minute of amendment and answers thereto, Nos.21 and 23 of process.

[7 ] By petition of appeal lodged with the Judicial Office of the House of Lords on 8 June 2005, the respondents appealed against the interlocutors of 11 and 15 March 2005, leave so to do having been granted by the Inner House in the first interlocutor dated 18 March 2005. By interlocutor dated 14 October 2005, the Inner House suspended the order relative to expenses contained in the interlocutors of 18 March 2005. This interlocutor of 14 October 2005 was pronounced pursuant to the powers of the Inner House under section 41(1) of the Court of Session Act 1988 ("the 1988 Act") which provides as follows:-

"41(1) On an appeal to the House of Lords under section 40 of this Act, a copy of the petition of appeal shall be laid by the respondent before the Inner House which may regulate all matters relating to interim possession, execution and expenses already incurred as it thinks fit, having regard to the interests of the parties to the cause as they may be affected by the upholding or reversal of the judgment against which the appeal has been taken."

The hearing of the appeal has been fixed to take place on 11-13 December 2006.

[8 ] In the meantime on 20 March 2006 the petitioner enrolled a motion in the Single Bills in the following terms:

"On behalf of the Petitioner and Reclaimer for interdict ad interim."

This motion proceeded on the basis of adjustments to the minute of amendment (No.21 of process) in, inter alia, the following terms:

"On 21 February 2006 in HM Prison Peterhead a letter sent to the petitioner by the Clerk to the Second Division of the Court of Session in an envelope clearly franked 'Kilmarnock Sheriff Court' was opened by SPS staff as ordinary correspondence.

...

Rule 49 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994 as amended (hereinafter referred to as 'the Rules') provides so far as relevant as follows:

Opening and reading of correspondence from and to courts

49(1) This rule applies only to letters and packages which -

(a) are addressed to a court and which a prisoner gives to an officer for the purpose of posting to that court; or

(b) are sent to a prisoner at the prison by a court.

...

(3) Any letter or package to which this rule applies shall not be opened by an officer except where paragraph (5) applies.

(4) The contents of any letter or package to which this rule applies shall not be read by an officer.

(5) Any letter or package which a prisoner wishes to send to a court may only be opened where -

(a) the officer has cause to believe that it contains a prohibited article;

(b) he has explained to the prisoner concerned why he has such cause;

(6) Where a letter or package to which this rule applies is found to contain any prohibited article the Governor shall seize and detain that article.

(7) For the purposes of this rule, 'court' includes the European Court of Justice, the European Court of Human Rights, the Principal Reporter, the Scottish Criminal Cases Review Commission, and the Parole Board of Scotland.

On 31 October 2005 the Governor in Charge at HMP Peterhead issued a document entitled 'Prisoner Notice - Privileged Correspondence - Updated Mandatory Instructions' which so far as relevant provides as follows (emphasis added in bold underlined italics):

'Privileged correspondence should be passed unopened to prisoners as required by Prison Rules 49 and 50. At HMP Peterhead we have for some considerable time regarded a range of agencies who have occasion to write to prisoners as being granted "privileged" status in respect of incoming correspondence.

As the SPS has now published updated mandatory instructions in the handling of privileged correspondence. Only correspondence from the agencies noted below will be treated as privileged from the date of this notice.

As a result of these updated instructions you may find correspondence previously received and marked "Privileged" will be delivered as normal correspondence if the sender does not fall into the categories below.

Definition of privileged correspondence

Privileged correspondence comprises postal correspondence to and from prisoners and:

- courts (as defined below)

- prisoners' legal advisers

- the Scottish Prison Complains Commissioner (SPCC)

- the Risk Management Authority (RMA)

- the Commission of Racial Equality (CRE)

- the Office of the Scottish Information Commissioner (OISC)

Courts

- the European Court of Justice

- the European Court of Human Rights

- the Principal Reporter (now the Scottish Children's Reporter Administration)

- the Scottish Criminal Cases Review Commission; and

- the Parole Board of Scotland

There may be times when correspondence is received from a foreign court or the Parole Board for England and Wales. Such correspondence is not covered by Rule 49 but (if readily identifiable) [will] be afforded the status of legal/privileged.'

In its definition of the 'courts' correspondence from which will be treated as privileged, this notice from the Governor in Charge misunderstands and misrepresents the terms of Rule 49, and in particular Rule 49(1)(b) - which applies the rule to letter and packages 'sent to a prisoner at the prison by a court' - and Rule 49(7) quoted above. The terms of Rule 49(7) are clearly intended to cover correspondence from all courts including the named institutions. The rule's reference to 'courts' is to an open class. By contrast the terms of the Governor's Notice appears to be to a closed class of institutions defined as courts for the purposes of the Rule and thereby appears to limit the protection of Rule 49 only to these listed institutions, and not to other courts properly so called. Consistently with this misunderstanding of the scope of the Rule 49 protection of privileged correspondence, on 21 February 2006 in HM Prison Peterhead a letter sent to the petitioner by the Clerk to the Second Division of the Court of Session - in an envelope clearly franked 'Kilmarnock Sheriff Court', the institution from which the clerk was working that day - was opened by SPS staff as ordinary correspondence. The petitioner complained to the residential officer using Form CP1 and the same day received the following explanation from the residential officer David Smith:

'Mr Beggs, after an investigation it has been found that there has been a mistake made at the office. I apologise to you on their behalf. I have been assured that they will be more careful in future.'

Copies of the said Prisoner Notice of 31 October 2005 and the CP1 of 21 February 2006 are produced herewith.

...

Further and in any event the terms of the Prisoner Notice of 31 October 2005 and the incident of 21 February 2006 detailed ... above show that the Governor in charge misunderstands and misrepresents Rule 49 and accordingly the prison officers acting under his direction misapply the rule and open privileged correspondence emanating from the Scottish courts and clearly marked as such contrary to the petitioner's fundamental right of access to and free communication with the courts. The opening of such correspondence directly from the Scottish courts is not covered by any undertaking offered to date by the respondents to the court. In any event, the clear finding of the court in Beggs v. Scottish Ministers (2005 SC 342) was that the respondents have already received in the course of the present proceedings a strong warning of the need to implement and operate a system which clearly distinguishes privileged letters from personal mail, and ensures that the former be handed unopened to the prisoner. Notwithstanding this fact and that an undertaking has been given to the court and has, in contempt of court, not been complied with by the respondents the Governor in charge HMP Peterhead has again approved a system in which there was a mismatch between the requirements of the Prison Rule and the written instructions given to prisoners. He has again put in place a flawed system which has inevitably again led to error. In the whole circumstances, interdict should be pronounced as concluded for. The petitioner is reasonably apprehensive that in the absence of a court order his privileged correspondence with the court will again be interfered with. In these circumstances interdict ad interim should be pronounced."

[9] The petitioner's motion came before the Court on 22 March 2006 at which stage the motion was expanded to encompass the following:

"(i) pronounce interdict ad interim;

(ii) remit the matter to the Lord Ordinary to proceed as accords; and

(iii) to find the Scottish Ministers liable for the expenses of the whole proceedings to date."

The Court allowed the respondents to lodge answers to the new averments made by the petitioner within 14 days if they thought it appropriate to do so and the matter was continued to a date to be fixed.

[10 ] The motion came before the Court once again on 9 May 2006. The respondents had not lodged answers because they took a preliminary point as to the competency of the petitioner's motion. It was that preliminary point that was debated on 9 May.

Submissions of counsel

[11 ] Counsel for the respondents was invited to open the debate. He submitted that since the case was now pending before the House of Lords, it was not competent for the Court of Session to pronounce further interlocutors in the petition other than under the powers set out in Section 41(1) of the 1988 Act. The respondents having appealed to the House of Lords under Section 40 of that Act, all prior interlocutors in the cause were submitted to the review of the House of Lords in terms of Section 40(4). The House could therefore review not only the interlocutors mentioned in the petition of appeal but all interlocutors including that pronounced by the Lord Ordinary on 5 September 2003. Reference was made to a number of cases illustrating the exercise of its power by the Court of Session to regulate matters ad interim in terms of the predecessor statutory provision to Section 41(1) of the 1988 Act. These were Steel Co. of Scotland v Tancred Arrol & Co. (1889) 26 SLR 465; Ballachulish Slate Quarries Co. v Grant (1903) 5 F 1105; Lord Advocate v Glasgow Corporation 1972 SC 287. In the present case the Inner House had used its powers to regulate expenses ad interim (in the second interlocutor of 18 March 2005). It had not been asked to regulate execution ad interim of the finding of contempt and possession ad interim was not relevant to the case. It was submitted that in terms of Section 41(1) of the 1988 Act only these matters could be regulated by the Court of Session. The section was not habile to permit the court to enter upon new procedure in the cause. Reference was made to the cases of Stewart v Kennedy (1889) 16 R 890; Edinburgh Northern Tramways Company v Mann (1891) 19 R 24; and Martin v Scottish Transport and General Workers Union 1952 SC 92. In the present case the petitioner could lodge a minute of amendment before the House of Lords: see Clyde Navigation Trustees v Laird & Sons (1880) 7 R (HL) 115 and Duke of Portland v Wood's Trustees 1927 SC (HL) 1. If it was said that the present cause has not in its entirety been removed to the House of Lords, since the interlocutors appealed from by the respondents concerned an issue (contempt of court) which was not raised in the reclaiming motion, that was not correct. The issue was initially brought before the Inner House by way of a minute of amendment and answers thereto Nos.21 and 23 of process. The issue has its roots in, and is dependent upon, the pleadings in the petition and answers. Moreover, in terms of Section 40(4) of the 1988 Act, all prior interlocutors are submitted to the review of the House of Lords. The issue of contempt could not be separated from the cause as a whole. In Davidson v Scottish Ministers (No.3) 2005 SC (HL) 1 it had been held by the House of Lords that a petition to the nobile officium of the Court of Session challenging the decision of an Extra Division in an earlier petition on the grounds of want of impartiality comprised separate proceedings from the earlier petition. The two petitions were separate processes raised under different chapters of the Rules of the Court of Session and were dealt with as such by the Court. That decision indirectly supported the respondents' argument that in the present case the minute and answers are part of the same cause as the petition in which they were permitted to be lodged; they were all part of the same process. While it was fully accepted that the petitioner could bring any issue before the court that he wished, including a motion for interdict ad interim, standing the above authorities the course presently adopted was incompetent. The cause was now depending before the House of Lords. It could not be pending in two courts at the same time. While it was pending before the House of Lords, the power of the Court of Session in the cause was restricted to the regulation ad interim of the matters provided for by Section 41(1) of the 1988 Act. There was no statutory provision or authority in case law to support the instigation of proceedings in the Court of Session parallel to continuing appeal proceedings before the House of Lords. The petitioner could either tender a minute of amendment before the House of Lords or seek to apply by incidental petition to the House for interdict ad interim pending the hearing of the appeal. He could also raise new petition proceedings founding upon the incident on 21 February 2006 and aver that prior incidents should be considered by the court when exercising its discretion on an application in that new petition for interdict ad interim.

[12 ] In reply senior counsel for the petitioner submitted that the motion now before the court was competent, notwithstanding that there was currently an appeal to the House of Lords arising out of the Court's earlier finding that the respondents were in contempt of court. That finding arose out of a distinct minute and answers procedure (Nos.24 and 25 of process) and did not involve any consideration of the matters at issue in the present reclaiming motion. The contempt issue was determined in what was in substance a distinct ancillary process before the Court, a discrete procedure. Counsel informed us that, as is perhaps indicated from the wording of the second part of the first interlocutor of 18 March 2005, in which the Court had granted leave to appeal to the House of Lords "on the assumption that such leave is required", the Court had expressed doubt as to whether leave was necessary on the view that the interlocutor of 15 March 2005 might be regarded as a final interlocutor. Counsel submitted that it was the substance of the matter that should prevail rather than the form. He referred also to Davidson v Scottish Ministers (No.3), supra. It was clear that the decision of the House of Lords to uphold or reverse the finding of contempt could have no effect on the substantive issues in the reclaiming motion in this case, which remained before the Inner House. Counsel made a secondary submission to the effect that Section 41(1) of the 1988 Act should be read creatively, as he put it, to incorporate interdict ad interim as one of the matters which the Inner House might regulate in terms of that provision. That made sense and it would save what was described as the needless expense of taking the matter to the House of Lords. Reference was made to Lord Advocate v Glasgow Corporation, supra. That was a case where interim execution had been granted by the Inner House for practical reasons after the case had been appealed to the House of Lords. Although this was not a case of interim execution, which was clearly within the terms of the section, similar broad considerations should prevail in this case also.

Discussion

[13 ] It is convenient first to consider the case of Davidson v Scottish Ministers (No.3). In that case two petitions were presented by one and the same person. One was a petition for judicial review. The other was a petition to the nobile officium. The two petitions were related to each other. The petition for judicial review was still at an early stage, although in respect of an interlocutory matter it had been before the Inner House and leave to appeal to the House of Lords had been refused. In the petition to the nobile officium the whole matter raised by the petition had been decided by the Inner House. The respondents, however, wished to appeal to the House of Lords. The issue was whether the petition to the nobile officium was part of the same cause as the petition for judicial review. If it was, then leave to appeal to the House of Lords was required. If it was not, leave to appeal was not required (Section 40 of the 1988 Act). In holding that leave to appeal was not required, the Appeal Committee of the House of Lords said this:

"[11] There is no doubt that, although they were related to each other, the two petitions were treated by the court as separate processes. They had been presented to the court under different chapters of the Rules of the Court of Session 1994 (SI 1994/1443). The petition for judicial review was an application to the supervisory jurisdiction of the Court of Session which was made under r 58(3). It was presented in the Outer House under r 14(2)(e). The application to the nobile officium was made by way of a petition which was presented to the Inner House under r 14(3)(d). Each of the two processes had its own process number. It comes as no surprise to find that in para 38 of his opinion in the petition to the nobile officium the Lord Justice-Clerk referred to the petition for judicial review as 'the previous process'. The petitioner sought to obtain relief the nobile officium (sic) against judgments which had been pronounced against him in his application for judicial review, but in point of form the two processes were separate processes. Furthermore, the interlocutor of 11 September 2002 was a judgment on the whole merits of the issue which was before the court in the petition to the nobile officium. That process is now at an end so far as the Court of Session is concerned. The issues between the parties that remain to be dealt with in that court are the issues which have been raised in the judicial review process.

[12 ] In substance too the issues to which the two processes were directed are separate issues. In Beattie v Corporation of Glasgow Earl Loreburn examined the prohibition against appeals from the interlocutory judgments except with the leave of the Division which pronounced these judgments. That prohibition was set out in sec 15 of the Court of Session Act 1808 (cap 151), from which the current provision in sec 40 of the Court of Session Act 1988 is derived. He said (p 315):

'Now let us look at the nature of this statutory prohibition. As I read the statute it applies to interlocutory judgments, meaning judgments which are in substance interlocutory, not simply those that are in form interlocutory. A judgment may be interlocutory in form but final in substance as, for example, when it determines a liability to account, leaving merely the ancillary process of taking the account. The prohibition also applies where the judgment or decree is not on the whole merits of the cause.'

In Ross v Ross Viscount Dunedin observed that the whole gist of the matter was to be got out of Lord Loreburn's opinion in Beattie. He said (p 6): 'The test of finality in substance is whether the case would have been equally decided in substance whether the interlocutor under discussion had been pronounced as it was or had been pronounced to the opposite effect.'

[13 ] Testing the matter in that way, it is clear that the judgment of the Second Division in the application to nobile officium was in substance final. The decision which the court reached in that process was a final judgment, and it would also have been a final judgment if it had been to the opposite effect. In that event the prayer of the petition would have been refused and the petition dismissed. As it was, the prayer was granted to the extent of setting the interlocutors of the Extra Division aside. The subject-matter of this petition was finally disposed of when the court appointed the reclaiming motion in the judicial review process to be reheard by a Division which was differently constituted. There was nothing left for it to decide.

[14 ] The Committee are therefore of the opinion that the petition for judicial review on the one hand and the petition to the nobile officium on the other hand are, both in form and in substance, separate processes. The interlocutor of the Second Division of 11 September 2002 was a judgment on the whole merits of the cause in the nobile officium process. The leave of the Inner House to appeal against that interlocutor is not required."

[14 ] In the present case the minute and answers (Nos.24 and 25 of process) which led to the finding of contempt were not in form a separate process. On the contrary, they were part of the same process as the petition for judicial review. In that respect, therefore, this case is different from Davidson. It is perhaps worth noting, however, that prior to a change in the law brought about by Section 6(4) of the Administration of Justice (Scotland) Act 1933, the minute and answers would not have been part of the same process. Prior to that the procedure would have been by way of a separate petition and complaint.

[15 ] But what about the substance of the matter? In light of what was said in Davidson and the authorities cited there it seems to us that the critical question is whether the finding of contempt by the Inner House was in substance final. In our opinion it was. When looked at in context, it satisfies the test of finality enunciated by Viscount Dunedin in Ross v Ross, supra. And while in terms of Section 40(4) of the 1988 Act the House of Lords may review all interlocutors in the case, it is difficult to see why it should do so except insofar as the interlocutors bear upon the question of contempt. That is the only question on which an appeal to the House of Lords has been taken. It is a quite separate question from those raised in the petition for judicial review.

[16 ] No doubt the petitioner could have sought the interdict ad interim he now seeks in different ways but in our opinion, for the reasons we have given, the way in which he has done it is competent. This is on the assumption, of course, that the petition will eventually be amended in terms of the minute of amendment and answers (Nos. 21 and 23 of process) as adjusted.

[17 ] We have only to add that in our opinion the secondary submission made by senior counsel for the petitioner as to the construction and effect of Section 41(1) of the 1988 Act is without merit. The words and meaning of the sub-section are clear. In our opinion it is not open to us to extend them as senior counsel suggested.