Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 15

P281/14

OPINION OF LORD PENTLAND

In the Petition and Complaint and Answers

of

KENNETH SMITH (AP)

Complainer

against

THE SCOTTISH MINISTERS

Respondents

Complainer:  Pirie;  Balfour & Manson LLP (for Taylor & Kelly, Coatbridge)

Respondents:  Ross;  Scottish Government Legal Directorate

12 February 2015

Introduction

[1]        This case came before me for a hearing on a petition and complaint brought by a convicted prisoner, Mr Kenneth Smith, who is currently serving a sentence of imprisonment at Her Majesty’s Prison, Edinburgh.  In the petition and complaint Mr Smith seeks a finding that the respondents, the Scottish Ministers, are in contempt of court because of breach of an undertaking they gave to the court in judicial review proceedings, which Mr Smith previously brought against them.  The respondents, who had lodged answers to the petition and complaint, submitted at the hearing that they were not in contempt of court.

The context and circumstances of the case

[2]        There was no significant dispute as to the facts of the case or as to the law which applied.  In outline, what has led to the present proceedings may be summarised in the following way.

[3]        During the complainer’s incarceration in prison he has regularly corresponded with the Risk Management Authority (“the RMA”) and the office of the UK Information Commissioner (“the ICO”).  At all times material to these proceedings the ICO sent letters to prisoners in a single envelope; certain other authorities, who require to correspond with prisoners, do so by using a double envelope system.  It was not the practice of the ICO to stamp its logo on the envelope.  It did, however, stamp its address on the envelope in the following terms: “return address PO Box 66 Wilmslow, SK9 5AX”.  The RMA also sent letters to prisoners in a single envelope.  It too did not stamp its logo on the envelope.  It stamped on the envelope: “RMA, 25 St James Street, Paisley, PA3 2HQ”.

[4]        Section 39 of the Prisons (Scotland) Act 1989 (read with section 53 of the Scotland Act 1998) empowers the respondents to make rules for the regulation and management of prisons.  In exercise of that power, the respondents made the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011/331)(“the Rules”).  Part 8 of the Rules contains detailed provisions governing prisoners’ correspondence and other communications.  Rule 59 provides inter alia as follows:

“Privileged correspondence

1. This rule applies only to letters and packages which –

(a) are sent to a prisoner from a person, authority or organisation specified in a direction made by the Scottish Ministers in terms of paragraph (2);

….

(2)        The Scottish Ministers may specify in a direction the persons, authorities and organisations with whom a prisoner may correspond subject to the conditions specified in paragraphs (3) and (4).

(3)        Subject to paragraph (5), a letter or package to which this rule applies must not be opened by an officer or employee unless –

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

(b)        the officer or employee has explained to the prisoner concerned the reason for that belief; and

(c)        the prisoner concerned is present.

(4)        The contents of a letter or package to which this rule applies must not be read by an officer or employee except where paragraph (5) applies.

(5)        A letter or package to which this rule applies may be opened and, once opened, the contents of the letter or package may be read by the Governor, or by an officer or employee specially authorised by the Governor, where the Governor has reasonable cause to believe that the contents of the letter or package may –

(a)        endanger the security of the prison;

(b)        endanger the safety of any person; or

(c)        relate to a criminal activity.

...."

[5]        In exercise of the powers conferred by inter alia rule 59(2), the Scottish Ministers made the Scottish Prison Rules (Correspondence) Direction 2011.  Paragraph 8 of the Direction is headed "privileged correspondence".  It provides that prisoners are entitled to correspond with certain persons, authorities and organisations subject to the conditions specified in rule 59(3) and (4).  The authorities specified for this purpose include the ICO and the RMA. 

[6]        Between December 2010 and December 2013 the respondents detained the complainer in Her Majesty’s Prison, Dumfries and Her Majesty’s Prison, Edinburgh (“Edinburgh”).  Between December 2010 and September 2012 prison officers opened or ordered the complainer to open in their presence a number of items of privileged correspondence addressed to the complainer from the ICO and the RMA in circumstances where they were not entitled to do so.  In particular, between about January 2012 and September 2012 there were 14 instances of unauthorised opening of privileged correspondence addressed to the complainer from these authorities.  In view of his concerns about the repeated unauthorised opening of his privileged correspondence, the complainer brought proceedings for judicial review against the respondents.  The proceedings were settled on the basis that the respondents gave an undertaking to the court in the following terms:

“The Scottish Ministers hereby undertake that prison officers in the Scottish Prison Service will refrain from opening, or requiring the petitioner to open in their presence, letters or packages addressed to the petitioner and bearing the stamps ‘Return Address PO Box 66 Wilmslow SK9 5AX’ or ‘RMA, 25 St James St Paisley PA3 2HQ’ except in the circumstances provided for in rule 59(3) or 59(5) of the Prisons and Young Offenders Institutions (Scotland) Rules 2011”.

[7]        By interlocutor dated 21 February 2013 the Lord Ordinary (Lord Armstrong) allowed the undertaking to be received as part of the court process, interponed the authority of the court to it and directed that the undertaking be recorded in the minute of proceedings.

[8]        A number of points about the undertaking may be noted.  First, it relates only to the ICO and the RMA.  Secondly, there is no limit as to its duration.  Thirdly, there is no restriction as to the prisons to which it is intended to apply.  Fourthly,  it extends significantly further than an undertaking to use best endeavours to prevent unauthorised opening of privileged correspondence; it stipulates in absolute and unqualified terms that  the respondents undertake that prison officers will refrain from opening or requiring the complainer to open correspondence identified in the undertaking.

[9]        In December 2013 the respondents transferred the complainer from Edinburgh to Her Majesty's Prison, Glenochil ("Glenochil").  On or about 10 December 2013 a letter from the RMA addressed to the complainer at Edinburgh was transmitted by the internal mail system, via the headquarters of the Scottish Prison Service, to Glenochil.  The letter bore the stamp “RMA, 25 St James St, Paisley, PA3 2HQ”.  At the time prisoners' mail arriving at Glenochil was sorted by means of a system intended to ensure that privileged correspondence was identified.  The system aimed to deal with all items of privileged correspondence, not merely those covered by the undertaking.  It involved a member of staff identifying and stamping privileged correspondence.  There was then supposed to be a second check carried out by the head of finance to ensure that privileged correspondence had not been missed.  Unfortunately in the case of the letter addressed to the complainer from the RMA, the system did not work on this occasion;  the letter was not identified as privileged correspondence.  The member of staff sorting the mail was providing holiday cover for the office administrator, who was usually responsible for the task.  The member of staff failed to notice that the letter was from the RMA and that it therefore fell to be dealt with as privileged correspondence.  The head of finance also failed to spot that the letter was privileged correspondence.  As a result of these failures the letter passed into the hands of a prison officer,  who opened the letter in the complainer’s presence and looked over it.  The officer did not have any cause for believing that the letter contained a prohibited article.  Nor did he have cause to believe that the contents of the letter might endanger the security of the prison or the safety of any person or that its contents might relate to a criminal activity.  In these circumstances, it is clear that the officer’s conduct in opening the letter was a breach of the undertaking given to the court on 21 February 2013.  At the hearing before me the respondents accepted this.

[10]      The next day the complainer made a formal complaint about the opening of the letter in which he drew attention to the terms of the undertaking.  By letter dated 19 December 2013, the residential unit manager at Glenochil wrote to the complainer apologising on behalf of the Scottish Prison Service for their failure in handling an item of privileged correspondence.  The letter made no reference to the undertaking.

[11]      In the course of the hearing before me Mr Ross, who appeared for the respondents, explained that due to what he described as an oversight, the Scottish Prison Service had failed to advise any of its employees at Glenochil as to the existence and terms of the undertaking.

Beggs v Scottish Ministers

[12]      The leading authority is the decision of the Inner House in Beggs v Scottish Ministers 2005 SC 342. The court ruled that section 21 of the Crown Proceedings Act 1947 did not render it incompetent for the Scottish Ministers to be found in contempt of court by reason of a breach of an undertaking they had given to the court.  The case was appealed to the House of Lords, but only on the question as to whether the procedure adopted in the Court of Session whereby the chief executive of the Scottish Prison Service and the governor of HM Prison Peterhead were ordered to attend personally at a court hearing, had been correct.  It was held that in this respect the procedure had been inappropriate and unjustified.

[13]      For the purposes of the present case, the following principles may be derived from the judgments given in the Court of Session and the House of Lords.

1. Where the Scottish Ministers have given an undertaking to the court, it is implicit in the giving of the undertaking that the Ministers have agreed that their civil servants will take adequate steps to ensure that the undertaking is complied with.
2. It is important that the authority of the court to which an undertaking has been given is fully and clearly recognised.
3. Breach of an undertaking given to the court is a very serious matter.
4. Where the Ministers have given an undertaking to the court, the responsibility for its observance lies with the Ministers and not with their civil servants.
5. Breach of an undertaking given to the court can constitute contempt of court.
6. The Ministers will be in contempt of court if their civil servants, in discharging the Ministers’ functions, fail to take reasonable steps to ensure that the undertaking is adhered to and if the failure is so gross as to demonstrate a disregard for the importance which should have been attached to the undertaking.
7. Such steps include taking reasonable steps to ensure that their civil servants are made aware of the requirement to comply with the undertaking and that they do not forget, misunderstand or overlook the requirement.
8. In order for there to be a contempt of court it is not necessary for the civil servants to have acted with the intention of breaching the undertaking.
9. Failure to comply with an undertaking should be treated as prima facie indicative of contempt, it being for the Ministers to satisfy the court that they took all reasonable steps to ensure that the undertaking was complied with. This is the right approach with a view to ensuring that the rule of law is upheld.

Analysis and decision

[14]      In the present case the Scottish Prison Service took no steps to inform any member of its staff at Glenochil about the existence and terms of the undertaking when the complainer was transferred there; even the governor of the prison was left in a state of ignorance about the undertaking.  The fact that there was an undertaking relating to the complainer was simply overlooked when he was transferred from Edinburgh where the prison staff knew about the undertaking to Glenochil where they did not. 

[15]      Mr Ross submitted that a finding of contempt of court should not be made in the particular circumstances of the present case.  He sought to compare and contrast some of the details of the present case with those of Beggs and to suggest that the circumstances of this case could be seen as being to some degree less serious.  I did not find this comparative exercise helpful; each case must depend on its own facts.

[16]      Mr Ross also argued that the breach of undertaking was an isolated occurrence.  The system for identifying privileged correspondence sent to the complainer at Glenochil had otherwise worked without mishap.  I observe that the system took no account of the fact that the undertaking had been given.

[17]      Mr Ross also said that the respondents regretted the breach and had apologised to the complainer for it.  No significant harm had been occasioned to the complainer by the breach.  Steps had been taken to prevent a recurrence.  The Chief Executive of the Prison Service had written to all prison governors reminding them of the importance of ensuring that robust and reliable procedures were in place for dealing with privileged correspondence.  In addition, arrangements had been made with the RMA and ICO to the effect that they should in future adopt the double envelope system for sending correspondence to prisoners.  Moreover, a new system had been introduced whereby, upon a prisoner being transferred between prisons, a form would be used to record whether there was an undertaking relating to the prisoner.  Governors and managers had been reminded that a receiving establishment should be made aware of the terms of any undertaking applicable to the prisoner and a copy of the undertaking should be sent with the prisoner.

[18]      All these points seem to me to go towards mitigation of penalty; they do not excuse or justify the breach of the undertaking.  As Mr Pirie, who appeared for the complainer, aptly said, there was no good reason why the steps taken after the undertaking had been breached could not have been taken at an earlier stage.

[19]      Applying the test in Beggs, the admitted breach of the undertaking clearly amounts to a prima facie contempt of court.  That being so, it is for the respondents to show that all reasonable steps were taken to comply with the undertaking.  In my opinion, all reasonable steps were not taken.  It would have been reasonable to advise the senior prison staff at Glenochil of the existence and terms of the undertaking when the complainer was transferred to that establishment.  Due to oversight, this was not done.  I consider that the failure to take that elementary and obvious step was of so gross a nature as to demonstrate a disregard for the importance which the Prison Service should have attached to the undertaking.  Close attention should have been given to seeing that the undertaking continued to be honoured following the complainer's transfer, but nothing at all was done to bring it to the attention of the prison staff at Glenochil.  As happened in Beggs, the undertaking was simply not taken seriously enough.  It was overlooked when the complainer was transferred to a different prison.  In these circumstances, I am driven to the conclusion that the admitted breach of the undertaking constituted a contempt of court.

[20]      Mr Pirie explained that he would be content for a finding of contempt to be made without any further order being added.  He accepted that it would not be appropriate for any penalty to be imposed on the respondents since a finding of contempt of court against the Scottish Ministers was in itself a serious matter. 

[21]      I should record that Mr Ross made it clear in his submissions that the respondents greatly regretted the fact that the undertaking had been breached and tendered apologies to the court for this.  I acknowledge that the breach of the undertaking occurred on a single occasion and that the Prison Service has since then taken appropriate steps to prevent a recurrence.  In the circumstances, I agree that no penalty should be imposed. The finding of contempt of court against the Scottish Ministers is in itself sufficient to mark the gravity of the failure to honour the undertaking given to the court.

[22]      I have issued an interlocutor making a finding of contempt of court against the respondents.  I have reserved all questions of expenses.