Scottish Ministers found in contempt of court again after prison service’s second breach of undertaking not to open inmate’s mail

A judge in the Court of Session described the second breach by the Scottish Prison Service (SPS) as an “affront to the authority of the court”, but decided to defer any decision on whether to order the minister responsible to appear before the court for six months to allow the prison authorities to check the robustness of the measures now in place in relation to the opening of privileged mail.

Lady Wise explained that the petition was the second by the prisoner Kenneth Smith seeking a finding that the respondents, the Scottish Ministers, were in contempt of court by breaching an undertaking they gave in judicial review proceedings which Mr Smith previously brought against them following the “repeated unauthorised opening” of his “privileged correspondence”.

The court was told that prior to the undertaking being given in February 2013, on at least 14 occasions the prison authorities opened privileged mail addressed to the petitioner, who is serving a custodial sentence at Edinburgh prison, which they had no authority to open either in terms of their own guidance or as a matter of law.

The undertaking stated that “the Scottish Ministers hereby undertake that prison officers in the Scottish Prison Service will refrain from opening or requiring the petitioner to open in their presence letters or packages addressed to the petitioner and bearing the stamps Return Address PO Box 66, Wilmslow, SK9 5AX”, which is the address of the Information Commissioner’s Office.

In February 2015 Lord Pentland disposed of the first petition and complaint by making a finding of contempt of court against the Scottish Ministers.

However, little more than a month after that decision, two prison officers involved in separating the petitioner’s mail into “privileged correspondence” and “general correspondence” failed to properly categorise an envelope bearing the stamp “PO Box 66, Wilmslow, SK9 5AX” and opened it in the presence of the petitioner.

The respondents accepted that the envelope should not have been opened, that it constituted a breach of the undertaking, that there were reasonable steps that could have been taken to avoid the breach, and that a finding of contempt of court should accordingly be made.

But on the issues of mitigation and disposal the Lord Advocate, who appeared on behalf of the Scottish Ministers as a mark of the “gravity of the situation”, explained that following Lord Pentland’s finding the opinion was circulated to all prison governors and a review of procedures at HMP Edinburgh was carried out, with new guidance put in place.

And after the second breach, the Lord Advocate said that the SPS acted “promptly and appropriately” by investigating the matter and apologising to the petitioner.

The relevant guidance was revised and a staff briefing was also issued, while an ex gratia payment of £500 was offered to and accepted by the petitioner.

The Lord Advocate acknowledged that a second breach so soon after Lord Pentland’s decision was an “aggravating factor”, but added that the further measures put in place appeared to have remedied the matter and argued that a second finding of contempt was such a grave matter that “no further penalty was necessary”.

However, senior counsel for the petitioner said the core issue was the “public perception” of the court’s authority.

While he acknowledged and accepted the steps taken by the respondents, this was a second breach of an undertaking to the court following “repeated breaches” of the petitioner’s article 8 rights.

Counsel argued that any recipient of an undertaking to the court was entitled to a guarantee that it will be honoured or there could be “no confidence” in the court’s authority.

It was submitted that while the matter of penalty was of course for the court, something to reflect the gravity of the situation was required, and while a fine was not always appropriate for a public body, consideration should be given to the message that might be conveyed if the disposal was the same as that following the first breach.

The judge described the second breach of an undertaking given to the court by a public authority such as the Scottish Ministers as an “extremely serious matter”.

“It is a further affront to the authority of the court,” she said, adding: “Both the party to whom an undertaking is given and the court which interpones authority to it are entitled to demand that it is fully complied with.”

In a written opinion, Lady Wise said: “In the circumstances the acceptance by the respondents that this constituted a further contempt of court is the only responsible position that in my view they could have taken. The breach raises further questions about whether the respondents have really put sufficient measures in place, even now, to avoid any repetition of what has occurred.

“In deciding what penalty to impose I have considered the imposition of a fine but acknowledge that such a course would have little impact on a public authority and so I discount it as an appropriate disposal. I have considered whether to ordain the responsible minister to appear before me in relation to this second contempt of court.

“It seems to me that, while the submissions of the Lord Advocate who is a member of the Scottish Government have been of great assistance, it is the responsible minister who is ultimately accountable to the court for this second contempt and it may be appropriate for him to appear personally to answer for the further admitted breach. Of course the respondents have put in place additional measures to try and ensure that no further breach occurs and to date those have been successful.

“I am conscious, however, of the very short period of time that elapsed between the finding of contempt of Court on 21 February 2015 and this admitted further contempt the following month. In the circumstances the court requires to be satisfied that there will be no repetition of a breach of this undertaking within a further short period of time from the finding that I intend to make today.

“First, I make a finding of contempt of court against the respondents. Secondly, I will defer consideration of what further order, if any, to make for a period of six months.

“The case will call in court by order at the end of that period when I will expect to be addressed on the continued success or otherwise of the measures now in place in relation to the opening of the petitioner’s privileged correspondence, after which I will give further consideration to whether it is necessary or appropriate to ordain the responsible minister to appear before the court.”

The judge added that the decision would be issued as an opinion and published on the Scottish Courts and Tribunals Service website.

A date for the proposed by order has been identified as 14 December 2016.