Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 99

 

P697/16

OPINION OF LORD DOHERTY

In the petition

WILLIAM BEGGS

For Judicial Review of the actions of the Scottish Ministers relating to interference

with his correspondence

Petitioner

against

THE SCOTTISH MINISTERS

Respondents

Petitioner:  Campbell, QC;  Drummond Miller LLP

Respondents:  Byrne;  Scottish Government Legal Directorate

6 July 2017

Introduction

 

[1]        The petitioner is serving a sentence of life imprisonment following his conviction in October 2001 of a murder committed in December 1999.  The punishment part of the sentence is 20 years (this being the time which must be served before an application for parole can be made).

[2]        In the present petition for Judicial Review the petitioner seeks various orders concerning certain of his and other prisoners’ correspondence.  The respondents are the Scottish Ministers.  The petitioner seeks permission to proceed with his application.  An oral hearing was assigned to determine whether permission should be granted, and that hearing came before me.

 

The petition and counsel for the petitioner’s submissions

[3]        The petitioner seeks the following orders:

“(1) declarator that the respondents have interfered with certain items of his correspondence by opening it, and that that interference was unlawful at common law and a breach of his Article 8 ECHR rights;

(2) reduction of the withdrawal of an undertaking which had been given to him by a prison officer;

(3) declarator that the respondents’ refusal to include prisoners’ correspondence with the regulators of the legal professions of the United Kingdom other than the Law Society of Scotland and the Faculty of Advocates, and legal complaints bodies other than the Scottish Legal Complaints Commission as confidential non-privileged correspondence within their policy and Correspondence Directions is unlawful;

(4) declarator that the respondents’ refusal to include prisoners’ correspondence with the regulators of the medical professions, particularly the Health Care Professions Council (sic) and the General Medical Council as confidential non-privileged correspondence within their policy and Correspondence Directions is unlawful;”

 

The petitioner also seeks payment of £5,000 as damages/just satisfaction, and interdict of the respondents and their executive agency the Scottish Prison Service (“the SPS”) from opening correspondence addressed to the petitioner from the Health & Care Professions Council (“the HCPC”).

[4]        The Prisons and Young Offender Institutions (Scotland) Rules 2011 (SSI 2011/331) (“the Prison Rules”) make provision relating to correspondence to and by prisoners. Rule 54 provides that, subject to Rules 55 to 57 and 60, a prisoner may send and receive letters and packages by means of the postal service or otherwise.  Rule 55 relates to general correspondence to and from prisoners.  It provides that a prison officer or employee may open such correspondence and remove the contents.  However, the contents may only be read by an officer or employee in circumstances and in accordance with conditions which may be specified by the respondents in a direction made by them under Rule 55(7). Rule 56 applies to opening and reading of “confidential correspondence” which can be clearly identified from the outer face of the envelope or packaging as containing or comprising confidential information.  Rule 57 makes similar provision in relation to confidential correspondence which cannot be clearly identified as confidential from the outer face of the envelope or packaging.  “Confidential correspondence” is defined in Rule 56(7) as “court correspondence, legal correspondence, medical correspondence or privileged correspondence”.  Each of these terms is also defined in Rule 56(7). For present purposes it is only necessary to note that “legal correspondence” is correspondence with a legal adviser; “medical correspondence” is correspondence with a registered medical practitioner containing personal health information about a prisoner who is certified as having a life-threatening illness by the registered medical practitioner from whom the prisoner is receiving treatment for the illness, and where the prisoner has obtained the prison governor’s consent to communicate with that practitioner in confidence; and “privileged correspondence” is correspondence with a person, authority or organisation specified in a direction made by the respondents. In terms of SPS Policy and Guidance for the Management of Prisoner Correspondence (January 2016), paragraph 4, postal correspondence between prisoners and the Faculty of Advocates and Faculty Services Ltd is treated as legal correspondence.

[5]        Paragraph 3 of the Scottish Prison Rules (Correspondence) Direction 2012 (“the Direction”) provides that the contents of correspondence to which Rule 55 applies must not be read by an officer or employee unless the officer has reason to believe that the contents of the correspondence may endanger the security of the prison or the safety of any person, or relate to a criminal activity, or breach one of the restrictions specified in paragraph 5. In terms of paragraph 7(1) correspondence with the following bodies is privileged correspondence:

(a)        The Scottish Human Rights Commission;

(b)        The Equality and Human Rights Commission;

(c)        The Law Society of Scotland;

(d)       The Office of the Scottish Information Commissioner;

(e)        The Office of the UK Information Commissioner;

(f)        The Risk Management Authority;

(g)        The Samaritans;

(h)       The Scottish Children’s Reporter Administration;

(i)         The Scottish Legal Complaints Commission;

(j)         The Scottish Public Services Ombudsman.

In terms of paragraph 7(2) the same status is accorded to correspondence sent by the Scottish Legal Aid Board to a prisoner and marked “privileged”.

[6]        The petitioner avers that HCPC is the UK regulatory body for a range of healthcare professionals including clinical and forensic psychologists; that he has had cause to correspond with HCPC since July 2015 in connection with a complaint made by him about the Head of Psychology at HMP Edinburgh, an employee of SPS; that on 6 August  2015 he received an undertaking in writing from an SPS manager that his correspondence with HCPC would be treated as privileged; that on 6 May 2016 correspondence from HCPC to the petitioner was opened by SPS;  that on 9 May 2016 the Governor of HMP  Edinburgh revoked the undertaking with immediate effect;  and that on 20 June 2016 further correspondence from HCPC to the petitioner was opened by SPS.  He avers that he continues to have correspondence with HCPC “on several matters”, one of them concerning data protection and another concerning the professional conduct complaint made against the Head of Psychology.  He avers that a number of letters from HCPC to him have been opened by SPS staff.

[7]        The petitioner further avers that on about 30 August 2016 he commenced proceedings in the High Court of Justice Administrative Court in London for Judicial Review of “certain decisions of HCPC”.  He avers:

“[The petitioner] required to correspond with the Law Society of England and Wales in order to obtain legal assistance to do so.  It is possible that he may have to do so in future in connection with that litigation or in connection with any professional practice concerns which may arise.  The petitioner has had further correspondence with the Law Society of England and Wales.  In it he sought advice about available legal representation in connection with matters concerning North Yorkshire Police and the Crown Prosecution Service.  A letter was received at HM Prison Edinburgh on 27^th March 2017 from the Solicitors Regulation Authority.  The letter was opened in the presence of the petitioner.”

 

[8]        The petitioner avers that the opening of HCPC correspondence after the undertaking was given was “unlawful at common law” because the petitioner had a legitimate expectation that SPS would adhere to the undertaking.  He further avers that the opening of his correspondence with HCPC and the Law Society of England and Wales and the Solicitors Regulation Authority were interferences with his Article 8 right to correspondence which were not justified by any of the considerations in Article 8.2.  In stat. 21 of the petition he avers:

“21. … the refusal of SPS to include HCPC, other medical regulators such as, for example, the General Medical Council, regulators of the legal professions in other parts of the United Kingdom, for example the Law Society of England and Wales, within the scope of confidential correspondence is irrational.  The nature of the correspondence passing between a prisoner and those organisations is apt to raise similar issues as correspondence with the professional and complaints bodies currently included in the respondents’ (sic) policy and directions…. [W]ith the exception of the Samaritans, all of the bodies currently listed in the Correspondence Direction deal with the regulation of professional persons or facilitate engagement by prisoners with public authorities, including making claims or complaints against branches of government. In the case of many of the listed bodies, the correspondence will include sensitive personal data. Such personal data is also likely to be referred to in correspondence with HCPC.  It is also likely to be referred to in correspondence with the General Medical Council ... There is no rational or meaningful basis upon which to distinguish between mail from the excluded organisations and those included. The exclusion is irrational…”

 

[9]        Mr Campbell briefly rehearsed the grounds advanced in the petition. Under reference to O v Secretary of State for the Home Department 2016 SLT 545 and F Petitioner [2016] CSOH 28 he emphasised that the threshold test of a real prospect of success is a low one. He submitted that the test was satisfied in relation to each of the grounds for review which the petitioner advanced. In relation to the suggested breaches of Article 8 he founded upon the following authorities: Campbell v United Kingdom (1992) 15 EHRR 137; Jankauskas v Lithuania [2005] ECHR 59304/00; and Szuluk v United Kingdom (2010) 50 EHRR 10.

 

The respondents’ answers and counsel for the respondents’ submissions
[10]      In their answers to the petition the respondents state that the health and care professionals which HCPC regulates are art therapists, biomedical scientists, chiropodists, podiatrists, clinical scientists, dieticians, hearing aid dispensers, occupational therapists, operating department practitioners, orthoptists, paramedics, physiotherapists, practitioner psychologists, prosthetists/orthotists, radiographers, social workers in England, and speech and language therapists.  They aver that the Residential First Line Manager (“the RFLM”) who gave the undertaking to the petitioner had no power or authority to designate correspondence with a body as privileged.  The RFLM’s decision had been taken at an operational level.  Only the respondents had power to designate correspondence with HCPC as privileged in terms of paragraph 7 of the 2012 Direction or as confidential correspondence under the Prison Rules.  The respondents aver that the petitioner was afforded a privilege he was not entitled to until the error was discovered and the privilege was withdrawn.  They further aver that whether it is desirable to specify a body under paragraph 7 depends on a variety of operational considerations, chief among which are ensuring that the list is short and manageable and whether the body is one which Scottish prisoners frequently correspond with.  Another important consideration was prison security.  There was a significant risk of abuse of the confidential mail system to import illicit items into prison. From April 2016 to April 2017 there were 2216 drugs finds across the Scottish Prison Estate.  In 2016 there were at least four occasions when contraband was smuggled into Scottish prisons through confidential correspondence.  The respondents aver that the petitioner’s correspondence was opened up to ensure that there were no prohibited items within it.  They further aver that the fact there may be other bodies similar to those in paragraph 7 which are not designated does not mean that the list, or the absence of such bodies from the list, is irrational.  The bodies were chosen because they were bodies which (a) prisoners frequently corresponded with;  (b) may relate to complaints concerning prison officers or the prison regime;  (c) administered legal advice; or  (d) fulfilled the functions of the court to which art 6 ECHR applied.  The fact that a body provided a regulatory function had not been the basis for including of any of the bodies in paragraph 7.

[11]      The respondents aver that the petitioner did not have a legitimate expectation that correspondence with HCPC would be treated as privileged.  Only the respondents had the power to give correspondence with HCPC that status.  Only they had power to remove such correspondence from the ambit of Rule 55.  Further, it had been perfectly plain that in so far as the undertaking was given it was not an undertaking of a permanent nature. It was given on a temporary basis and it was not contemplated that it would continue after HCPC had determined the complaint which the petitioner had made.

[12]      There had been no violation of Article 8.  The opening of the petitioner’s correspondence had been “in accordance with the law”.  It had been authorised in terms of Rule 55 and the 2012 Direction.  The respondents had been pursuing legitimate aims, the prevention of disorder and crime and the protection of the rights and freedoms of others. They had acted proportionately.

[13]      Mr Byrne opposed permission to proceed being granted.  He adhered to the terms of the answers.  He submitted that the petitioner did not have a real prospect of success on any of the grounds advanced in the petition.  If, contrary to that submission, the court was persuaded that one or more, but not all, of the grounds of review had a real prospect of success, permission should be given only in relation to such ground or grounds.

 

Decision and reasons
The test for permission

[14]      Section 27B of the Court of Session Act 1988 provides:

            “27B Requirement for permission

(1)        No proceedings may be taken in respect of an application to the supervisory jurisdiction of the Court unless the Court has granted permission for the application to proceed.

(2)        Subject to subsection (3), the Court may grant permission under subsection (1) for an application to proceed only if it is satisfied that -

(a)        the applicant can demonstrate a sufficient interest in the subject matter of the application, and

(b)        the application has a real prospect of success.

…

(4)        The Court may grant permission under subsection (1) for an application to proceed -

(a)        subject to such conditions as the Court thinks fit,

(b)        only on such of the grounds specified in the application as the Court thinks fit. 

…”

In the present case, while in answer 1 of their answers the respondents aver “that the petitioner does not have standing to judicially review the exclusion of regulatory bodies” from paragraph 7 of the Direction, that was not a matter which Mr Byrne founded upon for the purposes of the opposition to the permission application.  Mr Byrne’s position was that the requirement in section 27B(2)(b) was not satisfied.  Neither counsel took issue with any of the observations on that requirement by Lady Wolffe in O v Secretary of State for the Home Department or by Lord Boyd of Duncansby in F Petitioner.

 

The undertaking

[15]      The opening of HCPC correspondence was authorised at all times in terms of Rule 55.  However, on 31 July 2015 the petitioner complained to the RFLM that correspondence with HCPC should be privileged.  On 5 August 2015 the RFLM replied that he had emailed Business Support to see if such correspondence was privileged.  On 6 August 2015 the RFLM wrote in the following terms to the petitioner:

“Mr Beggs,

Further to my response of 5.8.15 to your complaint I have fuller information on this matter.

I can confirm that from now on your letters from the HCPC will be treated as privileged.

I trust this answers your complaint.”

By letter dated 9 May 2016 the prison governor wrote to the petitioner in the following terms:

“Dear Mr Beggs,

 

Ref: Privileged Mail from HCPC

Following your PCF 1 complaint noted above, I have been advised that your mail from HCPC has been dealt with as Privileged Mail.  ‘The Policy and Guidance for the Management of Prisoner Correspondence’ lists organisations to which Privileged status applies and HCPC is not on the list.  I hereby retract the agreement to treat HCPC mail as ‘Privileged’ forthwith.”

[16]      I recognise the force of Mr Byrne’s submission that only the respondents were authorised to stipulate categories of privileged correspondence, and that accordingly for that reason it is arguable that the undertaking could not give rise to a legitimate expectation in the sense of an expectation which will be protected by law (see e.g. R v Secretary of State for education and Employment, Ex parte Begbie [2000] 1 WLR 1115, per Peter Gibson LJ at p. 1125D). Nevertheless, at this stage in the proceedings I think it would be wrong to conclude that the petitioner is bound to fail to establish that he had a legitimate expectation that HCPC mail would continue to be treated as privileged correspondence until such time as the undertaking was withdrawn.  In my view he has a real prospect of establishing that as at 6 May 2016 he had a legitimate expectation that his correspondence from HCPC would be treated as privileged.

[17]      However, in my opinion the petitioner does not have a real prospect of success in respect of the contention that he had a legitimate expectation that correspondence with HCPC would be treated as privileged after 9 May 2016.  The undertaking did not clearly and unambiguously indicate that the petitioner’s correspondence with HCPC would be treated as privileged for all time (cf. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No.2) [2009] 1 AC 453).  Part of the context in which the undertaking was granted was that the complaint against the Head of Psychology was still pending.  Whatever the position may have been before 9 May 2016, there is no real prospect of the petitioner succeeding in showing that after that date he had a legitimate expectation that his correspondence would be treated as privileged.

[18]      Nor do I accept that there is a real prospect of the petitioner establishing that withdrawal of the undertaking was Wednesbury irrational.  On the contrary, in my view the withdrawal was plainly rational.  First, because HCPC had determined the complaint against the Head of Psychology.  Second, because the undertaking purported to confer upon the correspondence a status which only the respondents had the authority to bestow. Neither the RFLM nor Business Support had such authority.

 

Correspondence with legal and medical regulatory bodies
[19]      So far as legal regulatory bodies are concerned, the petitioner’s argument runs as follows.  Correspondence with the Law Society of Scotland, the Faculty of Advocates, and the Scottish Legal Complaints Commission is treated as confidential (by virtue of being privileged in the case of the Society and the Commission, and in the case of the Faculty by virtue of being legal correspondence).  Apart from the Samaritans, all of the bodies listed by the respondents deal with the regulation of professional persons or facilitate engagement by prisoners with public authorities, including making claims or complaints against branches of government.  It is foreseeable that, like the petitioner, other prisoners in Scotland might require to correspond with the legal regulatory bodies in the other parts of the UK.  Thus, it is said, it is irrational that correspondence with those bodies is not also privileged. Similarly, it is foreseeable that prisoners might require to correspond with medical regulatory authorities such as HCPC (as the petitioner had done) or the General Medical Council (“the GMC”), and it is irrational not to provide that correspondence with them is privileged.

[20]      The threshold for irrationality is a high one. In my opinion the petitioner does not even approach setting out a prima facie case of irrationality on the part of the respondents in so far as their treatment of medical regulatory bodies is concerned.  His initial premise appears to me to be ill-founded.  In my view it is not possible to discern from the Direction, or from any of the other material placed before me, an intention on the part of the respondents that correspondence between prisoners and medical regulatory bodies should be privileged.  I see nothing arguably irrational in correspondence with HCPC or the GMC not being accorded that status.

[21]      On the other hand, it is possible to discern from those sources an intention on the part of the respondents that correspondence between prisoners and legal regulatory bodies in Scotland should be confidential because it is privileged or is legal correspondence. That being so, is it arguably irrational not to extend the same status to correspondence with legal regulatory bodies in other parts of the United Kingdom?  The petitioner maintains that he is unlikely to be the only prisoner who has correspondence with such bodies.  I did not understand that to be disputed.  Prisoners convicted of crimes in other parts of the United Kingdom who are transferred to Scottish prisons may be obvious candidates for such correspondence, but there are also likely to be others.  The respondents’ position is that from an operational point of view it is both necessary and desirable that the number of bodies which have correspondence treated as confidential remains at a manageable level. They maintain that at present the policy and rules identify the relevant bodies with which prisoners are most likely to have correspondence.  Those might be considerations which ultimately justify the approach which the respondents have taken to legal regulatory bodies, but I am not persuaded that at this stage it can be said that the petitioner does not have a real prospect of success on this aspect of his challenge.

 

Breach of Article 8?

[22]      Article 8 ECHR provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law, and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

 

The petitioner complains that the opening of his correspondence with HCPC, the Law Society of England and Wales, and the Solicitors Regulatory Authority was in breach of his right to respect for his correspondence.  It was common ground that the opening of that correspondence was an interference which engaged Article 8.1.  So far as justification was concerned, it was accepted (given its authorisation by Rule 55) that the interference was “in accordance with the law”.  It was also accepted that the Prison Rules relating to correspondence pursued legitimate aims such as the prevention of disorder or crime and the protection of the rights and freedoms of others.  It was not suggested that the measures provided for by the rules were not rationally connected to those aims.  It was recognised that it is well established that some controls on prisoners’ correspondence are necessary and proportionate.  The petitioner’s argument was that in so far as the Rules permit the opening of the correspondence from the three bodies mentioned they are not proportionate.  A fair balance had not been struck between his right to correspondence and the interests of the community.

[23]      In my opinion it is appropriate to examine the circumstances of each alleged violation separately.

[24]      The petitioner maintains that correspondence from HCPC was opened by the RFLM in his presence and that the contents were checked.  He does not maintain that the correspondence was read.  He avers that some of it concerned his complaint about the Head of Psychology and that other items related to separate matters.  None of the contents was medical advice from a registered medical practitioner.

[26]      It is convenient to deal first with the correspondence which concerned the complaint about the Head of Psychology.  None of the authorities relied upon by the petitioner support the proposition that correspondence from a regulatory body such as HCPC should be treated similarly to correspondence between a medical adviser and a patient with a serious medical condition (cf. Szuluk v United Kingdom (2010) 50 EHRR 10).  This is not a case where it is suggested that a less intrusive method of checking the contents of letters and packages could have been used.  Bearing in mind the possible severity of the consequences of illicit material being contained within letters or packages, the importance of the aims being pursued and the extent to which the respondents’ measures contribute towards those aims, I do not see any real prospect of the court concluding that the Prison Rules with which we are concerned do not strike a fair balance between the rights of the individual and the interests of the community in relation to the issue complained of (see e.g. R (Tigere) v Secretary of State for Business, Innovation and Skills Secretary [2015] 1 WLR 3820, per Baroness Hale of Richmond DPSC at paragraph 33). In contrast to the position in Szuluk, the degree of interference appears to have been no more than necessary to pursue the respondents’ legitimate aims.  In the circumstances I do not think there is a real prospect of the petitioner establishing a violation of Article 8.  Those observations apply a fortiori to the opening of the other HCPC letters.

[27]      That brings me to the opening of the correspondence from the Law Society of England and Wales and the Solicitors Regulatory Authority.  So far as the former is concerned the petitioner avers that it related to obtaining assistance with the Judicial Review proceedings in London and “advice” about legal representation in connection with matters concerning North Yorkshire Police and the Crown Prosecution Service.  No specification of the subject matter of the letter from the Solicitors Regulatory Authority is provided.  None of the authorities relied upon by the petitioner support the proposition that correspondence from a legal regulatory body should be treated similarly to correspondence between a legal adviser and a client (and cf. R. (on the application of Prudential Plc) v Special Commissioner of Income Tax [2013] 2 AC 185, per Lord Neuberger at para. 74).  The letters were opened by the RFLM. The contents were checked.  They were not read.  Once again, I do not think there is a real prospect of the petitioner establishing a violation of Article 8.  It is not suggested that a less intrusive method of checking the contents of letters and packages could have been used.  On the matter in issue I see no real prospect of the court concluding that the Rules do not strike a fair balance between the rights of the individual and the interests of the community, or of it holding that the degree of interference here was more than was necessary to pursue the respondents’ legitimate aims.

 

Disposal
[28]      I grant permission for the application to proceed but only upon the following grounds:

(i)         in so far as it is contended that the opening of the HCPC correspondence on 6 May 2016 was unlawful because it was in breach of the petitioner’s legitimate expectation that such correspondence would be treated as privileged;

(ii)        in so far as it is contended that the non-designation of correspondence between prisoners and regulatory bodies of the legal professions in other parts of the United Kingdom as confidential is irrational;

Quoad ultra the application for permission to proceed is refused.