Ministers held in contempt over prisoner correspondence failure
A Court of Session judge has held the Scottish ministers in contempt of court after privileged correspondence to a prisoner was opened in breach of an undertaking given to the court.
Kenneth Smith, the prisoner, had brought judicial review proceedings after privileged correspondence to him from the Risk Management Authority and the Information Commissioner's Office was repeatedly opened by the prison authorities in circumstances when they were not entitled to do so. The preceedings were settled on the basis of an undertaking by the ministers that "prison officers in the Scottish Prison Service will refrain from opening, or requiring the petitioner to open in their presence," items bearing the return address of the two bodies.
After Mr Smith was transferred from Edinburgh to Glenochil prison, a letter to him from the RMA was opened by a prison officer after administrative staff failed to spot where it had come from or that it was privileged. It was explained to the court that due to an oversight, the Scottish Prison Service had failed to advise any of its employees at Glenochil as to the existence and terms of the undertaking. The ministers admitted the breach of undertaking but denied that it amounted to a contempt of court.
The judge, Lord Pentland, applied the principles of Beggs v Scottish Ministers (2005). These included that responsibility for observing the undertaking lay with the ministers and not their civil servants; that breach of an undertaking would be a contempt if the civil servants failed to take reasonable steps to ensure that the undertaking was adhered to and if the failure was "so gross as to demonstrate a disregard for the importance which should have been attached to the undertaking"; that such steps included taking reasonable steps to ensure that their civil servants were made aware of the requirement to comply with the undertaking and that they did not forget, misunderstand or overlook the requirement; and that failure to comply with an undertaking was indicative of contempt and it was for the ministers to satisfy the court that they took all reasonable steps to ensure that the undertaking was complied with.
Lord Pentland noted that no steps had been taken to inform staff at Glenochil about the undertaking, and its existence was simply overlooked when Mr Smith was transferred. Each case had to depend on its own facts and comparison with the Beggs case, which was said to be more serious, was unhelpful. A subsequent apology, and steps to prevent a recurrence, were points in mitigation rather than tending to excuse the breach. Given the admitted breach, it was for the ministers to show that all reasonable steps had been taken to comply with the undertaking, which they had not been.
"As happened in Beggs, the undertaking was simply not taken seriously enough. It was overlooked when the complainer was transferred to a different prison. In these circumstances, I am driven to the conclusion that the admitted breach of the undertaking constituted a contempt of court", he stated.
However Mr Smith did not press for a penalty to be imposed, as a finding of contempt was itself a serious matter. Since regrets and apologies had been tendered to the court, the breach had occurred on a single occasion and steps had been taken to prevent a recurrence, Lord Pentland agreed with this approach.