Scottish Ministers found in contempt of court after prison service breached undertaking not to open inmate’s letters

A judge in the Court of Session ruled that the Scottish Prison Service took “no steps” to inform any member of its staff at HMP Glenochil about the existence and terms of the undertaking when the prisoner was transferred there from HMP Edinburgh.

“The fact that there was an undertaking relating to the complainer was simply overlooked when he was transferred from Edinburgh where the prison staff knew about the undertaking to Glenochil where they did not,” Lord Pentland (pictured) said.

The court heard that Kenneth Smith, who is currently serving a custodial sentence at Edinburgh prison, lodged a petition and complaint seeking a finding that the respondents, the Scottish Ministers, were in contempt of court because for breaching the undertaking they gave to the court in judicial review proceedings which Mr Smith previously brought against them.

The complainer brought the proceedings following the “repeated unauthorised opening” of his “privileged correspondence”.

In particular, between about January 2012 and September 2012 there were 14 instances when prison officers opened or ordered the complainer to open in their presence letters addressed to him from the Risk Management Authority (RMA) and the office of the UK Information Commissioner (ICO), in circumstances where they were not entitled to do so.

The proceedings were settled on the basis that the Scottish Ministers gave an undertaking that prison officers would refrain from opening, or requiring the petitioner to open in their presence, letters or packages addressed to him from the RMA or ICO – except in the circumstances provided for in rule 59(3) or 59(5) of the Prisons and Young Offenders Institutions (Scotland) Rules 2011, which allows officers to open mail where there is cause to believe that it contains a “prohibited article”.

But the prison officers at Edinburgh failed to make their colleagues aware of the undertaking when the respondents transferred the complainer to the Glenochil jail in December 2013, and a letter from the RMA addressed to the complainer at Edinburgh, which was transmitted by the internal mail system via the headquarters of the Scottish Prison Service to Glenochil, was not identified as privileged correspondence.

At the time prisoners’ mail arriving at Glenochil was sorted by means of a system intended to ensure that privileged correspondence was identified, but in the case of the correspondence addressed to the complainer the system did not work and as a result of these failures the letter passed into the hands of a prison officer, who opened the letter in the complainer’s presence and looked over it.

The officer did not have any cause for believing that the letter contained a prohibited article, nor did he have cause to believe that the contents of the letter might endanger the security of the prison or the safety of any person or that its contents might relate to a criminal activity.

The next day the complainer made a formal complaint about the opening of the letter in which he drew attention to the terms of the undertaking, prompting a written apology from the residential unit manager at Glenochil, though the letter made no reference to the undertaking.

In the course of the hearing before Lord Pentland, the respondents submitted that a finding of contempt of court should not be made in the particular circumstances of the present case.

It was argued that what had happened was an “oversight” and that the breach of undertaking was an “isolated occurrence”, as the system for identifying privileged correspondence sent to the complainer at Glenochil had otherwise worked “without mishap”, steps had been taken to prevent a recurrence, and “no significant harm” had been caused by the breach.

However, applying the test set out in the 2005 decision of the Inner House in Beggs v Scottish Ministers – in which the court ruled that section 21 of the Crown Proceedings Act 1947 did not render it incompetent for the Scottish Ministers to be found in contempt of court by reason of a breach of an undertaking they had given to the court – the judge held that “all reasonable steps were not taken” to comply with the undertaking.

In a written opinion, Lord Pentland said: “I consider that the failure to take that elementary and obvious step was of so gross a nature as to demonstrate a disregard for the importance which the prison service should have attached to the undertaking.

“Close attention should have been given to seeing that the undertaking continued to be honoured following the complainer’s transfer, but nothing at all was done to bring it to the attention of the prison staff at Glenochil.

“As happened in Beggs, the undertaking was simply not taken seriously enough. It was overlooked when the complainer was transferred to a different prison. In these circumstances, I am driven to the conclusion that the admitted breach of the undertaking constituted a contempt of court.”