Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 106
P1089/12	OPINION OF LORD JONES in Petition of BRIAN DONNELLY (AP) FE Petitioner; for Judicial Review of decisions by the respondents relating to the removal of the petitioner from association with other prisoners ________________

Petitioner:; ; K. D. Stewart QC; Drummond Miller LLP

Respondent: Ross; Scottish Government Legal Department

28 June 2013

Introduction

[1] The petitioner is currently a prisoner at Her Majesty's Prison, Barlinnie, Glasgow, having been convicted of murder, after trial, on 16 February 2001. He was sentenced to life imprisonment, backdated to 11 May 1998. The punishment part of the sentence was 14 years, which expired on 10 May 2012. His application for judicial review concerns matters which occurred while the petitioner was at Her Majesty's Prison, Shotts. He was serving his sentence there at Kerr House, under a regime known as "national top-end conditions". He was graded at low supervision level, and he was able to work at places outside the prison. The first respondent is the governor of Shotts prison. The second respondents are the Scottish Ministers. The case came before me for a first hearing on 9 January 2013.

The petitioner's averments of fact

[2] According to his averments, on or about 8 July 2011, the petitioner was on a work placement outside the prison. He had been on that placement since 6 June 2011, and he was working alongside other prisoners, without any supervision from prison staff. The petitioner's work involved painting and maintenance. Prisoners who were working on such placements were transported to and from their place of work by bus, and they left the prison wearing civilian clothes. On arrival at the placement, they changed into working clothes which were provided for them, and, at the end of the day's work, they changed back into their civilian clothes.

[3] On returning to the prison on 8 July, the prisoners were made to wait outside and were taken into the prison individually. When the petitioner was taken inside the prison, he was told to stand. A sniffer dog team, consisting of a dog and its handler, were present. Such a team is known as the "Tactical Dog Operation Unit". The dogs are trained to recognise certain substances, such as controlled drugs, and to indicate their presence by such means as adopting a recognised posture, which the handler is able to interpret. On this occasion, the dog approached the petitioner and sniffed at two of the pockets of his jacket. The petitioner avers that the dog did not give an unequivocal indication of the presence of controlled drugs on the petitioner's person or in his clothes. Immediately after the dog had sniffed the second of the petitioner's pockets, one of the prison staff present said "right that's him" and brought the search to an end. The petitioner was thereafter placed in the segregation unit at the prison. His clothing was searched and he was subjected to a strip search. No controlled drug was discovered in the course of these searches. The petitioner was later told that the sniffer dog team had been used because the first respondent had received specific intelligence to the effect that the petitioner was attempting to introduce controlled drugs into the prison. All of the foregoing averments, with the exception of the averment that the sniffer dog did not give an unequivocal indication of the presence of controlled drugs on the petitioner's person or in his clothes, are admitted by the respondents.

[4] Between 8 July and 5 October 2011, a number of decisions affecting the petitioner were taken by one or other of the respondents. It is convenient, at this stage, to set out the legal framework in which these decisions were made. Rule 94 of the Prison and Young Offenders Institutions (Scotland) Rules 2006 provides, among other things, as follows:

"94.- Removal from  association

(1) Where it appears to the Governor desirable for the purpose of-

(a) maintaining good order or discipline;

(b) protecting the interests of any prisoner; or

(c) ensuring the safety of other persons,

the Governor may order in writing that a prisoner shall be removed from association with other prisoners, either generally or during any period the prisoner is engaged or taking part in a prescribed activity.

...

(4) The Governor when making an order under paragraph (1), shall-

(a) specify in the order whether the removal from  association is-

(i) in general; or

(ii) in relation to a prescribed activity

...

(5) A prisoner who has been removed from association generally or during any period that the prisoner is engaged in or taking part in a prescribed activity by virtue of an order made by the Governor in terms of paragraph (1) shall not be subject to such  removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority on the application of the Governor, prior to the expiry of the said period of 72 hours.

(6) An authority granted by the Scottish Ministers under paragraph (5) shall have effect for a period of one month commencing from the expiry of the period of 72 hours mentioned in paragraph (5) but the Scottish Ministers may, on any subsequent application of the Governor, renew the authority for further periods of one month commencing from the expiry of the previous authority."

[5] By written order, granted at 18: 00 hours on 8 July 2011, the first respondent removed the petitioner from general association with other prisoners. (Number 6/1 of process) The stated purpose of the order was to maintain good order and discipline. The order provided the following reason as to why it was made:

"On return from his placement today Mr Donnelly was searched by the S.P.S. Dog Unit in Reception who returned a positive indication. A body search was undertaken with nothing being found. This leads local management to suspect the illicit articles may be concealed in a bodily orifice.

The decision was made to relocate him to the Segregation Unit under a local rule to allow further investigation into this matter."

Consequent upon the making of the order, the petitioner was held in a cell at the segregation unit of the prison.

[6] On 11 July 2011, the petitioner was given written notice that the first respondent was considering making an application to the second respondents to extend the removal from association authority for a period of up to a month. It was stated in the notice that the purpose of the application would be of maintaining good order or discipline. It was also stated there that the reason for the application would be as follows:

"Mr Donnelly was relocated to the Segregation Unit on return from external placement on Friday, 8^th July 2011 after a positive indication by the SPS Dog Unit in HMP Shotts reception.

The introduction of the SPS Dog Unit was a direct result of intelligence received by local management which indicated that Mr Donnelly was attempting to introduce drugs into the establishment from his external placement. Although no illicit articles were found local management believe Mr Donnelly may have had the articles concealed in a bodily orifice and that the positive indication by the Dog Unit serves to validate the authenticity of the intelligence received.

As such permission is sought to hold Mr Donnelly under rule 94 conditions in order to maintain good order and discipline and to afford the opportunity to fully investigate this matter. The possibility of articles being introduced to the National Top End through external placements is one which the management view very seriously."

[9] The notice advised the petitioner that he had the opportunity to make written representations on the matter, which would be taken into account before a final decision was taken on whether to apply to the second respondents. The petitioner made written representations in response, on the same day. He drew to the attention of the first respondent his view, among other things, that a fellow prisoner in Kerr House had sought by various means to have him removed from placement. An application under the provisions of rule 94(5) was made by the first respondent to the second respondents on 11 July 2011, and was granted on the same day. According to its terms, the authority was to expire on 11 August 2011 at 18:00 hours. It is an admitted fact that, by notice timed at 11.30 am on 17 July 2011, "the second respondents terminated the authority granted by them under rule 94 (5) for the removal of the petitioner from association with other prisoners." (Statement 8 of the petition; number 6/5 of process) The petitioner avers that no explanation was provided by the respondents to the petitioner for the termination of the authority before its expiry.

[10] According to the petitioner's averments, between the making of the order for removal from association and the termination of authority by the second respondents, no investigation was conducted by the first respondent into whether the petitioner had been attempting to introduce controlled drugs into the prison on 8 July. In particular, he avers, no attempt was made to confirm whether the purported indication by the sniffer dog suggesting that the petitioner had controlled drugs about his person was accurate. No authority was sought for an invasive search of his bodily cavities, and none was carried out. The petitioner was not held in segregation in conditions in which examination could be made of his stools. Had the first respondent wished to determine whether the petitioner had concealed illicit articles within his person by these means, it would have been possible to have held him temporarily in conditions where the toilet facilities did not flush directly into the common sewer, but into an intermediate tank or other receptacle, from which packages contained within bodily waste could be recovered. In answer to those averments, the respondents aver that no such arrangement existed at Shotts prison. The petitioner avers that he was not medically examined, and that no attempt was made to identify packages within the contents of his stomach by x-ray or other means. Further, he avers, no investigation was carried out by the police. Had the petitioner been attempting to introduce controlled drugs into the prison, he would have been committing a crime. According to his averments, in spite of the purported justification for the order removing the petitioner from general association with other prisoners and holding him in segregated conditions, no meaningful investigation was carried out to confirm whether he was attempting to introduce controlled drugs into the prison. I shall return to the significance which the petitioner places on these averments later in this opinion.

[11] The petitioner avers that, as a result of the decisions by the first respondent to apply to the second respondents for a rule 94(5) extension, and by the second respondents to grant such an extension, the petitioner was recategorised from "low supervision" to "medium supervision". He was held in closed conditions within the prison for a period of ten months. He was returned to top-end conditions at Kerr House in or about May 2012. Had no rule 94(5) authority been granted by the second respondents, he avers, the petitioner would have been returned from rule 94 conditions in segregation, to his previous low supervision status, before or at the expiry of seventy two hours after the first respondent's order was made. As a result of the recategorisation, the petitioner's progress through the prison system will be delayed. It will have an adverse effect upon his progress through the prison system towards the point at which a first grant of temporary release ("FGTR") is made. As a consequence of losing his low supervision status, he lost the opportunity of FGTR. He required to start working towards FGTR afresh, and his appearance before the risk management team in the prison was delayed until 25 October 2012. Such an appearance, he avers, is a necessary step leading towards FGTR. The risk management team considering his position revised the management plan relating to him, to extend the period which he will spend on community placement. He is about to spend a minimum of nine months on community placement before progressing further. That revisal, he avers, is the result of the actions which he seeks to bring under review. As a result of the granting of the rule 94(5) authority by the second respondents, and his recategorisation in consequence thereof, the petitioner estimates that his progress has been retarded by twenty-two months or thereabouts. The petitioner will appear before a life prisoner tribunal of the Parole Board for Scotland on or about 13 January 2014. It is averred that he is reasonably apprehensive that, as a result of the orders made under rule 94, and subsequent re-categorisation of his security status, the assessment made by the tribunal of his progress will be adversely affected. His opportunities to engage in activities, and to take leave, outside the prison have been restricted. As a result, his opportunity to familiarise himself with living outside the prison will be restricted. His ability to present favourably to the Parole Board for Scotland has been affected adversely in consequence.

[12] The petitioner avers that a case conference was convened on 25 October 2011 to discuss, among other things, his return to low supervision conditions. In the course of that conference, reference was made to a plan in terms of which the petitioner would work with a psychologist and social worker with a view to returning him to top-end conditions. It was stated that such work was to be carried out "... to look at the circumstances of the downgrade and to gain an insight into the issues that caused him to be downgraded." This element of the plan, it is averred, renders the petitioner's progression through the prison system dependent upon his work with the psychologist and social worker. There is no objective justification for the requirement that the petitioner should undergo work with a psychologist, where there was no proper basis for the making of the rule 94 orders.

The orders sought

[13] The petitioner seeks to bring under review:

(1) the decision taken on 8 July 2011 to remove him from association with other prisoners;

(2) the decision taken on 11 July 2011 to apply to the second respondents for rule 94(5) authority for an extension of the removal from association;

(3) the decision taken by the second respondents on 11 July 2011 to grant an extension of the removal of association for a period of one month;

(4) the decision taken at the case conference on 12 July 2011 to return the petitioner to closed conditions within the prison after the period spent by him removed from association under rule 94; and

(5) the decision to require the petitioner to work with, among others, a psychologist. (Statement 1 of the petition)

(The record of the case conference contains no reference to the decision to return the petitioner to closed conditions within the prison. It contains a note of the petitioner's having been told that he would remain in the segregation unit under rule 94 conditions until a decision on his future management had been made. In the petitioner's community integration plan, number 6/6 of process, however, in an entry dated 15 July 2011, it is noted that, at his case conference on 12 July 2011, "it was decided that following his period on rule 94 he will be returned to closed conditions.")

The submissions for the respondents

Competency

[14] The respondents have tabled five pleas in law, the first being that the petition is barred by mora, taciturnity and acquiescence, and the second that the petition raises no live practical question, is therefore incompetent, and should be dismissed. Parties were agreed between themselves that Mr Ross, advocate, who appeared for the respondents, should open the discussion, on the view that, if either plea were sustained, it would be unnecessary for me to consider the merits of the case. Whilst a plea of mora, taciturnity and acquiescence is a plea to the merits (Halley v Watt 1956 SC 370), I was content that parties should proceed as they had agreed.

[15] Mr Ross began by addressing the competency issue. In support of the proposition that judicial review is not available to enable persons to challenge administrative decisions, if a successful challenge would have no practical consequences for them, I was referred to the decision in Conway v Secretary of State for Scotland 1996 SLT 689. In this case, submitted Mr Ross, the decisions which the petitioner seeks to bring under review are no longer live issues. Further, the remedy which the petitioner seeks, a series of declarators, would have no practical effect.

[16] Mr Ross contended that the decision to recategorise the petitioner is not the subject of challenge in the petition. He argued that, even if the petition could be read as including a challenge to the decision to recategorise, that decision ceased to have effect several months before the petition was raised. Finally, Mr Ross submitted, it does not appear to be disputed that work with the psychologist was completed by the end of July 2012, and that the petitioner was not required to do any further work with psychologists.

[17] Mr Ross recognised that the petitioner avers that the decisions complained of have slowed his progress towards release from prison. Under reference to a letter, dated 21 August 2012, however, he pointed out that the life prisoner tribunal had decided not to recommend the petitioner's release because it considered that it was necessary for the protection of the public that he should continue to be confined. (Number 7/1 of process) Mr Ross contended that, having regard to the terms of the decision letter," it seems unlikely ... that the tribunal's decision would have been different if any or all of the decisions complained of had not been taken."

[18] Mr Ross concluded his submissions in support of his plea to the competency by arguing that any possible effect on future deliberations of the tribunal will flow, not from the decisions complained of, but from recategorisation of the petitioner's supervision level, which does not appear to be a decision which the petitioner seeks to bring under review.

Mora, taciturnity and acquiescence

[19] Mr Ross began his submissions on mora, taciturnity and acquiescence by referring me to the following passages in the decision of an Extra Division of the Inner House in Portobello Park Action Group Association v City of Edinburgh Council 2012 SLT 1137 ("Portobello Park"):

"[13J For the plea of mora, taciturnity and acquiescence to be sustained, all three elements must be present (Somerville v Scottish Ministers at 2007 S.C., p.182; 2007 S.L.T., p.120, para.94). The court must have regard to all the circumstances of the case (Somerville, p.182 (p.120) para.94).

[14J Whether the passage of time amounts to mora is a question of fact and degree. As Lord Glennie noted in United Co-operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists, 2007 S.L. T., p.841 , para.30: 'Mora simply means delay beyond a reasonable time. What is a reasonable time will depend on all the circumstances ... In assessing what is a reasonable time, account must, of course, be taken of the complexity of the matter, and the need to take advice, gather information, and draft proceedings. In some cases, this will require considerable time ... .'

Similarly in Somerville v Scottish Ministers, p.181 (p.120) para.92, it was explained that: 'The plea [of mora, taciturnity and acquiescence] is necessarily protean and it must depend on the particular circumstances of the case whether or not its requirements are satisfied. There may be cases where the passage of time, as related to the surrounding circumstances, may be such as to yield the inference of acquiescence in the decision in question ... The petitioner may, however, be in a position to put forward an explanation for the delay sufficient to rebut the inference.'

[15J Taciturnity has been defined (United Co-operative Ltd, p. 841, para.32) as: '... a failure to speak out in assertion of a right or claim when a reasonable person in that position would be expected to speak out.'

[16] As for acquiescence, we again refer to United Co-operative Ltd, at p.842, para. 33: 'Acquiescence simply means assent to what has taken place. The enquiry is not a subjective one to be answered by looking into the mind of the petitioner. The test is objective. Acquiescence requires to be inferred from the petitioners' inaction and silence. The question is how the matter would have appeared to a reasonable person observing the petitioners' conduct, knowing of all the circumstances of which the petitioners knew or ought to have known when acting in the way they did.'"

[20] Addressing mora first, Mr Ross submitted that the delay in this case was substantial. The first four decisions which the petitioner seeks to bring under review were taken in July 2011, about 15 months before the petition was served in October 2012. The fifth decision was taken in October 2011, about a year before the petition was served. Having regard to Lord Glennie's observation, quoted by the Extra Division in Portobello Park, Mr Ross argued that this is not a case where lengthy delay can be justified by reference to complexity or the need to gather information. Further, he submitted, given that the various decisions under challenge had ceased to have effect some considerable time before the petition was served, the delay in this case was delay beyond a reasonable time, and amounts to mora.

[21] Again with reference to Lord Glennie's remarks, quoted by the Extra Division in the Portobello Park case, Mr Ross submitted that the petitioner had failed to speak out in assertion of his right or claim when a reasonable person in his position would have been expected to speak out. The petitioner made a written complaint, dated 15 July 2011, about the decision to remove him from association. So far as Mr Ross had been able to ascertain, the petitioner did not make a complaint about the other decisions which he seeks to bring under review in this petition. His application for legal aid was intimated to the second respondents on 12 September 2011. Thereafter, so far as Mr Ross was aware, the respondents heard nothing until service of the petition on 19 October 2012. During much of the period between September 2011 and October 2012, the petitioner's supervision status was classified as "medium". In these circumstances, argued Mr Ross, the petitioner can be said to have failed to speak out in assertion of a right or claim when a reasonable person in that position would have been expected to speak out and, accordingly, taciturnity is established.

[22] Finally, and once again under reference to Lord Glennie's remarks quoted in Portobello Park, Mr Ross submitted that, on an objective test, the petitioner's inaction and silence over an extended period amount to acquiescence.

The submissions for the petitioner

Competency

[23] In reply, Mr Stewart QC submitted that it is the petitioner's case that the decisions complained of will have an inevitable deleterious effect on his progress. I was referred to number 6/6 of process, the petitioner's community integration plan, which runs from 1 August 2010. In the section headed "progression", an entry, dated 19 July 2011, reads as follows: "Due to the events of the entry of 15^th of July 2011 and Mr Donnelly's subsequent case conference and return to D-Hall I would say that at, this moment his progression has come to a halt". The entry, dated 15 July 2011, reads as follows:

"Mr Donnelly commenced community work placement at Motherwell Football Club on 6/6/11. This has not gone well for him due to firstly appearing in the newspapers and then being indicated on by the drug detection dog. Both these incidents have had intelligence information on them. He was located in the segregation unit on return from his placement on 8/7/11. He was placed on a rule 94 on 11/7/11. At his case conference on 12/7/11 it was decided that following his period on rule 94 he will be returned to closed conditions."

Mr Stewart explained that the reference to the petitioner's appearing in the newspapers reflects the leaking of details of his placement to national newspapers. That would have had an adverse effect on his ability to continue working there.

[24] Mr Stewart then referred me to number 6/7 of process, a PSS3 "Re-assessment Form" which, according to its terms, is used where it is proposed to change a prisoner's supervision level, access level or location, following an adverse change in circumstances. The form is dated 10 August 2011. It is recorded in the form that the petitioner was suspected of being involved in the introduction of drugs to the establishment. Under the heading "Incident", the following entry appears:

"Due to the intelligence of suspected involvement in drugs Mr Donnelly was screened by the Tactical Dog Operations Unit in return from placement on 8 July 2011. The dog indicated on Mr Donnelly and he was placed in Segregation. He remained there under rule 94 conditions until 17 July 2011."

Later in the form, it is narrated that intelligence had indicated Mr Donnelly's involvement in the introduction of drugs to the establishment, and that this was supported by an indication from the drug dog. The form records that the petitioner's proposed supervision level should be medium, and the reasons given are as follows:

"There is credible intelligence to indicate Mr Donnelly's involvement in the introduction of drugs to the establishment. This can have serious consequences for the good order of the establishment."

[25] Number 6/8 of process is a record of the case conference which was held on 25 October 2011. It is in, among others, the following terms:

"P Russell explained that the purpose of this case conference was to put a plan in place for Mr Donnelly to assist him towards a return to Top End conditions. P Russell first asked Mr Donnelly if he himself had taken any actions since his downgrade to help him e.g. refer himself to Phoenix house. Mr Donnelly explained that as he doesn't feel he did anything wrong to warrant the downgrade he saw no reason to seek extra support. Mr Donnelly explained that he understood he was to participate in work with psychologist Sharon McAllister and social worker Catherine McManus. ...

A Holmes explained that the work required was twofold. One part of the work is to look at the differences between Mr Donnelly's account of the index offence and the actual evidence. This is aimed at helping Mr Donnelly manage his risks better by having a greater insight into these issues. The second part of the work is to look at the circumstances of his downgrade and to gain an insight into the issues that caused him to be downgraded.

...

P Russell reminded Mr Donnelly that any referral to RMT will also require him to be assessed as Low supervision."

It was explained to me that RMT is the risk management tribunal, an appearance before which is a preliminary to consideration of the petitioner's case by the Parole Board.

[26] Finally, Mr Stewart referred me to number 6/10 of process, which is a risk management team referral form and a minute of its meeting. The form appears to be used in cases where a referral is to be made to the RMT. The date of the RMT meeting is recorded as 25 October 2012, and the reason for the referral is noted as: "Mr Donnelly is now at the stage to be referred for his FGTR". My attention was drawn to page 4 of the form, to an entry under the heading" Learning Skills and Employability". The entry is in the following terms:

"Mr Donnelly was employed (as) a pass man within Kerr House until starting his placement at Motherwell Football Club on the 06/06/11, his general duties were care and maintenance of the stadium, mainly painting. Mr Donnelly stated he enjoyed working there and was receiving very positive reports. He was removed on two occasions due to adverse media coverage and intelligence regarding threats against him. There was no suggestion that this was in any way Mr Donnelly's fault. He was however ultimately removed when downgraded after intelligence reported that he was trying to introduce drugs into the establishments (sic) and a drug dog indicated on him on his return to HMP Shotts. Mr Donnelly disputes the allegations."

Mora, taciturnity and acquiescence

[27] Turning to the issue of mora, taciturnity and acquiescence, Mr Stewart advised me that there was no controversy about the relevant law. On the facts, he reminded me that the removal from association was effected on 8 July 2011. (Number 6/1 of process) On 11 July 2011, the petitioner made written representations in support of his contention that he should not have been removed from association and that the second respondents should not grant authority for a continuation of his removal from association. (Number 6/2 of process) On 12 September 2011, the second respondents received intimation of the petitioner's application for legal aid. When the matter came before the case conference on 25 October 2011, the petitioner reiterated his belief that he had done nothing wrong to warrant his downgrade. Legal aid was refused in November 2011, and it was necessary to obtain counsel's opinion in support of a request for a review of the legal aid board's decision. Legal aid was granted in August 2012. On 13 August 2012, at a meeting of the life prisoner tribunal, which was held at HM Prison Barlinnie, it was submitted on behalf of the petitioner, by his solicitor, that the petitioner denied any wrongdoing in relation to the recent downgrade, and that his solicitor was representing him on that matter. In the RMT referral form it is noted that, on 25 October 2012, the petitioner continued to dispute the allegation that he was trying to introduce drugs into the prison on 8 July 2011. At a later stage in the proceedings, I was provided with a detailed chronology, running from 19 July 2011 until 25 April 2012.

[28] Against that background, Mr Stewart submitted that the plea of mora, taciturnity and acquiescence is a protection against stale claims. There was nothing in this case, he argued, to suggest that the matter was laid to rest. Under reference to Somerville v Scottish Ministers 2007 SC 182 (Somerville), at paragraph 94, counsel argued that, whilst prejudice or reliance are not necessary elements of the plea, lack of them may feature as circumstances from which it may be held that there has been an absence of acquiescence. Noting that, for the plea to succeed, all three elements have to be present, Mr Stewart contended that, in this case, none is made out.

Discussion on the plea to the competency

[29] I am not persuaded that the petition raises no live, practical question, in the sense contended for in support of the respondents' plea to the competency. It is an agreed fact in this case that the petitioner is due to appear before the life prisoner tribunal of the Parole Board for Scotland on or about 13 January 2014. The petitioner avers that he is reasonably apprehensive that, as a result of the rule 94 order, and the subsequent recategorisation of his security status, the tribunal's assessment of his progress will be adversely affected. I do not agree with counsel for the respondents that no challenge is made to the decision to recategorise. It is correct to say that no declarator is sought in respect of that decision, but it is undoubtedly the subject of criticism in the petitioner's pleadings. Mr Stewart argues that the point is an artificial one, because the matter of downgrade is tied up with the events of the search and segregation. He offered, if necessary, to seek to amend his pleadings in order to introduce an express challenge to the decision to downgrade. In my opinion, even leaving aside the downgrade issue, there is no proper basis on which I can be satisfied on the pleadings that the decisions complained of will have no bearing on the tribunal's deliberations and determination. I accept that the reason for the tribunal's decision which was intimated on 21 August 2012 was that it considered that it is necessary for the protection of the public that the petitioner should continue to be confined. It is clear from the decision letter, however, that, in determining that matter, the tribunal noted that the petitioner was assessed as being at an overall high risk rating, with identified risk factors of, among other things, substance misuse. The tribunal notes in its decision letter that it was looking to the petitioner to provide evidence to a future tribunal that his risk could be managed in the community. In my view, the tribunal considered the question of the petitioner's "wrongdoing in relation to the recent downgrade" to be of some relevance, noting that the matter was, or was going to be the subject of challenge. I am of opinion that there is a realistic possibility that the life prisoner tribunal will have regard to the fact of and the circumstances surrounding the petitioner's removal from association, its extension and his return to closed conditions, and that one or more of these features of this case will influence the tribunal's decision. If the court were to pronounce any of the declarators sought, the tribunal would be bound to take account of the court's having done so. For the foregoing reasons, I shall repel the respondents' second plea in law.

Discussion on the plea of mora, taciturnity and acquiescence

[30] As the Extra Division in Portobello Park has held, in adopting Lord Glennie's analysis in United Co-operative Ltd, acquiescence is to be determined objectively as a matter of inference from the inaction and silence of the party alleged to have acquiesced. The elements of inaction and silence, which I take to be a reference to the mora and taciturnity contended for by the party taking the plea, fall to be determined as matters of fact, from which the necessary inference of acquiescence may be drawn. It is for that reason, in my opinion, that the First Division in Somerville expressed the following view:

"By its nature, acquiescence is almost always to be inferred from the whole circumstances, which must therefore be the subject of averment to support the plea." (Paragraph [94])

[31] In their answers to the petition, the respondents appear to be relying on the passage of time between 8 July 2011, when the rule 94 order was made, and 19 October 2012, when the petition was served on them, as constituting mora within the meaning of the plea. They aver that, by the latter date, "the decisions which the petitioner seeks to bring under review had ceased to have effect". They do not say so in terms, but it may be that they intend to imply that the petitioner had assented to the challenged decisions. It is convenient at this point to say that I reject Mr Stewart's proposition that the plea of mora, taciturnity and acquiescence is a protection against stale claims. In my opinion, it is simply the consequence of the legal proposition that, where a person has acquiesced in a state of affairs which he or she might otherwise have protested, it is not open to that person later to challenge that state of affairs.

Mora

[32] As I have noted above, under reference to Portobello Park, "mora simply means delay beyond a reasonable time." What is a reasonable time is a question of fact to be determined on a consideration of the relevant circumstances of the particular case. In my view, given that the question whether or not there has been acquiescence, which is also a question of fact to be inferred from the inaction and silence of the person complaining of a wrong, is to be determined objectively, the same approach should be taken to the question whether a given delay was or was not reasonable in the circumstances. Whether the delay founded on by the respondents in this case was reasonable, therefore, falls to be determined by considering how the matter would have appeared to a reasonable person observing the petitioner's conduct, knowing all of the circumstances of which the petitioner knew or ought to have known when acting in the way that he did. In my opinion, that approach is consistent with the passage in the opinion of Lord Nimmo Smith in Singh v Secretary of State for the Home Department 2000 SLT 533; 2000 SCLR 655, which is cited with apparent approval in Somerville, in which his Lordship expresses the view that the party alleging a wrong may be able to rebut an inference of acquiescence by putting forward an explanation for a given delay.

[33] According to the chronology furnished on behalf of the petitioner, he contacted his solicitors by telephone on 19 July 2011. He met with them on 26 July 2011, at which time a civil advice and assistance form was completed. Civil advice and assistance was granted on 28 July 2011. On a date of which I have not been advised, but which occurred within the next five weeks, the petitioner's solicitors applied for civil legal aid on his behalf to enable the petitioner to raise proceedings against the respondents. The matter then rested with the Scottish Legal Aid Board ("SLAB"). The petitioner's solicitors contacted SLAB on 28 August 2011 with reference to his application. The solicitors were in contact with SLAB on three occasions in September 2011 in connection with the obtaining of counsel's opinion on the case. By 31 October 2011, civil legal aid had been refused and, on that date, the solicitors wrote to SLAB seeking an extension of the period within which to appeal against refusal, as the solicitor instructed in the case was absent on annual leave. There were three further contacts between the solicitors and SLAB in November 2011, and two in December 2011. By the end of January 2012, the solicitors had recovered documentation from the Scottish Prison Service ("SPS") in order to assist in his application for civil legal aid. On 1 February 2012, the solicitors sought an increase in the petitioner's civil advice and assistance cover to enable them to visit him to discuss the SPS documentation. That request was refused on 7 March 2012, and there were four further contacts between the solicitors and SLAB in March. On 25 June 2012, the solicitors received an e-mail from SLAB, apologising for its delay in considering the petitioner's legal aid application. On 8 August 2012, the petitioner's solicitors e-mailed SLAB, asking for confirmation of when the application for civil legal aid would be decided. A legal aid certificate was issued on 17 August 2012, and the petition was served on the respondents nine weeks later. In the circumstances, in my opinion, and applying the test set out above, the passage of time between 8 July 2011 and 19 October 2012 did not constitute an unreasonable delay.

Taciturnity

[34] Since, for the plea to succeed, all three elements must be present (Somerville), it is not strictly necessary for me to consider the taciturnity issue. I do so, however, in case this matter goes further.

[35] As the respondents correctly submit, taciturnity is a failure to speak out in assertion of a right or claim when a reasonable person in that position would be expected to speak out. The relevant claim, in the circumstances of this case, is that the petitioner is entitled to various declarators to the effect that the respondents acted unreasonably and irrationally in taking decisions that affected him, all as specified in the petition. On the pleadings which are admitted, and having regard to the documents which have been lodged in process, the petitioner challenged these decisions on every occasion when faced with an assertion that he had attempted to introduce drugs into the prison: 11 July 2011, 15 July 2011, 25 October 2011, and 13 August 2012. On every occasion when a reasonable person in the position of the petitioner would have been expected to speak out in assertion of his claim, the petitioner did so. Further, he asserted his claim on 12 September 2011, when his legal aid application was intimated to the respondents, and on 19 October 2012 when his petition was served on the respondents. Moreover, the petitioner's solicitors wrote to the governor of whichever prison the petitioner may have been in at the relevant time on twelve occasions between 27 July 2011 and 5 April 2012. During the same period, they wrote to the SPS on three occasions. I have not been told what the subject of that correspondence was, but it is a reasonable inference that it was consequent upon the events of 8 July 2011 and associated with the petitioner's present complaints. In the whole circumstances, in my view, there has been no taciturnity sufficient to satisfy the requirements of the plea.

Acquiescence

[36] In my opinion, having regard to the whole circumstances of this case, it would not be legitimate to infer that, at any time, the petitioner acquiesced in the decisions which are challenged in this petition, and I so hold. Accordingly, I shall repel the respondents' first plea in law.

The petitioner's substantive case

[37] The petitioner seeks judicial review of the actings of the first and second respondents on the following grounds:

"a) the unreasonableness of the decisions by the respondents to order the removal of the petitioner from association with other prisoners under rule 94, the application for renewal of said authority, and the decision to grant the renewal, in the absence of evidence that he was seeking to introduce drugs into the prison.

b) the unreasonableness of the said decisions, where the aforesaid orders were made, ostensibly to allow for investigation into the matter, where no meaningful or full investigation was then carried out, so that the segregation of the petitioner and his recategorisation have the appearance of arbitrary and unjust punishment, as opposed to a limited curtailment of his liberties while an investigation was being carried out.

c) the unreasonable lack of proportion between the order made and renewed, and the recategorisation consequent thereon, and the consequences for the petitioner, whereby he was removed from association with other prisoners, and his supervision category was downgraded, in the absence of investigation to determine whether he was seeking to introduce controlled drugs into the prison.

d) the irrationality of the decision to require the petitioner to work with inter alios a psychologist, in order to achieve a return to his former category, in the circumstances referred to herein."

The respondents' submissions

[38] Mr Ross observed that the petitioner seeks declarator that the first four decisions (removal, request for extension of removal, extension of removal and return of the petitioner to closed conditions) were unreasonable, and submitted that it is not clear on what grounds the decisions are alleged to have been unreasonable. He contended that the petitioner appears to place reliance on what he describes as a lack of investigation to confirm whether he was attempting to introduce controlled drugs into the prison. He noted that the petitioner pleads that there was no police investigation and no disciplinary charge and avers that, if such a charge had been brought, the petitioner would have been able to present his case and thereby demonstrate that there was no evidence that the petitioner had committed such an offence. In response to those averments, Mr Ross submitted that, if the decisions to remove the petitioner from association and to grant the extension were reasonable at the time that they were made, they were not rendered unreasonable by alleged shortcomings in the investigations subsequently carried out. The fact that the petitioner was not prosecuted or subjected to disciplinary proceedings did not preclude the respondents from removing him from association or reviewing and raising his supervision level. Further, argued Mr Ross, the fact that no criminal or disciplinary proceedings were brought has not prevented the petitioner from presenting his submissions. A prisoner is entitled to make representations in relation to both the decisions about removal from association and the raising of his supervision level.

[39] More specifically, Mr Ross submitted that the decisions to remove from association and to apply for an extension were made in accordance with the terms of rule 94, as was the second respondents' decision to authorise removal. Of the decision to recategorise the petitioner's supervision level, Mr Ross contended that the petitioner's averments are confused and that, in any event, the decision was taken in accordance with the relevant rules, and not pursuant to the renewal of authority granted by the second respondents on 11 July.

[40] Mr Ross noted that the declarator which the petitioner seeks in respect of the decision that the petitioner should carry out work with a psychologist is that it was irrational. He submitted that the ground upon which it is asserted that the decision was irrational is that there was no proper basis for making the rule 94 orders. If the respondents' submissions to the effect that there is no foundation for the assertion that the rule 94 order and its renewal were unreasonable are rejected, argued Mr Ross, it follows that there is no basis for impugning the decision that the pursuer should carry out work with a psychologist. Mr Ross contended that, in any event, it cannot be suggested that the fact that the petitioner has completed work with a psychologist will have any continuing effect on his progression through the prison system. Consequently, looked at in isolation, this aspect of the petitioner's case raises no live issue and the declarator which the petitioner seeks would have no practical effect.

The petitioner's submissions

[41] Mr Stewart referred me to numbers 6/1 to 6/10 of process, inclusive, and to the pleadings, and submitted that the orders in relation to which declarator is sought are shown to be unreasonable, insofar as no reasonable decision-maker would have made them in order to accomplish their professed nominal ends. Whilst respondents argue that it was reasonable to remove the petitioner from association, in order to prevent the introduction of drugs into the prison, no meaningful steps were taken to achieve that. It would have been obvious to the first respondent that the steps which were taken were inadequate to prevent the petitioner from retaining drugs during the period of his removal from general association, and distributing them on his return to association with other prisoners. No reasonable decision maker would have ordered removal from association for the purpose of investigation, and then carry out no meaningful investigation. He pointed to the respondents' averment at answer 11, where it is said that the respondents were satisfied that intelligence information justified recategorisation of the petitioner's supervision level. That, argued Mr Stewart, is not the same as averring that the matter was investigated. It amounts to an acceptance that the respondents proceeded on the basis of the questionable intelligence that they received from a questionable source, and took no steps to verify it. That amounts, also, to an acceptance that their intelligence source took priority over their obligation to act fairly towards the petitioner. He contended on behalf of the petitioner that the first respondent did no more than accept intelligence from a source which may have been actuated by malice against the petitioner. Malice had already led to the suspension of his work placement after details had been passed to a national newspaper. There was material to cause a reasonable decision maker at least to entertain the notion that the petitioner was the subject of a malicious campaign. The failure to take meaningful steps to identify whether the petitioner did indeed have controlled drugs concealed in his body, submitted Mr Stewart, demonstrates that the purported justification for the petitioner's removal from association was not sound. Removal from association was ordered on the basis of the belief, supposedly grounded in intelligence received, that the petitioner was seeking to introduce controlled drugs concealed about his person. Nothing was done to verify the intelligence and nothing was done to recover the drugs, such as could have been accomplished by the application for a warrant for an intimate search, which a sheriff would have been likely to have granted, given that the actions of which the petitioner was suspected were not only offences against prison discipline but also serious contraventions of the Misuse of Drugs Act 1971.

[42] Mr Stewart further contended that, in making the orders in relation to which complaint is made, the respondents acted in a capricious and arbitrary manner against the petitioner, in a way which has delayed his progression towards temporary release into the community, may reasonably foreseeably have an adverse effect on his ability to give the best and fairest presentation of himself to the Parole Board, and may reasonably foreseeably have a material and deleterious effect on the consideration of his prison history by the Parole Board.

Reply by the respondents

[43] In response, Mr Ross advised me that the reason for segregation was to avoid the introduction of drugs into the prison. Sometimes a prisoner in segregation hands over drugs which he may have concealed. In any event, he is under closer supervision than he would otherwise be, especially when the alternative to segregation is low supervision at a top-end facility. Cells are regularly entered by prison officers and searched while prisoners are in segregation.

Discussion

[44] In his ground of challenge to the first respondent's decisions to order removal and to apply for an extension, the petitioner avers that they were unreasonable "in the absence of evidence that he was seeking to introduce drugs into the prison." In my opinion, that ground is misconceived. It is not clear to me what the petitioner contends would amount to "evidence" in this context. In any event, rule 94 empowers the governor to order removal from association with other prisoners whenever it appears to him or her desirable for the purpose, among other things, of maintaining good order or discipline. There is no doubt, in my view, that the first respondent was entitled to conclude that it was desirable, for the purpose of maintaining good order or discipline, to order the petitioner's removal from association on 8 July 2011. (Rule 94(1)) He was advised that, on return from his placement on that day, the petitioner was searched by the dog unit in reception and that a positive indication was returned. He was told that a body search was undertaken, with nothing being found. He was informed that local management suspected that illicit articles may be concealed in a bodily orifice. (Number 6/1 of process) In my opinion, the first respondent was entitled to suspect that the petitioner may have been attempting to introduce a controlled drug into the prison. There was an obvious risk that, if the petitioner were not segregated, a controlled drug would be introduced into the prison. That risk remained on 11 July, when the decision was taken to apply for an extension. No drugs had been recovered by the time of the expiry of the order. In these circumstances, in my judgment, the first respondent was entitled to seek authority for an extension of removal, on the ground that it continued to be desirable to remove the petitioner from association for the purpose of maintaining good order or discipline. In these circumstances, it was not unreasonable to make the order, or to apply for the extension. Indeed, looking at the matter another way, given that he was responsible for maintaining good order and discipline and that he had reason to suspect that the petitioner had a controlled drug in his possession, I am of the view that the first respondent would have been failing in his responsibilities if he had not removed the petitioner from association and applied for the extension.

[45] The petitioner avers that, in his response to the first respondent's application for an extension, on 11 July 2011, he asserted that the passing of details of his work placement to the press and the drugs intelligence "were elements in a malicious campaign against him by a fellow prisoner". He does not, however, link that allegation to any of the grounds of challenge to the various decisions which he seeks to bring under review in this case. He does not name the fellow prisoner in this action, nor does he offer to prove that he was the victim of a malicious campaign. Against that, as I have noted in paragraph [24] above, the drugs intelligence was described in section E of the re-assessment form as "credible". Support for that view is to be found in the behaviour of the drug dog which was such as to cause prison staff to regard it as a positive indication.

[46] In support of the application for an extension, the second respondents were given the same information as had been given to the first respondent, with the addition of a reference to receipt by local management of intelligence, indicating that the petitioner was attempting to introduce drugs into the prison from his external placement. Having regard to the terms of rule 94(5), I am of the view that the second respondents were entitled to grant the extension which had been requested. Nothing in rule 94 required "evidence" to be put before them. It was, in the circumstances, not unreasonable for the second respondents to grant the extension.

[47] Turning to the petitioner's second ground, I note that he does not aver that the respondents acted in bad faith. If, as he contends, no further investigation into the matter was undertaken, that does not vitiate the first respondent's decisions to remove the petitioner from association and to apply for the extension, or the second respondents' decision to extend the period of removal, and it cannot render the original decisions unreasonable. Further, for the reasons which I give in the determination of the third ground, the petitioner is wrong in his assertion that his recategorisation was effected on the basis that an investigation was being carried out. It follows, therefore, that I reject the second ground.

[48] In support of his third ground, the petitioner makes the following averments:

"As a result of the decisions by the first respondent to apply to the second respondents for renewal of the rule 94 order, and by the second respondents to grant said renewal, the petitioner was recategorised from 'low supervision' to 'medium supervision'. Reference is made to Form PSS3 completed in relation to the petitioner and dated 10^th August 2011. Had no renewal of the rule 94 order been granted, the petitioner would have been returned from rule 94 conditions in segregation, to his previous low supervision status, before or at the expiry of seventy two hours after the order was made." (Petition, statement 11)

In the PSS3 form referred to by the petitioner, which is number 6/7 of process and which, as I have noted earlier in this opinion, is described in its heading as a "Re-assessment Form", the following instruction is given:

"When information becomes available which may have consequences for a prisoner's supervision level, access level or location this form must be actioned and forwarded to an appropriate manager at no less than Unit Manager level."

On page 2 of the form, in section B, which is entitled "Type of information" the following entries appear:

"Mr Donnelly was suspected in (sic) being involved in the introduction of drugs to the establishment

...

Due to the intelligence of suspected involvement in drugs Mr Donnelly was screened by the Tactical Dog Operations Unit in return (sic) from placement on 8 July 2011. The dog indicated on Mr Donnelly and he was placed in Segregation. He remained there under Rule 94 conditions until 17 July 2011."

On page 3, in section C, entitled "Formal Re-Assessment of Supervision level", an instruction is given in, among others, the following terms:

"This section must be completed by the First Line Manager based on the assessment of the information supplied at section B."

Section C contains what is described as a "supervision level flowchart". The chart contains a number of what are described as "risk factors". The fourth risk factor reads: "Means and willingness to organise serious indiscipline, (including drug dealing)?" If that question is answered in the affirmative, the level of supervision indicated is "medium". Section D of the form is entitled "Record of Flowchart "Yes" Outcomes". There then follows a table which sets out the risk factors contained within the flowchart in section C, in a column headed "Criteria". The terms of the fourth risk factor set out in the flowchart are recorded in the fourth row of the Criteria column and, on the same row, under the heading "Comment", the following entry appears:

"Intelligence indicates Mr Donnelly's involvement in the introduction of drugs to the establishment. This was supported by an indication from the drug dog."

Section E of the form contains, among other things, this instruction:

"On completion of sections C&D, the first line manager should indicate at section E which level of supervision he or she considers appropriate for the prisoner.

In the body of section E, the supervision level indicated by the flowchart is shown as "medium", as is the proposed supervision level. Under the heading "Reasons" for the proposed level, section E contains this entry:

"There is credible intelligence to indicate Mr Donnelly's involvement in the introduction of drugs to the establishment. This can have serious consequences for the good order of the establishment."

In the final part of section E, the unit manager has appended his signature, indicating that he agreed with the supervision level that the first line manager was minded to assign.

[49] In my opinion, on that review of the re-assessment process, it is clear that the petitioner's recategorisation from low supervision to medium supervision was not "a result of the decisions by the first respondent to apply to the second respondents for renewal of the rule 94 order, and by the second respondents to grant said renewal". On the contrary, the recategorisation was based on the belief of the line manager, concurred in by the unit manager, that the petitioner had the means and willingness to organise serious indiscipline. It is not contended by the petitioner that, in the circumstances, these individuals were not entitled to propose the recategorisation of the petitioner on that basis. The issue of "unreasonable lack of proportion between the order made and renewed, and the recategorisation consequent thereon" does not arise. The third ground of challenge, accordingly, fails.

[50] In my judgment, the fourth ground of challenge must also fail. The only factual reference to a requirement that the petitioner should work with a psychologist is to be found in statement 12 of the petition, which concludes with the following words:

"There is no objective justification for the requirement that the petitioner should undergo work with a psychologist, where there was no proper basis for the making of the rule 94 order or for its renewal."

In the record of the case conference of 25 October 2011, number 6/8 of process, it is noted that its purpose "was to put a plan in place for (the petitioner), to assist him towards a return to top end conditions." It was explained to the petitioner that there were to be two parts to the work to be undertaken with the psychologist. The first was to look at the differences between the petitioner's account of the index offence, i.e. the murder, and the actual evidence. The second part was to look at the circumstances of the downgrade and to gain an insight into the issues that caused the petitioner to be downgraded. As I have already noted, the petitioner was downgraded for the reasons recorded in the re-assessment form and not because of the decisions to make and extend the rule 94 order. In any event, even if, contrary to what I have held, it was irrational to require the petitioner to work with a psychologist, a declarator in the terms sought would have no practical effect. In the life prisoner tribunal's letter of 21 August 2012, mention is made of the petitioner's having engaged in work with a psychologist, but it is said that the work followed a psychological risk assessment in February 2010. At the time when the letter was written, a further psychology report was in preparation but was not available. It is recorded in the letter, however, that a verbal report from the psychologist confirmed that she was not recommending that the petitioner undertook further work. On my reading of the reasons for the tribunal's decision not to direct the petitioner's release, it is clear that the petitioner's having done work with the psychologist played no part in its determination. I can identify no reason why it might do so in future.

Conclusion

[51] For the foregoing reasons, I shall dismiss the petition. I shall reserve all questions of expenses.