PETITION BY KENNETH SMITH FOR BREACH OF UNDERTAKING
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 89
P1040/15
OPINION OF LADY WISE
In the petition
KENNETH SMITH
Petitioner;
for
Breach of Undertaking
Petitioner: McBrearty QC, Pirie; Balfour + Manson LLP (for Taylor & Kelly)
Respondents: Lord Advocate, Ross; Scottish Government Legal Directorate
8 June 2016
[1] This is a second petition and complaint by a prisoner Kenneth Smith seeking a finding that the respondents, the Scottish Ministers, are in contempt of Court by breaching an undertaking they gave to this court in judicial review proceedings brought at his instance.
[2] In February 2015 Lord Pentland disposed of the first petition and complaint by making a finding of contempt of Court against the Scottish Ministers who had opposed the making of such a finding.
[3] The circumstances that led to the undertaking being given and the Scottish Ministers being in breach of it are set out in paragraphs 2-11 of Lord Pentland’s opinion, now reported at 2015 SLT 131. In essence, prior to the undertaking being given on 21 February 2013, the prison authorities appear, on at least 14 occasions, to have opened privileged correspondence addressed to the petitioner which they had no authority to open either in terms of their own guidance or as a matter of law. On the face of it the unauthorised opening of privileged correspondence represents an unlawful interference with the petitioner’s article 8 rights.
[4] The undertaking states in terms that “the Scottish Ministers hereby undertake that prison officers in the Scottish Prison Service will refrain from opening or requiring the petitioner to open in their presence letters or packages addressed to the petitioner and bearing the stamps Return Address PO Box 66, Wilmslow, SK9 5AX, or RMA, 25 St James Street, Paisley, PA3 2HQ”, save in circumstances that do not apply in the previous petition and complaint nor in that before me. The undertaking was breached and after a hearing to determine whether that breach constituted a contempt of Court, Lord Pentland, as I have indicated, found that it did.
[5] That finding of contempt of Court was made on 21 February 2015. The circumstances giving rise to the present petition and complaint are that on about 28 March 2015 two prison officers involved in separating the petitioner’s mail into “privileged correspondence” and “general correspondence” failed to categorise an envelope bearing the stamp “PO Box 66, Wilmslow, SK9 5AX” as privileged correspondence and opened it in the presence of the petitioner. The address referred to is that of the UK Information Commissioner, “the ICO”. The respondents accept that in accordance with the undertaking and the rules referred to therein, the envelope should not have been opened. They accept that it constituted a breach of the undertaking. In contrast to the position taken before Lord Pentland the respondents now accept that there were reasonable steps that could have been taken to avoid the breach and that a finding of contempt of Court should accordingly be made. Those concessions having been made the hearing before me essentially addressed issues of mitigation and disposal.
[6] For the Scottish Ministers the Lord Advocate appeared in person as a mark of the gravity of the situation and as a member of the Scottish Government answerable for this second breach. He explained the steps that had been taken following Lord Pentland’s finding of contempt of Court. Amongst other things a review of procedures in place at Her Majesty’s Prison, Edinburgh was carried out. The opinion of Lord Pentland was circulated to all governors and to directors of private prisons. A guidance document entitled “The Management of Incoming Mail received into this establishment, in particular mail addressed to Mr Kenneth Smith” was sent to every senior manager and first line manager at Edinburgh. The governor at Edinburgh held meetings with mail handling staff and managers. The seriousness of the contempt of Court finding was emphasised. A revised version of a guidance document on prisoners’ correspondence and privileged mail was issued in March 2015. The terms of the undertaking were recirculated by email to relevant staff.
[7] In essence, the breach with which this petition is concerned arose because the staff involved checked the letter which is the subject against the guidance available on the Scottish Prison Service intranet but not against the undertaking. The envelope did not bear the logo of the Information Commissioner but the address of the Commissioner is one of the two contained in the undertaking and was clearly displayed. As a result the staff concluded wrongly, but it is said in good faith, that it was not privileged. It is now accepted that it would have been a reasonable step for an annex to the national guidance and the local guidance to have shown the relevant addresses covered by the undertaking. The Scottish Prison Service acted promptly and appropriately following this second breach of undertaking. They investigated the matter and apologised to the petitioner. The annex to the relevant guidance has been revised to include the two addresses covered by the undertaking. A staff briefing was also issued setting out the undertaking in full and stressing that extreme care should be taken in handling the complainer’s mail. An ex gratia payment of £500 was offered to the petitioner and he accepted that. The issue remains for the court to decide how to deal with the admitted contempt.
[8] Before making observations in mitigation the Lord Advocate acknowledged that the timing of the second breach of the undertaking so soon after Lord Pentland’s decision was an aggravating factor. However in mitigation the prompt and appropriate response to the discovery of the breach was emphasised as was the passage of time since 28 March 2015 without any further breach having taken place. The further measures put in place appear to have remedied the matter. The process was not infallible but the further steps taken appear to be sufficient. The Scottish Prison Service had understood that organisations such as those whose addresses appear in the undertaking would operate a double envelope system that would assist in avoiding errors of the type that occurred but it now appears that they do not do so, or at least not invariably.
[9] A second finding of contempt against the Scottish Ministers was said to be such a grave matter that the Lord Advocate suggested no further penalty was necessary, while recognising of course that it was a matter for the court. He submitted that there would be little purpose in ordaining one of the Ministers to appear in person and a fine would not have the impact it has on an individual found in contempt.
[10] Senior counsel Mr McBrearty for the petitioner and complainer acknowledged many of the issues addressed by the Lord Advocate and accepted without question that all of the steps said to have been taken will have been taken. The acknowledgement of contempt, the apology and the ex gratia payment were all accepted. However, the core issue was said to be the public perception of the court’s authority. This was a second breach of an undertaking to the court following repeated breaches of the petitioner’s article 8 rights. From the petitioner’s perspective it appeared that nothing had altered the approach taken to his correspondence, not even the previous finding of contempt of Court. He was frustrated and angry at what had now occurred. Any recipient of an undertaking to the court was entitled to a guarantee that it will be honoured or there could be no confidence in the court’s authority. While the matter of penalty was of course for the court, something to reflect the gravity of the situation was required. Whatever the decision, publication of the further finding of contempt and the reasons for any penalty imposed or not would be an important part of the process. While a fine was not always appropriate for a public authority, consideration should be given to the message that might be conveyed if the disposal was the same as that following the first breach.
[11] Having considered all of these matters carefully I emphasise first that this second breach of an undertaking given to the court by a public authority such as the Scottish Ministers is an extremely serious matter. It is a further affront to the authority of the court. Both the party to whom an undertaking is given and the court which interpones authority to it are entitled to demand that it is fully complied with. I note that the undertaking is without limit of time, that no variation or release from it has been sought and that part of its terms mirror precisely the address on the envelope wrongly opened on this occasion. In the circumstances the acceptance by the respondents that this constituted a further contempt of Court is the only responsible position that in my view they could have taken. The breach raises further questions about whether the respondents have really put sufficient measures in place, even now, to avoid any repetition of what has occurred. In deciding what penalty to impose I have considered the imposition of a fine but acknowledge that such a course would have little impact on a public authority and so I discount it as an appropriate disposal. I have considered whether to ordain the responsible minister to appear before me in relation to this second contempt of Court. It seems to me that, while the submissions of the Lord Advocate who is a member of the Scottish Government have been of great assistance, it is the responsible minister who is ultimately accountable to the court for this second contempt and it may be appropriate for him to appear personally to answer for the further admitted breach. Of course the respondents have put in place additional measures to try and ensure that no further breach occurs and to date those have been successful. I am conscious, however, of the very short period of time that elapsed between the finding of contempt of Court on 21 February 2015 and this admitted further contempt the following month. In the circumstances the court requires to be satisfied that there will be no repetition of a breach of this undertaking within a further short period of time from the finding that I intend to make today. Accordingly, I intend to dispose of today’s hearing as follows. First, I make a finding of contempt of Court against the respondents. Secondly, I will defer consideration of what further order, if any, to make for a period of 6 months. The case will call in court by order at the end of that period when I will expect to be addressed on the continued success or otherwise of the measures now in place in relation to the opening of the petitioner’s privileged correspondence, after which I will give further consideration to whether it is necessary or appropriate to ordain the responsible minister to appear before the court. Thirdly, the decision that I have made today will be issued as an opinion and published on the Scottish Court’s website as soon as reasonably practicable. A date for the proposed by order has been identified as 14 December 2016.
[12] It was conceded on behalf of the respondents that I should also make a finding against them in favour of the petitioner for the expenses of process to date and that on an agent and client basis and I so order.