Scottish High Court of Justiciary Decisons

Neil, Re [2002] ScotHC 323 (21 November 2002)

OUTER HOUSE, COURT OF SESSION
p1333/02	OPINION OF LADY SMITH in the petition of KEVIN JOHN NEIL PRISONER IN THE PRISON OF HM PRISON, SAUGHTON for JUDICIAL REVIEW     ________________

 

 

Petitioner: Speir; Morisons

Respondents: Crawford; R Henderson, Scottish Executive

21 November 2002

1. The petitioner was sentenced to four years imprisonment in the High Court sitting in Edinburgh on 6^th December 2001, backdated to 5^th December 2001. He was taken to HM Prison, Saughton, Edinburgh ["Saughton"] and detained there. A sentence of four years is categorised as a long term sentence. Saughton is a prison normally used for short term prisoners. HM Prison, Glenochil, Tullibody ['Glenochil'] is a prison normally used for long term prisoners and is the prison to which the petitioner would, in normal course, have been transferred before now.
2. The petitioner's wife and children live in Hawick. Saughton, whilst not readily accessible to them, is so situated as to make it possible for them to visit the petitioner about once per week. If the petitioner had been or was transferred to Glenochil, they would probably not be able to visit more than once per month.
3. Shortly after his detention at Saughton, the petitioner completed a 'Form CP2' which appears to be a standard form for the registering of a prisoner's complaint. It is though evident from the terms in which the petitioner completed the form that he was not intimating a complaint but making a request to the prison Governor. The request was as follows:

"DEAR SIR

I WOULD LIKE TO TAKE THIS CHANCE TO THANK YOU FOR GIVING ME SOME OF YOUR TIME OVER AT INDUCTION AND FOR LISTENING TO MY PROBLEM AND TO THANK YOU FOR GIVING ME A GLIMMER OF HOPE IN THE FACT THAT YOU SAID THAT YOU WOULD LOOK INTO IT FOR ME AND SEE WHAT YOU CAN DO BUT TIME IS MARCHING ON AND THE DRAFT BOARD IS COMING NEARER WITH EACH DAY PASSING SO I WOULD LIKE TO TAKE THIS OPPORTUNITY TO ASK YOU AGAIN AS I KNOW YOU WOULD HAVE BEEN BUSY OVER THE FESTIVE PERIOD BUT I WOULD REALY LIKE TO STAY HERE DUE TO MY FAMILY AND THE PROBLEMS IT WOULD CAUSE IF I WAS PUT ON THE DRAFT

THANK YOU

'Kevin Neil' 3.1.02"

4. The request was responded to in manuscript on Part B of the CP2 form, by Mr Middleton, who appears to have been Deputy Governor of Saughton, on 4^th January 2002, as follows :

"Dear Mr Neil,

You are liable for transfer due to the length of your sentence. However, on this occasion only, I will exercise discretion and allow you to remain at Edinburgh providing the following conditions apply.

a] providing you do not receive an increase to your sentence on appeal.

b] your behaviour remains at an acceptable level.

'W Middleton'".

5. It was common ground that the 'board' and 'draft board' referred to by the petitioner referred to the impending prospect of long term prisoners being transferred out of Saughton. Transfers of prisoners had in fact taken place on 9^th and 16^th January 2002, no transfers occurred in February but there were again transfers in March and April 2002.
6. The petitioner was not transferred. He remained at Saughton, progressing through the system there. In October 2002, he learnt that a decision had been taken to transfer him to Glenochil. Aggrieved by that decision, he has brought the present Petition for Judicial Review in which the remedies sought include declarator that the decision to transfer was unlawful and reduction of it.

The Submissions for the Petitioner :

7. At a First Hearing, it was submitted by Mr Speir, counsel for the petitioner, that the decision to transfer was unlawful, being: [a] an abuse of power; and [b] unreasonable. It was central to his submissions that, on the facts, the petitioner was an exceptional prisoner who had, on the basis of what was contained in the form CP2, escaped the draft to another prison. The words: "on this occasion only" were to be taken as meaning that a permanent exception was being made for the petitioner as an individual to the effect that the Respondents would depart from their normal policy of transferring long term prisoners out of Saughton. Under reference to the case of R v Secretary of State for the Home Department ex parte Hargreaves & Ors 1997 1WLR 906 at 922 he submitted that the CP2 fell to be read and interpreted through the eyes of a prisoner bearing in mind the background against which it was made . It was not to be read as referring to an occasion in time.
8. Counsel for the petitioner submitted that the terms of the CP2 form were something akin to a promise or undertaking and were somewhat open-ended. In respect that a desire to secure visits from his family was stated to be the reason for the request it could be seen that Article 8 of the European Convention on Human Rights underpinned it. That said, he did also recognise the limitations to the exercise of the rights enshrined in Article 8 that flowed, of necessity, from the fact of the Petitioner's lawful incarceration [see: Reed & Murdoch - A Guide to Human Rights Law in Scotland paras. 6.47 - 6.48 ; McCotter v UK - Decision of the European Commission 9^th December 1992 as to admissibility - unrepd] .
9. Mr Speir further submitted that the circumstances and terms of the form CP2 gave rise to a substantive legitimate expectation on the part of the petitioner that he be allowed to remain at Saughton notwithstanding that he was a long term prisoner and that he would not be transferred to a prison for long term prisoners, namely Glenochil. The decision that had now been taken to transfer him was , accordingly , an abuse of power and ought to be reduced.
10. It did, however, emerge that what was being contended for was not the endorsement of a legitimate expectation that the petitioner spend the whole of the custodial part of his sentence in Saughton. That was because he should, by some time in February 2003, become eligible for home leave. Home leave cannot be managed from Saughton so to obtain the benefit of home leave, he would require to be transferred to another prison, an open prison. Glenochil is not an open prison. Indeed, far from seeking to resist transfer, the petitioner would, by February 2003, be applying for transfer. Mr Speir did not, however , see this set of facts as destructive of his argument that the petitioner had a legitimate expectation that he would not be transferred from Saughton. He added that the petitioner's position was not that the representation in the form CP2 meant that he would never be moved. Rather, it was to be seen as a representation that he would not be moved to a prison where contact with his family would be lessened. Transfer to a prison for the purpose of enabling home visits to take place would foster contact with family, not lessen it.
11. Further, Mr Speir stressed that the petitioner would be disadvantaged if he were now to be transferred from Saughton to a prison for long term prisoners as he would not be afforded the benefits and privileges that he had earned over the last ten months within the Saughton hall system. I should, he submitted, take account of the fact that he would be prejudiced in respect of the loss of those benefits and privileges if he were transferred at this stage.
12. In the alternative , failing reduction on the grounds that it was an abuse of power, counsel for the petitioner submitted that having regard to the whole facts and circumstances, the decision to transfer was unreasonable in the Wednesbury sense [Associated Provincial Picture Houses Ltd v Wednesbury Corporation 1948 1KB 223]. The issue as to whether or not the decision was reasonable in that sense would fall to be determined only after a consideration of evidence , given certain issues of fact that, in his submission, arose as between the parties.
13. Given the number of recent authorities in which the doctrine of legitimate expectation has been discussed, it is not surprising that counsel were in agreement that the issues in this case arose in the context of a developing area of the law. Mr Speir submitted that it was now clearly established that a clear and unambiguous representation can give rise to a substantive right so that breach of such a representation amounts to an abuse of power. At times his submission went as far as to suggest that the fact of clear and unambiguous representation of itself gave rise to a legitimate expectation so that breach of the representation was an abuse of power irrespective of other circumstances. Equally though he did comment that the question of whether or not an abuse of power had occurred might depend on the nature of the substantive right claimed.
14. Under reference to the case of R v North & East Devon Health Authority ex parte Coughlan 2001 QB 213, and the fact that it has been referred to in Scotland, by the Lord Justice Clerk [sitting in the Outer House] in the case of Al Fayed v Advocate General for Scotland 2002 STC 910, Mr Speir submitted that the decision to transfer the petitioner was an abuse of power in the third category discussed by the Master of the Rolls at para. 57, where he states:

"Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power . Here , once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied on for the change of policy."

He questioned what was meant by the term ' overriding public interest' but submitted that the Respondents had not averred enough to amount to such an interest. It would have been different, he submitted, if they had averred that the Petitioner's cell was required for a particular short term prisoner but it was not enough to make, as they do, general averments regarding overcrowding at Saughton and the need to make provision for short term prisoners in various respects.

15. Mr Speir also referred to passages in textbooks : Clyde & Edwards - Judicial Review: Ch. 9 ; Wade and Forsyth - Administrative Law [ 8^th ed.] p.333 et seq. for discussions of the development of the doctrine of legitimate expectation to the extent that, as a generality, if a public authority reneges on a representation that it has made, a remedy may lie by way of judicial review.

The Submissions for the Respondent:

16. Counsel for the respondents, Miss Crawford, submitted that the orders sought should be refused. She accepted that the doctrine of legitimate expectation as a ground for judicial review of administrative action is a developing area of administrative law. Its ultimate limits had, though, yet to determined. The context in which a legitimate expectation can arise would appear, she submitted, to be: [a] where there has been, as regards a substantive right, a clear and unambiguous representation on which a petitioner is entitled to rely; [b] where a petitioner claims an interest in an ultimate benefit which he hopes to attain or retain so that he is entitled to have his interest considered in a procedurally fair manner; [c] where the procedure envisaged under [b] takes place and the petitioner is entitled to expect that it will be followed through fairly; and [d] where a petitioner has an expectation that a particular procedure will followed consequent on a promise, in licensing cases, for instance. These were the four categories discussed by Lord Justice Simon Brown in the case of R v Devon County Council 1995 1 AER 73 at 88-9. The petitioner's claim in this case fell into the first category and it was not necessary or relevant to examine the reasons for the decision that was under review.
17. As regards the legitimate expectation claimed by the petitioner, Miss Crawford stressed on more than one occasion in the course of her submissions that the petitioner did not and does not enjoy any right to be detained in any particular prison. She seemed to submit that, that being so, he could not , in any circumstances, have any legitimate expectation that he would be retained in Saughton. That would be the case even if a clear and unambiguous representation that he would be retained there had been given to him by the respondents.
18. It was further submitted on behalf of the respondents [a] that the form CP2 did not contain any clear and unambiguous representation, so there could be no question of any legitimate expectation arising; [b] in any event, even if it did, it was ultra vires as Mr Middleton did not have authority to fetter the respondents' discretion; and [c] even if the form CP2 was to be regarded as being the respondents' and as being clear and unambiguous, it was ultra vires the respondents as fettering their discretion. The latter two submissions were made under reference to the cases of Ayr Harbour Trustees v Oswald 11R 85 and York Corporation v Henry Leetham & Sons Ltd 1924 1Ch 557 .
19. Miss Crawford conducted a thorough review of the relevant authorities regarding the doctrine of legitimate expectation, to which I will return later in this opinion. Having done so, her final position on behalf of the respondents seemed to be: [a] the petitioner could not have a legitimate expectation without a clear and unambiguous representation as its basis; [b] to form the basis of a legitimate expectation, the representation relied upon must relate to some substantive right; [c] the response in the form CP2 was ambiguous and was not clear; [d] the right claimed by the petitioner was not a substantive right that could ever form the subject of legitimate expectation; [e] in any event, even if the petitioner did have a legitimate expectation, no abuse of power had occurred in respect that the respondents' decision to transfer was a proper exercise of their discretion in the light of the overriding public interest that they operate and manage the prisons in Scotland; [f] in any event, if the form CP2 contained the representation argued for by the petitioner, it was ultra vires Mr Middleton and ultra vires the respondents.
20. As regarded the alternative submission that the decision was susceptible to review on the grounds of that it was unreasonable in the Wednesbury sense, Miss Crawford submitted that there would have to be very strong reasons indeed before the court could interfere under reference to the cases of Thomson Petr 1989 SLT 344 and R v Secretary of State for the Home Department ex parte McAvoy 1984 1 WLR 1408. An inquiry into the facts would, she submitted, serve no purpose.

The Statutory Framework :

21. The Prisons [Scotland] Act 1989 provides:

"1. All powers and jurisdiction in relation to prisons and prisoners which before the commencement of the Prisons [Scotland] Act 1877 were exercisable by any other authority shall, subject to the provisions of this Act, continue to be exercisable by the Secretary of State.........

3[1] The general superintendence of prisons shall be vested in the Secretary of State, who shall appoint the governors and other officers of prisons....

10[1] A prisoner may be lawfully confined in any prison.

[2] Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct and may be moved by the Secretary of State from any prison to any other prison."

22. The Prisoners and Young Offenders Institutions [ Scotland] Rules 1994, which are extensive, provide :

'33. The Governor shall ensure that every prisoner is given reasonable assistance and facilities to maintain and develop relationships with his family and friends and with such other persons and agencies outwith the prison as may best offer him assistance during his sentence or period of committal, and in preparation for and after his release.........

55. ......

[2] .....the Governor shall allow a prisoner , at such times as the Governor considers reasonable, either -

[a] not less than 30 minutes in any period of 7 consecutive days; or

[b] not less than 2 hours in any period of 28 consecutive days,

for the purpose of receiving visits ....

78. Subject to the provisions of these Rules , the Governor shall be responsible for -

[a] the supervision of the whole prison; and

[b] the control of prisoners confined therein."

23. The power to decide to transfer prisoners from one prison to another is, accordingly, clearly vested in the respondents who now perform the functions previously carried out by the Secretary of State. They have a wide discretion as to the transfer of prisoners. Transfer can, accordingly, be carried out for any purpose that falls within the ambit of their general duty to carry out general superintendence of prisons.
24. In the present case, the respondents aver that the decision to transfer has been made as Saughton is overcrowded to the extent that it is presently operating at 125% capacity. The decision has accordingly been made that prisoners are to be moved from Saughton if their classification is, as in the petitioner's case, appropriate to another prison. It was not disputed that that was the reason for the decision. It was not, in particular, suggested that any improper motive lay behind the respondents' decision.
25. The power to transfer prisoners is not delegated to the Governor either in terms of statute or in terms of the relevant rules. There was no averment in either party's pleadings to the effect that the power was delegated albeit that the petitioner questioned whether that might have occurred, given the terms of the response part of Form CP2. The respondents specifically averred that the decision to transfer was made by them. Further, given that any decision on transfer must require input from both the prison that is to despatch the prisoner and the prison that is to receive him, it is difficult to see how the decision to transfer could, as a matter of practicability, be made unilaterally by the Governor of one prison alone. That would hardly seem to be consistent with effective management on the part of the respondents.

Legitimate Expectation :

[a] Whether a clear and unambiguous representation was made?

26. In the case of R v Inland Revenue Commissioners ex parte MFK Underwriting Agents Ltd 1990 1 WLR 1545, Lord Justice Bingham referred to '..the valuable developing doctrine of legitimate expectation.' [ at 1569H]. However, the warning sounded by Lord Justice Simon Brown that this is an area of law "bedevilled" with "many semantic confusions" [R v Devon County Council 1995 1 All ER 73 at 89h] is one which seems peculiarly apt once a review of the authorities has been completed. An apparently simple principle that there will be occasions when a public authority should not, in fairness, be allowed to renege on its own lawful promises does seem to be at risk of becoming bogged down in unduly complex analyses.
27. In most cases, for a Petitioner to assert that he had a legitimate expectation, he must be able to point to the public authority having made to him a clear and unambiguous representation [e.g. R v Inland Revenue Commissioners Ex parte MFK Underwriting Agents Ltd & ors 1990 1 WLR 1545 where it was stated by Lord Justice Bingham: " ..it is necessary that the ruling or statement relied upon should be clear, unambiguous and devoid of relevant qualification."; R v Secretary of State for Home Department ex parte Hargreaves & Ors 1997 1 WLR 906 where it was accepted as common ground between the parties that the applicants required, as a foundation for their claim of legitimate expectation, a clear and unambiguous representation by the Secretary of State; and R v Secretary of State for Home Department ex parte Ghartey QBD 7.3.01 , unrepd, where it was said by Lord Justice Rose that "a message which is mixed is not an adequate basis on which to found a legitimate expectation."].
28. There may be a rare case where the Petitioner cannot point to a clear and unambiguous representation but can rely on something which can be regarded as being just as compelling. An example of that is to be found in the case of R v Inland Revenue Commissioners ex parte Unilever plc 1996 STC 681 where a settled practice by the Inland Revenue, extending to some 30 separate occasions when they accepted late claims for loss relief, was regarded as being a sufficient basis for the assertion of legitimate expectation that that practice would continue. It was, though, stressed that the case was an exceptional one and that it would be rare to find legitimate expectation arising in the absence of a clear representation having been made.
29. There are also indications that the precise terms of the representation require to be examined in conjunction with the whole surrounding circumstances including the relevant statutory or other power, to determine whether it gave rise to an expectation that can properly be described as legitimate, possibly leaving open the question of whether a representation which is clear and unambiguous may nevertheless be incapable of giving rise to a legitimate expectation. In, for example, R v Devon County Council Ex parte Baker 1995 1AER 73 at 88, Lord Justice Simon Brown observed: "..the claimant's right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely", and in R v North & East Devon Health Authority Ex parte Coughlan 2001 QB 213 at 241 the Master of the Rolls observed, as regards the representation relied upon: "This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.".
30. I have no doubt that the content of the form CP2 did not amount to a clear and unambiguous representation that the respondents would depart from a policy of transferring long term prisoners from Saughton and allow the petitioner to remain there or even simply, without reference to a departure from policy, that the petitioner would be allowed to remain at Saughton indefinitely. The latter is relevant for consideration since the respondents demurred from the petitioner's assertion that they had a definite policy regarding the movement of prisoners.
31. Firstly, the terms of the request show that it was made in the context of the "draft" that was about to take place in January 2002. The request was not that the Petitioner never be the subject of transfer. Indeed, as indicated, he will want to be transferred next February.
32. Secondly, the wording of the response is indicative of it being in relation to a single occasion of prisoner transfer occurring. I cannot see that the words "on this occasion only" apply in the sense suggested by counsel for the petitioner namely that they show that the concession applies only to him.
33. Some ambiguity may arise from the terms of the two conditions appended in that they might be seen as indicating that the author had a longer period of retention at Saughton in mind. All that that shows, however, is that any representation contained in the form CP2 singularly fails the test of being clear and unambiguous. I am mindful of the requirement that the wording of the representation be examined adopting a common-sense approach, bearing in mind that it is not a technical legal document and that it was addressed to an "ordinary prisoner", to use the terminology that found favour with Lord Justice Hirst in the case of R v Secretary of State for the Home Department Ex parte Hargreaves 1997 1 WLR 906 [although the notion that "ordinary prisoner" denotes a readily distinguishable class might be questioned, given the vast diversity of persons that may be incarcerated at any one time. Present experience in the United Kingdom shows that prisoners may range in nature as regards their ability to comprehend the written word from, at one extreme, those who are authors to, at the other extreme, those who are illiterate]. Even bearing that requirement in mind, however, I consider that the ambiguity is plain. Further, taking account of the context of the request, namely with a view to avoiding the transfers that were imminent at the time that it was made, I cannot see that it would be fair or legitimate to read the representation as applying to transfer at any subsequent date.
34. For the avoidance of doubt, I would not regard the circumstances of this case as involving anything which is not a clear and unambiguous representation but can nonetheless be regarded as being as compelling as a representation of that type, such as arose in the cases of R v Inland Revenue Commissioners Ex parte Unilever plc 1996 STC 681 and HTV v Price Commission 1976 ICR 170 .

[b] Whether the Respondents' decision to transfer the Petitioner involves an abuse of power ?

35. The authorities indicate that whilst a decision by a local authority to depart from a prior clear and unambiguous representation may be regarded as unfair, not every unfair decision will be regarded as an abuse of power. In the case of R v Inland Revenue Commissioners Ex parte Preston 1985 1AC 835, Lord Templeman [at 866H - 867C] stated:

"In principle I see no reason why the appellant should not be entitled to judicial review of a decision taken by the commissioners if that decision is unfair to the appellant because the conduct of the commissioners is equivalent to a breach of contract or a breach of representation. Such a decision falls within the ambit of an abuse of power for which in the present case judicial review is the sole remedy. There may be cases in which conduct which savours of breach of contract or breach of representation does not constitute an abuse of power; there may be circumstances in which the court in its discretion might not grant relief by judicial review notwithstanding conduct which savours of breach of contract or breach of representation."

36. It seems that, for unfairness to attract the censure of abuse of power, it will usually require to fall into one of three categories which are identified in R v Inland Revenue Commissioners Ex parte Preston 1985 1 AC 835, namely: error of law, improper motive or absence of overriding public interest. The third category had been identified by the Court of Appeal in the earlier case of HTV Ltd v Price Commission 1976 ICR 170 at185 G-H. No doubt other examples will arise in the fullness of time which do not neatly fit into any of these categories. In the present case, however, the question that arises does fit into one of them. There is an issue as to whether there is an overriding public interest which would justify the departure by the respondents from any prior clear and unambiguous representation regarding the transfer of a prisoner albeit that it only arises in the event that such a representation is determined to have occurred.
37. In the event, as I have determined that there was no clear and unambiguous representation by the respondents, the question of whether or not there was an abuse of power by them does not arise. However, I will deal briefly with the issue lest I am wrong regarding the nature of the representation.
38. Overall, it is clear that the court retains the power to determine whether something that is apparently unfair is an abuse of power or not. Reference can be made to the passage in the opinion of the Court of Appeal delivered by the Master of the Rolls at para. 57 (p. 242) of R v North & East Devon Health Authority Ex parte Coughlan 2001 QB, which I have already cited.
39. The Master of the Rolls envisaged the court deciding [a] whether the promise relied on is lawful; [b] whether it has induced an expectation; [c] whether that expectation is a legitimate one; [d] whether the departure from the promise that is proposed is so unfair as to amount to an abuse of power. For the purposes of [d], he anticipated that the court would weigh overriding public interest against the unfairness that will arise in the particular case. In short, each case will, inevitably, turn very much on its own facts and circumstances.
40. One of the arguments advanced on behalf of the respondents was to the effect that since no prisoner has a right to be detained in any particular prison, the petitioner could never, whatever representation was made to him, have a legitimate expectation that he would be detained in a prison of his choice. To put it another way, it was submitted that the fact of a clear and unambiguous representation could not create a substantive right. Thus, even if the respondents were to be seen as reneging on a promise, that could not be an abuse of power since the petitioner did not have the requisite right. Leaving aside for the moment any question of vires, I would not agree, having considered the authorities on this subject, that there could be no circumstances in which a public authority, by making a clear and unambiguous representation, gives a member of the public a legitimate expectation that he will have conferred on him a right that he did not previously have. That said, it may well be that the absence of any prior substantive right is something which, in a particular case, the court will consider should be taken account of when carrying out the exercise of balancing apparent unfairness against public interest to determine whether the latter should prevail.
41. On the other hand, insofar as it was argued that in this case, there was an overriding public interest in the management and organisation of prisons so that the respondents should be free to move prisoners in accordance with their wide statutory power to do, I would agree with that submission. I do not see that it would have been necessary for the respondents to aver circumstances which indicated that they needed this petitioner's cell for another particular prisoner. For the courts to demand such detail from the respondents of the way in which they perform these wide and important statutory duties would, in my opinion, be invidious. The court must proceed on the basis that the averments, which were not seriously disputed, to the effect that, for good and apparently sound management reasons, the respondents needed to move long term prisoners out of Saughton, are made in good faith. That being so, it seems to me that ample statement is made on behalf of the respondents to satisfy the court that the transfer which they propose is well within the discretion available to them under the relevant legislation.

[c] Petitioner's reliance on matters not the subject of his request :

42. Reference was made by counsel for the respondents to the case of R v Inland Revenue Commissioners Ex parte MFK Underwriting Agents Ltd & ors 1990 1 WLR 1545 in support of a somewhat tentative submission that its circumstances were analogous to those of the present case. In the MFK case, a taxpayer sought to have set aside a decision of the Inland Revenue regarding the tax treatment of certain bonds on the grounds that the Inland Revenue had, when enquiries were made of them, indicated that a different tax treatment would apply. The court took the view, however, that the taxpayer had not been sufficiently open about the purpose of the enquiries:

"First, it is necessary that the taxpayer should have put all his cards face upwards on the table.........It means, I think that the taxpayer should indicate the use he intends to make of any ruling given."

The court's approach is , given the overall principles of fairness that lie at the heart of the doctrine of legitimate expectation , not difficult to understand.

43. Counsel for the respondents invited me to adopt a similar approach in the present case given that the Petitioner now relies on the prejudice that he will suffer if moved out of Saughton in terms of the benefits and freedoms earned that he will lose, although these were not matters which featured at the time of his request to the Governor. Miss Crawford also founded on the fact that he now presents his case to the court on the basis that he would only seek to rely on the alleged representation that he would not be transferred as being one which will expire in February 2003 since he will wish to be transferred to obtain the benefit of home leave at that date. That is, again, not something which featured as a purpose of his request to the Governor.
44. The present case can be distinguished on its facts from R v Inland Revenue Commissioners Ex parte MFK Underwriting Agents Ltd & ors in respect that the matters founded on by counsel for the Petitioner that were supplementary to the family reasons advanced at the time of the request to the Governor, do appear to have emerged since then whilst the taxpayer in that case could have put the Inland Revenue on notice as to its intentions at the time of seeking the assurances that were sought. It was not, however, in my opinion, irrelevant for the respondent to draw attention to the way in which the petitioner's whole argument has emerged. It did seem clear to me that had I considered that there was a clear and unambiguous representation contained in the form CP2 , then it would not , in the circumstances, have been appropriate to take account of the prejudicial factors relied on that had since emerged, namely the prospective loss of benefits and privileges in the event of a move, in determining whether for the Respondents to renege on that representation would have involved an abuse of power.
45. Equally, it would have been appropriate to take account of the petitioner's current position to the effect that he is only seeking to be retained at Saughton until February 2003. It might, for instance, have been highly relevant to the respondents' consideration of any response that they made to the request for retention at Saughton that the petitioner would in fact not have wished to stay there after February 2003. In that event, the extent to which he was seeking to pick and choose the venues for his own incarceration might have influenced them to refuse it.

[d] Ultra vires :

46. There is no hint in the averments of Mr Middleton, the author of the response part of the form CP2, having any authority to exercise the statutory power to transfer prisoners nor does such an inference arise. On the contrary, given the terms of the rules, in particular rule 78, it seems clear that neither the Governor nor the Deputy Governor had any power to make any decisions regarding transfers at all. It may well have been that, in the course of carrying out the work of supervising the prison, the Governor gave advice to the respondents regarding which prisoners appeared to require to be transferred. I would be surprised if some such communication did not take place. That is not to say, however, that I can assume that the power to decide had been delegated by the respondents.
47. In these circumstances, had I concluded that the form CP2 contained a clear and unambiguous representation, I would have also concluded that that was a representation that Mr Middleton did not have the power to make. In that event, no legitimate expectation could have arisen nor any abuse of power because in such circumstances, to use the words of the Lord Justice Clerk in the case of Al Fayed & ors v Advocate General for Scotland 2002 STC 910: "it cannot be unfair to the [petitioner] to be deprived of the benefits resulting from it."
48. There is, further, no doubt, in my opinion, that if the respondents had issued a clear and unambiguous representation to the effect that the petitioner would not be transferred whilst serving the custodial part of his sentence, they would have been fettering their future discretion and a real question would have arisen whether that was something which they could competently do.
49. Had I had to determine that question, I would have reached the view that the public interest in the respondents retaining the freedom to manage the prisons effectively and in accordance with the changing requirements that are inherent in that system was such as to prevent them from fettering their own discretion. I would not have regarded the circumstances as falling within the category exemplified by the decision in Birkdale District Electric Supply Company Limited v Southport Corporation 1926 AC 355, where the appellants, having bound themselves not to exercise their discretion in the raising of prices, were held not to have incompetently fettered their discretion, bearing in mind the commercial purposes for which the discretion was conferred and the commercial reasons for which the price fixing agreement had been entered to.
50. In the present case, there is no commercial element in the conferring of the discretion regarding the management of prisons and transfer of prisoners and I would, accordingly, have regarded the case as having more in common with that of the circumstances in the Ayr Harbour Trustees v Oswald 1883 8R 623 in which it was held that the appellants could not competently preclude themselves from exercising their powers under the Ayr Harbour Act in respect of certain land acquired by them for the purposes of that statute bearing in mind that their discretionary powers were such as to be capable of exercise whenever and as often as they considered it appropriate to exercise them in the public interest. Much the same could be said in the case of the respondents and the discretion that they have in respect of the management of prisons and transfer of prisoners.

[e] Wednesbury unreasonableness :

51. Counsel for the petitioner did not make any submissions under this head beyond indicating that if the decision to transfer was not set aside as an abuse of power then it should be set aside as having been unreasonable in the Wednesbury sense. Issues of fact, which he did not specifically identify would, he said, have to be considered in the event that he was to advance this line of argument. He envisaged there being a second hearing at which the respondents would produce evidence and the documents referred to in the Schedule to the Petition, namely the files kept on the petitioner by the respondents in Saughton, presumably to support his averments as to the petitioner having made satisfactory progress whilst there.
52. I do not see that, on the averments as they stand, the petitioner makes out a prima facie case that the decision was unreasonable in the Wednesbury sense. Nor do I identify any issues of fact which have the potential for giving rise to a stateable case that the decision was unreasonable. There was some concern expressed by counsel for the petitioner that the respondents had not been candid in their averments as to who had made the decision to transfer , given that the response in the CP2 form was written by Mr Middleton. The respondents do, however, make it quite plain in their averments that so far as the challenged decision is concerned , it was made by them and I fail to see either that their averments lack the candour that is called for by the petitioner's case or that, in the whole circumstances, there is any justification or call for the production or leading of evidence.
53. I also, accordingly, reject the submission that the decision to transfer the petitioner was an unreasonable one in the Wednesbury sense.
54. The petitioner's motions fall, accordingly to be refused. I shall repel the petitioner's pleas-in-law and sustain those of the respondents.