Prisoner’s petition for judicial review over ‘unlawful’ opening of mail dismissed as ‘incompetent’

William McCulloch was seeking declarator that the opening of his correspondence was “incompatible” with his rights under article 8 of the European Convention on Human Rights, and £5,000 damages as “just satisfaction”.

But a judge in the Court of Session upheld the argument by the Scottish Ministers on behalf of the Scottish Prison Service that it was not competent to seek the remedies sought through the “supervisory jurisdiction” of the court when there was an alternative forum in the sheriff court.

‘Unlawful’

Lord Boyd of Duncansby heard that the petitioner, an inmate at HMP Edinburgh, raised judicial review proceedings complaining about an incident which occurred on 1June 2019.

The petitioner had received a letter from his solicitors regarding an ongoing prosecution for assault following an incident in prison.

It was apparent that the letter, which 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, had been opened in the prison before it got to him.

He was seeking a declarator that the act of opening the letter was “incompatible” with his right to respect for his private life and correspondence 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.

He also sought damages in the sum of £5,000 as a necessary award to afford him just satisfaction in terms of section 8 of the 1998 Act.

However, the respondents argued that the petition was not seeking the supervisory jurisdiction of the Court of Session and was therefore “incompetent”.

It was submitted that on the facts that can be ascertained from the affidavits and pleadings, the petitioner was not a “victim” for the purposes of the HRA.

In any event it was argued that the court should refuse to grant an order in the exercise of its equitable jurisdiction.

‘Alternative remedy’

Counsel for the respondents submitted that the action was essentially an action for damages under the HRA, which could be brought in the sheriff court given that the sum sought was is well within the exclusive jurisdiction of the lower court.

There was therefore an “alternative remedy” available in the sheriff court, which could grant a declarator in just satisfaction either instead of damages or as well as damages under section 8(1) HRA.

The juridical basis of the judicial review was a breach of the HRA, but there was no averment that anyone acted “ultra vires” or were “irrational or unreasonable”.

It was argued that, in terms of Rule of Court 58.3(1), an application to the supervisory jurisdiction of the Court of Session could not be pursued where application could be made by appeal or review, and that where an action was essentially one of damages judicial review was “not appropriate”.

On behalf of the petitioner it was submitted that 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, but the competency point had never been taken before.

It was argued 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, and the “declaratory relief” that the petitioner was seeking was “peculiarly one for judicial review” and defined its scope.

A finding of a violation of a right was an “important vindication” of the right and the judicial review was seeking to “control the actions of officials” for whom the respondents were responsible.

‘Judicial review incompetent’

Refusing the petition, the judge held that the action did not require the supervisory jurisdiction of the court.

In a written opinion, Lord Boyd said: “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 observed in the UK Supreme Court case of Ruddy v Chief Constable of Strathclyde 2013 SC (UKSC) 126, 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.

Nevertheless this was a claim for vindication of rights arising out of one alleged breach of ECHR rights which occurred in the past.

Lord Boyd continued: “In Docherty v Scottish Ministers 2012 SC 150 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 jurisdiction.

“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.”

In any event, the judge did not consider that there was any merit in the action.

He added: “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.

“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.

“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. 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.”