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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McKenzie & Ors v. The Scottish Ministers  ScotCS 196 (02 August 2004)
Cite as:  ScotCS 196
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OUTER HOUSE, COURT OF SESSION
P1025/04, P1026/04, P1027/04, P1028/04, P1029/04, P1030/04 and P1031/04
OPINION OF LORD CARLOWAY
in the petitions of
NIGEL McKENZIE (A.P.) and others,
THE SCOTTISH MINISTERS
Petitioners : Bovey QC, Blair; Balfour & Manson
Respondents : Brailsford QC; Solicitor to the Scottish Executive
2 August 2004
"judicial review of acts and decisions to detain the petitioner in conditions which violate Article 3 et separatim Article 8 of the European Convention of Human Rights and Fundamental Freedoms 1950".
Some of the petitioners have sought only first orders for service and intimation but the present dispute concerns seven petitioners who, prior to such service and intimation, also seek an interim:
"(f) order ordaining the respondents to secure the confinement of the petitioner (i) in conditions of detention where he does not while sharing a cell require to use a toilet facility in that cell; and (ii) in conditions of detention where he does not require to use a toilet facility other than a purpose-built, fixed and flushing-action toilet with a related supply of running water and wash basin; [and]
(g) interdict [prohibiting] the respondents from transferring the petitioner to conditions where he will require to share a cell when using a toilet facility in that cell".
The ground for seeking the orders is expressly stated to be because the conditions in which the petitioners are kept amount to breaches of the general provisions of articles 3 and 8 (pleas-in-law 6 to 9) and not of any more specific statutory duty. Failing such orders, the petitioners seek interim declarators in similar terms. Each petitioner is detained in A Hall of Saughton Prison, Edinburgh. This Hall is used for prisons requiring special conditions of protection from other prisoners. Although there are variations in the precise conditions of each petitioner, as a generality their complaints concern what has become popularly known as the "slopping out" regime in the Hall. The cells do not have individual toilet facilities. Rather there is a common ablutions area where communal toilets are located. However, at night, the prisoners are confined to their cells and not allowed to use the communal facilities. Each cell has a jug, which can be filled in advance with water from the ablutions area, and a basin for washing in. Each prisoner is provided with a shallow chamber pot, into which he may defecate, and a plastic container, into which he may urinate. The prisoners maintain that this equipment is not clean when supplied. Some prisoners maintain that no toilet paper is available. Since most of the prisoners share their cells with one other prisoner, any urination or defecation has to take place in the presence of the other prisoner. If the pot and container become full and require re-use, the only options are either to throw the contents out of the window or to use a newspaper or other article to defecate into. All of this is said to be degrading to both cellmates and the smell is very unpleasant. Every morning, and at other times during the day, the "slopping out" procedure takes place. All the prisoners on a particular landing (perhaps 50 or so) are required to empty the contents of the pots and containers into two toilets and a sluice respectively. Spillages and blockages are not uncommon. This all occurs in the same area where the prisoners have access to drinking water and require to wash, shower, shave and brush their teeth. Furthermore, while some prisoners are leaving their cells to slop out, others are passing by taking their breakfasts to their cells. Cutlery and mugs are cleaned in the ablutions area.
 A number of other complaints are made about prison conditions, not directly related to the toilet facilities. These include the size, lighting, cleanliness, heating and ventilation of the cells, the quality of the food and the cleanliness of the bedding. Some prisoners complain of lice infestation. The averments also deal with the lack of opportunities for work and recreation and the consequent monotony of existence. There are education classes lasting two hours on two days every week, physical education every morning (although places may be limited) and work placements for convicted prisons. There is an outdoor exercise period of one hour daily and a recreation period on weekdays from 7 pm until 8.25 pm. Otherwise, the prisoners are locked in their cells from 8.30 pm until 7.40 am on weekdays and from 4.30 pm to 8.45 am at the weekends. The petitioners quote statements from a number of persons who have expressed their opinions upon prison conditions. These include the Scottish Prison Complaints Commissioner, Joan Aitken, who, in September 2000, said that "slopping out is a degrading, unhygienic and unpleasant part of prison life". The Chief Inspector of Prisons also referred to slopping out as a degrading practice in the same year and called for an end to the use of chambers pots "as a priority". He made other miscellaneous comments on the adverse nature of the prison's conditions. The respondents have given sundry assurances that the practice of slopping out is to be phased out. In 1994, for example, their predecessors told the Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment that this could be done within five years. It was not.  It is said that the conditions give rise to increased risks to health, notably from contact with faecal material. They also cause the petitioners "to experience feelings of loss of self-esteem, stress, depression, disgust, embarrassment, humiliation and mental anguish related thereto". The petitioners aver that "the use of a chamber pot and bottle is inherently degrading and unsafe" and that their "human dignity is diminished" by the conditions which also "give rise to feelings...of anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance". Under reference to a large body of case law and rules, most of which were not referred to in submissions, it is averred that the conditions subject the petitioners to inhuman and degrading treatment in terms of article 3 of the Convention. Alternatively, they involve an unjustified interference with the petitioners' rights to respect for their family life and are contrary to article 8. According to the petitions, the petitioners have been detained in the conditions averred by the governor of Saughton and that, in so doing, he has acted ultra vires. The contention is that the governor and the respondents have failed to act in terms compatible with the Convention and this is unlawful by virtue of section 6 of the Human Rights Act 1998 and section 57(2) of the Scotland Act 1998. Although the petitioners make reference to the terms of the Prisons and Young Offenders Institution (Scotland) Rules 1994 (supra), which contain detailed rules regarding the treatment and conditions of prisoners and the mode of redress open to them, these Rules are not founded upon specifically in relation to the interim orders sought. Equally, although the actions of the governor and the respondents are also said to breach the general common law duty to take reasonable care for the safety of prisoners, that duty is not founded upon on this aspect of the case.  Apart from the generalities, some particular matters relate to individual petitioners. Walter Allan is said to suffer from conjunctivitis, aggravated by the conditions of ventilation and inadequate washing facilities. This was countered by a medical report produced by the respondents. Thomas Connor is 77, now in a single cell but with "prostrate (sic) bladder problems" causing him to urinate more often. He requires a stick to walk but cannot do this if he is slopping out. He is unable to bend down in the shower, yet needs to sit in order to use a shower safely. He is unable to squat so as to use his chamber pot. He has had two strokes. Angus MacPherson maintains that he has neither pot nor urine container and so defecates onto newspaper at night and uses an inadequate old disinfectant bottle for urination.
2. Context of the Applications The applications for interim orders were presented on the motion roll as requiring the urgent attention of the Court. However, the cases do not represent isolated examples of complaints about prison conditions. Rather there are several strands of recent cases on the subject. The first stems from Andrew Scott and another, Petitioners 2002 SCLR 166. There, the same basic issues as are raised here were tabled by two inmates of Barlinnie Prison, Glasgow. Lord Ordinary held that it was not competent to grant interim orders against the Scottish Ministers standing section 21 of the Crown Proceedings Act 1947 (c 44) and the decision of the Division in McDonald v Secretary of State for Scotland 1994 SC 234. Before so deciding, he was referred to M v The Home Office  1 AC 377; British Medical Association v The Greater Glasgow Health Board 1989 SC (HL) 65; and the views of the authors in Clyde and Edwards : Judicial Review (para 23.37). On the merits, he was referred to sundry decisions of the European Court of Human Rights and reached the view that the issue of whether article 3 had been breached was one of degree and, to some extent, intention. At the interim stage at which he was considering the case, he concluded that he could not determine the merits on an ex parte basis and declined, therefore, to grant a declaratory order. One petitioner reclaimed and this became Davidson v The Scottish Ministers 2001 SC 205. For reasons which remain unclear, the point in that case was, on one view unfortunately, limited at the By Order stage to the question of whether it was competent to grant the interim orders sought against the Crown. The Opinion of Lord Marnoch, who chaired the Extra Division, contains not only an analysis of the issue of competency but makes a number of telling comments about the type of procedure being adopted. In particular, he doubted the competency of utilising the process of judicial review in the circumstances given : (a) the statutory remedies open under the 1994 Rules; and (b) the scope of judicial review as explored in West v Secretary of State for Scotland 1992 SC 385. He also doubted whether the petitioner's attempts to invoke the general provisions of the articles of the Convention were properly enforced by way of the summary petition procedure permitted under section 45(b) of the Court of Session Act 1988 (c 36) and as referred to in Rule of Court 58.3.(1) relative to judicial review. These doubts were also expressed by other members of the Court, which had heard argument over several days. Ultimately, the decision of the Court, having clearly carefully considered the authorities, was that the orders sought were incompetent given the terms of section 21 of the 1947 Act. The interlocutor of the Court refusing the reclaiming motion was dated 18 December 2001. Leave to appeal to the House of Lords was refused on 20 December.
Matters did not end there. The reclaimers successfully petitioned the nobile officium of the Court to have the decision of the Division "set aside". The Second Division did precisely that (Davidson v Scottish Ministers (No 2) 2003 SC 103) on the ground that one member of the Court (Lord Hardie) had been involved in certain Parliamentary processes concerning the 1947 Act during the enactment of the Scotland Bill and had made certain comments concerning the effect of section 21. The competency of the procedure of one Division overturning another does not seem to have been challenged, and no doubt it might be said to have short-circuited the need for a formal process of reduction. The Second Division refused the reclaimer's motion to grant leave to appeal to the House of Lords against the decision of the Extra Division, although they also "set aside" the Extra Division's refusal to grant leave. What the Second Division did was appoint the case to a further hearing by a different Division. This did not happen because the decision of the Second Division was itself appealed to the House of Lords. Argument was heard on 16/17 June 2004 before the submissions in the present case. The judgment of the House of Lords (Davidson v Scottish Ministers 2004 UKHL 34) appeared, after the conclusion of these submissions, on 15 July 2004. The House of Lords agreed with the Second Division that the judgment of the Extra Division could not stand given the involvement of Lord Hardie. However, their Lordships, and in particular Lord Hope of Craighead, were not at all enthusiastic about a re-hearing before a different Division and would have preferred if leave to appeal had been granted by the Extra Division in the first place. The House of Lords cannot grant leave nor can they direct the Court of Session to do so. The solution therefore devised was one which involved the appeal being dismissed and the cross-appeal against the Second Division's procedural determination allowed. Lord Hope explained what the practical result of this was to be as follows :
"76...For the reasons which I have already given, the interlocutor of the Extra Division of 18 December 2001 must be left standing so that the petitioner can appeal against that interlocutor if he is given leave. The Second Division set aside that interlocutor as well as the interlocutor of the Extra Division of 20 December 2001. So it will be necessary for your Lordships to set aside the Second Division's interlocutor of 11 September 2002. I would remit the question whether the petitioner should be given leave to appeal to the House of Lords against the interlocutor of the Extra Division of 18 December 2001 to the Inner House of the Court of Session for further consideration in the exercise of the nobile officium."
What this amounts to appears to be a very strong "hint" from the House of Lords, upon which the Lord President also sat, that they wish leave to be given against the Extra Division's interlocutor. I presume that this will now be given so that the issue of the effect of section 21 of the 1947 Act in Scotland can be considered by the House of Lords without a further hearing in the Court of Session. Meantime, no views have been expressed by their Lordships on that issue. A second strand is Napier v The Scottish Ministers 2004 SLT 555 in which the Lord Ordinary declared, after a six week proof, that :
"the respondents had acted unlawfully in terms of s 6 of the Human Rights Act 1998 and ultra vires in terms of s 57 of the Scotland Act 1998 by acting in a manner incompatible with art 3 of the Convention and detaining the petitioner in conditions in which he was subject to degrading treatment" (para 95).
The petitioner there had also been a prisoner at Barlinnie. He suffered from eczema. At an interim stage, the respondents had conceded that the petitioner had a prima facie case that article 3 had been infringed. On 26 June 2001 the Lord Ordinary granted an order ordaining the respondents to secure the transfer of the petitioner to conditions of detention which complied with article 3. A reclaiming motion, proceeding on the grounds that the order was incompetent, was refused apparently without argument being heard. The Lord Ordinary making the ultimate decision that the respondents had acted unlawfully had the benefit of what appear to have been a number of eminent expert and professional witnesses covering the conditions in the prison, notably the overcrowding in the Hall generally, the size and cleanliness of the cells and their lighting and ventilation. He heard detailed evidence of the daily prison regime, the food and clothing, periods of confinement and times for exercise and recreation. There can be little doubt that the Lord Ordinary's description of the slopping out process makes depressing reading for anyone concerned to see that the conditions of our prisons reach at least the minimum standards to be expected in a modern democracy. The Lord Ordinary also heard about the effect of the conditions on the pursuer's mental state and upon his eczema. He concluded :
"My consideration of the evidence of those I have called experienced students and examiners of prison conditions...has led me to conclude that to detain a person along with another prisoner in a cramped, stuffy and gloomy cell which is inadequate for the occupation of two people, to confine them there together for a least 20 hours on average per day, to deny him overnight access to a toilet throughout the week and for extended periods at the weekend and thus to expose him to both elements of the slopping out process, to provide no structured activity other than daily walking exercise for one hour and one period of recreation lasting an hour and a half in a week, and to confine him to a "dog box" for two hours or so each time he entered or left the prison was, in Scotland in 2001, capable of attaining the minimum level of severity necessary to constitute degrading treatment and thus to infringe article 3."(para 75)
He then went on to consider whether the treatment did constitute "serious ill-treatment" (R (on the application of Pretty) v DPP  1 AC 200, Lord Hope at para 90 ), having regard to "all the circumstance of the case, including in particular the duration of the treatment, its physical and mental effects and the state of health of the victim" (Yankov v Bulgaria, ECHR application no 39084/97 para 107). In determining in favour of the petitioner on both the article 3 and 8 arguments, the Lord Ordinary recorded that "of crucial importance...is the effect on the petitioner of the serious outbreak of eczema" (para 76). This decision is currently the subject of a reclaiming motion but no date for a hearing has been fixed and I was not advised that there had been any application for an early hearing in view of the number of other cases whose outcome might depend upon the result of the reclaiming motion. A third strand includes the two decisions of the same Lord Ordinary in Beggs v The Scottish Ministers 2004 SLT 755 and Callison v The Scottish Ministers, Lord Drummond Young, 25 June 2004, unreported. In both, the Lord Ordinary, following dicta in McDonald v Secretary of State for Scotland (supra) and the Outer House decision of Andrew Scott and another, Petitioners (supra), held that it was incompetent to grant an interim interdict or an order for specific performance against the respondents although, in an appropriate case, an interim declarator might be made. Callison v Scottish Ministers (supra) involved the same counsel and agents as represent the petitioner in the present case. The arguments presented were directed towards the grant of interim orders in circumstances very similar to the present but where the petitioner was in Peterhead prison. Although the petitioner had been moved to a single cell, shared cell slopping out was a central element and the petitioner was also said to suffer from ill health. The petitioner has not sought to reclaim the decision. In refusing the orders, the Lord Ordinary said :
" ...The party seeking interim declarator must demonstrate a prima facie case, and it must also appear that the balance of convenience favours the grant of an order ad interim. In relation to the balance of convenience, the need to preserve the status quo may be a relevant consideration. So may the respective strengths of the parties' arguments. In addition to these general considerations, however,...two specific considerations are important in any application for interim declarator under section 21.
 First, the court should not pronounce an interim declarator of the parties' rights that prejudges the merits of the case. In any case where the parties' contentions on the facts and law have not been the subject of full argument and, where necessary, evidence, the court cannot reach any concluded opinion on the merits...Consequently, if...it appears that the subject matter of the declarator goes beyond a temporary holding operation and involves a determination of the underlying rights and obligations of the parties, the interim declarator should normally be refused...
 Secondly, in considering the balance of convenience the court must recognise that at the stage of an interim order consideration of the issues in dispute is of necessity of a provisional and incomplete nature. In view of that limitation it is important that, at least where a public authority has purported to act under statutory powers, the court should be slow to direct how those powers should be exercised. In particular, the court should not generally pronounce an interim order that imposes major burdens on the public administration, or forecloses significant budgetary decisions..."
First, following Ayr Town Council v Secretary of State 1965 SC 394 and its appended Robertson v Lord Advocate 1965 SC 400 the Lord Ordinary did not consider it appropriate to pronounce an interim declarator in the absence of full enquiry and argument since that would involve prejudging the merits of the petition. Secondly, the Lord Ordinary concluded, with some hesitation, that the averments did not disclose a prima facie case since the facts were distinguishable from Napier v Scottish Ministers (supra) and it could not be said that the high threshold of "serious ill-treatment" had been reached. The case under article 8 also failed. Thirdly, the Lord Ordinary considered that the balance of convenience favoured the respondents given that the petitioner's condition was much like any other prisoner in Scotland and the costs of either installing the appropriate plumbing or changing the staffing regime would involve considerable immediate expenditure. I have repeated the content of the various recent decisions, at what would otherwise be unnecessary length, so as to put the present application for urgent interim orders into some kind of context. I was advised that there are currently about 100 cases in which prison conditions are challenged or where damages are sought. Most are in the Sheriff Court. There are two decisions at an appellate level, the result of which could have a material bearing on the issues which the petitioners seek to raise here in an application on the motion roll for urgent interim measures. First, there is Davidson v Scottish Ministers (supra), where leave may be given by the Division to appeal the matters of competency to the House of Lords. Secondly, there is Napier v Scottish Ministers (supra), where the Division will presumably be asked to determine whether the Lord Ordinary was correct in his assessment that the practices of slopping out and related matters are capable of breaching, and in the event did breach, the requirements of articles 3 and 8. Thirdly, there is the absence of reclaiming motions against the two decisions of the Lord Ordinary dated only last month upon similar issues. Of course, the existence of these other cases does not bar the current petitioners from making their applications and asking the Court to deal with them as requiring urgent action. But the existence of these other cases, especially those at an appellate level, should at least make any Lord Ordinary pause before taking a decision in advance of the reasoned determinations on the same issues of a Division and the House of Lords.
(a) PETITIONERS The petitioners maintained that, in light of similar conditions averred and proved in Napier v Scottish Ministers (supra), they had averred a prima facie case of "serious ill-treatment", albeit that it was accepted that each case required to be looked at upon its own facts.  In tackling the issue of the competency of the orders sought, and under reference to the similar arguments as were deployed in Davidson v Scottish Ministers (supra) and both Beggs v Scottish Ministers (supra) and Callison v Scottish Ministers (supra), notably the comments of Lord Jauncey in British Medical Association v The Greater Glasgow Health Board (supra at 94) and the approach of the English Courts in cases such as M v Home Office  1 AC 377 and Ex parte Waldron  1 QB 824, Ackner LJ at 845, Glidewell LJ at 852 (see also Gairy v Attorney General of Grenada  1 AC 167 at para 13), it was said that the decision on competency in Beggs v Scottish Ministers (supra) was wrong (see also Lord Fleming in Murray v Comptroller General of Patents 1932 SC 726 at 727). The approach of the Scottish Courts to the section restricted effective rights of access to the Courts (see R (Anufrijeva) v Secretary of State for the Home Department  1 AC 604, Lord Steyn at para 27 quoting Lord Hoffman in R v Secretary of State for the Home Department, ex parte Simms  2 AC 115 at 131). As a "fall back" position, however, the petitioner sought interim declarators as regarded as competent in Beggs v Scottish Ministers (supra at para 12).  Upon enquiry as to whether the remedies sought were appropriately raised in a petition for judicial review, it was submitted that the Scottish Ministers had been given a statutory "jurisdiction" to incarcerate prisoners in terms of the Prisons (Scotland) Act 1989 (supra). The exercise of that jurisdiction could be the subject of judicial review or, despite the terms of Rule of Court 58.3.(1), simply a petition for the implement of statutory duty under section 45(b) of the Court of Session Act 1988 (Magnohard v United Kingdom Atomic Energy Authority 2003 GWD 27-754, Lady Paton at paras 118 et seq.; cf Carlton Hotel Co v Lord Advocate 1921 SC 237, Lord Dundas at 246).  So far as the balance of convenience was concerned, the petitioners maintained that this was in their favour. In that regard, they argued that the Lord Ordinary in Callison v Scottish Ministers (supra at 14) had erred in considering the issue of cost given the absolute nature of the obligation under article 3. No case before the European Court of Human Rights had failed on the grounds of cost.
(b) RESPONDENTS The respondents put forward five propositions. First, interim coercive orders against the Crown were incompetent (McDonald v Secretary of State for Scotland (supra); Andrew Scott and another, Petitioners (supra); Davidson v The Scottish Ministers (supra); Beggs v Scottish Ministers (supra); Callison v Scottish Ministers (supra)). It was not possible, in the Scottish context, to make anything of the exception of "proceedings on the Crown side of the King's Bench Division" in the definition of "civil proceedings" in section 38 of the 1947 Act. Secondly, there were certain recent authorities indicating that interim declarators may be competent (Beggs v Scottish Ministers (supra); Callison v Scottish Ministers (supra)). However it was not appropriate for such orders to be made here (Ayr Town Council v Secretary of State (supra, Lord Fraser at 399 following Lord Strachan in the appended Robertson v Lord Advocate (supra at 402)). Thirdly, it was inappropriate to take any decision at this stage. The respondents had had insufficient time to ingather all the relevant information on the medical conditions of the petitioners or the regimes they were under. Although there might not be a cost implication in relation to each individual petitioner, if the matter were considered in relation to all the prisoners, it might be substantial. Fourthly, no prima facie case had been averred. Although Napier v Scottish Ministers (supra) had some similarities with the present case, the Lord Ordinary there had stressed the need to look at the cumulative nature of the factors under the Barlinnie regime and to the effect that they had on the individual. Even if the factors in the regime at Barlinnie, as identified in that case, existed in the present dispute, it did not follow that the same result should be reached in relation to a different individual, given the subjective element regarding the nature of the effects of the regime on the individual's physical and mental health. All the various petitioners had slightly different regimes in relation to their attendances at education classes, physical education, education and work placements. Fifthly, the balance of convenience favoured the respondents. Following the approach in Beggs v Scottish Ministers (supra) and Callison v Scottish Ministers (supra), the argument at this stage was incomplete. Of course, if there was a clear breach then the respondents' argument based upon costs would not be a good one, but that was not the case.
4. Decision I am not prepared to grant the interim orders sought, other than those for service and intimation, at this stage of the processes, that is to say even before answers have been lodged. It may be that the motions could be reconsidered after that stage but I suspect that, realistically, any substantive orders will have to await a determination after full and proper argument at a First Hearing. In that connection, it is not appropriate, having regard to the proper organisation of the business of the Court, to attempt to convert a motion roll on pre-service urgent interim orders into such a Hearing. I did have the impression that this was ultimately what the petitioners were attempting to do, in the sense of asking the Court to review all the facts and authorities at this early stage despite the limitations of argument and time. I decline to make the interim orders for a number of quite separate reasons  First, although it is not necessarily a bar to the grant of interim orders, I have reservations as to the competency of the use of a judicial review petition in this type of case. Given the limited context in which I have heard the applications, it is perhaps not appropriate to reach a definitive view on the subject. It is, however, worth outlining what these reservations are. Section 91 of the Court of Session Act 1868 (now section 45(b) of the 1988 Act) provided a summary remedy for enforcement of a statutory duty. It was not intended to be an exclusive remedy and many statutory duties may be enforced by ordinary action. The summary remedy is one which might be adopted in circumstances where, most notably, the duty to be performed is clear and the precise terms of the requisite order can be stated (Carlton Hotel Co v Lord Advocate (supra) Lord Dundas at 246). It is summary in its nature because the facts ought to be capable of rapid determination, usually without the need for proof, and the law seen as clearly applicable to them. Such an application can, and often does, arise in the context of a judicial review. Hence Rule of Court 58.(3) provides that, where that is the case, the form of application must be by petition for that remedy rather than separate process. However, the use of the word "including" in the Rule points towards it being only where the application is one to the supervisory jurisdiction of the Court that it is appropriate to proceed in this way. There are a great number of situations where a party might wish to force the performance of a statutory duty, some involving Government and some not. The circumstances may be momentous or they may be relatively trivial, but there is seldom any compulsion to proceed by summary petition to the Court of Session, far less to try to invoke the supervisory jurisdiction of this Court. If there is a statutory duty being breached then a party may seek to have the actions of the miscreant interdicted in an action for declarator and interdict, or interdict alone. In such a process, the Court is entitled to grant an order for performance if it deems that appropriate (section 46 of the 1988 Act). In short, I am inclined to favour the arguments unsuccessfully presented by the respondents in Magnohard v United Kingdom Atomic Energy Authority (supra at paras 46-50).  Secondly, in general, and again subject to full argument on the subject, I share the reservations expressed in limine by Lord Marnoch in Davidson v Scottish Ministers (supra at paras 1 et seq). There is little point in rehearsing these in detail, but two are worth specific repetition. First, the petitioners' complaints concern the conditions in prison. The Prisons and Young Offenders Institutions (Scotland) Regulations 1994 (supra) provide detailed procedures whereby a prisoner can take his complaints through the system to the governor and beyond to the Scottish Ministers (Part 11). Perhaps he need not do so and might simply raise an ordinary action of interdict relative to his condition (supra). However, the petitioners here have selected the specific process of judicial review. Both the principles of common law and the terms of the Rule of Court respectively require a petitioner to have exhausted any alternative ordinary or statutory remedies before invoking the supervisory jurisdiction. The petitioners have not, ex facie of the petitions, done this. Secondly, it is not immediately clear what bearing the supervisory jurisdiction of the Court has on the matter complained of. Persons remanded or convicted are ordered to be imprisoned and to be conveyed to specific named prisons not by the respondents but under warrant of the Court. The respondents are bound to keep them in custody thereafter (albeit that they may be transferred to different institutions under the Rules) until liberated in due course of law. Although there may be many other possible legal remedies, the keeping of prisoners generally in prisons of an inadequate type appears to have little to do with any decision or lack of decision by the respondents relative to an individual prisoner of a type which might be reviewed as part of the Court's supervisory jurisdiction, as that jurisdiction was explained in West v Secretary of State for Scotland 1992 SC 385.  Thirdly, in relation to the competency of granting an order of specific performance against the Crown, the debate here is, to a degree, somewhat academic in the absence of any suggestion that the Crown would purposely ignore a declarator of the Court. As the Lord Ordinary (Cullen) stated before the introduction of the 1947 Act in Carlton Hotel Co v Lord Advocate (supra) at 241) :
"the power of the Court...is not one to be exercised unless in the case of a clearly ascertained refusal, or a determined course of abstention from action equivalent to such a refusal, to perform a duty. And in the case of a duty lying on the officers of the Crown in the matter of giving effect to a patrimonial right which has already been authoritatively declared by the Court, I think I am bound to make every presumption that they intend to act as the law requires, unless and until it is quite clearly demonstrated that, for some reason, difficult to suppose, they in fact refuse to do so." (see also Lord Dundas at 246)
A Court in a civilised democracy should not require to order the executive to do something when it has already pronounced a declarator of parties' rights. I am somewhat reinforced in my view by the approach of the English courts (M v Home Office (supra) Lord Woolf at 424-5) not to proceed to impose concrete penalties on Government Ministers but simply to make findings of contempt. In practical terms, there may be little difference in outcome using the different procedures available in the two jurisdictions. Certainly, in the absence of any history of the Scottish Ministers ignoring the declarators of the Court, there is no basis for maintaining successfully that the provision not to grant orders for specific performance or interdict in any way restricts effective rights of access to the Courts. So far as I am aware, obedience by the executive to the declarators of the Court of Session has not been a problem encountered in recent times. No doubt if it became so, a review might be required and, in particular, the Court may have to consider whether action by a Crown minister to ignore the import of a Court declarator amounts to a contempt and, if so, with what result. Fourthly, if I had to determine the issue, I would have followed the approach of Lord Drummond Young in Beggs v Scottish Ministers (supra at paras 10 and 11), the dicta of Lord Justice-Clerk (Ross) in McDonald v Secretary of State for Scotland (supra at 239) and held that the orders sought were not competent. Indeed, as matters now stand from the House of Lords in Davidson v Scottish Ministers (No 2) (supra), I would have regarded myself bound by the decision of the Extra Divisions decision in Davidson v Scottish Ministers (supra) that applications for judicial review are "civil proceedings" under and in terms of section 21 of the 1947 Act and therefore the Court cannot grant an order for specific implement or an interdict against the Scottish Ministers in such proceedings. In any event, I agree that this is the clear import of the terms of the section interpreted, as the Court must, in accordance with the principles of Scots Law. Indeed it would be mildly astonishing if any other interpretation could be placed on the words of the section other than to exclude such orders in all processes regarded as "civil proceedings" in Scotland. Judicial review is plainly a "civil proceeding" in Scotland, whether in its modern guise of a petition for judicial review or in the former processes of reduction, suspension and interdict. As outlined above, I am not yet convinced that a case of this type should even proceed as a judicial review petition as distinct from an ordinary action and it would be odd if the Court could grant an order in such a petition but be restrained from doing so in another process covering the same subject. As for the definition of "Civil proceedings" in section 38 of the 1947 Act excluding "proceedings on the Crown side of the King's Bench Division", it is simply not possible for a Scots Court to make anything of these words, although no doubt the House of Lords may be able to do so in the context of a Scottish appeal. Lord Jauncey's remarks in British Medical Association v Greater Glasgow Health Board (supra) do not assist. They, and indeed those of the Second Division (Lord Justice-Clerk (Ross) at 76) and the Lord Ordinary (at 71), are concerned with the type of body which should be accorded the status of being "the Crown" and are not directed not to the issue of whether a particular order could be made against a body clearly identified, as here, as the Crown.  Fifthly, I also agree with Lord Drummond Young (in Beggs v Scottish Ministers (supra at para 12) that, in an appropriate case, an interim declarator may be competent against the Crown because of the terms of section 21(1)(a) of the 1947 Act. That section appears to substitute a declarator for an interdict or order for specific implement and it seems appropriate to apply the same considerations to orders made at the interim stage, given the Court's general power to regulate matters in a process ad interim. However, if what is sought goes beyond an order required as a "holding operation", that is to say something beyond what is necessary to regulate matters pending a proper consideration of the case, it will seldom be appropriate to make such an interim declarator and certainly not one which effectively prejudges the outcome of the case (Ayr Town Council v Secretary of State for Scotland (supra) Lord Fraser at 399). In determining whether it is appropriate, however, the question in general is whether the petitioner has made out a sufficiently strong prima facie case of breach of the articles concerned. If he has then the Court will go on to consider whether the balance of convenience rests in his favour. It remains important to bear in mind, in that context, the stage at which the interim orders are sought here and, in particular, the need to ensure fairness to both parties in the presentation of their cases.  I am unable to conclude that the petitioners have made out a prima facie case at present and certainly not one which is so strong as would merit the summary granting of orders without affording the respondents an opportunity to lodge written answers. If there had been a definitive pronouncement from the Courts, especially at an appellate level, that the conditions in which the petitioners are held amount to a breach of articles 3 or 8 then a Lord Ordinary might feel confident about the existence of a prima facie case. However, that is not the position. In particular, the findings of the Lord Ordinary in Napier v Scottish Ministers (supra) do not determine that the conditions in Barlinnie are, per se, breaches but only that they were in the particular prisoner's case because of his eczema. Although it may be tempting to do so, I do not consider that the Court is able, as an interim measure, simply to declare that the conditions in Saughton amount to breach of the articles upon the basis of ex parte statements and without a consideration of the effect of the conditions on the individual prisoners. In particular, even although the conditions might, as the Lord Ordinary concluded in Napier v Scottish Ministers (supra), be capable of grounding a case for a breach of article 3 (or 8), it is not possible ad interim to declare that the conditions averred in relation to each individual petitioner amount to the requisite "serious ill-treatment".  Sixthly, so far as the balance of convenience is concerned, it can be argued that the respondents attending to the seven petitioners' requirements may, of itself, not result in any major alteration of the status quo. However, it is clear that were the Court to decide in their favour, the implications would be considerable since the petitioners here do not appear to be in a materially different position from other prisons in the particular Hall or throughout Saughton and, no doubt, many other penal institutions. A change in regime of the type envisaged by the petitioners would involve substantial expenditure either on prison fabric or fittings or on manpower for the night shift. Of course, cost is not a defence available to the Crown if there is a breach of article 3. However, that does not make it appropriate, by way of an interim order, to commit the respondents to that level of expenditure without a proper hearing on the case and without affording them an adequate opportunity to respond to the petitioners' contentions. On this area, I agree once more with the Lord Ordinary in Callison v Scottish Ministers (supra at para 20).  For all of these reasons, I will refuse to grant the interim orders sought in hoc statu.