Ministers in contempt over prison letters
15 Mar 05
Chief Executive and Governor ordered to appear over failure to observe court undertaking
The Chief Executive of the Scottish Prison Service and the Governor of Peterhead Prison have been ordered to appear personally at the Court of Session following a finding of contempt of court.
The unprecedented order was made by the Lord President, Lord Cullen, on behalf of the appeal court, after it heard a complaint of repeated failures by prison staff to observe confidentiality of legal correspondence.
William Beggs, serving a life sentence as the "limbs in the loch" murderer, had complained of interference with privileged letters from his legal advisers and the Scottish Prisons Complaints Commissioner. At Peterhead Prison, both types of mail had been opened several times by prison officers, contrary to prison rules. After Mr Beggs began judicial review proceedings, the Ministers gave an undertaking in court to observe confidentiality. But although the Governor briefed his management team, he did not advise other staff of the undertaking, and an officer deputising in mail duties opened a letter from the Commissioner.
Despite an argument for the Ministers that the court had no power to make the finding, the court ruled that the validity of the undertaking was not in question. And because the devolved powers of the Scottish Ministers were limited by law, proceedings against them were not the same as proceedings against the Crown, which would preclude some types of order.
In the court's view, the Governor, discharging the Ministers' functions at Peterhead, was in contempt by failing to take reasonable steps to ensure that the undertaking was adhered to - a failure "so gross as to demonstrate a disregard for the importance which should have been attached to the undertaking".
"The history of repeated breaches of [Mr Beggs'] right that letters from his legal advisers and from the Commissioner should be free from interference had brought matters to such a pass that it proved necessary for an undertaking to be given to the court on behalf of the respondents. In these circumstances it was abundantly obvious that close attention would have to be given to seeing that the undertaking was honoured", said the court. The Governor had approved a flawed system which sooner or later would lead to error.
"There appears to be no satisfactory explanation. The undertaking was simply not taken seriously enough. We have been provided with a full explanation of the circumstances. In our opinion the respondents were in contempt of court."
Declining to impose any penalty, the court said that the finding of contempt was itself very important. "However, we consider that we should make an order for appearance so that the court can make a formal finding of contempt in open court."
"We order the attendance of the Chief Executive on the basis that he is the civil servant who should be regarded for present purposes as representing the alter ego of the respondents. We order the attendance of the Governor in charge on the basis that he is responsible for the failure to take reasonable steps to ensure that the respondents' undertaking was complied with."
The full opinion of the court can be read at www.scotcourts.gov.uk/opinions/2005CSIH25.html .