WILLIAM McCULLOCH FOR JUDICIAL REVIEW OF DECISIONS OF THE SCOTTISH MINISTERS [2020] ScotCS CSOH

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	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] ScotCS CSOH_13, [2020] CSOH 13, 2020 GWD 7-101

[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

[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

[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.

[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.

[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

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

[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

Greater Manchester Police [2011] 2 All ER 364; Bell v Fiddes and another 1995 SCLR 1123. The

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,

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.

[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.

[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

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

Wightman v Advocate General for Scotland 2018 SC 388). Nevertheless this is a claim for

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

[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;

[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.

[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

[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

[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.

[14] I will sustain the third plea in law for the respondents and dismiss the petition. I

reserve the question of expenses.

Scottish Court of Session Decisions