BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Beggs v. The Scottish Ministers [2006] ScotCS CSIH_17 (16 March 2006)
URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSIH_17.html
Cite as: [2006] ScotCS CSIH_17, [2006] CSIH 17

[New search] [Context] [Printable version] [Help]


EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord Macfadyen

Lord Sutherland

Lord Marnoch

[2006] CSIH 17

P791/04

 

OPINION OF THE COURT

 

delivered by LORD MACFADYEN

 

in

 

RECLAIMING MOTION FOR THE PETITIONER

 

in

 

the petition of

 

WILLIAM FREDERICK IAN BEGGS,

Petitioner and Reclaimer;

 

against

THE SCOTTISH MINISTERS,

Respondents:

 

for

 

Judicial Review.

 

 

Act: the petitioner and reclaimer in person.

Alt: Sheldon; Solicitor to the Advocate General for Scotland.

 

10 March 2006

Introduction

[1] The petitioner was convicted of murder and, on 12 October 2001, was sentenced to life imprisonment with effect from 28 December 1999, with a punishment part of twenty years. He has appealed against conviction and sentence. The note of appeal was lodged on 2 July 2002. After sundry procedure he was granted leave to appeal. A date for the hearing of the appeal has not yet been fixed, although it is expected that a procedural hearing will take place shortly.

[2] The present petition was presented in June 2004. At that stage the petitioner was detained in HM Prison, Edinburgh. From May 2002 until 4 May 2004 he had been detained in HM Prison, Peterhead. On the latter date he had been transferred on a temporary basis to HM Prison, Edinburgh, in order that he might have readier access to his legal advisers in connection with the pending criminal appeal and a related petition to the nobile officium of the High Court of Justiciary. On 28 May 2004 the deputy governor of HM Prison, Edinburgh, intimated to the petitioner's solicitors that he was to be transferred back to HM Prison, Peterhead. This petition for judicial review was presented on 3 June 2004 in order to challenge the validity of that decision, and a motion for interim orders was heard on that date. That motion was refused on 18 June 2004. By then, the petitioner had already, on 4 June 2004, been returned to HM Prison, Peterhead.

[3] A first hearing in the petition took place on 9 March 2005. Having heard the petitioner in person and counsel for the respondents, the Lord Ordinary made avizandum and, by interlocutor dated 24 March 2005, sustained the respondents' second plea in law (to the effect that the petition did not raise a live issue) and dismissed the petition. The petitioner has reclaimed against that interlocutor.


Preliminary issues

[4] Shortly before the summar roll hearing in respect of the reclaiming motion was due to take place the petitioner enrolled a motion raising two preliminary issues. It was arranged that that motion would be heard on the date appointed for the summar roll hearing.

 

(a) Independent and impartial tribunal

[5] It is convenient to address these preliminary issues in reverse order. The second issue invited the court to consider whether it constituted an independent and impartial tribunal within the meaning of Article 6 of the European Convention on Human Rights ("the Convention"). The respondents opposed that aspect of the motion. That prompted the petitioner to lodge a devolution minute challenging the respondents' entitlement to take up that position. When the case called for hearing of the motion, however, the petitioner intimated that he did not seek to insist in that part of his motion or in the devolution minute. That being so it is unnecessary for us to say more on the matter. We refuse that part of the motion, and dismiss the devolution minute, in each case for want of insistence.

 

(b) Prejudicial publicity

[6] The first issue raised in the petitioner's motion was expressed in the following terms:

"The Petitioner & Reclaimer is an Appellant against conviction and sentence in criminal proceedings. Since December 1999 the Petitioner and Reclaimer has been the subject of a media campaign in Scotland and elsewhere in the United Kingdom which he maintains has had the aim of prejudicing the outcome of the said criminal proceedings. Much of the reporting has been wildly inaccurate or deliberately misleading. The instant proceedings have been inaccurately reported. The nature of the offence for which the Petitioner & Reclaimer was indicted has been repeatedly misrepresented in the media. The risk of prejudice in the instant proceedings and in other proceedings may accordingly arise. The Petitioner & Reclaimer respectfully invites the Court to evaluate and manage that risk."

[7] In the course of his submissions in support of the motion, the petitioner accepted that he could not say that there was a substantial risk that we would be prejudiced in our dealing with the reclaiming motion by any inaccurate or misleading reporting. Equally, he accepted that he could not say that there would be a substantial risk that the judges who hear his appeal in the Appeal Court of the High Court of Judiciary would be prejudiced in dealing with the appeal by any such reporting. The petitioner, however, figured the eventuality of his appeal succeeding and authority being granted to the Lord Advocate to bring a new prosecution (Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"), section 118(1)(c)). In that eventuality, he submitted, there was a risk of the jury in the new prosecution being prejudiced by inaccurate and misleading reports.

[8] On that basis the petitioner invited us to make an order under section 4 of the Contempt of Court Act 1981, postponing the publication of any report of the proceedings in the reclaiming motion until after the criminal appeal had been disposed of and, in the event of a new prosecution being authorised, until after the conclusion of the proceedings therein. Alternatively, he suggested that we might order that the reclaiming motion be heard in camera with representatives of the press excluded from the courtroom.

[9] Mr Sheldon, who appeared for the respondents, submitted that we should take neither of the suggested courses. He drew our attention to the terms of section 4(2), which are as follows:

" ... the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose."

He submitted, first, that there was no "substantial risk of prejudice"; and secondly, that any trial following the authorisation of a new prosecution could not be said to be "pending or imminent". He also submitted that we should not exclude the press from the hearing of the reclaiming motion.

[10] We had no hesitation in concluding that we should not take either of the steps proposed by the petitioner. As we have already recorded, he accepted that there was no substantial risk that we, in hearing the reclaiming motion, or the judges of the Criminal Appeal Court, in hearing the criminal appeal, would be so affected by inaccurate or misleading reports that the petitioner's right to a fair hearing in either court would be prejudiced. The likely effect of publicity arising from this reclaiming motion on the minds of jurors taking part in a new trial authorised following a successful appeal must be evaluated in the context of the adverse publicity which is alleged already to have taken place (and is the subject matter of part of the criminal appeal), as well as the lapse of time likely to occur before any such trial might take place. In all the circumstances, we did not consider that the petitioner had made out a case that in the eventuality which he contemplated there would be a substantial risk of prejudice to the interests of justice. In any event, it is clear that any such re-trial cannot at this stage be said to be "pending or imminent". For these reasons, there is no ground for an order under section 4(2) of the sort that the petitioner suggested. Nor did we consider that it would be right for us to order the reclaiming motion be heard in camera with the press excluded. The relevant general principle is that court proceedings should be held in public (Article 6 of the Convention). In circumstances in which it is thought proper to exclude the public, it is normal to allow representatives of the press to be present to preserve the public nature of the proceedings. It would be an extreme step indeed for us to exclude the press. The considerations which led us to conclude that a section 4 order would not be appropriate lead us also to the additional conclusion that it would be inappropriate to exclude the press from the hearing of the reclaiming motion. We therefore decided to refuse the petitioner's motion in both of its branches.

 

The reclaiming motion

[11] By the time the petition came before the Lord Ordinary for the first hearing, matters had moved on somewhat from the stage referred to in the petition. As we have already indicated, the petitioner was returned to HM Prison, Peterhead, on 4 June 2004. The petitioner, having been granted only limited leave to appeal at first sift under section 107(1) of the 1995 Act and at second sift purportedly under section 107(5) of the 1995 Act, sought to challenge the latter decision by petition to the nobile officium of the High Court. The outcome of that petition was that it was held that the purported application to the second sift under section 107(4) had been incompetent, and that if the petitioner wished to broaden the scope of the grounds of appeal which he could argue, he required to make an application under section 107(8) (Beggs, Petitioner 2005 JC 174). That was the stage which the criminal appeal proceedings had reached when the Lord Ordinary dealt with the first hearing in the present petition on 24 March 2005. Thereafter an application under section 107(8) was presented to the High Court and on 25 November 2005 (2006 SCCR 25) leave was granted to argue the whole grounds of appeal not already identified as arguable.

[12] The remedies sought by the petitioner in the present petition for judicial review are set out in statement IV of the petition. They are:

(a)                declarator that the decision of 28 May 2004 to return the petitioner to HM Prison, Peterhead, was, in all the circumstances of the case, incompatible with Article 6 of the Convention, because it interfered disproportionately with the petitioner's fundamental right of access to the court and his legal advisers;

(b)               an order interdicting the governor of HM Prison, Edinburgh, and the respondents from implementing the decision to transfer the petitioner back to HM Prison, Peterhead, until the conclusion of his appeal, or alternatively for an order declaratory of his right to such an order; ... and

(c)                such other relief or remedy or orders as the Court considers just and appropriate in all the circumstances of the case, at common law and in terms of section 8(1) of the Human Rights Act 1998 et separatim section 100 of the Scotland Act 1998.

 

[13] The Lord Ordinary, as we have already noted, sustained the respondents' second plea in law, holding that the petition did not raise any live issue. In his opinion of 24 March 2005, the Lord Ordinary (at paragraph [12]) expressed the following view of the situation:

"This petition has been superseded by events and, in the absence of substantial amendment, lacks any purpose. It was raised with a view to challenging a decision by the Scottish Ministers to transfer the petitioner to Peterhead, following a short stay in Edinburgh to enable him to consult more easily with his legal representatives. The decision to return him to Peterhead has been implemented. The petitioner has been back in Peterhead for some nine months. Furthermore, even leaving aside the spent nature of the remedies sought, the petitioner's fundamental complaint is that his location at Peterhead, pending the resolution of the petition to the nobile officium and his criminal appeal, means that his right to effective access to his legal advisers is being denied. However, he has already been brought down to Edinburgh for a month to secure ready access to these advisers. He had also been brought to Edinburgh on at least two occasions since then. The petition to the nobile officium has been disposed of. Many months have now passed, during which there must have been ample time in which to discuss his appeal by way of telephone calls, written correspondence and consultation. A date for an appeal has not yet been fixed, so there will be even further opportunity for such discussions."

 

[14] In moving us to grant the reclaiming motion, the petitioner first drew attention to the fact that in their answers the respondents maintain that HM Prison, Peterhead, is the appropriate prison of classification for the petitioner, since the crime of which he was convicted included a sexual element. He submitted that he had been convicted of a charge of murder, and that it was wrong to treat him as if he had also been convicted of sodomy. We do not consider that there is any merit in that submission. The charge of murder of which the petitioner was convicted contained an averment that he did:

"penetrate his [the deceased's] hinder parts with [his, i.e. the petitioner's] private member".

Given that the charge was thereby giving specification of an assault committed by the petitioner on the deceased, we fail to see how it can be interpreted otherwise than as a finding that he had committed sodomy. We have no doubt that in these circumstances the respondents were entitled to treat him as having been convicted of a crime containing a sexual element.

[15] Recognising that the remedies mentioned in statement IV of the petition concentrated on the decision of 28 May 2004, which had been implemented, the petitioner sought to develop a more general point aimed at settling his right to be held in a prison convenient for access to his advisers. He referred to statement XXXII of the petition. He drew our attention to a draft minute of amendment which is printed at pages 6 et seq of the Supplementary Appendix. That draft included a proposal to add a new subparagraph (b) to statement IV of the petition, claiming:

"declarator that subsequent failures on the part of the Respondents to secure to the Petitioner adequate guarantees of ready access to his legal advisers by transferring him to HMP Edinburgh at their request in terms of the affidavit sworn by Ms M Scott, QC are incompatible with Article 6 of the Convention - and accordingly ultra vires the Scottish Ministers by virtue of section 57(2) of the Scotland Act 1998 - as resulting from a decision which disproportionately interferes with the petitioner's fundamental right of access to the Court and to his legal advisers."

The petitioner did not, however, move us to allow the petition to be amended in terms of the draft minute of amendment. He stated that it was not yet in a form which he wished to move.

[16] In his submissions, the petitioner formulated a declarator which he submitted we should pronounce. It involved recognition of an entitlement "to expect to be transferred to a prison convenient to the court a reasonable time before any hearing or application connected with his criminal appeal hearing and the appeal hearing itself"; specification that what would constitute a reasonable time would depend on the nature of the hearing; and that he should be entitled to such transfer "at such other times as his presence at a location convenient to the court is required by senior counsel acting in the case, so far as is within the operational competence of the Scottish Prison Service".

[17] Having considered the submissions made by the petitioner, we have concluded that nothing he said showed that the Lord Ordinary erred in disposing of the petition in the way he did. The focus of the petition was exclusively on the decision of 28 May 2004, and the circumstances prevailing at that time. That decision having been implemented, and the procedure in relation to the criminal appeal having moved on substantially, the Lord Ordinary was in our opinion fully entitled to regard the petition as lacking any practical purpose. In the absence of any minute of amendment tendered to him, the Lord Ordinary was in our opinion entitled to dismiss the petition.

[18] Since the petitioner did not move to amend the petition before us, the position remains the same: the petition as presently formulated lacks practical purpose. The present circumstances are even further removed from those focused in the petition than were those which prevailed at the time of the hearing before the Lord Ordinary. We do not consider that, without amendment, it would be appropriate for us to consider the submission that the declarator which the petitioner formulated orally before us should be granted. The petitioner indicated that he had been led by a member of the staff of the court to believe that he could not amend his pleadings pending the reclaiming motion. If that occurred it is, no doubt, unfortunate. But it does not alter our conclusion. If an application had been made to amend the petition in the manner indicated in the draft minute of amendment contained in the Supplementary Appendix at pages 6 et seq, or in the terms formulated orally by the petitioner, we would have refused that motion. We would have done so on the basis that the amendment would have altered the petition from one challenging the validity of the decision of 28 May 2004 to one seeking to set up a general proposition as to the petitioner's right to be transferred to a convenient prison whenever his legal advisers so requested. That is a wholly different issue from the one originally focused in the petition. It is one which has not been discussed in the Outer House. It is not an issue which we would have regarded it as appropriate to entertain by way of such radical amendment of the petition.

[19] There is one remaining point that we require to deal with. The petitioner submitted that he had been led to believe that the first hearing on 9 March 2005 would not be a substantive hearing, and that he was therefore prejudiced when the Lord Ordinary proceeded to dismiss the petition. He drew our attention to the minutes of proceedings of 2 and 16 February 2005. The minute of proceedings of 2 February 2005 (when the petitioner was legally represented) recorded inter alia the following:

"[Counsel] for the Respondents ... stated ... that if the Petition cannot be amended to enable the petition to be insisted upon, his motion will be to dismiss the petition.

It was recognised by both parties that the continued First Hearing of 16 February 2005 would not result in a substantive hearing on that date. If the Petition was not to be dismissed a further substantive diet for a continued First Hearing would require to be fixed.

The Court observed that substantial amendment would be required in any event to bring the petition up to date and Continued the diet of First Hearing until 16 February 2005."

On 16 February the first hearing was further continued to 9 March. On the former date the minute of proceedings recorded that the continuation was "to enable the petitioner to consider amendment of the pleadings and the provision of a relative affidavit". It was again indicated that the hearing on 9 March would be of a procedural nature. Counsel for the respondents reiterated that "in the absence of further developments" he would be seeking dismissal.

[20] In our opinion it was made clear that at the hearing on 9 March the respondents would, in the absence of amendment, seek, and the court would entertain the application for, dismissal. Although on 9 March affidavits were available, no minute of amendment was tendered. The respondents' counsel therefore did what he had warned he would do, namely moved for dismissal. The basis was that the petition was out of date and did not address the current circumstances. It was on that basis that the Lord Ordinary granted decree of dismissal. We do not consider that, on a fair reading of the minutes of proceedings, the petitioner is entitled to claim to have been taken by surprise by that course of events. In any event, if he was, this reclaiming motion has afforded the opportunity for him to address, if he chose so to do, any issue which he was not able to address properly on 9 March 2005.

 

Result

[21] For the reasons which we have set out we refuse the reclaiming motion and adhere to the Lord Ordinary's interlocutor of 24 March 2005 dismissing the petition.


BAILII:
Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSIH_17.html