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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> WILLIAM McCULLOCH FOR JUDICIAL REVIEW OF DECISIONS OF THE SCOTTISH MINISTERS [2020] ScotCS CSOH_13 (29 January 2020)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_13.html
Cite as: [2020] CSOH 13, 2020 GWD 7-101, [2020] ScotCS CSOH_13
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P794/19
OUTER HOUSE, COURT OF SESSION
[2020] CSOH 13
OPINION OF LORD BOYD OF DUNCANSBY
in the petition of
WILLIAM McCULLOCH
for
judicial review of decisions of the Scottish Ministers
Petitioner
Petitioners: Campbell QC, Crabb; Drummond Miller LLP
Respondents: Byrne; Scottish Government Legal Directorate
29 January 2020
[1] The petitioner is a prisoner in HMP Edinburgh. He claims that a letter from his
solicitors was opened by the prison authorities. He seeks a declarator that the act of opening
the letter was incompatible with his rights under article 8 ECHR and therefore unlawful
under section 6 of the Human rights Act 1998 (“HRA”) and beyond the powers of the
respondent in terms of section 57(2) of the Scotland Act; and damages in the sum of £5000
as a necessary award to afford him just satisfaction in terms of section 8 HRA and
section 57(2) of the Scotland Act.
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Issues
[2] As a primary point the respondents submit that the petition is not seeking the
supervisory jurisdiction of the Court of Session and is therefore incompetent. They also
submit that on the facts that can be ascertained from the affidavits and pleadings that the
petitioner is not a victim for the purposes of the HRA. In any event the court should refuse
to grant an order in the exercise of its equitable jurisdiction.
[3] The petitioner resists the competency point. The petitioner wished to call witnesses
but a motion before the procedural judge for authority to cite three named prison employees
was refused. Before me Mr Campbell QC submitted that I could deal with the competency
issue and if I rejected it I could hold a further substantive hearing at which witnesses could
be called. Alternatively there was sufficient evidence before me from which I could draw
the necessary inference of a violation of the petitioner’s article 8 rights.
Legal background
[4] The parties are agreed that the opening of correspondence from a legal advisor to a
prisoner by prison authorities potentially engages article 8 ECHR (see amongst other cases
cited by the petitioner Campbell v United Kingdom (App 13590/88) (25 March 1992)). The rule
for handling such correspondence is Rule 56 of the Prison and Young Offenders Institutions
(Scotland) Rules 2011/331. Additional guidance is contained in the Scottish Prison Service
document Management of Prisoner Correspondence Policy Revised 25 February 2019.
Facts
[5] There is no dispute that on 1 June 2019 the petitioner received a letter from his
solicitors regarding an ongoing prosecution for assault following an incident in prison. A
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number of prison officers were potential witnesses. The letter was in a brown envelope that
had his name written in hand on the outside, together with his prison number, and stamped
“confidential correspondence 1 June 2019”. It was apparent that it had been opened in the
prison before it got to him.
Competence
Submissions for respondents
[6] The action is essentially an action for damages under the HRA. It could be brought
in the sheriff court. Given the sum sought it is well within the exclusive jurisdiction of the
sheriff court; Court Reform (Scotland) Act 2014 section 39(1)(b)(ii). The sheriff court could
grant a declarator in just satisfaction either instead of damages or as well as damages;
section 8(1) HRA. The juridical basis of the judicial review was a breach of the HRA. There
was no averment that anyone acted ultra vires or were irrational or unreasonable. There
was no aspect of this case that only a Lord Ordinary could deal with. An application to the
supervisory jurisdiction of the Court could not be pursued where application could be made
by appeal or review; Rule of Court 58.3(1); McCue v Glasgow City Council 2015 SCLR 186
paras 60, 61. There was an alternative remedy in the sheriff court. Where an action is
essentially one of damages judicial review was not appropriate; Sher v Chief Constable of
addition of a declarator in the crave made no difference; Docherty v Scottish Ministers 2012
SC 150, per Hamilton LP at para 21. The approach of the First Division in Docherty was
specifically endorsed by Lord Hope DPSC in Ruddy v Chief Constable of Strathclyde 2013
SC (UKSC) 126 at paras 14 – 20; see also Sher at paras 63, 65, 73 and 72 – 82. Where, as here,
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there was a potential dispute of fact judicial review was not apt to resolve the matter. It
should only be in exceptional cases that witnesses would give evidence in a judicial review.
Submission for petitioner
[7] There was no argument that as a matter of law the petitioner was entitled to the
remedies sought assuming there to have been a violation of his rights. The issue was one of
whether it was competent to seek these remedies through judicial review. This was not the
first petition for judicial review following on an allegation that a prisoner’s confidential
correspondence had been interfered with by the prison authorities. The point had not been
taken before. It was clear that the supervisory jurisdiction of the court was not confined to
reviewing decisions; Elmford Ltd v City of Glasgow Council 2001 SC 267 at para 8. What the
petitioner was seeking was a declarator of his rights. It is the character of the act that is
important; Ruddy, per Lord Hope at para 18. The declaratory relief that the petitioner is
seeking is peculiarly one for judicial review and defines its scope. A finding of a violation of
a right is an important vindication of the right; R (Greenfield) v Home Secretary
[2005] 1 WLR 673 per Lord Bingham at paras 8, 9 and 19. The judicial review was seeking to
control the actions of officials for whom the respondents were responsible.
Decision on competence
[8] The fallacy which lies behind the petitioner’s approach is that he is seeking an
exercise of the Court’s supervisory jurisdiction. He is not. There is no attempt to review any
decision or control the actions of any officials. What he is seeking is just satisfaction for one
completed act which he says is a violation of his article 8 rights. As Lord Hope remarked in
Ruddy the sole purpose for which the supervisory jurisdiction of the Court of Session may be
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exercised is to ensure that a person to whom a power may be delegated or entrusted does
not exceed or abuse that jurisdiction or fail to do what is required; para 18. That statement
may be thought to be too bald in view of recent developments in the law (see for example
vindication of rights arising out of one alleged breach of ECHR rights which occurred in the
past. In Docherty v Scottish Ministers it was argued that an action for damages arising out of
alleged breaches of article 3 should be raised as a judicial review. The First Division held
that an ordinary action in the sheriff court was competent. The addition of a crave for a
declarator made no difference. It did not involve the invocation of the supervisory
jurisdiction (para 21).
[9] Accordingly I hold that the petition for judicial review is incompetent. The fact that
this Court has dealt with such actions in the past without questioning whether it was
appropriate to do so does not alter the competence of the petition. There is an alternative
forum in the sheriff court which could competently give the petitioner just satisfaction.
Given that the action is not one of judicial review the sheriff court has exclusive jurisdiction;
section 39(1)(b)(ii) of the Court Reform (Scotland) Act 2014.
Merits
[10] In any event I do not consider that there is any merit in this action. There is a
procedure called double enveloping. This is the system recommended to solicitors by the
Law Society. Solicitors writing to prisoners will put the letter in an envelope which is clearly
marked with the name, date of birth and hall location as well as the name and address of the
sender and point of contact. That envelope is sealed and put in another envelope with a
letter to the governor asking that the enclosed envelope be passed to the prisoner.
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[11] An affidavit from the solicitor who wrote the letter to the petitioner confirms that his
firm uses that system. If that had occurred in this case then the petitioner would have
received not a brown envelope from the prison but a white envelope from his solicitor. It is
therefore clear that the letter had been opened.
[12] Occasionally the double enveloping system is not followed. If that happens then the
mail will be opened in the normal way. If it is then clear that the letter is confidential
correspondence it is then placed in an internal brown envelope, stamped on both sides and
passed to the prisoner. The envelope, a copy of which has been produced, conforms to that
procedure. The solicitor who sent the mail confirms that he did not deal with the mail
himself. While he considers it unlikely that the letter was not double enveloped he cannot
rule out that possibility.
[13] In my opinion the most likely explanation for why the petitioner received the letter
in a brown envelope is that it was not double enveloped. It is true that the mail
administrator in the prison did not record the failure to double envelope as the guidance
required. Nevertheless there are no averments which suggest that the petitioner’s
confidential mail was deliberately opened and read in spite of having the protection of being
double enveloped. That being so there is no breach of the petitioner’s article 8 rights. Even
if there was in the circumstances of this case it would be de minimus.
Disposal
[14] I will sustain the third plea in law for the respondents and dismiss the petition. I
reserve the question of expenses.