‘Limbs in the Loch’ murderer’s legal action over ‘unlawful’ opening of mail dismissed

William Beggs, the so-called “Limbs in the Loch” murderer, lodged a petition against the Scottish Ministers over the actions of officers of the Scottish Prison Service, but a judge in the Court of Session dismissed the petition.

‘Legitimate expectation’

Lord Tyre (pictured) heard that the petitioner was seeking declarator that the opening of a letter received from the Health and Care Professionals Council (HCPC) on 6 May 2016 was unlawful because it breached the petitioner’s “legitimate expectation” that correspondence from the HCPC would be treated as “privileged” and not opened.

He also sought declarator that the respondents’ refusal to designate as “confidential correspondence” between prisoners and regulatory bodies of the legal profession in parts of the United Kingdom other than Scotland was “unlawful”.

Kenneth Campbell QC submitted that in the light of an undertaking given to him, the petitioner had a legitimate expectation that the letter from the HCPC would not be opened.

Reference was made to the judgment of Lord Woolf MR in R v North and East Devon Health Authority, ex parte Coughlan QB 213, in that a lawful promise or practice had induced a legitimate expectation of a substantive and not merely procedural benefit.

‘No practical purpose’

But Daniel Byrne on behalf of the respondents argued that the petitioner’s expectation had not been a legitimate one and did not attract the protection of the court as the prison officer who erroneously indicated that mail from the HCPC would be treated as privileged did so “without either actual or ostensible authority” and “ultra vires” of the Prison Rules.

In any event, the declarator sought by the petitioner had “no practical purpose or benefit” and the court did not entertain declarators with no practical consequence.

In a written opinion, Lord Tyre said: “I am satisfied that the undertaking received by the petitioner induced an expectation of a substantive benefit, namely that his correspondence with the HCPC would not be opened by SPS. The question is whether, in the words of Lord Woolf in the Coughlan case, it was a ‘lawful promise or practice that induced a legitimate expectation’, the non-implementation of which would amount to an abuse of power. In my opinion it was not.”

He added: “Even if I had been persuaded that the opening of the letter on 6 May 2016 had constituted a breach of the petitioners’ legitimate expectations, I would have refused to grant decree of declarator in the terms sought. It is well settled that the court will not grant declarator without there being some practical purpose or benefit to be achieved thereby…”

Respondents acted ‘irrationally’

On the second issue, the petitioner argued that the respondents’ refusal to treat legal regulatory bodies such as the Law Society of England and Wales and complaints bodies such as the Solicitors’ Regulatory Authority in the same way as their Scottish equivalents was “irrational” and accordingly “unlawful”.

But on behalf of the respondent it was explained that the bodies listed were included because they were bodies with whom prisoners frequently corresponded on potentially sensitive matters and the list was intended to “strike a balance” between a desire to extend privileges to prisoners and a need to control avenues through which prohibited items such as drugs might enter prisons.

The judge held that the non-inclusion in a direction under Rule 56 of the Prison Rules of legal regulatory bodies in parts of the United Kingdom other than Scotland had not been demonstrated to be irrational.

‘Reasonable decision’

Lord Tyre’s opinion stated: “The decision taken in the present case as to which bodies to include in a direction for the purposes of what is now Rule 56 was a policy decision taken by the respondents, having regard, on the one hand, to a desire to allow prisoners to correspond on sensitive (but not legally confidential) matters without their mail being opened (though not read) and, on the other hand, to the need to restrict means by which prohibited items such as drugs may enter prisons. It is one with which the court should be slow to interfere unless it is obvious that it is beyond the range of decisions reasonably open to the respondents.

“In my view the circumstances of the present case do not come close to meeting that test. The assessment of risk of abuse of the privilege with a view to smuggling in prohibited items is a task best carried out by the respondents. I accept that there is a clear and legitimate security reason prisoners in Scottish prisons are likely to require to correspond with legal regulatory bodies outside Scotland constitutes a rational place to draw a line. Indeed, as counsel for the respondents pointed out, if regulatory bodies in England and Wales and Northern Ireland were included in the list it might be argued that there was no reason to exclude equivalent bodies elsewhere in the world. It should also be borne in mind that correspondence with lawyers outside Scotland falls within the category of ‘legal correspondence’ and is not opened.”