Judge rejects life prisoner’s £5,000 human rights claim for correspondence ‘unlawfully’ opened by prison officers 

“Limbs in the Loch” murderer William Beggs raised a petition for judicial review against the Scottish Ministers, complaining that the Scottish Prison Service opened medical and legal correspondence addressed to him in prison.

But a judge in the Court of Session ruled that the actions of SPS staff were not “unlawful”.

‘Confidential correspondence’

The petitioner claimed that on 1 October 2018, in his presence, a prison officer opened medical correspondence marked as such and addressed to the petitioner, and asked him to read its contents in order to ascertain whether it included notification of a medical appointment.

The petitioner confirmed that the correspondence included notification of an appointment scheduled for the following month.

The respondent was informed that the appointment would be cancelled and re-arranged.

Less than two weeks later on 12 October 2018, in similar circumstances, in the presence of the petitioner, a prison officer read medical correspondence, again marked as such and addressed to the petitioner, and informed him that any appointment would require to be cancelled and rescheduled, should the petitioner become aware of its date.

A month later, on 12 November 2018, prison officers opened legal correspondence, marked as such and addressed to the petitioner.

The opened envelope contained a further smaller envelope which, in turn, contained “confidential legal advice”.

The petitioner, who was sentenced to life imprisonment in 2001 for murdering 18-year-old Barry Wallace in 1999 and dismembering his body before discarding his limbs and torso in Loch Lomond and disposing of his head by throwing it into the sea off the Ayrshire coast, has previously brought legal proceedings against the Scottish Ministers, with varying degrees of success, over the issue of the manner in which his correspondence is dealt with by the SPS.

‘Unlawful’

In this petition, he was seeking declarator that the acts of SPS were “incompatible” with his right to respect for his private life and correspondence in terms of article 8 the European Convention on Human Rights (ECHR) and “unlawful” in terms of section 6 of the Human Rights Act 1988.

He also sought damages in the sum of £5,000 as “just satisfaction” in terms of section 6 of the Human Rights Act 1998 and section 100(3) of the Scotland Act 1998.

In answer to the petitioner’s factual averments, the respondents averred, in respect of the first two incidents, SPS was entitled, as a matter of domestic law, to open certain correspondence  terms of rules 55 and 56 of the Prison and Young Offenders Institutions (Scotland) Rules 2011, which regulate prison correspondence and other communications, and the Scottish Prison Rules (Correspondence) Direction 2012.

Such acts were “merited” where there was “reasonable cause to believe that the contents of the correspondence might “endanger the security of the prison, endanger the safety of any person, or relate to criminal activity”.

In respect of the third incident, the respondents accepted that the correspondence was opened “inadvertently” by an office administrator who had mistakenly thought the letter was addressed to the prison governor, but it was a “genuine and innocent error” in respect of which the petitioner received a “full apology”.

In so far as the first two incidents were concerned, the petitioner argued that, having regard to his right to privacy, it had been “neither necessary nor proportionate” for SPS to open his medical correspondence, and their actings were therefore “incompatible” with Article 8 ECHR and “unlawful” in terms of the Human Rights Act.

‘No violation’

However, the judge ruled that there had been “no violation” of the petitioner’s human rights in relation to the first two incidents, and that while the actings of the SPS in relation to the third incident were “wrongful”, the petitioner could not be considered a “victim”.

In a written opinion, Lord Armstrong said: “Having weighed in the balance the positive aspects of the petitioner’s prison record, against his high profile and the very serious consequences were any of the identified risks to materialise, I am satisfied that the referable acts of SPS were necessary in terms of paragraph 2 of Article 8 ECHR, and proportionate.

“I find that, in respect of the first two incidents, paying due regard to the whole facts and circumstances, the referable margin of appreciation was not exceeded, that the 2011 Rules were not breached, that no violation of Article 8 ECHR occurred, and that the acts of SPS were not unlawful.

“In relation to the third incident, in accordance with the position of the respondents, I find that the petitioner’s legal correspondence was inadvertently opened by an office administrator on 12 November 2018. In that regard, in considering the question of remedy, it is significant that the petitioner’s claim is formulated by reference to Article 8 ECHR.

“In that context, I acknowledged that whether the petitioner is to be considered to fall within the class of victim for the purposes of section 7 of the Human Rights Act is to be determined by the particular facts of the case in issue, and is very much a question of fact and degree.

“In that context, I attach weight to the following facts: the opening of the correspondence was inadvertent, erroneous and unintentional, rather than deliberate or malicious; only one item of correspondence was concerned; the correspondence was not read; the matter was investigated; an apology was tendered; corrective action was put in place to prevent recurrence; the recognised failure was not a systemic one; and no vouched loss resulted.

“Against that background…I find that, notwithstanding the petitioner’s stated resulting anxiety and frustration, to which I have attached due weight, he does not fall within the category of ‘victim’, as defined. That being so, in relation to the incident of 12 November 2018, he has no standing to claim the remedies he seeks.”

The judge concluded: “In summary, therefore, I find that in respect of the incidents of 1 and 12 October 2018, the acts of SPS were not incompatible with the petitioner’s Article 8 ECHR rights, were not unlawful in terms of section 6 of the Human Rights Act 1998, and were not beyond the powers of the respondents in terms of section 57(2) of the Scotland Act. In respect of the incident of 12 November 2018, I find that the actings of SPS were wrongful, but that, in that regard, the petitioner is not a victim as defined by section 7 of the Human Rights Act 1998.”