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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Scott & Anor, Re Application For Judicial Review  ScotCS 242 (26 October 2001)
Cite as: 2002 SCLR 166,  ScotCS 242
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OUTER HOUSE, COURT OF SESSION
OPINION OF LORD JOHNSTON
in the Petitions of
ANDREW SCOTT and SCOTT DAVIDSON
Judicial Review of a decision to continue their detention in inhumane and degrading prison conditions contrary to Article 3 of the European Convention on Human Rights
Petitioners: O'Neill Q.C., Collins, Drummond Miller
Respondents: Brailsford Q.C., Mure, Solicitor to Scottish Executive
26 October 2001
 These two applications take common ground with only minor factual discrepancies in respect of the detention in Barlinnie Prison in the case of Andrew Scott on remand, and in the case of Scott Davidson in custody serving a term of imprisonment, in conditions which they maintain breach Article 3 of the European Convention on Human Rights (the Convention) which relates inter alia to degrading and inhumane treatment. Both petitioners make a number of factual allegations as to the circumstances in which they are detained which need only be generally rehearsed at this stage since there are matters of fact. They relate principally to overcrowding, lack of sanitation and lack of an appropriate regime. In both cases medical reports are provided which suggest that the conditions in question are affecting the petitioners' health.
 The matter came before me for a First Order and also on the motion of the petitioners in each case to grant an interim order in terms of paragraph 3(c) of the petition which is in the following terms:
"Ordaining the Scottish Ministers to secure the transfer of the petitioner to conditions of detention compliant with Article 3 of the Convention whether within the prison or any other prison and for such an order ad interim."
Before me counsel for the Scottish Ministers took a preliminary plea in bar relating to the competency of granting such an order against the Crown. The submission was based on Section 21 of the Crown Proceedings Act 1947 ("the Act") which is in the following terms:
"21(1) In any civil proceedings by or against the Crown the Court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects and otherwise to give such appropriate relief as the case may require:
(a) where in any proceedings against the Crown any such relief is sought as might in proceedings be between subjects be granted by way of injunction or specific performance the Court shall not grant an injunction nor make an order for specific performance but may in lieu thereof make an order declaratory of the rights of parties ...".
 Counsel's position was clear and stark. What was being sought by way of an interim order was effectively an order for specific performance against the Crown focused by the Scottish Ministers and that was clearly, it was submitted, caught by the terms of the statute. I was referred to the case of McDonald v Secretary of State for Scotland 1994 S.C. 234 where the Second Division in some detail held that an order of interdict against the Crown was prohibited by the statute and no longer competent in Scotland even if it had been so before the passing of the Act.
 Counsel for the petitioners' response to this submission sought to distinguish what was contemplated by Section 21 of the Act from orders sought under Section 45 of the Court of Session Act 1988 which empowers the Court inter alia to order specific performance of any statutory duty. The Rules of Court have settled that the way to seek such an order is by judicial review which is what it was submitted the petitioners were seeking to achieve in this case. What therefore, it was submitted, was contemplated by the Act's prohibition did not extend to this quite separate power exerciseable under the jurisdiction of judicial review. He sought to distinguish the case of McDonald on that basis and referred in any event to the position in England as focused particularly in M v The Home Office 1994 1 AC 377. He also referred to a Scottish decision of the House of Lords British Medical Association v The Greater Glasgow Health Board 1989 S.C. H.L.60.
 The starting point for resolution of this matter in my opinion is to determine whether or not the phrase "civil proceedings" which is embraced in Section 21 of the Act covers these proceedings. To hold otherwise would draw a distinction between judicial review seeking specific performance or any other civil remedy and any other type of civil proceeding. This was the distinction that counsel for the petitioners sought to draw suggesting that the Act was limited effectively to claims in contract and tort or delict.
 The case of McDonald is of course binding upon me unless it can be distinguished and in my opinion it cannot be so treated. It seems to me that the Second Division considered in very broad but detailed terms the whole question of interdict which is in the same position as specific performance, with regard to the position of the Crown including the cases of M and The British Medical Association referred to supra. The Division discussed these cases and determined the matter as a matter of general principle of Scots Law and statutory construction. I do not consider that the distinction sought to be drawn which would remove claims or actions or demands under Section 45 of the Court of Session Act 1988 to be anything other than a type of civil proceeding which is embraced within the Act. I see no basis for treating it otherwise. Section 45 claims merely echo original legislation dating from the nineteenth century. It is merely one example of a remedy that is sought against a general background and it is my opinion that the Act excludes that remedy, whether it be interdict or implement, in respect of the Crown and its representatives which must include the Scottish Ministers.
 I acknowledge that in Judicial Review (Clyde and Edwards) this view is questioned, but with respect to the learned authors, no authority is offered.
 In these circumstances in my opinion this application for an interim order is incompetent, although a declaratory order could be made.
 If I am wrong about that, both counsel put before me a certain amount of material in relation to reports and affidavit with regard to the general conditions in Barlinnie Prison so far as relating to the petitioners. Counsel for the petitioners also referred to certain decisions of the Strasbourg Court where similar applications under Article 3 had been made in relation to jail conditions in Greece and Lithuania. The respondents presented at the Bar similar material to contradict the petitioners' assertions of fact.
 I have looked at the whole material presented to me and I am satisfied that on the face of it there exists a factual dispute which does not have sufficient common denominators to enable the matter to be determined in an ex parte basis without evidence. The central dispute is whether Article 3 is breached and what is clear from the decisions of the European Court of Human Rights to which I was referred is that the matter is, at the end of the day, one of degree and indeed, to some extent, intention, a matter which I consider to be very important with regard to the interpretation of Article 3 of the Convention.
 In these circumstances it is in my opinion not made out that there is a prima facie case which would entitle an interim order to be granted at this stage, by reason of the factual dispute. However if I am wrong about that, I consider that the balance of convenience is wholly against making any such order because the effect of that would be to grant the petitioners on an ex parte basis, without a proper examination of the facts, the total relief they seek. Whatever may be the conditions to which the prisoners have been subjected, that would not, in my opinion be sufficient to enable them to succeed on an ex parte basis against a contested evidential position.
 Counsel for the petitioners submitted that in any event the medical problems of his client required immediate relief. I was totally unimpressed by this emotional approach which in any event was disputed by the respondents. If the situation is as serious in each case as is suggested, the Governor of the prison has a general duty to alleviate the problem and a wholly different remedy is available if he fails in that duty.
 In these circumstances I would not have made any interim order. I was asked in the alternative to make a declaratory order but for the same reasons I would have declined so to do.
 In these circumstances I will simply make a First Order on a shortened induciae of three days and order answers.