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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ralston v. Scottish Ministers For Judicial Review  ScotCS 242 (05 November 2004)
Cite as:  ScotCS 242
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OUTER HOUSE, COURT OF SESSION
OPINION OF LADY SMITH
in petition of
THE SCOTTISH MINISTERS
Petitioner: O'Neill, Q.C., Collins, Carmichael; Balfour & Manson
Respondents: Brailsford, Q.C., Wolffe, Ross; Solicitor to Scottish Executive
5 November 2004 The petitioner is serving a twelve year sentence for armed robbery, having been convicted in 1997. He has raised a petition for judicial review of decisions taken by the Governors of HMP Kilmarnock, HMP Barlinnie, and HMP Edinburgh, to segregate him in terms of Rule 80 of the Prisons and Young Offenders Institution (Scotland) Regulations 1994 S.I. 1931, as amended, and decisions of the Scottish Ministers to give their authority to such segregations and approve applications made under that rule. The Petition is said to be concerned, separately, with acts or failures to act by the Governors of the prisons and Scottish Ministers contrary to Article 8 of the European Convention on Human Rights. The Scottish Ministers are respondents to the Petition.  In short, the petitioner avers that the Rule 80 orders giving rise to his segregation at various times were unlawful by reason of procedural unfairness in breach of Article 6 of the European Convention on Human Rights, in respect that he was not given prior notice nor was he given a hearing, and breach of his rights under Article 8 of the Convention in respect that the conditions of segregation were and are such as to diminish his human dignity and, accordingly, to be in contravention of his right to respect for his private life. Although, as originally drafted, the petition bore to be for judicial review of the Rule 80 decisions referred to and of the decisions to continue to detain him in conditions contrary to Article 3 and Article 8 of the Convention, it is now specifically averred that the conditions of his detention did not attain a level of severity sufficient to constitute a violation of Article 3.
The Prison and Young Offenders (Scotland) Rules 1994 These rules include the following provisions:
"Removal from association
80(1) Where it appears to the Governor desirable for the purpose of -
(a) maintaining good order or discipline;
(b) protecting the interests of any prisoner; or
(c) ensuring the safety of other persons,
he may order in writing that a prisoner shall be removed from association with other prisoners, either generally or during any period the prisoner is engaged or taking part in prescribed activity.
(5) A prisoner who has been removed from association generally.... By virtue of an order made by the Governor in terms of paragraph (1) shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority on the application of the Governor, prior to the expiry of the said period of 72 hours.
(7) The Governor -
(a) may -
(i) cancel an order under paragraph (1) at any time if he considers
it appropriate to do so;"
The Petitioner's Current Segregation The purpose of the petitioner's removal from association on 12 October 2004 was stated to be that of maintaining good order and discipline. The reason for it was stated to be:
"Mr Ralston was transferred from HMP Shotts to HMP Edinburgh's Segregation Unit after an incident involving other prisoners and a member of staff at HMP Shotts. Local management feels that an initial 72 hour assessment period is required to plan his future management."
That purpose and reason can be found in the document at 6/13 of Process. The application for extension of the Rule 80(1) Order is at 6/14 of Process and states its purpose to be the maintenance of good order or discipline. The application also includes background information in the following terms:
"Mr Ralston was transferred to Edinburgh Prison's Segregation Unit from HMP Shotts, After an incident where a member of staff was seriously assaulted, Mr Ralston was seen in communication with the inmate who assaulted the officer immediately prior to the incident and was identified attempting to incite other inmates while staff intervened."
and, as to the reason for the extension, the document set out the following:
"Intelligence received from HMP Shotts suggests that Mr Ralston is a major distributor of illegal substances within Shotts Prison, there is further evidence to suggest that he is involved in the bullying and intimidation of other inmates to pay off their drug debts.
Mr Ralston has a serious history of disruption with the Scottish Prison Estate and local management at HMP Edinburgh feels that it would be inappropriate at this time for him to be considered as a mainstream prospect.
Local management are of the opinion that a month's assessment is fundamental to appraise his future management."
"I, today 15 Oct got handed piece paper which states 'nothing' other than the fact am on Rule 80 for one month signed by S J Murphy. I've contacted my solicitor.
I am puzzled to why I'm here and can only keep returning to fact I'm suing prison system for locking me up unlawfully and for no justifiable reasons. So it seems this is now happening 'again'. I'm aware an officer got assaulted but 4 or 5 cells away from mine and officer Jim Morton at Shotts saw I was not in or near that cell so why am I being victimised ave already written CP forms. It looks like I'll attend Edinburgh CRT each and every day for 5 wks from your jail. I still haven't had it explained what I'm alleged to have done! Have I been moved because ave civil case starting at Edinburgh Court!"
You were transferred to Edinburgh on 12 October after an incident in Shotts where an officer was assaulted. A 30 day rule was applied for and granted on 14 October in relation to this incident. You were implicated in this activity by Shotts staff and I will quote from the Rule 80 application, which I asked Mr Suddon to read to you on 18 October to explain your situation.
'Mr Ralston was transferred to Edinburgh Prison Segregation Unit from HMP Shotts, after an incident where a member of staff was seriously assaulted. Mr Ralston was seen in communication with the inmate who assaulted the officer immediately prior to the incident, and was identified attempting to incite other inmates while staff intervened.'
I can assure you that the reason for you being located in HMP Edinburgh is nothing to do with any 'civil case' in which you are involved."
The Governor's response is dated 19 October 2004. A case conference was held on 20 October 2004, attended by the petitioner and personnel from both Edinburgh and Shotts at which, according to a note of the case conference which is contained in 6/17 of Process, the petitioner was informed, regarding his segregation, that intelligence suggested from a number of sources that he was collecting debts within the Hall at Shotts, that the attack on the officer was pre-planned as another prisoner was heavily in debt and the assault was a way of clearing the debt, that behaviour prior to the alleged incident involved threatening staff regarding closed visits, and that Mr Ralston was involved in collecting drug debts for another prisoner. He was also advised that it was agreed that Shotts was not an option for his future location, that staff would look into the possibility of him being reintegrated at Glenochil or Perth, that his property was being sent through to Edinburgh on 21 October and that no interventions were required. It is also noted that the petitioner stated that he denied having anything to do with the alleged assault and believed that other prisoners would say or do anything "to get in with staff".
The Present Application Against that background, the following motion was, on 27 October 2004, enrolled on behalf of the petitioner:
"On behalf of the petitioner, for suspension ad interim of the Rule 80(5) Order granted by the respondents on 15 October 2004, detaining the petitioner in segregation until 15 November 2004."
Competency Section 21(1) of the Crown Proceedings Act 1947, so far as applicable in Scotland, is in the following terms:
"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 between subjects be granted by way of (interdict) or specific performance, the court shall not grant an (interdict) or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties;...."
Submissions for Respondents (Competency) The submission for the respondents was succinct. If section 21 were, in this case, to be interpreted as not covering orders for interim suspension, a coach and horses would, it was said, be driven through the Act and inconsistency would result. The practical effect of an order for interim suspension would be identical to that of an order for specific performance in the present case. That was because, if the order of 15 October 2004 was suspended, the respondents would no longer have any warrant to hold the petitioner in the Segregation Unit and they would require to effect his transfer out of it. As in the case of an individual, the assumption fell to be made that the respondents would act only in accordance with the law. That would mean that if they did not have warrant to hold the petitioner in the Segregation Unit, which is where he is presently detained, they would require to take positive action to transfer him out of it and into the mainstream prison population.  Senior counsel for the respondents acknowledged that the question of the applicability of section 21 of the 1947 Act to applications for interim suspension had not specifically been considered in any of the existing authorities. He did, however, draw my attention to the case of Scottish Aviation Limited v The Lord Advocate, 1951 SC 33, a case concerning the application of the Civil Aviation Act 1949, section 23(2), a provision empowering the Minister for Civil Aviation to acquire land by way of compulsory purchase. It was held that the authorisation procedure for Scotland was that enacted by the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947, an Act which formed Chapter 42 of the 1947 statutes and received the Royal Assent on the same day as did the Crown Proceedings Act, which was Chapter 44. The Acquisition of Land (Authorisation Procedure) (Scotland) 1947, provided, in terms of its first Schedule, Part IV, paragraph 15:
"(1) If any person aggrieved by a compulsory purchase order desires to question the validity thereof .... he may make an application to the Court of Session, and on any such application the Court (a) may by interim order suspend the operation of the compulsory purchase order until the final determination of the proceedings;"
It was evident that in the Scottish Aviation case, there had been an application for interim suspension of the compulsory purchase order. Nothing turned on the decision in that case but it was submitted on behalf of the respondents that, given the specific provision in the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 empowering the Court to suspend the operation of a compulsory purchase order by interim order, the lack of such express statutory provision in the Crown Proceedings Act, a contemporaneous piece of legislation, was indicative of the remedy of interim suspension not being available in proceedings against the Crown other than those concerning compulsory purchase orders issued by the Minister of Civil Aviation.
Submissions for the Petitioner (Competency) Senior counsel for the petitioner submitted that the order sought could competently be granted. The remedy of suspension was historically different from that of interdict. He relied on the case of Thom v North British Bank 1848 10D 1254 as illustrating that difference. Section 21 did not refer to the remedy of suspension. The only orders which were not to be granted were orders for interdict or specific implement. He stressed that the purpose of the Act was to make the Crown more accountable. Reference was made to Clyde & Edwards: Judicial Review at paragraph 25.15, where it is stated that suspension is often coupled with interdict so as to prevent repetition or continuation of the acts complained of, but it can properly stand by itself. Section 21(1)(a) should be read narrowly because it appeared in the context of legislation which, generally, broadened the remedies available.  Senior counsel for the petitioner also made a submission under reference to the Scotland Act 1998, section 40(3) which provides:
"In any proceedings against the Parliament, the Court shall not make an order for suspension, interdict, reduction or specific performance (or other like order) but may instead make a declarator."
Discussion: Competency I am not persuaded that the remedy of interim suspension that is sought in the present case is so distinct from, to use the language of section 21(1)(a) of the 1947 Act, "such relief... as might in proceedings between subjects be granted by way of interdict or specific performance" as to escape the prohibition contained in that sub-section. It is, in my opinion, clear that one of the purposes of the proviso is to prevent the Court making any order the effect of which is to require the Crown to act in a certain way. I do not see that the answer to the question of whether a particular order would be caught by the proviso can lie simply in its technical effect. If the actual effect of the order is to require action on the part of the Crown then such order must, in my view, be as prohibited as would an order for interdict or one which details the actions sought.  Senior counsel for the petitioner disavowed any intention of seeking an order which would have a practical effect on the Crown. He said, disingenuously it seemed, that he had no idea what would happen if the order for interim suspension sought by him were granted. That would, he said, be a matter for the Scottish Ministers. He was not, he said, seeking an order to have them do anything at all although they might, if they chose to do so and wished to segregate the petitioner, do it, as he put it, "properly" next time. In the meantime, so senior counsel for the petitioner submitted, no assumptions could be made as to how the respondents would act. If, however, the petitioner did not intend, by the present motion, to bring about his removal from segregation, it is difficult to understand why he sought to invoke the remedy of suspension, described by Clyde v Edwards as something which "was intended as an immediate remedy".  I am readily persuaded that I have to proceed on the basis that if the order for interim suspension that is sought were granted, since the respondents would then have no lawful warrant for continuing to segregate the petitioner, they would require to act forthwith to transfer him out of segregation. It is evident that that would not be a straightforward matter. Rapid decisions would have to be taken regarding his replacement in the mainstream prison population and that would not, judging by the matters highlighted in the documents lodged on behalf of the petitioner, to which I have already referred (Nos. 6/13-17 of Process), be easy.  I would add that, whilst it is interesting to note the specific provision contained in the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 for the granting of orders for interim suspension, I have not placed any weight on that matter in reaching the view that I have regarding the interpretation of section 21(1)(a). There may be cases where the effect of granting interim suspension would not be comparable to that of interdict or specific performance and in that event, I doubt whether the provision in the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 would lead to the conclusion that section 21(1)(a) of the Crown Proceedings Act 1947 required to be interpreted so as to cover any order for interim suspension. However, I have reached my decision on the facts of this case which are, I am satisfied, that were I to grant the order for interim suspension sought then that would cause the respondents to take certain actions in respect of the petitioner, so as to comply with the law, which would no longer warrant them keeping him in segregation.
Balance of Convenience It is not necessary to consider whether or not the petitioner has a prima facie case since, as I have already noted, for the purposes of the present motion, the respondents did not seek to dispute that he had. That left the question of balance of convenience. Senior counsel for the petitioner submitted that the balance of convenience favoured the granting of the order. Article 8 of the European Convention on Human Rights was engaged, as had been determined in the case of McFeeley v United Kingdom 1980 3 EHRR 161 @ para. 82. The presumption was, he submitted, that prisoners' activities would take place in association. He made extensive reference to a report by Professor J J McManus (No. 6/18 of Process). That report contains details of and comment upon various observations made by its author regarding the segregation units which are the subject of this and four other petitions which are currently pending. Various features of segregation are detailed including that the prisoner has only limited time out of his cell, no television, no association with other prisoners and close supervision, all of which are, it was submitted, detriments that applied to the petitioner. Although the current authorisation for his detention in a segregation unit was due to expire on 15 November, it might be renewed. Senior counsel for the petitioner also submitted that the prima facie case relied on was a strong one. Full and adequate reasons for his detention in segregation had not been given. He insisted on that submission notwithstanding that reasons for the petitioner's segregation are set out in the documents produced on behalf of the petitioner, in particular, in Nos. 6/13 and 14 of process. The procedures used smacked, he submitted, of arbitrary, unfair decision making that was contrary to the rule of law. He also relied on certain comments made by Mr Justice Jack in the case SP v Secretary of State for the Home Department  EWHC 1418 (Admin) which were to the effect that although segregation was not a punishment imposed for a disciplinary offence, it might appear so to be to the offender and that, in the context of that case, fairness required that the prisoner should have been given the opportunity to make representations before the order for his segregation was made. I note that that was in circumstances where, unlike those in the present case, the inmate had been given the opportunity to make representations regarding the continuation of a segregation order and it appeared that there was no good reason, in that event, for not allowing him a similar right at the time of the grant of the original order.  No submission for the petitioner was made to the effect that he was currently suffering from any physical or psychological harm due to being segregated. No reference was made to there being any specific effect on the petitioner of segregation other than that set out in his complaint and at the case conference, to both of which I have already referred and which amount to a denial on his part that he had any involvement in the assault on a member of staff at HMP Shotts and an allegation that he is being targeted due to this petition for judicial review.  Senior counsel for the respondents submitted that the argument advanced on behalf of the petitioner under the heading of balance of convenience was not an argument of that nature at all. Rather, it amounted to a preview of what would be the substance of his argument on the merits of the case in due course. Whilst the case of McFeeley indicated that there was a potential for the segregation of a prisoner engaging Article 8 of the Convention, it did not necessarily follow that it would do so nor, indeed, that contravention would be established in every case. Regarding Professor McManus' report, it was entirely non-specific to the petitioner. It was very difficult to see what particular harm might be suffered by him over the forthcoming fortnight. The management of prisons was difficult and complex and the court should, it was submitted, be slow to interfere in it. It was evident, in this case, that the information which had led to the petitioner's segregation was of a serious nature involving drug dealing and violence. The petitioner had issued a complaint and made his denials clear at the case conference, but the Governor had, in the particular circumstances of this case, not exercised the power available to him, as he could have done, to cancel the segregation order, under and in terms of Rule 80(7). Senior counsel for the respondent indicated that he had seen the highly confidential information which had led to the petitioner's segregation. It was highly serious and very grave. It involved, he said, matters of the greatest seriousness which the prison could not ignore. Further, when considering balance of convenience, it was relevant to take into account that the petitioner was a prisoner who had been sentenced to 12 years imprisonment in 1997 following a serious offence of assault and robbery involving a firearm. He had previous convictions which were, at that time, described as "appalling" by the trial judge. He had previously, whilst serving a seven year sentence in Peterhead Prison, along with four others, abducted two prison officers, one of whom had been released after a day, bearing serious injuries. The other was held for some four or five days. He was a difficult prisoner. He had committed a number of disciplinary breaches whilst an inmate which included involvement in violent incidents. Regular intelligence was received that he intimidates other prisoners and is involved in drug trafficking and debt enforcement. He is, however, due to be released in May 2005 and it is not, I was advised, the intention that he be released straight from segregation if that can be avoided. His reintroduction into mainstream prison required very careful planning because he had problem histories in connection with just about every prison in Scotland. There is every intention, I was told, of his being afforded the best chance of succeeding in the mainstream prison population but, clearly that was not going to be easy to achieve.
Discussion (Balance of Convenience) I am not persuaded that anything said on behalf of the petitioner was such as to indicate that the balance of convenience would have favoured granting interim suspension, had I found that it was competent to do so. Questions of balance of convenience are usually resolved by considerations such as whether irrecoverable loss or irreparable inconvenience or harm is likely to be sustained by one or other party if, having been denied the interim order sought, he is ultimately successful. There are also cases where as a matter of practice, if one party appears to have a strong case, that is something that the Court will take into account. This is not, however, in my view, such a case. Arguments are advanced on both sides regarding the granting of the order for which suspension is sought and the petitioner argues that the order should not have been granted in the procedural manner involved and also denies the allegations made which led to his segregation. As against that, it is clear from the pleadings that the respondents do not accept the procedural unfairnesses alleged and, as regards the merits of the decision taken on this occasion, they rely strongly on the matters set out in the documents to which I have referred and, generally, on the troubling history presented by the petitioner, as was outlined by senior counsel for the respondents in the course of his submissions. It would, in these circumstances, be quite wrong to conclude, as senior counsel for the petitioner sought to persuade me, that there was a strong prima facie case which weighed so heavily when it came to questions of balance of convenience as to require the granting of the order sought. On the contrary, this is a case where what has to be asked is whether the petitioner has shown that he is likely to suffer irreparable harm or inconvenience if the order sought is not granted. It is clear that he has not done so. No medical report was lodged nor was any indication given that the current segregation has had any specific effect upon the petitioner at all beyond inspiring his sense of grievance at its imposition and that is not something which can be regarded as having any weight when it comes to considerations of balance of convenience. On the other hand, were the interim suspension sought to be granted, and were it subsequently to be determined that the current segregation order was intra vires and not liable to be reduced, then the result would have been produced that the respondents' management of a difficult prisoner at what appears to be a critical time in the pathway towards his release would have been liable to be compromised. It is clear, in these circumstances, that the balance of convenience would lie in favour of the respondents.  I shall, accordingly, refuse the petitioner's motion.