Scottish Court of Session Decisions

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Cite as: [2019] CSOH 103, [2019] ScotCS CSOH_103, 2020 GWD 1-2

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OUTER HOUSE, COURT OF SESSION

[2019] CSOH 103

P493/19

OPINION OF LORD PENTLAND

In the petition

DAVID GILDAY

Petitioner

for judicial review of the actions of the Scottish Ministers in interfering with his mail

Petitioner: Leighton; Drummond Miller

Respondent: Byrne; Scottish Government

10 December 2019

Introduction

[1] This is another case concerning a prisoner's correspondence. The background to it

lies in the challenges currently faced by the Scottish Prison Service ("the SPS") in trying to

control the smuggling of drugs, including new psychoactive substances, into prisons by ever

more devious means.

[2] The petition for judicial review came before me for a substantive hearing. The

petitioner is currently serving a number of sentences of imprisonment, amounting in cumulo

to 18 years 5 months and 3 days, in Her Majesty's Prison, Addiewell. As matters presently

stand, the petitioner will be released on 1 February 2024, although the Parole Board for

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Scotland is due to review his case in August 2020. The respondents are the Scottish

Ministers. They have responsibility for the SPS.

[3] The petitioner complains about the interception of a greeting card ("the card") sent to

him whilst he was previously a prisoner in Her Majesty's Prison, Glenochil ("HMP

Glenochil"). The respondents maintain that the SPS had reasonable grounds for believing

that the card was impregnated with a psychoactive substance and that they were, therefore,

entitled to seize and retain it.

[4] The petitioner asks the court to pronounce a declaratory order that the seizure and

retention of the card constituted an unwarranted interference with his rights under Article 8

of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the

ECHR"). This, of course, provides in sub-paragraph (1) that everyone has the right to

respect for his private and family life, his home and his correspondence. Sub-paragraph (2)

states that any interference with this right by a public authority must be in accordance with

the law and necessary in a democratic society inter alia for the prevention of disorder or

crime and for the protection of health or morals.

The facts

[5] For the purposes of the substantive hearing, the petitioner lodged an affidavit setting

out the grounds of his complaint. He explained that on or about 3 March 2019, at a time

when he was a prisoner in HMP Glenochil, three items of mail addressed to him arrived at

the hall where he was then imprisoned. According to the petitioner, a prison officer, with

whom the petitioner says that he did not have a good relationship, opened his mail. Issue

was taken by the officer with one item of mail; this was the card. The petitioner says that the

officer took the card from his mail. The petitioner claims that the officer handled the card

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without using any gloves. According to the petitioner, the card was not placed on a lightbox

for the purpose of testing whether it contained any illicit substance because the lightbox in

the petitioner's hall was broken. The petitioner explains that he was told by the hall

manager that the card was to be taken to security.

[6] In their answers to the petition the respondents deny that the lightbox was broken,

but for reasons to which I will shortly turn, this is not a dispute that it is necessary to resolve

in the circumstances of the present case.

[7] The petitioner goes on to explain in his affidavit that he thereafter submitted a

number of complaints to the SPS about the removal and retention of the card. He pursued

each of these complaints to the Internal Complaints Committee ("the ICC").

[8] The petitioner claims in his affidavit that it is not unusual for him to receive greeting

cards in prison because his friends send them to him with a view to trying to keep his spirits

up. They do not just send them to him at the time of his birthday or at Christmas. The

petitioner has never seen the contents of the card. He says that he is not certain who sent it

to him. He has never been allowed to read the card since it was taken from him before he

was able to do so. Nor has he been provided with a photocopy of the card. The petitioner

states that he is very keen to discover who sent the card to him and to find out what it said.

He will not be able to find out about these matters until his earliest date of liberation which,

if he is not released earlier on parole, will be 1 February 2024.

[9] The petitioner accepts that he has had issues with substance misuse. He says that he

is presently seeking to address these issues. He acknowledges that he has been the subject

of a number of discipline reports, although he claims not to be able to recollect the details of

all of these.

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[10] The petitioner lodged as productions the official records relating to his various

complaints about the seizure and retention of the card. 6/3 of process comprises the

documents relating to the third of these complaints. In this complaint the petitioner stated

that the hall manager told him that the card had been taken to security. The petitioner said

that he asked the hall manager what the time limit was for security keeping the card so that

he could get it back. According to the petitioner, the hall manager was dismissive of his

inquiry.

[11] The petitioner's complaint was rejected on the basis that the process for seizing

suspicious items had previously been explained to him. The petitioner regarded that

response as inadequate and asked the ICC to review the matter.

[12] The response provided by the ICC is important because it provides an authoritative

explanation as to what happened to the card and why. Mr Leighton, who appeared on

behalf of the petitioner, submitted that the court should not have regard to this explanation

because it was contained in a document which was not spoken to by a witness from the SPS;

no affidavit had been lodged. I reject that submission. Particularly in the context of an

application for judicial review, this is too narrow and technical an approach. It is important

to note that there is no substantive dispute between the parties as to the accuracy of the

documents and of the information and explanations they contain. It was indeed the

petitioner who lodged this documentary evidence. He refers in his own affidavit to the

complaints and to the productions documenting them. So the documents are in fact spoken

to by a witness, namely the petitioner himself.

[13] In their decision of 19 March 2019, the ICC stated that, having considered SPS policy

and reviewed the petitioner's complaint, they did not uphold the complaint for two reasons.

First, it was noted that the residential first line manager had previously explained the

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process to the petitioner in the context of his two earlier complaints about the same matter.

The second reason given by the ICC for not upholding the petitioner's complaint was stated

to be as follows:

"(The petitioner) will not receive his mail as during screening there was an indication

of a substance by a drug dog. Furthermore, rule 104 Para 6 of the Prison Rules

states:- (b) where the item is seized from any other person in the prison it may be retained in

order to be returned to that person upon his or her departure from the prison."

[14] The ICC added that the petitioner would receive his mail on liberation and not

before that date.

The grounds of challenge

[15] The petitioner submitted that the prison authorities had no proper grounds for

confiscating the card and refusing to return it to him. He maintains that the removal of the

card without providing him with its contents was a disproportionate interference with his

rights under Article 8 of the ECHR. He avers that his correspondence has apparently been

removed and retained on the basis that it is suspected of being tainted (for example with

illegal drugs) not that its contents were in any sense objectionable. In those circumstances,

whilst the petitioner acknowledges that the removal of the physical item of correspondence

might be legitimate and proportionate, steps ought to have been taken to permit him to have

access to the contents of the correspondence. The petitioner contends that the removal of his

correspondence, coupled with the failure on the part of the SPS to put in place a mechanism

whereby he can become aware of the contents of his correspondence, amounts to a

disproportionate interference with his Article 8 rights. He says that it would not

unacceptably compromise any possible legitimate aim to provide him with a copy of his

correspondence.

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The respondents' position

[16] For their part, the respondents rely on the rights conferred on them under the

Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011/331). The current

version of these rules came into effect on 30 November 2018. The rules contain provision

dealing with the seizure and treatment of what they describe as prohibited articles and

unauthorised property. Rule 2 defines unauthorised property as meaning any property

which the prisoner has not been authorised by any officer or by virtue of the rules to possess

within the prison or within a particular part of the prison. There is no doubt that a greeting

card impregnated with drugs or with a psychoactive substance would constitute an item of

unauthorised property; Mr Leighton took no issue with that.

[17] Rule 55 sets out various restrictions on general correspondence to and from the

prisoner. Sub-paragraph (4) of Rule 55 permits an officer to read a letter or package in

circumstances specified in a direction made by the Scottish Ministers. The relevant direction

is to be found in paragraph 5(1)(a) of the Scottish Prison Rules (Correspondence)

Direction 2012, which provides inter alia that a prisoner may not receive any correspondence

which consists of or contains a prohibited article or unauthorised property.

[18] Sub-paragraph (6) of Rule 55 states that where a letter or package is found to contain

a prohibited article or any unauthorised property, the Governor must deal with the item in

terms of Rule 104. For present purposes, the pertinent sections of Rule 104 are as follows:

"(1) Any item found -

(a) in the possession of a prisoner or any other person in the prison; or

(b) anywhere else in the prison,

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may be seized by the Governor where the Governor has reasonable cause to believe

that the item is a prohibited article or unauthorised property.

...

(6) Where the Governor is satisfied that an item seized under paragraph (1)

comprises unauthorised property the Governor may deal with the item in any of the

following ways -

(a) where the item is seized from a prisoner it may be retained in order to

be returned to the prisoner upon his or her release;

(b) where the item is seized from any other person in the prison it may be

retained in order to be returned to that person upon his or her departure from

the prison;

the item by any appropriate means."

[19] The respondents contend that the seizure of the card was justified and reasonable

because there were grounds to believe that it contained drugs. The Governor of HMP

Glenochil (or prison officers on his behalf) had reasonable cause to believe that the card sent

to the petitioner was unauthorised property. Whatever the position was with regard to

whether the lightbox in the petitioner's hall was or was not working at the material time,

there could be no doubt that the drug search dog detected an illicit substance on the card.

The petitioner was not in a position to dispute that crucial piece of factual evidence.

[20] The respondents explain in their answers that on 6 March 2019 the card was screened

by a trained tactical detection dog, also known as a drug search dog. It gave a positive

indication that the card contained a drug. Positive indication by a drug search dog is

averred to be an accurate, efficacious and, therefore, adequate method of detecting drugs in

prison. The respondents go on to say in their averments that a positive indication by a drug

search dog forms a good basis upon which to found a decision to seize, withhold and

destroy any item. They aver that most commonly drugs are contained "laced" within items

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such as cards, letters, children's drawings and clothing. In order to be deployed, a drug

search dog must undergo UK wide training and meet a universal standard.

[21] The reasonableness of the steps taken was supported by the need to address the

problems arising from the introduction and use of drugs in prisons.

[22] A further relevant factor was the petitioner's history of drug use and of being

involved in drugs whilst in prison. For example, at an oral hearing in December 2014 the

Parole Board had noted the petitioner's substantial history of substance abuse. In July 2016

tablets, capsules, wraps of powder and SIM cards had been found in Kinder eggs in a cell

occupied by the petitioner and other prisoners. Prison officers observed that the petitioner

was sweating profusely, his pupils were extremely constricted, and his rate of speech was

abnormally fast. At a review hearing in December 2017 the Parole Board noted that the

petitioner had been returned to closed conditions following the discovery of an unknown

substance and SIM cards in his room; he had appeared to be under the influence of an

unknown substance. The petitioner had tested positive for drugs on 16 November 2018

during a mandatory drug test. Since then the petitioner had refused to undergo three

further drugs tests.

[23] The respondents also argue that continued retention of the card was reasonable and

proportionate in the circumstances. There was no justification for returning it to the

petitioner before his release date because it constituted unauthorised property. The drug

could not be disaggregated from the card. The card was the means by which it was

intended to introduce the drug to the prison estate.

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Analysis

[24] In Campbell v UK (1993) 15 EHRR 137, the European Court of Human Rights

acknowledged that some measure of control over prisoners' correspondence was justified

and was not of itself incompatible with the ECHR, regard being paid to the ordinary and

reasonable requirements of imprisonment. The Court also recognised that in assessing the

permissible extent of such control in general, the fact that the opportunity to write and to

receive letters is sometimes the prisoner's only link with the outside world should not be

overlooked.

[25] Assuming in the petitioner's favour that his rights under Article 8 of the ECHR were

engaged by the seizure of the card, I consider that such interference was justified for the

prevention of disorder or crime and for the protection of health or morals. In my opinion,

the information put before the court in the present case shows that the seizure and retention

of the card were (and continue to be) reasonable and proportionate steps for the SPS to take

(and continue to take). These measures pursue a legitimate aim, namely taking steps to

prevent illicit substances from entering and then circulating within the prison estate. It is

well known that drugs cause many difficulties in Scottish prisons. Psychoactive substances

present particular challenges for the SPS. Against this background, I do not consider the

steps taken in relation to the card to be disproportionate to the achievement of the legitimate

aim to which I have referred.

[26] I am not attracted by the argument advanced on behalf of the petitioner that the

respondents had failed to prove by admissible evidence the factual circumstances on which

they rely. The suggestion that the petitioner is entitled to put the respondents to strict proof

of their averments is, in my view, an inappropriate one in the context of the present

proceedings for judicial review. The focus of such proceedings should be on whether there

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are recognised public law grounds for reviewing administrative decisions taken by public

authorities. The court should be astute to ensure that such proceedings are not used as a

vehicle for the purpose of trying to open up administrative decisions on questions of fact

alone.

[27] It seems to me that, on the basis of the documentary evidence and the explanations

tendered to the court on behalf of the respondents, the court should be satisfied that the card

tested positive for drugs when the drug search dog was used. That documentary material

constitutes the best evidence of the decision upon which the respondents rely (c.f. Tweed v

Parades Commission for Northern Ireland [2007] 1AC 650 per Lord Bingham of Cornhill at

paragraph [4]). To insist on such undisputed factual points being set out in the form of

affidavits sworn by SPS officers is not necessary or appropriate in the circumstances of the

present case. Affidavits would add nothing of substance to the uncontested information

that is already before the court in the respondents' averments and in the productions. The

petitioner is not in a position (nor does he seek) to dispute the key factual information

concerning the use of the drug search dog and the positive finding. In view of the positive

test with the drug search dog, whether or not the lightbox was working is irrelevant; the

Court does not require to resolve that particular factual dispute.

[28] The short point is that there is documentary evidence, the accuracy of which

Mr Leighton did not challenge, showing that the card was tested by using a drug search dog

and that a positive reaction was obtained. That being the case, the SPS had sufficient

grounds to treat the card as an item of unauthorised property and to seize it.

[29] Mr Leighton also submitted that the petitioner should have been given a copy of the

card. Mr Byrne, on behalf of the respondents, explained that this suggestion had been put to

the SPS and considered by them. The response was that the unauthorised property (i.e. the

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card itself) was currently held in a sealed production bag. The SPS did not consider it

appropriate to open the bag and attempt to make a copy of the contents of the card because

such steps would potentially expose a prison officer to the substance with which the card

was contaminated. Mr Byrne explained that prison officers sometimes come into

inadvertent contact with psychoactive substances in prison and the view had been taken

that the SPS has a duty not knowingly to expose its officers to the risk of being exposed to

such substances. That stance seems to me to be responsible and proportionate. In my

opinion, a wide margin of discretion should be extended to the SPS to identify what

constitutes a risk in a prison setting and to determine how best to address that risk (c.f. R v

Ministry of Defence ex parte Smith [1996] QB 517 per Sir Thomas Bingham MR at page 556). As

I have already explained, the petitioner will become entitled to receive the card in the sealed

bag at the stage when he eventually comes to be liberated from custody. I am satisfied that

retention of the card until then serves the legitimate aim of controlling the use and

distribution of drugs in prison.

Conclusion

[30] In my opinion, the petition is unfounded. There were adequate grounds for the

decisions taken in relation to the card by the SPS. I do not consider that there has been any

disproportionate interference with the petitioner's Article 8 rights. The steps taken by the

SPS were appropriate and justified. I shall accordingly sustain the second plea-in-law for

the respondents, repel the petitioner's plea-in-law and refuse the petition. I shall reserve all

questions as to expenses.