Somerville & Ors v. The Scottish Ministers [2005] ScotCS CSOH

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Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Somerville & Ors v. The Scottish Ministers [2005] ScotCS CSOH_24 (08 February 2005)
URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_24.html
Cite as: [2005] CSOH 24, [2005] ScotCS CSOH_24

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Somerville & Ors v. The Scottish Ministers [2005] ScotCS CSOH_24 (08 February 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 23

P1056/02

P573/03

P1596/03

P1651/03

P828/04

OPINION OF LADY SMITH

in the Petitions of

ANDREW SOMERVILLE, SAMUEL RALSTON, RICARDO BLANCO, WILLIAM CAIRNS and DAVID HENDERSON

Petitioners;

against

THE SCOTTISH MINISTERS

Respondents:

for

Judicial Review

________________

Petitioners: O'Neill QC, Collins, Carmichael; Balfour & Manson

Respondents: Brailsford QC, Wolffe, Ross; Richard Henderson, Solicitor to Scottish Executive

8 February 2005

Introduction:
[1] The petitioners are or were convicted prisoners who have, at times, been removed from association ("segregated") whilst in prison under and in terms of Rule 80 of The Prisoners and Young Offenders Institutions (Scotland) Rules 1994 (as amended) ("the prison rules")', the provisions of which include the following:

" (1) Where it appears to the Governor desirable for the purpose of -

maintaining good order or discipline;

protecting the interests of any prisoner;

ensuring the safety of other persons,

he may order in writing that a prisoner may be removed from association with other prisoners, either generally or during any period the prisoner is engaged or taking part in a prescribed activity........

................

(5) A prisoner who has been removed from association generally or during any period he is engaged in or taking part in a prescribed activity 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.

(6) An authority granted by the Scottish Ministers under paragraph (5) shall have effect for a period of one month commencing from the expiry of the period of 72 hours mentioned in paragraph (5) but the Scottish Ministers may, on any subsequent application of the Governor, renew the authority for further periods of one month commencing from the expiry of the previous authority."

[2] In these five petitions for judicial review, the petitioners seek various declarators in respect of past decisions to segregate them, and damages.

Public Interest Immunity ("PII"):
[3] Commission and diligence had been granted to the petitioners in July and August 2004 in respect of specifications of documents lodged. The calls sought to recover various documents relating to the background to and the making of the decisions to segregate the petitioners. The respondents were the only havers. They produced several hundred documents in response to the various calls. In many instances there were, however, parts blacked out so as to delete certain references, names and passages. In some cases, entire pages were blacked out. The reason for that was that the Justice Minister had formed the view that the disclosure of these sections would be contrary to the public interest in that it would cause real harm to the work of the Scottish Prison Service. PII certificates were lodged in each case which set out in detail the fact that she had formed that view and the reasons why disclosure would cause such harm. In particular, the certificates state:

" 7. The reason why disclosure would cause such harm is that the relevant parts of the documents in the Annex include information of one or more of the following kinds:

(a) information relating to persons providing information or assistance in confidence to SPS staff, disclosure of which would endanger or risk endangering the persons concerned or other persons or would impair or risk impairing their ability or willingness to continue providing information or assistance, or the ability of SPS staff to obtain information and assistance from the persons concerned or other persons;

(b) information relating to the identity, appearance, deployment or training of members of SPS staff, disclosure of which would endanger or risk endangering them or other individuals or would impair or risk impairing their ability to operate effectively as members of SPS staff or the ability of those services to recruit and retain staff in the future ;

(c) information received in confidence by SPS from outside sources, disclosure of which would jeopardise or risk jeopardising the provision of such information in the future;

(d) information relating to operations and the capabilities of SPS staff, disclosure of which would jeopardise present and future intelligence - gathering operations and capabilities;

(e) information relating to any method, technique or equipment deployed by SPS staff, disclosure of which would reduce or risk reducing the value of the method, technique or equipment in current or future operations;

(f) other information likely to be of use to prisoners or their families or contacts, and disclosure of which would impair or risk impairing the performance by SPS of their functions.

(g) information as to the methods by which information and intelligence is gathered directly or indirectly by SPS staff, and as to the methods by which information or intelligence material is recorded, analysed, assessed and internally presented or reported and the use made of intelligence material.

(h) information relating to the management or incidents of disruptive behaviour, disorder or concerted action on the part of prisoners; the role and deployment of SPS staff and other agencies in response to such incidents; and the strategies, tactics, techniques and resources for dealing with such incidents."

[4] The respondents also lodged an affidavit by Mr Michael Duffy, Director of Prisons, Scottish Prison Service ('SPS'), extending to twenty five paragraphs in which he explains the reasons why PII has been asserted. He has management responsibility for security and intelligence systems in SPS and responsibility for its operational stability. He explains how and why the gathering of intelligence can be crucial to managing a prison effectively, why it is necessary to maintain confidentiality regarding intelligence, why it is necessary to restrict access to and knowledge of intelligence systems, and why it is necessary to restrict access to knowledge of the prison service's incident management strategies and capacity. It is clear that the effective management he has in mind concerns, largely, the avoidance of violence, escapes, exclusion of illicit articles, disruptive incidents, and bullying. He explains that SPS use a standard form, known as an IIR form, for reporting intelligence and information gathered by staff which is a crucial element within the system. A significant number of the documents with blacked out parts are IIR forms. Disclosure of the full information contained in such a form would allow identification of the person who had submitted the information, the evaluation of it and the action taken as a result. The evaluation code enables a degree of identification of the source of the information in respect that it can be deduced whether the source is a prisoner or a prison officer, something which may be enough to enable a prisoner to work out which individual has provided the information. Mr Duffy also expresses concern that disclosure of the blacked out parts of the IIR forms would enable prisoners to work out SPS's methodology and strategies for dealing with particular types of intelligence, which could have serious outcomes. Mr Duffy deals specifically with documents produced that relate to certain incidents at HMP Shotts and HMP Glenochil which are referred to in the pleadings. He explains that if the parts of these documents that have been blacked out are disclosed, given the need to protect the confidentiality of the strategies, tactics, resources and equipment used and available for dealing with such incidents, individuals would be put at serious risk of harm and SPS's ability to manage incidents safely and effectively would be compromised.

[5] The petitioners, however, insist in seeking to recover these documents in an unedited form except, it was conceded, insofar as the blacked out parts expressly disclose the identities of any of the persons referred to in the certificates. An issue arose, accordingly, as to whether or not such production should be ordered.

[6] Before turning to the submissions of parties, I should record the procedure that was entered into as between parties once the specifications had been approved. A protocol was agreed between the petitioners and respondents which was dated 18 August 2004 and was in the following terms:

"1. Aidan O'Neill QC and Simon Collins and Ailsa Carmichael, Advocates (hereinafter "the petitioners counsel") will be permitted to examine documents in respect of which PII is asserted for the purposes of considering whether or not to advance any argument that the Court should over-ride the Lord Advocate's assertion of PII in respect of any of those documents or any of their contents. This protocol sets out the basis upon which they will be permitted to do so.

2. The documents which the petitioners' counsel will be permitted to examine are those documents which fall within the calls of the specification and in respect of which PII is asserted. The documents which they will be permitted to examine will be marked so as to obscure the names and addresses of: (a) any informer; and (b) any other person whose identity, if disclosed, would put that person at risk of harm, whether physical or otherwise.

3. The examination will take place at SPS Headquarters, The Gyle Edinburgh at a time to be agreed. A room will be made available to the petitioners' counsel where they will be permitted to examine the documents outwith the presence of any other person. Counsel for the Lord Advocate, a solicitor from OSSE and an appropriate member or members of SPS staff will be available (but not present in the same room) to provide any explanation which may be requested by the petitioners' counsel as to why PII has been asserted in respect of a particular document or entry in a document.

4. The documents are being made available for inspection by the petitioners' counsel on a counsel-to-counsel basis. The petitioners' counsel will not disclose the contents of the documents to any other person (including, for the avoidance of doubt but without prejudice to the generality, any of the petitioners or any agent instructed by the petitioners) unless and to the extent that the Court should decide that the document should be disclosed notwithstanding the assertion of PII.

5. When inspecting the documents, the petitioners' counsel may make notes on their respective laptops. The notes made: (a) will not be printed out; (b) will not be copied onto any disc or other medium of electronic storage apart from the hard drive of the laptop; (c) will not be e-mailed (whether between the petitioners' counsel or to any third party); and (d) will be deleted from the hard drive of the laptop after all issues arising from the assertion of PII have been finally resolved whether by agreement or ruling by the Court.

6. The parties agree that any further procedure involving the documents (including any hearing before the Court at which the Court is invited to require disclosure of any document notwithstanding PII and any commission) should take place in camera and that the only persons who will be present on behalf of the petitioners shall be the petitioners' counsel. They will concur in any motion which may be required in that regard."

[7] Thereafter, the respondents having claimed PII in respect of material contained within documents produced by them to the Commissioner, counsel for the petitioners proceeded to carry out examinations of them, in accordance with the protocol. There was no time limit imposed on them and they in fact, I was advised, took two full afternoons to carry out their examinations and make notes on their laptop computers. They had, accordingly, prior to the diet of procedure roll debate, had sight of all the documents for which PII was claimed in a form which was unedited apart from the blacking out of identities as provided for in the protocol.

[8] In the light of paragraph six of the protocol, part of the debate took place in camera but, given the provisions of the Act of 1693 cap26, I did not exclude parties' agents.

The Petitioners' submissions (Public Interest Immunity):
[9] Senior counsel for the petitioners submitted that the golden rule was full disclosure and that it was only in exceptional cases that the court should decide or permit otherwise. The PII certificates said too little and failed to address the question of whether or not the public interest in non-disclosure was outweighed by the public interest in disclosure to do justice in these proceedings. Justice had to be seen to be done and that could not be so when one person, namely the Justice Minister, asserted that the documents did not even need to be produced. No submission was made regarding the content of Mr Duffy's affidavit.

[10] The entitlement to disclosure extended, it was submitted, to recovery of any document which might arguably be of assistance to the petitioners: R v Ward [1993] 1 WLR 619; Trevor Douglas K. (1993) 97 Cr. App. R. 342; R v Keane [1994] 1WLR 746. The Crown Proceedings Act 1947, section 47 provided, in statute, for the continuation of the right of a party to recover documents from the Crown and, given section 3 of the Human Rights Act 1998, it fell to be interpreted in accordance with the European Convention on Human Rights ("the Convention").

[11] Whilst it seemed, initially, that the petitioners sought to argue that the PII certificates should not be accepted as being a valid assertion that disclosure would be against the public interest, senior counsel clarified that he did accept that the court could not go behind the certificates. However, the court had the power to override them (Glasgow Corporation v Central Land Board 1956 SC (HL) 1; P v Tayside Regional Council 1989 SC 38; Rogers v Orr 1939 SC 492; Carmichael v Scottish Co-operative Wholesale Society Limited 1934 SLT 158) and should do so, if necessary to dispose fairly of the case (Frankson & others v The Home Office [2003] 1 WLR 1952. Senior counsel came close to submitting that an order should be pronounced overriding the PII certificates at this stage but his argument ultimately came to be that the court was duty bound to examine the parts of the documents that had been blacked out (apart from the editing that related to protection of identities) thereby ensuring that an independent and impartial tribunal, rather than the respondents, should be responsible for assessing the documents and thus ensuring that the petitioners had a fair trial. He envisaged that the court would examine the documents and then hear submissions regarding what should and what should not remain edited out of the documents. In particular, the thrust of his submissions was to the effect that as regards each blacking out which had been effected, other than those to protect identities, the court should determine the nature and extent of the editing that the respondents could carry out. He submitted that the court had to consider whether acting in accordance with the PII certificates would be compatible with Article 6 of the Convention and that that would always require that the court examined the documents for which PII was sought. Reliance was placed on the fact that a practice had grown up in England of the court doing so as could be seen from the cases of Conway v Rimmer [1968] AC 910, Burmah Oil Co v Bank of England [1980] AC, and R v H & others [2004] AC 134.

[12] Senior counsel for the petitioners relied heavily on R v H. It was, he submitted, an important decision since it considered the Strasbourg jurisprudence and it contained, in the speech of Lord Bingham, at paragraph 36, guidelines, the import of which was that the court should itself always examine documents for which PII was claimed. The court should, he said, be the primary decision maker and that meant that it should examine the documents. It should not be deferential to any official claim that the public interest required the withholding of relevant evidence from a party: Lawal v Northern Spirit [2003] ICR 856. That was because the court's sole concern had to be that the petitioners' rights to a fair trial were respected: Brown v Stott 2001 SC (HL) 43; Millar v Dickson 2002 (HL) 30. Disclosure should be ordered if it was necessary to dispose fairly of the claim (Frankson & others v Home Office [2003] EWCA 655I). Senior counsel for the petitioners did, however, confirm that the procedure that he urged be adopted was in the context of his recognising that the court had to carry out a balancing exercise which involved it having, on the one hand, an incontrovertible statement by the Justice Minister that disclosure of the material sought would harm the public interest and, on the other hand, the petitioners' claim that their interests in securing a fair trial in these proceedings required that they had the material. Some reliance was also placed on the discussion as to appropriate procedures when PII is claimed that is contained in the judgment of the Vice President in the case of R v McDonald [2004] EWCA Crim 2614.
[13] In response to being asked what were his submissions regarding the guidance given by the House of Lords as to the procedures to be adopted when, in a civil claim, a party sought to recover documents in respect of which PII was claimed in the case of Air Canada & others v Secretary of State for Trade and another [1983] 2 AC 394, senior counsel submitted that that case posed a relevancy test which was no different from that which he was putting forward. In any event, it required to be considered in the light of the Strasbourg jurisprudence since the Human Rights Act 1998 was now in force. Whilst he recognised that the decision in Air Canada was not overruled in R v H, the effect of section 6 of the Human Rights Act 1998 was, he said, that authorities pronounced prior to its coming into force were not binding if they were not in line with the Convention and the implication of that submission seemed to be that he was saying that that meant that Air Canada should not now be followed.

[14] Senior counsel for the petitioner also made reference to various authorities from the European Court of Human Rights which, he said, indicated that the court was obliged to examine material such as that which the respondents sought to withhold in this case, before ruling on the question of whether or not an order for disclosure should be made: Rowe and Davis v The United Kingdom (2000) 30 EHRR 1; Tinnelly and McElduff v The United Kingdom (1999) 27 EHRR 249; Jasper v The United Kingdom (2000) 30 EHRR 441; Dowsett v The United Kingdom (2004) 38 EHRR 41; Edwards & Lewis v The United Kingdom ECtHR 15 BHRC 189.
[15] Senior counsel for the petitioners then took some time referring to the documents that had been produced by the respondents. A number of them are, as already indicated, IIR forms which were accompanied by related computer 'screen dumps'. The fact that parts of these had been blacked out was, he said, of concern. There are boxes on the forms for codes to be entered showing the evaluation given to the information recorded. There are also boxes for the recording of the action taken and the outcome. In all cases, those details have been blacked out. The petitioners required to have those details, it was said, as the assessment of the reliability of the information received by the respondents when they were segregated was essential to their case. His approach when going through the documents in detail was to comment, repeatedly, that he did not know what was in the parts that had been blacked out. If there was information beneficial to the petitioners, it would, it was stated, be appropriate to put it to them and their solicitors for instructions so as to be able to assess the strength of their case. Concern was also expressed by senior counsel for the petitioners that extensive parts of documents relating to an incident at HMP Shotts in April 2002, following which the petitioner Somerville was segregated, had been blacked out. A similar approach had been taken with documents relating to an incident at HMP Glenochil in 2003, following which the petitioner Henderson had been segregated. It was, he submitted, necessary to see the details obscured so as to place the segregations in context in the sense of the context of who was doing what, otherwise it would not be possible to assess the reasonableness of segregating these prisoners under Rule 80, as opposed to disciplining them under Rule 95.

[16] Senior counsel for the respondents opened his challenge to the submissions for the petitioners by observing that despite their counsel having had ample opportunity to examine the documents and having examined them, no submission had been made to the effect that there was material in particular documents which had been seen and was now covered by the PII certificates but which was, for a specific reason, of particular importance to the petitioners. In response to that, in a second speech, senior counsel for the petitioners stated that he was giving an assurance that the documentation contained material which would give substantial support to a contention on an issue in the case. He did not specify what issue but moved on to refer to the blacking out of boxes for "sources", "intelligence analyst", "officer", and "action" in the IIR forms and to the fact that there was an evaluation code on the majority of them. He stated that he knew, from the documents, what he wished to take from them but his submission went no further than that.

The Respondents' submissions (Public Interest Immunity):
[17] Senior counsel opened by making six submissions: firstly, that the Scottish courts have always had the power to overrule a PII certificate; secondly, that it was accepted that, in determining whether or not a PII certificate should be overruled, the court has to perform a balancing exercise as between the public interest in non-disclosure and the private interests that arise in litigation; thirdly, that the court has a duty to comply with Article 6 of the Convention and, in fulfilment of that duty, seek to secure that these five petitioners' causes, as a whole, were Article 6 compliant but it was not necessary to regard the PII aspect as a separate lis which was what the petitioners sought to do; fourthly, that the issue was whether, to comply with Article 6, it was necessary to depart from the well established practice of the court, which had not, hitherto, involved examination of material in respect of which PII was claimed by the court in advance of carrying out the necessary balancing exercise; fifthly, it was accepted that if the court determined that it was, nonetheless, necessary to examine the material, then that would require to be done although a fair amount of material would still require to be blacked out to achieve the protection of identities; and sixthly, that the law remained as stated in Glasgow Corporation v Central Land Board as it was explained in Air Canada & others v Secretary of State for Trade & others and that explanation not having been departed from in any subsequent authority there was an onus on the petitioners to show that the test there set out, as explained by Lord Fraser, was satisfied.

[18] As regards the PII certificates, senior counsel for the respondents submitted that it was clear that the signatory, the Justice Minister, had tried to be as liberal and consistent as possible and to effect as much disclosure as she could whilst protecting the public interest where necessary. As had been accepted on behalf of the petitioners, it was not for the court to question the assertion that there would be damage to the public interest if the blacked out material were to be disclosed. However, it was clear from reading the PII certificates, that the material for which protection was claimed was highly sensitive and important. As was explained further in the affidavit from Mr Duffy, the nature of the information and the type of harm apprehended was such as to place the material at the higher end of the scale of importance to the public interest of non-disclosure. The matters involved were of fundamental importance, being the sanctity and security of prisons and the safety of prison staff and inmates, all against a background of prisons being difficult places to manage. These submissions, which went to the weight that should be attached to the PII certificates, were not challenged on behalf of the petitioners.

[19] For an overview of the approach of the courts in Scotland in cases where PII is asserted, senior counsel referred to Henderson v McGowan 1916 SC 821; Rogers v Orr 1939 SC 492; Glasgow Corporation v Central Land Board; Friel v Chief Constable of Strathclyde 1981 SC 1; and AB v Glasgow and West of Scotland Blood Transfusion Service 1993 SLT 36. Under reference to the various English authorities relied on by the petitioners, it was submitted that since they concerned English criminal procedure, they were of no assistance in the present case. They concerned cases where, unlike the present, there were no written pleadings, no notice of the argument required to be given and, in some cases, a procedure had been followed whereby the Crown sought approval for the withholding of documents on the grounds of PII without there requiring to be intimation to the defence of their doing so. The procedures for recovery of documents in the present petitions were not comparable. Further, these petitions were civil cases concerning, essentially, claims for damages. Deprivation of liberty was not at stake nor was there any question of denial of access to justice. The Strasbourg cases of Edwards & Lewis, Rowe and Davis, Jasper, and Dowsett, all concerned criminal procedure. Whilst the case of Tinnelly and & Sons Ltd & others and McElduff & others concerned a civil claim, it was not in point. What was at stake there was the denial of access to justice, not the procedures that were required when PII was asserted.

[20] Senior counsel for the respondents submitted that the petitioners had not discharged the onus of showing that the balance favoured disclosure of the material nor had they discharged the onus of showing that it was necessary for the court to examine the material before carrying out the balancing exercise. In support of that submission he observed that the court was obliged to accept that disclosure of the material would damage the public interest, that this was a civil action for judicial review which meant, for instance, that what was at issue was not the merits of the Rule 80 decisions made in the sense of the task for the court not being to determine whether they should have been made, but whether there was any basis for them, that there had been substantial disclosure already and that the petitioners' counsel had seen all the material apart from that which would lead to disclosure of identities.

Discussion [Public Interest Immunity Certificates]

The Law:
[21] It is clear that, as was a matter of agreement between parties, the starting point is to recognise that I require to proceed on the basis that the Justice Minister's assertion that to disclose the material sought would be contrary to the public interest is well founded (Glasgow Corporation v Central Land Board per Lord Normand at p.16 and per Lord Radcliffe at p. 18). Further, having considered the terms of the certificates and the content of Mr Duffy's affidavit, I am readily satisfied that considerable weight requires to be attached to the claims advanced by the Minister. The maintenance of good order, security and safety within Scotland's prisons from the point of view of those who work there, of inmates and of the public at large, is clearly a matter of the highest public importance. The need to avoid, if at all possible, any risk of compromising the continuing operation of the intelligence and incident management systems that are aimed at securing that objective, is obvious.

[22] Equally, as was agreed between parties, I recognise that the court has a discretionary power to override a PII certificate and order disclosure. That power has been recognised in Scotland for many years as one which arises from it being for the court not the Crown to balance the two public interests involved, namely that of the functioning and security of public services, where the executive is duty bound to make its own assessment, and that of the interests of justice, upon which the executive cannot pass judgment. It was explained by Lord Radcliffe in Glasgow Corporation v Central Land Board in the following passage at p.18:

"The power reserved to the Court is therefore a power to order production even though the public interest is to some extent affected prejudicially. This amounts to a recognition that more than one aspect of the public interest may have to be surveyed in reviewing the question whether a document which would be available to a party in a civil suit between private parties is not to be available to the party engaged in a suit with the Crown. The interests of government for which the Minister should speak with full authority, do not exhaust the public interest. Another aspect of that interest is seen in the need that impartial justice should be done in the Courts of law, not least between citizen and the Crown, and that a litigant who has a case to maintain should not be deprived of the means of its proper presentation by anything less than a weighty public reason. It does not seem to me unreasonable to expect that the Court would be better qualified than the Minister to measure the importance of such principles in application to the particular case that is before it. The Scottish law appears to have reserved to the Courts the duty of making some assessment of the relative claims of these different aspects of the public interest, where production of a document is objected to by the Crown. If in the past the power to disregard the objection has hardly ever been exercised, that has been due, I think, to a very proper respect for the Crown's position and to a confidence that objections of this nature would not be advanced, or at any rate persisted in, unless the case was one in which production would involve material injury to the public welfare. But I should think it a very great pity indeed if a power of this kind, a valuable power, came to be regarded as a mere ghost of theory having no practical substance and the Courts abdicated by disuse in the twentieth century a right of control which their predecessors in earlier centuries have been insistent to assert."

[23] In all the Scottish authorities referred to in which PII was asserted, the court expressly recognised the existence of the power but in none of them, apart from P v Tayside Regional Council, whether before or subsequent to the decision in Glasgow Corporation v Central Land Board was production of the documents in question ordered. The decisions in each case appear, unsurprisingly, to have turned on their own facts and circumstances including, in particular, the nature of the public interest for which protection was sought. The decision in P v Tayside Regional Council for instance, concerned the recovery by a foster parent who had contracted Hepatitis B of medical records relating to her foster child and its mother with a view to supporting her claim that the social work department had negligently withheld knowledge regarding the state of health of the natural mother and child. Lord Sutherland, in granting the order sought stressed that only a very limited ambit of disclosure was sought and that he was satisfied that the privacy of the child or its prospective adoptive parents would not be affected since their identities were already well known to the petitioner. In the particular circumstances of the case which were, clearly, far removed from those of these petitions, the public interest in favour of disclosure outweighed the public interest in favour of confidentiality.

[24] Turning to the procedure to be followed when PII is asserted, in the light of the submission for the petitioners that the material sought should be examined by a Lord Ordinary prior to the exercise by the court of its discretion, I would refer firstly to the brief comment that is made in the case of Rogers v Orr regarding the possibility of the Lord Ordinary having the disputed document sealed up for his consideration. Lord President Normand expressed the following view at p.498:

"In one somewhat peculiar case, Carmichael v Scottish Co-operative Wholesale Society 1934 SLT 158 an objection was taken by the Lord Advocate on the ground of public interest, and the Lord Ordinary ruled that the document should be sealed up for his consideration and for his determination whether the public interest would be injured by its disclosure in Court. Now, I think that that is not a precedent to be followed because it is really treating the question as one of confidentiality and not as a question of public interest. Even with the document before it the Court is not in a position to decide whether its production is contrary to the public interest, for that is a question which depends, or may depend, on circumstances not disclosed by the document itself."

[25] Insofar as those comments can be regarded as indicating what is and is not the correct procedure where PII is asserted, they appear, properly construed, to sound a note of caution regarding any procedure whereby the court seeks to decide for itself whether or not the disclosure of the documents in question would be contrary to the public interest. That, of course, is not a task for the court at all since it must, as explained by Lord Radcliffe in Glasgow Corporation v Central Land Board, accept the Minister's statement that disclosure would be contrary to the public interest. Further, the Lord Ordinary in Carmichael does not appear to have been planning to embark on any such task. The problem in that case was that the objection asserted by the Lord Advocate was not to any particular document but was an objection of a general nature and the Lord Ordinary proposed only to examine the document to see whether it was affected by the general objection taken. The document sought was the notebook of a deceased policeman and he could, had he been alive, have been asked to give evidence by reference to it in any event. In short, I do not consider that what was said in Rogers v Orr constitutes binding authority to the effect that the court could never, in a Scottish case, decide to examine the documents covered by a PII certificate for itself. Indeed, given the extent to which the House of Lords has sought to bring English and Scots law in line on the matter of the court's power to override PII certificates and the determinations of their Lordships on this procedural matter in the cases referred to below, it would be difficult, in my opinion, to assert that that is or should be so. Whether it is necessary for the court to examine the documents for itself in a particular case will, however, be another matter.

[26] Certainly, the practice has grown up in England of the court examining such documents privately before determining whether they should be disclosed, in criminal cases (see e.g. R v Ward [1993] 1 WLR 619; R v Trevor Douglas K [1993] 97 Cr. App. R. 342; R v Keane [1994] 1 WLR 746 ). Also, in both Conway v Rimmer [1968] AC 910 and Burmah Oil Ltd v Governor and Company of the Bank of England & another [1980] AC 1090 the House of Lords in fact inspected the documents sought. In Conway v Rimmer, their Lordships, overruling the decision in Duncan v Cammell Laird & Co Ltd [1942] AC 624, determined that the law should be the same in England as it was in Scotland so as to enable the court in an appropriate case, to overrule a PII certificate. On the matter of examination of the documents sought by the court, Lord Reid said, at p. 953:

"It appears to me that, if the Minister's reasons are such that a judge can properly weigh them, he must, on the one hand, consider what is the probable importance in the case before him of the documents or other evidence sought to be withheld. If he decides that on balance the documents probably ought to be produced, I think that it would generally be best that he should see them before ordering production and if he thinks that the Minister's reasons are not clearly expressed he will have to see the documents before ordering production."

[27] In Burmah Oil Co v Bank of England, Lord Edmund-Davis said, at p. 1129:

"A judge may well feel that he cannot profitably embark on such a balancing exercise without himself seeing the disputed documents. May he take a peep?"

and to answer his own question, he referred back to the above- quoted passage from Lord Reid's speech in Conway v Rimmer. He continued:

"But it has been suggested that the position is otherwise where the 'class' claim is not challenged. I see no reason why this should be so once it is postulated that the 'withheld' class documents are 'likely' to contain material substantially useful to the party seeking discovery. That qualification is necessary for what is no more that a 'fishing expedition' ought not to be advanced by the judge's having a peep to see whether they contain an attractive catch."

Also in Burmah Oil Co v Bank of England, Lord Keith of Kinkel said, at p.1136:

"There can be no doubt that the court has the power to inspect the documents privately. This was clearly laid down in Conway v Rimmer ...I do not consider that the exercise of such power, in cases responsibly regarded by the court as doubtful, can be treated as itself detrimental to the public interest."

[28] Guidelines to assist in determining when the court should and should not examine the documents were then set out in the case of Air Canada v Secretary of State for Trade [1983] 2 AC 394. At p.435-6, Lord Fraser of Tullybelton said:

"My Lords, I do not think it would be possible to state a test in a form which could be applied in all cases. Circumstances vary greatly. The weight of the public interest against disclosure will vary according to the nature of the particular documents in question; for example, it will in general be stronger where the documents are Cabinet papers than when they are at a lower level. The weight of the public interest in favour of disclosure will vary even more widely, because it depends on the probable evidential value to the party seeking disclosure of the particular documents, in almost infinitely variable circumstances of individual cases. The most that can usefully be said is that, in order to persuade the court even to inspect documents for which public interest immunity is claimed, the party seeking disclosure ought at least to satisfy the court that the documents are very likely to contain material which would give substantial support to his contention on an issue which arises in the case, and that without them he might be 'deprived of the means of .....proper presentation' of his case: see Glasgow Corporation v Central Land Board ...per Lord Radcliffe. It will be plain that that formulation has been mainly derived from the speech of my noble and learned friend Lord Edmund- Davies, in the Burmah Oil case [1980] AC 1090, 1129, and from the opinion of McNeill J in Williams v Home Office [1981] 1 All ER 1151, 1153A. It assumes, of course, that the party seeking disclosure has already shown in his pleadings that he has a cause of action, and that he has some material to support it. Otherwise he would merely be 'fishing'.

The test is intended to be fairly strict. It ought to be so in any case where a valid claim for public interest immunity has been made. Public interest immunity is not a privilege which may be waived by the Crown or by any party...........

When the claim is a 'class' claim judges will often not be well qualified to estimate its strength, because they may not be fully aware of the importance of the class of documents to the public administration as a whole. Moreover, whether the claim is a 'class' claim or a 'contents' claim, the court will have to make its decision on whether to order production, after having inspected the documents privately, without having the assistance of argument from counsel. It should therefore, in my opinion, not be encouraged to 'take a peep' just on the off chance of finding something useful. It should inspect documents only where it has definite grounds for expecting to find material of real importance to the party seeking disclosure."

"It is .... insufficient for a litigant to urge that the documents he seeks to inspect are relevant to the proceedings. For, although relevant, they may be of merely vestigial importance, or they may be of importance (great or small) only to his opponent's case. And to urge that, on principle, justice is most likely to be done if free access is had to all relevant documents is pointless, for it carries no weight in our adversarial system of law."

[30] Air Canada v Secretary of State for Trade and Industry has not been overruled and it is of significance for Scottish cases such as the present petitions, that such extensive guidance was provided in it by Lord Fraser in terms in which he drew specifically upon the Scottish case of Glasgow Corporation v Central Land Board. I do not regard any of the Strasbourg authorities to which I was referred by senior counsel for the petitioners as requiring me to read that guidance in any different light. Apart from Tinnelly & Sons Ltd, they concerned criminal prosecutions and I am not persuaded that the same considerations apply to these petitions where the petitioners' liberty is not at stake nor have procedures been used which involved material being withheld or applications being made by the Crown without their knowledge or without their having proper notice of the material in question, as had occurred in the English criminal procedures under consideration in those cases. As regards Tinnelly & Sons Ltd, certificates had been issued under section 42 of the Fair Employment (Northern Ireland) Act 1976 to the effect that the applicants had not been awarded a government contract for reasons of national security, public safety or public order. The problem in that case was not that the court in Northern Ireland had not inspected the documents sought (Mr Justice Nicholson did in fact look at them) but that the conclusive nature of the certificates which was provided for by section 42(2) of the 1976 Act had the effect of preventing any judicial determination of the merits of the applicants' complaints that they were the victims of unlawful discrimination. I do not read anything said by the European Court of Human Rights in that decision as indicating that it would be contrary to Article 6 of the Convention for a court to refrain from inspecting the documents in a case where PII is asserted.

[31] In respect that senior counsel for the petitioners also seemed to suggest that the procedure for recovery of documents should be regarded as a separate lis so that the determination of the balancing exercise that requires to be carried out where PII has been asserted should itself be seen to have been conducted before an independent and impartial tribunal, I agree with senior counsel for the respondents that there does not appear to be any need to separate out the recovery exercise as though it were a separate trial. Questions of compliance with Article 6 of the Convention have to be decided within the context of the proceedings as a whole (R v HM Advocate 2003 SC (HL) 21 per Lord Clyde at p. 51). Even if there is such a need, the answer to whether or not the procedures adopted are Convention compliant must, it seems to me, depend on the particular facts and circumstances of the case.

Application of the relevant law to the facts and circumstances of the present petitions:
[32] The petitioners seek to have the material covered by the PII certificates made available to them in these litigations, other than that which is blacked out to protect express identities. They do so in circumstances where, despite having seen the material sought, they do not specifically identify any document or part of a document as being required for the furtherance of any specific issue in any one of the individual cases. The general references to the desire to see what evaluation was given by prison staff to intelligence material were not related by senior counsel to any of the specific cases advanced by the petitioners on record. Nor is it obvious that evaluation of intelligence material would have any bearing on the cases that are pled. It may have been intended that such material should be regarded as being liable to support the petitioners' case that the decisions to segregate were 'disproportionate'. That is not, however, for the reasons that are explained later in this opinion, a relevant case. Even if it was, it would have remained the case that the petitioners were apparently content to rest their assertion that the material was required on the general proposition that they required to see what evaluation of intelligence had been made without relating it to any particular period of segregation or any particular petitioner.

[33] As regards the stated desire to have available the material showing who did what in the course of the incidents at Shotts and Glenochil for, apparently, the purpose of comparing the treatment of the prisoners involved inter se, it seemed to be suggested that there was a case pled of the relevant petitioners being treated more harshly than others following the incidents. Segregation following the incidents at Shotts and Glenochil arises in the petitions of Somerville and Henderson. An examination of the pleadings in those cases discloses, however, no case to the effect asserted. Both include averments to the effect that the relevant prison governors could have decided, following the incidents, to proceed by way of disciplinary proceedings, under Rule 95, but in neither case is it suggested that those petitioners were treated less favourably than others who were thought to have been involved.

[34] These observations arise in circumstances where the petitioners' counsel have, unlike the plaintiffs in the Conway and Burmah Oil cases, had ample opportunity to examine the material withheld and identify what, in particular, they require for the purposes of their cases, and why. They also arise in circumstances where the first position adopted by senior counsel for the petitioners, at some length, was that he was having to argue in the abstract because it was not known what was underneath the blacked out sections. That was patently incorrect and, when founded on by senior counsel for the respondents, drew by way of response only the further generalisations to which I have already referred. Further, the Minister in this case has not withheld all documents that contain PII material. She has adopted a procedure of blacking out only the objectionable parts with the result that much is still disclosed.

[35] In these circumstances, I cannot conclude that the petitioners have made out a case that the material sought is likely to give substantial support to any specific issue identified in their cases. I do not, in short, find that there are definite grounds for expecting to find material of real importance to the petitioners. On the contrary, were I to order that the material be produced for inspection by the court it seems that I would be falling foul of Lord Fraser's strictures that the court should not " 'take a peep' just on the off-chance of finding something useful" since to do so would be to embark on a fishing exercise.

[36] Separately, it seems to me clear that the balance between the public interest in non disclosure and the petitioners' interests in disclosure for the purposes of these petitions lies heavily in favour of refusing to order that the PII material be disclosed. I have already referred to the nature of the risk of damage to the public interest that would be involved if disclosure were to be ordered. Any risk to the security and safety of Scottish prisons, seven of which are involved in these petitions, requires, in my view, to be regarded as being of high public importance. The petitioners' interests in the pecuniary remedies that they seek in these petitions do not, in my judgment, fall to be regarded in the same light. Furthermore, I cannot, on the petitioners' averments and the submissions made on their behalf, conclude that the recovery of the material sought would, in any event, make any material difference to the presentation of their cases. Their application does not, accordingly, fall into the doubtful category identified by Lord Keith in Burmah Oil nor does it fall into the category of documents which the judge has decided probably ought to be produced identified by Lord Reid in Conway, thus giving rise to the need for inspection. Even less could this be regarded as a case in which the Minister has not clearly explained why PII is being asserted. I do not, in all these circumstances, propose to order that the documentary material covered by the PII certificates be produced for inspection by the court or to the petitioners.

Time Bar:
[37] The respondents seek to exclude some of the periods of segregation founded on in these petitions from consideration on the grounds that any claim in respect of them is time barred.

[38] For this chapter of the argument it is necessary to look firstly at certain of the

provisions of sections 6, 7 and 8 of the Human Rights Act 1998 which include the following:

Section 6(1) provides:

"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right."

The terms of section 7 include:

"(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) - may -

bring proceedings against the authority under this Act in the appropriate court or tribunal; or
rely on the Convention right or rights concerned in any legal proceedings, but only if he is ( or would be ) a victim of the unlawful act......

(5) Proceedings under subsection (1) (a) must be brought before the end of -

the period of one year beginning with the date on which the act complained of took place; or
such longer period as the court or tribunal considers equitable having regard to all the circumstances........"

and the terms of section 8 include :

"(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate ...........

(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including -

any other relief or remedy granted, or order made, in relation to the act in question(by that or any other court), and
the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

(4) In determining -

whether to award damages, or
the amount of an award,

the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention."

[39] Certain of the provisions of the Scotland Act 1998 also require to be considered. Section 57(2) provides:

"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law."

and the provisions of section 100 include:

"(1) This Act does not enable a person -

(a) to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights ,or

(b) to rely on any of the Convention rights in any such proceedings, unless he would be a victim for the purposes of Article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights ........

(3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act applied.

(4) In this section "act" means -

(a) making any legislation ,

(b) any other failure to act, if it is the act or failure of the Scottish Executive."

[40] Unlike the Human Rights Act, the Scotland Act does not expressly confer any right of action on an individual or any power to grant relief or remedies to any court or tribunal where it is asserted that a member of the Scottish Executive has acted in a way that is incompatible with a Convention right. Nor does it, if such a right and power exists, provide for any time limit within which claims must be brought. Does that mean that where an individual claims that they have been the victim of an act of the Scottish Ministers that is incompatible with a Convention right, there is no time bar? The respondents' position was that that question should be answered in the negative. The petitioners' position was to the contrary.

The Respondents' submissions (Time Bar):
[41] The respondents approached the question from several different directions. Firstly, they submitted that, as a matter of statutory interpretation, the reference in section 100 of the Scotland Act to section 8(3) and (4) of the Human Rights Act was such as to incorporate the provisions of section 7(5) because there could be no award of damages to consider under those subsections of section 8 unless there was a valid claim asserted under section 7(1) and that was dependent on the claim not being time barred under section 7(5). They also submitted that it would be odd if it were the case that, alone of public authorities affected by the provisions of the Convention, the Scottish Executive did not have the advantage of the time bar provisions of section 7(5). That meant that the provisions of section 100 should be interpreted as intending to secure a consistency of approach as between the Scotland Act and the Human Rights Act. It was said that it would not be objectionable that time bar was regarded as applying to claims in respect of Convention rights, given the express provisions of section 7(5) of the Human Rights Act and the fact that, in England, the normal rule is that all proceedings for judicial review require to be brought within three months (Lester & Pannick: Human Rights Law and Practice, 2^nd edition para 2.7.5). Nor was it necessary to read a statutory time limit so as to extend it since the state is entitled to regulate the rights of access to an independent tribunal (R ex parte Blackett v The Nursing and Midwifery Council [2004] EWHC 1494; J & PM Dockeray (A Firm) v The Secretary of State for the Environment, Food and Rural Affairs [2002] EWHC 420). Whilst the indication from some Strasbourg decisions might be thought to be to the contrary (Kalashnikov v Russia 2003 36 EHRR 34), the statutory time bar imposed in respect of domestic proceedings should be adhered to.

[42] Separately, it was submitted on behalf of the respondents that damages could not be claimed under the Scotland Act. If an individual sought damages for breach of a Convention right, he required to look to either the common law or the Human Rights Act for a remedy. The mere fact that an administrative act is ultra vires does not of itself give rise to a right to damages: X v Bedfordshire County Council [1995] 2AC 633. The case of Edwards v Parochial Board of Kinloss 1891 18R 867 was referred to as an example of circumstances where a public authority acted beyond its statutory powers and a remedy was available but in circumstances where the authority's actings amounted to a delict, showing that the remedy emanated from the common law and not from the statute. The case concerned the unauthorised demolition of property and by analogy it was submitted that if the respondents were to demolish property under a statute which purported to confer power on them to do so in a non Convention compliant manner, the owner would, in the usual way, have a claim in delict and it would not be open to the respondents to pray in aid such a statute (see: Scotland Act 1998 s.29(1) which makes unlawful any act passed by the Scottish Parliament which is not Convention compliant). Such a claim would not, it was submitted, be pursued under the Scotland Act but at common law. It was not, however, entirely clear that this submission supported the respondents' argument that, in this case, the one year time bar provided for in the Human Rights Act applied.

[43] Conscious, no doubt, of the hurdle for their argument which it imposed, the respondents referred in some detail to the case of R v HMA 2003 SC (PC) 21 where both Lords Hope and Rodger express the clear view that the Scotland Act enables a person, including a prisoner, who alleges that they are the victim of an incompatible act, to sue the respondents for damages without there being any need for reliance on the Human Rights Act. It was, however, submitted on their behalf that these were obiter dicta and that theirs was a view which should not be followed. Support for the respondents' approach could, it was said, be found from the speeches of Lords Steyn and Walker in R v HMA and, importantly, from the views of the majority in Attorney General's Reference (No.2 of 2001) [2004] 2AC 72, which should be regarded as highly persuasive. Whilst Lord Rodger, in R v HMA had been influenced by the approach taken by the New Zealand Court of Appeal in Simpson v Attorney-General (Baigent's case) [1994] 3 NZLR 667 to the interpretation of constitutional documents, the problem that had arisen in New Zealand from the absence of any express remedy did not arise here since the Human Rights Act made such provision. Further, Lord Clyde had expressed no views on the matter.

[44] Finally, the respondents sought to argue that, in any event, the relevant act was not theirs. It was the act of the governor in each case in acting so as to segregate the petitioners. Those acts not being acts of the respondents, any claims that they were incompatible with the Convention required to be raised under the Human Rights Act. The cases of Leech v Deputy Governor of Parkhurst Prison [1988] 1AC 533; Stewart v Scottish Ministers 2001 SC 884; and Napier v Scottish Ministers 2004 SLT 555 were referred to for examples of circumstances where prison governors were considered to have been exercising functions that were separate from the relevant government minister.

The Petitioners' submissions (Time Bar)
[45] Counsel for the petitioners submitted that their claims were not subject to the one year time bar relied on by the respondents because they did not advance any claim under the Human Rights Act. The Scotland Act was the only appropriate route for the petitioners' claims, the time bar provisions of the Human Rights Act did not fall to be imported into it, and the relevant acts complained of were acts of the respondents.

[46] As might have been expected, the petitioners relied heavily on the speeches of Lords Hope and Rodger in R v HMA and the analysis in Baigent's case. The importance of recognising that the Scotland Act introduced a new constitutional settlement and new procedures, was stressed. Whilst a different approach to remedies had been adopted in the Attorney General's Reference [No 2 of 2001] that was because their Lordships, in determining appropriate remedies for incompatible actings in English criminal law did not require to consider the workings of the Scotland Act which was a separate constitutional settlement, the effect of which was to lay down a single route to a remedy in the event of an incompatible act of the Scottish Ministers which was separate and distinct from that provided under the Human Rights Act. If Parliament had intended time bar provisions to operate where a remedy was being sought for an act of the respondents which was ultra vires by reason of being incompatible with the Convention, it could have made such a provision. It did not do so. There was no anomaly in a situation whereby the respondents did not have the protection of time bar provisions whereas local authorities did, if it was recognised that the Scotland Act showed a deliberate decision by Parliament to treat the Scottish Ministers differently. Reference was made to comments in Human Rights Law & Practice at para. 5.79 by Lord Reed and in Hansard (House of Lords) 17.6.98 by Lord Hope to the effect that claims under the Scotland Act were not subject to time bar. The status of the Scotland Act as a constitutional document suggested that it should stand alone and as unaffected by other legislation: Thoburn v Sunderland County Council [2003] QB 151.

[47] Further, the acts challenged were, properly analysed, not acts of the governors but acts of the Scottish Ministers, just as the acts of the immigration officers in the case of R v Secretary of State for the Home Department ex parte Oladehinde [1991] 1 AC 254 required to be regarded as the acts of the Home Secretary. Reference was also made, in support of that submission, to the cases of Stewart v Scottish Ministers, where the case proceeded on the basis that the Scottish Ministers were the correct respondents notwithstanding that an attack was being made on a decision of a prison governor, to Conway v Secretary of State for Scotland 1995 SLT 689, where the circumstances were similar to those in Stewart, and to Leech v Deputy Governor of Parkhurst Prison [1988] 1 AC 533.

Discussion (Time Bar):
[48] I have reached the view that the petitioners claims are not, to any extent, time barred. They are not subject to the provisions of section 7(5) of the Human Rights Act since they are not, in my view, claims that fall to be advanced under that Act nor do the provisions of that subsection fall to be imported into the Scotland Act. I am not persuaded that it is not possible to sue for damages under reference to the Scotland Act. Certainly, the Act does not itself make any express provision for the pursuit of such a remedy but it is clear from the terms of section 100 that Parliament envisaged there being circumstances where such claims would and could be made. The answer cannot be, as the respondents seemed to suggest, that what Parliament had in mind was that any such claim would be made under the Human Rights Act. If that was so, there would have been no need for the provisions of section 100. Further, quite apart from anything else, the Scotland Act came into force for the respondents on 1 July 1999 whereas the Human Rights Act did not come into force until 2 October 2000 and if the respondents were correct in their analysis of Parliament's intention, that would mean that, for some fifteen months, members of the public were without a remedy in respect of an incompatible act of a Scottish Minister and ran the risk, depending on the date of the act in question, of their claim being time barred before they could competently bring it. That result would have been of such peculiarity as to make it wholly inappropriate to ascribe to Parliament any intention of bringing it about. I should add that I do not consider the provisions of section 129(2) of the Scotland Act are such as would have avoided that result. They would certainly have made the provisions of section 8(3) and (4) of the Human Rights Act effective for the purposes of s.100 of the Scotland Act (otherwise the cross reference would have been ineffective) as soon as that Act came into force but I do not see that they can be interpreted as having rendered it possible to advance a claim under the Human Rights Act prior to its coming into force.

[49] Further, it would, as Lord Rodger discussed in R v HMA be unusual for a constitutional document such as the Scotland Act to make no allowance for remedies being available to individuals in the event of the contravention of the rights which that document purports to secure. In Simpson v Attorney-General [Baigent's case], where the availability of remedies under the New Zealand Bill of Rights Act was under consideration, Hardie Boys J, having noted the assurances of fundamental rights and freedoms contained in the legislation, encapsulated the usual approach succinctly, at p.699:

"I would be most reluctant to conclude that the Act, which purports to affirm this commitment, should be construed other than in a manner that gives effect to it." and, further, at p.702:

"It is I consider implicit in that commitment, indeed essential to its worth that the Courts are not only to observe the Bill in the discharge of their own duties but are able to grant appropriate and effective remedies where rights have been infringed."

These conclusions, which were approved by Lord Rodger, were reached by the New Zealand Court of Appeal after a wide ranging consideration of international authority, including decisions of the Privy Council. It was not simply a matter, as the respondents sought to argue, of the court looking to fill a gap in the Bill of Rights Act. It was a matter of fundamental principle not dependent on the terms of the constitutional document in question.

[50] The relevant right in this case is not simply the Convention right in question but that of not being subjected to an act of a Scottish Minister which is incompatible with a Convention right. That is separated out as being so significant as to provide that any such act would be not only unlawful but fundamentally lacking in validity. It would be surprising if, in these circumstances, it was not regarded as giving rise to a right to remedies separate from those which apply on account only of unlawfulness. Nor does there appear to be any difficulty in identifying a Parliamentary intention that pre- existing common law remedies would continue to be available except insofar as expressly curtailed, including those which are available in the event of breach of statutory duty where a person injured falls within the class of person that the statute was designed to protect (Solomons v R Gertzenstein Ltd [1954] 2 QB 243; X v Bedforshire County Council; R v HMA) and those available by way of public law remedy utilising the procedure available under chapter 58 of the Rules of the Court of Session which covers amongst others, the remedy of damages, if the court thinks it fit that damages be awarded (see: Rule of Court 58.4). The Scotland Act clearly includes amongst its intentions that of protecting the citizens of Scotland from incompatible acts on the part of the respondents and only curtails the right to claim insofar as is set out in section 100. I do not read that curtailment as in any way excluding the right to claim damages from the respondents in the event of a such an act although it is plain that the claimant must be a victim and will be subject to the same limitations when considering what, if anything, is an appropriate sum award as damages as would a claimant under section 7(1) of the Human Rights Act.

[51] At first blush, it may seem odd to the casual observer that the respondents are in a different position from other public authorities as regards the pursuit against them of remedies arising from breaches of the Convention and the availability of the one year time bar. However, it does not take very much by way of examination of the Scotland Act to conclude that Parliament intended them to be in a separate category and treated differently. The obligation to act in accordance with the Convention was imposed upon them by an Act of Parliament, the Scotland Act, in such a way as to render any incompatible act null and void, that being the effect of section 57(2). Other public authorities were affected subsequently, when the Human Rights Act came into force but not so as to render any incompatible act null and void; whilst section 6 provides that it is unlawful for a public authority to act incompatibly, it does not provide that such acts are invalid. Further the defence provided for in certain circumstances under section 6(2) of the Human Rights Act is not open to the respondents. Then, it is clear from Schedule 6 to the Scotland Act that any question of acting incompatibly in contravention of section 57(2) is a devolution issue which gives rise to the obligation to intimate the proceedings to the Lord Advocate and the Advocate General, who may become parties to the action, and to the possibility of the court dismissing the action at the outset on the basis that it is frivolous or vexatious, matters which do not arise in a claim against a public authority under the Human Rights Act. The action in respect of an incompatible act of a Scottish Minister will be treated as a devolution issue thereafter which has implications for its route through the courts, as set out in the provisions of Schedule 6, a route which is not available in the case of a claim under the Human Rights Act. In short, there is a clear constitutional framework within the Scotland Act to deal with the situation where a member of the public claims that a Scottish Minister has failed in his constitutional obligation to act in accordance with the Convention and it contains a self contained system of checks and balances which do not apply to claims under the Human Rights Act. It is impossible to resist the conclusion that Parliament intended the two types of claim to be treated differently. Whilst questions have been raised as to whether it is now necessary for there to be a difference, as referred to by the Second Division in their recent unreported opinion in the Bill of Suspension brought by Robbie the Pict v Alison Wylie 7 December 2004, at present there does appear to be a clear difference and, as also commented in that opinion, if there is any substance in the criticisms advanced regarding it, "the remedy lies with the legislature".

[52] The respondents did not seek to suggest that it was not open to the victim of an incompatible act on their part to claim damages. The issue between the parties was, rather, whether the route to that remedy lay via the Scotland Act or the Human Rights Act. Their determined efforts to persuade that it lay via the latter came to focus particularly on the submission that the reasoning in Attorney General's Reference (No. 2 of 2001) should be followed, no doubt encouraged by the views there stated to the effect that HMA v R was wrongly decided. I am not, however, persuaded that I can accede to the respondents' submission. Firstly, their approach would seem to ignore the fact that the only route to remedy available in the Attorney General's Reference (No. 2 of 2001) was that conferred by the Human Rights Act and nothing in that decision touches on the operation of or the availability of remedies under the Scotland Act. Further, that approach fails to take account of the fact that the case was resolved on the basis that, on a proper interpretation of Article 6 of the Convention, the courts would not necessarily be acting incompatibly in allowing a trial to proceed after a period of delay, whereas the determination in HMA v R proceeded on the basis that it was common ground that there had been a breach of Article 6 and that the issue was whether that breach rendered continuation of the prosecution by the Lord Advocate incompatible. Similarly, the issue that arises in the present debate does so on the hypothesis that the respondents have acted incompatibly, in breach of the duty imposed by s.57(2) of the Scotland Act.
[53] Secondly, in R v HMA both Lord Hope and Lord Rodger expressly observed that the Scotland Act enables victims of incompatible acts of the Scottish Ministers to claim damages, albeit subject to the limitations imposed by s.100 and requires that any claim arising from a positive act on their part be brought under the Scotland Act, not under the Human Rights Act.

[54] In particular, at paras. 50 and 60 Lord Hope of Craighead said:

"I do not think that it is possible to reconcile counsel's contention of counsel for the Lord Advocate that the system for the protection of an accused person's Convention rights is to be found only in the Human Rights Act 1998 and not in the Scotland Act 1998 with the ordinary meaning of the words used in sections 57(2) and (3) and 100(1)(b) of the Scotland Act. Moreover the scheme of the Act seems to me to be clear. Although the Act was careful to provide in sections 52(5) and 53(2) that the retained functions of the Lord Advocate are to be exercisable only by him and not by the other Scottish Ministers, the restraint on his powers in section 57(2) extends to his retained functions as well as all the other functions which he may perform as a member of the Scottish Executive. This means, as Lord Rodger has explained, it is not open to an accused person who seeks to rely on his Convention rights against the Lord Advocate to pick and choose between the Scotland Act and the Human Rights Act. His challenge must be brought under the Scotland Act."...........

"A power to award damages is clearly implied by s.100(3) as it prevents a court or tribunal from awarding any damages in respect of an act which is incompatible with any of the Convention rights which it could not award under section 8(3) and (4) of the Human Rights Act which requires the court to apply the principles which the European Court would apply. As Clayton and Tomlinson, The Law of Human Rights, p.1416 para. 21.13 explain, the award of damages in these circumstances is regarded as a public law remedy."

It follows from what is said by Lord Hope that it is not open to the victim of any incompatible act of a Scottish Minister to seek redress other than through the Scotland Act.

[55] At paragraphs 129 and 131, Lord Rodger said:

"...in all such cases of positive acts by a member of the Scottish Executive the legal consequence of incompatibility with Convention rights is that the purported act is invalid so far as it is incompatible. That is the legal consequence which Parliament has chosen to attach to this situation ....."......

" ...therefore, the appellant is not invoking any remedy given to him by the Convention itself, or any remedy given to him by the Human Rights Act. Rather, relying under the Scotland Act on his Convention right, he is saying that the Lord Advocate's act in continuing to prosecute him .....is incompatible with the Convention and that, by reason of section 57(2), that act is invalid, a nullity. That is the correct basis for his challenge."

and at paragraph 123, he said:

".... I would infer from section 100(1) of the Scotland Act that the Act itself enables a person who claims that an act or proposed act of a member of the Scottish Executive is incompatible with his Convention rights, to bring proceedings in a court or tribunal .................In an appropriate court the person affected can seek damages under the Scotland Act in respect of an incompatible act .............the Scotland Act itself would enable a prisoner who had been ill treated in contravention of article 3 to sue the Scottish Ministers for damages."

[56] The context for these comments was the need, in determining the issue that arose in HMA v R, to consider the nature of the relationship between the Human Rights Act and the Scotland Act, something which they clearly regarded as essential to their decision in the case. Whilst Lord Clyde did not embark on a similar analysis, he approached the case by reference to s.57(2) of the Scotland Act, remarking ,at paragraph 102: " I would only observe that if there is a difference between the position in Scotland and that which may exist in England under the Human Rights Act 1998 that is a difference which has been prescribed by Parliament in the express enactment of section 57(2) of the Scotland Act." and he did not demur from the analysis set out by Lords Hope and Rodger. In these circumstances, I am satisfied that the determination not only of the availability of the Scotland Act as the route to a remedy for a victim of an incompatible act by the respondents but as the required route for such a remedy was not obiter and is binding on me. For that reason alone, the respondents' submissions to contrary effect cannot be upheld.

[57] Turning then to the question of whether, in the event that a claim for damages can properly be advanced against the respondents under the Scotland Act, the time bar provisions of the Human Rights Act have been imported into section 100, I am not persuaded that they have. Firstly, the wording is such as to make it clear that it is not a matter of section 8 (3) and (4) of the Human Rights Act actually applying to such a claim but of the principles set out therein being applicable. As was commented by Lord Rodger in R v HMA, at paragraph 122, subsection (3) of section 100 "shows that the court or tribunal is not awarding damages under section 8 of the Human Rights Act: the Scotland Act enables the court or tribunal to award the same damages as it could award as if it were awarding them under section 8 of the Human Rights Act." That being so, there is no room, in my opinion, for the view advanced on behalf of the respondents to the effect that since those subsections apply, within the Human Rights Act to claims under section 7(1), it is implied that the time bar provisions of section 7(5) are applicable. The time bar principle is not imported into the Scotland Act. Had Parliament intended to do so, it would have been a simple exercise to import that principle in the same way as those contained in sections 8(3) and (4) of the Human Rights Act. It is only those principles, the ones applicable when considering whether to award damages in the case of a breach of a Convention right, that are. In the event, the interpretation of section 100 is a straightforward matter and it is not necessary to consider whether to invoke the principle that the court should be slow to import terms into a constitutional statute from other legislation (see: Thoburn v Sunderland City Council), but had it been, given the clear constitutional status of the Scotland Act, it seems that application of the principle would have been appropriate and would have made it difficult to imply a time bar provision into the Scotland Act in the absence of a very clear Parliamentary intention to do so.

[58] That leaves the question of whether the respondents can invoke the time bar provisions on the basis that the acts complained of were not their acts but were the acts of the relevant governors. This is a difficult argument for the respondents to advance since, under a separate chapter, they submitted that the Carltona doctrine (Carltona v Commissioners for Works [1943] 2 AER 560) applied so as to render valid all the Rule 80(5) and (6) orders issued despite the fact that none of them were signed by a Scottish Minister, the argument being that, under Carltona, any minister, including a Scottish Minister, is entitled to act through authorised officials in his department. It is, nonetheless, one which would logically be open to them in the event that the Carltona doctrine did not apply. However, owevHeven if that was so, I am not persuaded that the correct analysis is that the relevant acts were the actual segregations that followed on the orders pronounced under Rules 80(5) and (6) of the prison rules . The relevant acts in all cases were, clearly, the granting of the various Rule 80 orders. The segregations that followed involved actings of prison officials on the basis of ex facie valid orders and are not themselves the subject of challenge. Also, the respondents' argument would produce the anomaly that if the governor is the only public authority open to challenge in the case of segregations his vires would exceed those of the Scottish Ministers who appointed him since he could only be attacked for his actings being unlawful, not for them being fundamentally null under section 57(2) of the Scotland Act. That would produce the unprecedented result of a civil servant being in a stronger position as regards vires than the minister to whom he is answerable, which cannot be correct.

[59] As an addendum to their submissions on time bar, the respondents submitted that the petitioners' cases, should to some extent not be allowed to proceed on the basis that they had not been raised promptly. This was not a submission that they were barred by reason of mora. No such plea was advanced. Rather, shortly and perhaps boldly put, it was to the effect that since the remedy was a public law remedy and inherently discretionary, it was open to the court to withhold it if the claim was not brought promptly. No authorities were cited in support of the submission.

[60] In response, Miss Carmichael for the petitioners drew attention to the requirements for a relevant plea of mora (Hanlon v Traffic Commissioners 1988 SLT 802, Dempsey v Parole Board for Scotland 2004 SLT 1107, Singh v Secretary of State for the Home Department 2000 SLT 533, Caswell & anr v Dairy Produce Quota Tribunal for England and Wales [1990] 2AC 738) and to the failure of the respondents to make averments that could support such a plea. There was no other plea open to them in the event that they were seeking to found on the petitioners having delayed in raising proceedings.

[61] I am readily satisfied that the respondents' submission is not well founded. They accepted that they did not have sufficient averments to support a plea of mora. There is no lesser plea available where what a party seeks to rely on is the delay of the other in raising proceedings. The authorities relied on by the petitioners all concerned public law remedies and it is clear from a consideration of them that for delay to be relevant, it requires to be delay in circumstances where there has been relevant reliance or prejudice to the party seeking to rely on it. There is no suggestion of it being open to the court, in the exercise of its general discretion, to refuse the remedy sought simply because the proceedings can be characterised as not having been brought promptly.

[62] It follows that I shall repel the following of the respondents' pleas in law:

In the petition of Andrew Somerville, plea in law 1.

In the petition of William Cairns, pleas in law 1, 3 and 4.

In the petition of Ricardo Blanco, pleas in law 1,3, and 4 .

In the petition of Samuel Ralston, plea in law 1.

In the petition of David Henderson, pleas in law 1, 3 and 4.

The Carltona Doctrine
[63] In the petition of Andrew Somerville, statement 15 includes the following averments:

"Further and in any event, Rules 80(5) and 80(6) of the 1994 Rules provide that any authority granted thereunder must be considered and granted by the Scottish Ministers. Instead, the said authority of 5^th April 2002 was granted by Alan Howarth, an 'IT Programme Manager', that of 3^rd May 2002 by Brian Ironside a 'National Contingency Manager', that of 16^th May 2002 by David Croft, a 'Deputy Director of Operations' that of 13^th June 2002 by Brian Ironside 'pp Deputy Director of Operations', that of 12^th July 2002 by David Croft, a 'Deputy Director of Operations', that of 18^th July 2002 by the aforementioned 'National Contingency Manager', and that of 16^th August by Michael Godley, an 'Operations Manager'. Said persons were not Scottish Ministers. There is no express provision in the 1994 Rules permitting delegation of the functions falling under Rules 80(5) and (6). The principle set out in Carltona Ltd v Commissioner of Works [1943] 2 AER 560 does not apply to Scottish Ministers, who are a creation of statute and not ministers of the Crown. Reference is made to the Scotland Act 1998 ss.44(2). Specific statutory provision is made for the appointment of Junior Scottish Ministers to assist the Scottish Ministers in the exercise of their functions: 1998 Act s.49(1). Prima facie the delegation of decision making power to the said officials (not being Scottish Ministers or Junior Scottish Ministers) was in the circumstances unlawful. Esto some measure of delegation of functions by the Scottish Ministers to members of staff or officers or the Scottish Administration is permissible they were obliged to exercise that delegation reasonably by reference to, inter alia, the nature of the decision involved and the seniority and relevant experience of the person to whom the function is delegated. They were obliged to have clear and transparent written procedures for delegation of authority and to abide by those procedures. Reference is made to R v Secretary of State for the Home Department ex parte Oladehinde [1991] 1 AC 254; R v Chartered Institute ex parte Nawaz 25^th April 1997 CA. The nature and context of the decision is in relation to serious infringement of the rights of prisoners such as the petitioner."

Similar averments appear in the four other petitions. It is a matter of agreement that the Rule 80(5) and (6) orders were not signed by Scottish Ministers or Junior Ministers. The respondents aver that the principle set out in Carltona v Commissioners of Works ('the Carltona doctrine') applies in relation to the Scottish Ministers and that, as seems to borne out by the signatures to which the petitioners refer in each case, the relevant orders were signed by staff within the Scottish Prison Service.

[64] The Carltona principle is to the effect that the duties of government ministers whilst exercised under their authority are normally exercised by officials in their department and the decision of any such official is thus constitutionally the decision of the minister. In short, when a minister is entrusted with administrative, as distinct from legislative, functions he is entitled to act through and by any authorised official of his department. The principle was explained by Lord Greene MR, in the case of Carltona v Commissioners of Works at p. 563, in the following way:

"In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them. In the present case the assistant secretary, a high official of the Ministry, was the person entrusted with the work of looking after this particular matter, and the question therefore is, relating those facts to the argument with which I am dealing, did he direct his mind to the matter to which he was bound to direct it in order to act properly under the regulation?"

The Petitioners' submissions (Carltona):

[65] The petitioners did not challenge the existence of the Carltona doctrine nor that its meaning and import is as set out above. Their submission was, rather, that the doctrine did not apply to the respondents because they were creatures of statute, not ministers of the Crown answerable to the Westminster Parliament. The doctrine was confined to such ministers and could not be extended to others: R v Birmingham Justices ex parte Chief Constable of the West Midlands Police [2003] Crim LR 37 was wrongly decided. If the person upon whom statutory authority was conferred was not a minister of the Crown, the proper approach was to ask whether the decision maker had express or implied delegated powers: Nelms v Roe [1970] 1 WLR 4, a case where that approach was adopted when considering whether a police superintendent had power to sign a notice that required to be given by a police Commissioner, in contrast to the approach adopted in R v Skinner [1968] 2 QB 700 and in R v Metropolitan Borough and Town Clerk of Lewisham v Roberts [1949] 2 KB 608 where, in a question regarding the powers of a Home Office official and in a question regarding those of a town clerk which emanated from the Minister of Health, the Carltona doctrine was applied. However, the making of orders under Rule 80(5) and (6) was not, it was said, something which could be delegated, given the nature and importance of the decision making involved. The orders were not, accordingly, validly authorised. The orders required to be made and signed by a Scottish Minister. In a departure from their original position, the petitioners submitted that it would not be sufficient for the order to be signed by a junior minister. Only a Scottish Minister could grant the requisite authorisation. Some reliance was also placed on the discussion contained in Whaley v Lord Watson 2000 SC 340 at p. 357-8, regarding the statutory limitations placed upon the powers of the Scottish Parliament which, it was said, distinguished it from the Westminster Parliament to the extent that it was wrong to regard the Scottish Parliament as if it was Parliament. It was not possible to import the Carltona doctrine, which was an exception to the norm, into a statutory body which included persons who happened to be called ministers. It was also suggested that if it was imported into the context of the practices of the Scottish Ministers, given their statutory framework, that would mean that a civil servant in one department could be regarded as the alter ego of the Minister at the head of a different department, which would be undesirable.

[66] The petitioners' submission developed into a general one that the granting of Rule 80(5) and (6) orders was something that could only be carried out by a Scottish Minister even if the Carltona doctrine applied to them. That was because of the terms of sections 33A and 39 of the Prisons (Scotland) Act 1989, which empower the governor to delegate various functions and the Scottish Ministers to make rules for the regulation and management of prisons, and the terms of the rules themselves which were, it was said, such as to exclude the doctrine. In particular, section 39(8) of the Act, which provides:

"(8) Without prejudice to any power to make standing orders or to issue directions or any other kind of instruction, rules made under this section may authorise the [Scottish Ministers] to supplement the rules by making provision by directions for any purpose specified in the rules; and rules so made or directions made by virtue of this subsection may authorise the governor, or any other officer, of a prison, or some other person or class of persons specified in the rules or directions, to exercise a discretion in relation to any purpose specified in the rules."

was relied on. Not all powers were delegable though. For example, the power to determine which prison a prisoner should be detained in, provided for by section 10 of the Act, was not delegable.

[67] Further, it was submitted that even if the Carltona doctrine applied so as to enable Rule 80(5) and (6) orders to be granted by departmental officials, the individuals concerned required to be properly authorised within the department so as to accord with the principles laid down in R v Secretary of State for the Home Department ex parte Oladehinde. Discussions regarding the importance of adherence to rules and clarity in internal regulations or guidance regarding authorisations contained in Doerga v the Netherlands App 50210/99 EctHR 27 July 2004, Narinen v Finland App 45027/98 EctHR 1 September 2004, and Perry v UK App 63737/00 EctHR 17 October 2003 were referred to. These submissions were made under reference to the memorandum issued by Mr John Durno dated 7 November 2000 (no.7/3 of process) addressed to the Chief Executive of the Scottish Prison Service and approved by him, which contained the following:

"SIGNING ON BEHALF OF SCOTTISH MINISTERS

Following the restructuring of the Board it is necessary to review and identify staff who should sign certain documents on behalf of Scottish Ministers. I understand that no clear guidelines exist on this subject but it is perhaps appropriate that we take this opportunity to clarify the position and get your agreement to the revised arrangements. The need to do this is because the Operations Directors are not always available within Calton House.
In general terms the Operations Directors should sign Rule 80 ... applications ....... In their absence this task would fall to Mr Croft, Deputy Director, Operations. In his absence Mr Ian Whitehead, Head of Operations, would sign on his behalf. In the unlikely event that none of these individuals were available, Angus McVicar, Head of Security Unit or Mr Rob Hastings, Custody Policy Manager would sign such documents."

and to the fact that a number of the Rule 80(5) and (6) orders founded on were signed by persons not named in the memorandum.

The Respondents' submissions (Carltona):
[68] Counsel for the respondents submitted that the Carltona doctrine clearly applied. It was a doctrine that was based on strong practical reasons flowing from the nature of the administration of government and was distinct from delegation, as was clear from the decisions in the cases of Burgh of Lewisham v Roberts, R v Skinner and In re Golden Chemical Products Ltd [1976] 1Ch 300 where it was held that the Secretary of State for Trade was able, on the basis of Carltona, to act through the Inspector of Companies in deciding to petition for the winding up of a company under s.35 of the Companies Act 1967, in circumstances where there had been no express authorisation of the Inspector but the task of exercising the s.35 powers had "... as it were, grown upon him." (per Brightman J at p.305). Reliance was also placed on observations made by Lord Jauncey in the opinion of the court in HMA v Copeland 1988 SLT 249 regarding the authorisation of the extension of a period of detention of a person held under the provisions of the Prevention of Terrorism (Temporary Provisions) Act 1984 where the relevant power was vested in the Secretary of State but the relevant document was signed by a civil servant. At p.250, he said:

"A question may arise whether in fact the decision to extend the period of detention was made by the Secretary of State personally or on his behalf on his direct authority or by his officials in his name acting under their general powers. In our view it matters not which of these three situations be the case. A line of authority, starting with Carltona Ltd v Commissioners of Works and ending with a decision by Brightman J, as he then was, in Re Golden Chemical Products Ltd establishes to our satisfaction that there is no obligation on the minister to exercise his powers personally even when those powers involve a serious invasion of the freedom or property rights of the subject. Thus even if it should transpire that the Secretary of State had no personal concern with the decision to extend the period, that decision would still be valid."

R v Secretary of State for the Home Department ex parte Oladehinde and R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 were relied on as authorities in which the House of Lords was said to have endorsed the Carltona doctrine and R v Birmingham Justices ex parte Chief Constable of West Midlands Police as indicating that the doctrine was capable of being extended beyond the duties of ministers to statutory office holders.

[69] It was submitted that when the position and functions of the respondents was properly analysed and understood, it was clear that the doctrine applied. The rationale behind it was one of recognition of the practical exigencies of the executive government of the country. Since devolution, the government of Scotland had been shared between the UK government and the respondents. Each was accountable to democratically elected representatives of the people. The transfer of functions to the respondents meant that they exercised powers which would, otherwise, be exercised by ministers of the Crown and it would be surprising if, where a particular function was now exercised by the respondents, the doctrine would not apply, whereas it would have applied when those functions were exercised by a minister of the Crown and would apply to those functions which are still exercised by ministers of the Crown. Whilst the respondents were creatures of statute, the Scotland Act had constitutional significance and provided a constitutional framework under which a wide range of functions fell to be carried out by the respondents within their devolved competence. Specific reference was made to the provisions of sections 29, 44, 46(1), 47, 52, 53, 54, 63, 99 and 126 of the Scotland Act and to the Order in Council (SI 1127 of 1999) made under s.126(8) showing that prison governors were not non- ministerial office holders but were members of the staff of the Scottish Administration. It was also observed, under reference to s.51 that the members of staff of the Scottish Administration were members of the Home Civil Service, an organisation which habitually operates within the Carltona doctrine. Accordingly, even without relying on the approach adopted by Lord Justice Sedley in R v Birmingham Justices it was obvious that the structure of the Scottish Administration was such as to make the application of the Carltona doctrine appropriate. Thus, it was submitted, it was correct that its application to the respondents had been accepted without question in the case of Messrs Westerhall Farms v The Scottish Ministers unrepd Lord Carloway 25 April 2001. The doctrine explained by Lord Diplock in Bushell v Secretary of State for the Environment [1981] AC 75 to the effect that it was wrong to treat a minister of the Crown in his decision- making capacity as someone separate and distinct from his department had been applied to the respondents in the case of SHBA v The Scottish Ministers 2002 SLT 1321, where, at paragraph 56, Lord Macfadyen said: "It does not, however, in my view follow that in exercising a decision making function conferred on them by statute .......the Scottish Ministers are not entitled to rely on the advice and expertise of civil servants in the same way as are ministers of the United Kingdom Government, as explained by Lord Diplock in Bushell. I see no good reason for holding that the Bushell doctrine does not apply to the Scottish Ministers." The same approach should be adopted in the case of the Carltona doctrine .

[70] The respondents seemed to accept that, in principle, the Carltona doctrine could be expressly or impliedly excluded by the relevant statute or statutory instrument but this was not, it was submitted, such a case. There was, it was said, nothing about Rule 80 orders that pointed to such exclusion. The purpose of Rule 80(5) and (6) was to ensure that prison governors accounted to someone else regarding segregations for longer than 72 hours and it was sufficient that it was someone in the same agency.

[71] It was submitted further that the system that was operated accorded with Convention requirements, bearing in mind that those requirements could be met by common law doctrines: Silver v United Kingdom 1983 5 EHRR 347; The Sunday Times v The United Kingdom 1979 2 EHRR 245. The Rule 80 provisions provided a legal basis for segregation in a manner which was accessible, involving an understandably broad discretion and providing added protection in terms of Rule 80(5) and (6) if it was proposed to segregate a prisoner for longer than 72 hours. Further, the Carltona doctrine being well established at common law, it could be regarded as well known that ministers could act in such matters, through officials.

[72] Regarding the challenges advanced to the individual signatories of the Rule 80(5) and (6) orders, it was submitted on behalf of the respondents that the petitioners' cases were irrelevant in respect that they did not make any averments of any alleged unsuitability of any particular signatory. The fact that a signatory was not named in the memorandum issued by Mr Durno (no.7/3 of process) did not mean that he was not properly authorised. Authorisation came from them being civil servants in the Scottish Prison Service, not from the memorandum.

Discussion (Carltona)
[73] As the petitioners were, in the time bar chapter of the debate, astute to observe, the Scotland Act is a constitutional settlement which had the effect of setting up a new governmental framework for Scotland. The executive government of the country is now carried out in a new way, through the Scottish Executive whose membership is, in terms of s. 44, defined as comprising the First Minister, such ministers as he appoints, the Lord Advocate and the Solicitor General. Those members are the respondents and they can be assisted by any junior minister appointed under s.49. The tasks of government are, further, carried out by office holders who are not members of the Scottish Executive, as listed in s.126(8)(a) and SI 1127 of 1999 promulgated under s.126(8)(b), and members of the staff of the Scottish Administration appointed under s.51(1). At the heart of the new structure is the fact that the First Minister and the ministers that he appoints must be members of the Scottish Parliament and they can be called to account by the Parliament, to the extent that they must relinquish office if it resolves that the Scottish Executive no longer enjoys its confidence: ss.45(2) and 47(3)(c) .

[74] Further, the executive government that is carried out under the new system is in respect of a range of matters that is so wide that the legislature appears to have found it more convenient to specify which matters are reserved to the Westminster Parliament than to specify those in respect of which the Scottish Parliament has legislative competence. Clearly, there is much to be done in the course of the daily work of governing Scotland within the ambit of the devolution settlement and it would be surprising indeed if the functions vested in each of the respondents were such that they could personally attend to each and every one of them. Conversely, as Lord Greene MR said, in Carltona at p.563, the picture is that: "the functions which are given to ministers .... are functions so multifarious that no minister could ever personally attend to them."

[75] It is accurate to observe that the respondents, unlike ministers of the Crown, are creatures of statute, a statute which imposes certain limitations on the powers of the Scottish Parliament, as discussed in Whaley v Lord Watson and that there is no existing authority which confirms the availability to them of the Carltona doctrine but I do not see that these observations are such as to bar its application to their circumstances. There are strong practical reasons for it to apply, in circumstances where the public interest is evidently and adequately protected by the respondents being not only answerable to the Scottish Parliament but vulnerable to judicial review in the event of a question arising as to the appropriateness of a decision made by or an action of a civil servant on their behalf. Further, were it to be the case, as the petitioners would have it, that Rule 80(5) and (6) orders require to be signed by one of the respondents that would mean, in practice, that such an order signed by, say, the Minister for Tourism, Culture and Sport would be valid whereas one signed by an experienced civil servant who had worked for many years in the Scottish Prison Service would not. That would be an odd result. I recognise that the converse would also apply, namely that a civil servant working in the department for Tourism, Culture and Sport would, given the particular structure of the Scottish Executive, under Carltona have the power to act on behalf of the Justice Minister. That does not, however, seem to be such an odd result given the fact that the Justice Minister, being answerable to the Scottish Parliament, could be expected to organise the discharge of her responsibilities so that no civil servant who does not have the appropriate knowledge and experience is able so to act. In short, I agree with the sentiments expressed by Lord Macfadyen in SHBA v The Scottish Ministers, regarding the applicability to the respondents of the analogous Bushell doctrine, one which bears striking similarities to the Carltona one, and I see no good reason in principle or practice for not holding that the Carltona doctrine applies to the respondents. I should add that I do so without resorting to the line of reasoning adopted by Lord Justice Sedley in R v Birmingham Justices which involved consideration of the powers of a police authority, a body different and distinct from the devolved government of Scotland.

[76] Contrary to the approach taken by the petitioners it is not a matter of considering what is required for valid delegation and questioning the applicability of the doctrine on the basis that only limited powers of delegation are provided for in terms of s.39(8) of the Prisons (Scotland) Act. It is clear from the terms of the decision in Carltona itself and the various authorities referred to in which it was discussed, that the doctrine is quite distinct from delegation, with the Minister acting through civil servants who are his alter ego in all respects and upon whom there need not even have been express authority conferred: In re Golden Chemical Products Ltd.

[77] Insofar as the petitioners' submission was, separately, that the terms of the Prisons (Scotland) Act and the rules promulgated thereunder were such as to indicate an intention to exclude the operation of the doctrine, I reject it. None of the provisions referred to contain express provision to the effect that the powers conferred in Rule 80(5) and (6) require to be exercised by a particular minister personally, as they could have done were that the intention of Parliament, as discussed in R v Secretary of State for the Home Department ex parte Oladehinde per Lord Griffiths at p.303. Nor do I see that such a restriction is to be implied, particularly since any of the respondents, including a Scottish Minister who has no responsibility for the administration of Scotland's prisons, is empowered to grant orders under Rule 80(5) and (6).

[78] I also reject the petitioners' submission that the nature and importance of the decision making involved in granting orders under Rule 80(5) and (6) is such as to exclude the operation of the Carltona doctrine. Having considered the authorities referred to, I do not consider that there emerges any principle to the effect that the doctrine cannot apply where significant or serious invasion of property rights or personal freedoms is involved. On the contrary, Carltona itself was an example of the former, as was In re Golden Chemical Products and HMA v Copeland was a clear example of the latter. The doctrine was applied without apparent difficulty in each of these cases and in Copeland, it was expressly recognised by the court that they were dealing with a serious invasion of personal freedom.

[79] I turn next to the petitioners' submission that a principle can be derived from R v Secretary of State for the Home Department ex parte Oladehinde to the effect that before the Carltona doctrine can apply there requires to have been 'proper authorisation' of relevant officials within the department. I reject this submission also. Firstly, it conflicts with the approach in In re Golden Chemical Products Ltd, where it was considered sufficient that there had been no express authorisation of the Inspector of Companies but that his powers had "as it were, grown upon him." Secondly, I do not read what was said by Lord Griffiths in Oladehinde as qualifying Lord Greene's statement of the Carltona doctrine. Certainly, he comments, at p.303:

"The immigration service is comprised of Home Office civil servants for whom the Secretary of State is responsible and I can for myself see no reason why he should not authorise members of that service to take decisions under the Carltona principle providing they do not conflict with or embarrass them in the discharge of their specific statutory duties under the Act and that the decisions are suitable to their grading and experience.

It has been recognised that it would not be right to authorise an inspector to take a decision to deport in any case upon which he had been engaged as an immigration officer for to do so would be too much like asking a prosecutor to be judge in the same cause. But in a case in which he has been in no way personally involved I am unable to see any good reason why the decision to deport in a section 3(5)(a) case should not be left to an immigration inspector."

but these comments do not seem to me to amount to a statement that Carltona would not apply so far as concerns the essential validity of a decision made, for instance, by an officer of inadequate experience or in circumstances where he has a conflict of interest. What, rather, Lord Griffiths would appear to be warning of is that the minister may find himself in difficulty in defending such a decision before Parliament or in the context of judicial review, if his advice is not heeded.

[80] In these petitions, it is accepted by the petitioners that the signatories of the Rule 80(5) and (6) orders that are subject to challenge were signed by civil servants within the Scottish Prison Service. Accordingly, applying the Carltona doctrine, the orders are ex facie valid. There are, further, no averments which attack the suitability or competence of any of the signatories so as to support a claim for judicial review on the basis that the respondents acted improperly or unreasonably in allowing those persons to grant the orders on their behalf. The closest that the petitioners come to doing so is to aver, in each petition (in the petition of Andrew Somerville in statement 15, in the petition of William Cairns in statement 16, in the petition of Ricardo Blanco in statement 13, in the petition of Samuel Ralston in statement 17, and in the petition of David Henderson in statement 16):

"The said officials ...were also civil servants holding offices within the Scottish Prison Service. It is unclear from the designations of these said officials whether they were of an equal or higher grade than the governor making the request or in any way more experienced in the nature and effect of segregation and the propriety of the grant of authority to extend its use in any given case."

[81] That does not, however, amount to a case of actual unsuitability, lack of competence or unreasonableness on the part of the respondents and can be taken to constitute the highpoint of the petitioners' cases on this matter, given that the respondents have answered fully their call to specify the names, grades and designations of the relevant officials. There is no onus on the respondents to establish actual authority and no onus on them to exclude grounds for judicial review. I accept, therefore, that the respondents were well founded in their submission that the whole of the petitioners' averments attacking the validity of the Rule 80(5) and (6) orders should be excluded from probation.

[82] It follows from the determinations that I have made that I find that these orders were not unlawful by reason of their having been signed by persons other than the respondents and I shall, accordingly, repel the following of the petitioners' pleas in law:

In the petition of Andrew Somerville, the fourth plea in law.

In the petition of Ricardo Blanco, the fourth plea in law.

In the petition of Samuel Ralston, the fourth plea in law.

In the petition of David Henderson, the fourth plea in law.

There is no plea in law directed to this matter in the petition of William Cairns.

It also follows that I shall exclude the following averments from probation:

In the petition of Andrew Somerville, statement 15.

In the petition of William Cairns, statement 16.

In the petition of Ricardo Blanco, statement 13.

In the petition of Samuel Ralston, statement 17.

In the petition of David Henderson, statement 16.

Proportionality :
[83] In each petition, statement 3(a) states that the petitioner seeks:

"declarator that the said orders and grants and renewals of authority, authorising the general segregation of the petitioner under Rule 80 of the 1994 Rules were disproportionate et separatim unreasonable and therefore unlawful."

Each petition also contains the following general averment (in the petition of Andrew Somerville in statement 12 at p.40C, in the petition of William Cairns in statement 13 at p.37, in the petition of Ricardo Blanco in statement 10 at p.33D, in the petition of Samuel Ralston in statement 13 at p.37B and in the petition of David Henderson in statement 12 at p.43A):

"In the circumstances, the means used by the Governors and the respondents to infringe the petitioner's said rights was more than was necessary to accomplish any legitimate objective to be achieved thereby and was accordingly disproportionate and unlawful."

and reference is made to the availability, for disciplinary purposes, of the procedures set out in Rule 95 which, it is said, are less restrictive of a prisoner's rights to a fair determination of any allegations against him and involve time limits on the power to segregate. It is, accordingly, clear from the petitioners' averments that they seek to advance a case that the Rule 80 orders are judicially reviewable on the basis that they were disproportionate. It was also conceded by counsel for the petitioners that they could not advance any case that the Rule 80 decisions were perverse in the Wednesbury sense in the petitions of William Cairns and David Henderson nor in Samuel Ralston's petition in respect of the Rule 80 orders made in October 2004. The issue thus arises as to whether disproportionality, or proportionality as it is commonly referred to, is available as a separate ground for judicial review. The respondents submitted that it is not.

The Petitioners' submissions (Proportionality):
[84] The petitioners' stated position was that a distinct proportionality test had in fact been applied in the past in, in particular, the case of R v Secretary of State for the Home Department ex parte Simms & Anr [2000] AC 115, R v Secretary of State for the Home Department ex parte Leech [1994] QB 198 and R (Daly) v Secretary of State for the Home Department [2001] AC 532. A three-fold test, based on that which was approved by the Privy Council de Freitas v Ministry of Agriculture [1999] AC 69 fell to be applied namely the court had to ask itself whether the objective in question was sufficiently important to justify limiting a fundamental right, whether the measures designed to meet the objective were rationally connected to it and whether the restriction or limitation imposed was no more than was necessary to accomplish it. However, the thrust of their submissions became that the door has not been closed to proportionality being available as a separate ground of review, particularly where Convention rights are concerned, and that therefore it ought, in these petitions to be held that it is. It seemed clear that what the petitioners were trying to achieve was a decision which expressly extended the currently available grounds of judicial review.

[85] Particular reliance was placed on the passage in Clyde & Edwards: Judicial Review at 21.21, and on the cases of Simms, Leech, Daly and de Freitas. Detailed consideration was given to the speeches in R v Secretary of State for the Home Department ex parte Brind & ors [1991] 1 AC 696. It was stressed that the petitioners' position was that these petitions involved fundamental common law rights, taking issue with the approach in R v Deputy Governor of Parkhurst Prison & ors ex parte Hague [1992] 1 AC 58 where, it was said, private not public law rights were under consideration. Reference was also made to the cases of R v Lord Chancellor ex part Witham [1998] QB 575, R v Chief Constable of Sussex ex parte International Trader's Ferry Ltd [1999] 2 AC 418, R (Alconbury) Developments Ltd & Ors) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, R (Association of British Civilian Internees: Far East Region) v Secretary of State for the Defence [2003] QB 1397, Brown v Stott 2001 SC 43 PC, and R v Ministry of Defence ex parte Smith [1996] QB 517 in support of the submission that courts in the United Kingdom could be seen to have been applying proportionality principles in practice. Reference was made to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]1 KB 223 and the well known discussion of what amounts to unreasonableness in the opinion of Lord Greene M.R. at p. 229 in support of a submission that the Wednesbury test went further than focusing only on perversity.

The Respondents' submissions (Proportionality):
[86] The respondents' position was, shortly put, that proportionality was not available to the petitioners as a separate ground of judicial review. The correct approach was to apply the Wednesbury test. Whilst there had been discussions in the authorities of the possibility of it becoming available as a separate ground at some future date, that time had not arrived: R v Secretary of State for the Home Department ex parte Brind, R (Alconbury Developments Ltd & Ors) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, R (Daly) v Secretary of State for the Home Department, R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence ('ABCIFER'). It was important to remember that within the judicial review jurisdiction the court exercises a supervisory not appellate role. Administrative decisions fell, it was said, within the sphere of political choice and judges were not, in general, furnished with the requisite knowledge, training and advice to review such decisions on their merits. The correct threshold so far as the exercise of the supervisory jurisdiction was concerned was irrationality and whilst the respondents had no quarrel with a submission that, in the application of that criterion to cases involving fundamental rights, it may be relevant to consider proportionality, proportionality had not become an independent ground for judicial review.

Discussion (Proportionality):
[87] In none of the authorities to which I was referred is there a clear statement that proportionality has become a separate and distinct ground of judicial review. There is ample recognition of the scope for it arising as a factor which may be considered when addressing the question of whether a decision of a public body is unreasonable in the Wednesbury sense. As was commented by Lord Ackner in R v Secretary of State for the Home Department ex parte Brind, at p.762:

"Clearly a decision by a minister which suffers from a total lack of proportionality will qualify for the Wednesbury unreasonable epithet. It is, ex hypothesi, a decision which no reasonable minister could make."

by Lord Lowry, in the same case, at p. 766:

"... as counsel once contended in Reg. v Secretary of State for Transport, ex parte Pegasus Holdings (London) Ltd [1988] 1 WLR 990,1001, reliance on proportionality is simply a way of approaching the Wednesbury formula: was the administrative act or decision so much out of proportion to the needs of the situation as to be 'unreasonable' in the Wednesbury sense?",

by Lord Steyn in R(Daly) v Secretary of State for the Home Department at p.547 :

"The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality."

and by Lord Clyde in R(Alconbury Ltd) v Environment Secretary at p.355:

"The supervisory jurisdiction of the court as it has now developed seems to me adequate to deal with a wide range of complaints which can properly be seen as directed to the legality of a decision. It is sufficient to note the recognition of the idea of proportionality, or, perhaps more accurately, disproportionality, and the extent to which the factual areas of a decision may be penetrated by a review of the account taken by a decision maker of facts which are irrelevant or even mistaken: R v Criminal Injuries Compensation Board ex p A [1999] 2 AC 330, 344-5."

[88] An example of the Wednesbury approach being expressly recognised as incorporating considerations of proportionality appears in the speech of Lord Hobhouse of Woodborough in R v Secretary of State for the Home Department ex parte Simms at p. 142 where he criticised the decision of the Home Secretary to restrict journalists' visits to prisoners:

"In my judgment, this extreme policy is both unreasonable and disproportionate and cannot be justified."

[89] Equally, however, there is ample recognition of the two tests, Wednesbury and proportionality, being different, with the latter going further and beyond the limits of the conventional judicial review doctrine. For example, in Brind, Lord Ackner, at p.762, refers to proportionality as being:

"a different and severer test."

and in Daly, Lord Steyn explains the difference between the two tests at p.547-8, in the following way:

"...the intensity of review is somewhat greater under the proportionality approach. Making due allowance for the important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights..................

The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results."

[90] There has evidently been much discussion in the authorities and amongst academics of the question of whether or not it is desirable that proportionality be adopted as an independent ground of judicial review, particularly now that the courts have jurisdiction and obligations regarding the securing of Convention rights. Concern has been expressed that Convention rights may not be secured through the judicial review process if it is not: see, for example, Lord Steyn in Daly at p.547-8. I observe though that the wholesale introduction of proportionality as an independent ground of judicial review would cover non Convention cases as well as those which engage it and could produce the result that an otherwise reasonable decision by a public body not involving Convention rights would be liable to be set aside on proportionality grounds, the justification for which might be thought questionable. Similarly, given the protections afforded to the public by way of remedy under the Scotland Act in the event of the incompatible act of a Scottish Minister which, under s.57(2) is rendered null and void, and the wide powers of redress available to the court under s.8 of the Human Rights Act in the event of any incompatible and therefore unlawful (see: s.6(1)) act of any other public authority, questions must arise as to whether there is any need for the court's supervisory jurisdiction at common law to be extended in this way. It is also clear from the discussions to which I have referred that there is a risk, if proportionality is adopted as an independent ground of judicial review, of judges stepping beyond what are currently understood to be the limits of the court's supervisory jurisdiction into merits review and trespassing into an area which ought properly to be reserved for the executive. It would be surprising if such a result were reached other than deliberately, expressly and following careful consideration which immediately makes the petitioners' submission hard to accept.

[91] Ultimately, though, their case that proportionality could, should and has already been applied as an independent ground of judicial review founders on the rocks that are the very clear statements in several of the authorities to the effect that the law has not progressed to that stage as yet, notwithstanding the fact that arguments exist in favour of it doing so. In Brind, Lord Roskill, at p.750, referred to the speech of Lord Diplock in Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, at 410 where the possibility of the principle of proportionality being adopted is referred to and said:

"In that passage, my noble and learned friend was concerned to make plain, first, that his triple categorisation was not exhaustive and, secondly, that the time might come when further grounds might require to be added notably by reason of the 'possible adoption' of that principle in this country. He clearly had in mind the likely increasing influence of Community law upon our domestic law which might in time lead to the further adoption of this principle as a separate category and not merely as a possible reinforcement of one or more of these three stated categories such as irrationality ......the present is not a case in which the first step can be taken for the reason that to apply that principle in the present case would be for the court to substitute its own judgment of what was needed to achieve a particular objective for the judgment of the Secretary of State upon whom that duty has been laid by Parliament. But so to hold in the present case is not to exclude the possible future development of the law in this respect ...."

In the same case, Lord Bridge said, at p. 749:

"I should add that I do not see how reliance on the doctrine of 'proportionality' can here advance the applicants' case. But I agree with what my noble and learned friend, Lord Roskill, says in his speech about the possible future development of the law in that respect."

In R (Alconbury Ltd) v Secretary of State for the Environment, Transport and the Regions, in expressing the view set out at p. 321, Lord Slynn was in a minority of one:

"I consider that even without reference to the Human Rights Act 1998 the time has come to recognise that [the proportionality] principle is part of English administrative law, not only when judges are dealing with Community acts but also when they are dealing with acts subject to domestic law."

To the contrary, Lord Nolan, at p. 323, said:

"One possibility canvassed in argument was that the powers of review as at present exercised by the courts might be enlarged in order to accommodate the requirements of the Human Rights Act 1998. For my part, at least in the context of the present case, I see no need for that."

Lord Hoffman, at p. 326 said:

"The principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be taken rationally, in accordance with fair procedure and within the powers conferred by Parliament. But this is not the occasion upon which to discuss the limits of judicial review."

Lord Hutton found the existing jurisdiction of the High Court by way of judicial review to be sufficient and Lord Clyde, at the beginning of a passage to which I have already referred, at p.355, said:

"The suggestion was advanced that, if the respondents were correct in their contention that the present proceedings are in breach of Article 6(1), the scope of judicial review might somehow be enlarged so as to provide a complete remedy. The point in the event does not arise, but I consider that it might well be difficult to achieve a sufficient enlargement to meet the stated purpose without jeopardising the constitutional balance between the role of the courts and the role of the executive."

[92] In Daly, despite his discussion of the differences between proportionality and the Wednesbury approach, Lord Steyn did not take the opportunity to suggest that the former had been adopted as a separate principle. Lord Cooke, at p.549, certainly commented that:

" ... I think that the day will come when it will be more widely recognised that Associated Provincial Picture Houses Ltd v Wednesbury Corporation ... was an unfortunately retrogressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation."

but it is implicit in his manner of expression that, as the date of his speech, the Wednesbury doctrine subsisted in its traditional form.

[93] Then, in ABICFER, the Court of Appeal, whilst (though, I note, without having heard argument on the point), it expressed the view that it was difficult to

retain the Wednesbury test, given the availability of the proportionality test, said, at p.1413:

"But we consider that it is not for this court to perform its burial rites. The continuing existence of the Wednesbury test has been acknowledged by the House of Lords on more than one occasion."

and at p.1414:

"Finally, the passages in the speeches of Lord Slynn in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions ..... and Lord Cooke in the Daly case ... themselves imply a recognition that the Wednesbury test survives, although their Lordships clearly expressed view is that it should be laid to rest. It seems to us that this is a step which can only be taken by the House of Lords. We therefore approach the issues in the present appeal on the footing that the Wednesbury test does survive ...".

[94] The judgment of the Court of Appeal was handed down on 3 April 2003. I was not referred to nor am I aware of any authority arising since then which alters that position. I do not accept the petitioners' submission that the case of de Freitas is to contrary effect, concerning as it did, the interpretation of the Constitution of Antigua and Barbuda nor do I consider that the petitioners were correct in their assertion that such a change in the law could be divined from Simms, Leech or Daly. Rather, on the present state of the authorities as to the grounds upon which it is open to the court to exercise its supervisory jurisdiction, I do not see that I can do other than reject the petitioners' submissions.

[95] That means that I shall exclude the following averments from probation:

In the petition of Andrew Somerville:

- in statement 3 (a), the words : " disproportionate et separatim";

- in statement 12, at p.39 C, the words: "disproportionate et separatim", at 40 D - E, from: "In the circumstances the means used ......" to: "disproportionate." at 41A, and at p.43 C, the sentence beginning: "Separatim esto...."; and

- in the first plea in law, the words: "disproportionate and"

In the petition of William Cairns :

- in statement 3 (a), the words: "disproportionate et separatim";

- in statement 13, at p. 36, the words: "disproportionate et separatim", at p.37, from: "In the circumstances the means used ....." in line 19, to: "disproportionate." in line 25, and at p. 38, 9 lines from the foot of the page, the sentence beginning: "Separatim, esto ...."; and

- in the first plea in law, the words: "disproportionate et separatim".

In the petition of Ricardo Blanco:

- in statement 3 (a), the words: "disproportionate et separatim";

- in statement 10, at p. 32, the words: "disproportionate et separatim", at p.33D, from the words: "In the circumstances the means used ...." to: "disproportionate." at p.33 D - E, and at p. 35C, the sentence beginning: "Separatim, esto .....".

- in the first plea in law, the words: "disproportionate and".

In the petition of Samuel Ralston:

- in statement 3(a), the words: "disproportionate et separatim";

- in statement 13, at p. 35B, the words: "disproportionate et separatim", and at p. 37A -B, from: "In the circumstances the means used ...." to "disproportionate." at p.37C, and at p. 39B, at line 8, from: "His segregation ....." to: "prescribed activities." at p. 39C;

- in the first plea in law, the words: "disproportionate et separatim".

In the petition of David Henderson:

- in statement 3(a), the words: "disproportionate et separatim";

- in statement 12, at p. 41C, the words: "disproportionate et separatim", at p.43A, from: "In the circumstances the means used ..." to: "disproportionate". at p. 43B, and at p 44B, the sentence beginning: "Esto it was not disproportionate...";

- in the first plea in law, the words: "disproportionate et separatim".

Wednesbury Unreasonableness :
[96] The respondents made a separate submission that in the petitions of William Cairns and David Henderson, there were no relevant averments to support the case that the respondents' decisions were unreasonable in the Wednesbury sense and in the petition of Samuel Ralston, there were no such averments regarding the period of segregation that began in October 2004.

[97] In short, the factual averments that are made in the petition of William Cairns regarding his segregation are to be found in statement 7 and are to the effect that the respondents' records show he was segregated for reasons of good order and discipline and for the safety of other persons following an allegation that, during an incident, he had attempted to assault a member of staff and sought to solicit support from other prisoners in undermining good order and discipline, and because of intelligence to the effect that he was attempting to target individual staff members and that he had generally threatened harm. The petitioner denies that he had conducted himself in such manner. There is no express averment in Wednesbury language that it was unreasonable to segregate the petitioner or that no reasonable prison governor or government minister would, in the circumstances, have decided to segregate him. Rather, there are averments that the petitioner could have been made subject to disciplinary proceedings under Rule 95 involving means which would have been "less restrictive" of his rights. There is, though, no suggestion in this or any other petition that the governor decided to proceed under Rule 80 so as to avoid having to institute disciplinary proceedings.

[98] The factual averments made in the petition of David Henderson regarding his segregation are to be found in statement 7 and are to the effect that the respondents' records show that he was segregated for reasons of good order and discipline following his involvement in a serious disturbance at Glenochil in the course of which serious damage was done to the fabric of the building, following the receipt of intelligence that he was involved in planning an organised disruption, following assessment of his manner as being not conducive to the good order and management of the prison and following his participation in an act of concerted indiscipline with other Rule 80 prisoners. The respondents' averments to the effect that the facts contained in their records are accurate are met with a general denial. There are, again, no express averments in Wednesbury language. There are identical averments regarding the availability of Rule 95, to those made in the petition of William Cairns.

[99] The factual averments made in the petition of Samuel Ralston regarding his segregation in October 2004 are to be found in statement 9 and are to the effect that the respondents' records show that he was segregated at that time under Rule 80 following an incident at Shotts prison in the course of which a member of staff was seriously assaulted and following intelligence suggesting that he was a major distributor of illegal substances, and was involved in bullying and intimidating others against a background of a serious history of disruption in Scottish prisons. There are again no express averments in Wednesbury language and there are no averments under reference to Rule 95. The criticisms advanced in respect of this period of segregation concern an allegation that he was assaulted following the incident at Shotts and that he was not given the opportunity to make representations prior to his initial period of segregation being extended.

[100] In each case, the averments in the petitions are drawn from the content of various documents contained in 7/6, 7/13 and 6/13-17 of process.

The Respondents' submissions (Wednesbury)
[101] Counsel for the respondents referred to the terms of Rule 80(1) which provide that the governor has power to make an order under that rule when it appears to him desirable to do so for the reasons there stated. That indicated that it was a matter of his having to make a value judgment and in these circumstances, it was more difficult to make out a case that the decision maker had acted unreasonably in the Wednesbury sense. Prison governors are, it was said, faced with difficult situations where an error of judgment on their part could have serious consequences. Decision makers are, it was submitted, entitled to proceed on the basis of information that they consider to be reliable and reasonable. If there was, as was evidenced by the documents referred to, information available which the decision maker considered it appropriate to rely on and he acted in good faith, then his decision was not open to challenge. It was not a matter of whether or not the prisoner accepted the truth of what was alleged. The petitioners' averments did not, it was submitted, begin to engage with these well established principles. Further, the documents in respect of each of these three cases, which were referred to in detail, showed that the decision makers involved acted reasonably in deciding as they did, given the information upon which they acted. In support of their submissions, reference was made to SHBA Ltd v Scottish Ministers, Re: Fulton's Application for Judicial Review [2000] NI QBD 447, Re: Taggart's Application for Judicial Review unrepd 12.3.97 NI QBD, Re: Conlon's Application for Judicial Review [2001] NICA 49. In support of a specific submission that for Wednesbury unreasonableness to arise, there required to be no basis on which the governor could reasonably have formed the view that he did, reliance was placed on another Northern Irish case, Re: Henry's Application for Judicial Review [204] NIQB 11.

The Petitioners' submissions (Wednesbury):
[102] It became apparent from listening to the petitioners' submissions in response that they had no real argument to advance in opposition to the respondents' submissions on this matter. A number of arguments were advanced to the effect that the Rule 80 orders were unlawful because they failed to contain an adequate statement of reasons, to which I will return under the next heading, but that argument is distinct and different from the Wednesbury issues that arise. That the petitioners recognise that that is so is evident from the fact that they seek separate declarators in respect of each and seek to support them with separate pleas in law.

Discussion (Wednesbury Unreasonableness):
[103] Each of the three petitions that were referred to under this head contain cases to the effect that the Rule 80 orders were unreasonable at common law. That is evident from the first of the declarators sought in each case, from the beginning of statement 13 in Cairns and statement 12 in Henderson, and from the terms of the first plea in law in each case. There are, however, no averments that reflect recognised Wednesbury principles in any way. There is no suggestion that the decision makers acted in bad faith nor is it suggested that they did not as a matter of fact have before them the information regarding the petitioners' activities, actual and apprehended and the reasons for concern about order and discipline in the prison, to which I have already referred.

[105] As the petitioners submitted, the decision as to whether or not to grant or extend a Rule 80 order must always be a matter of judgment. In particular, it is clearly often liable to be a matter of the exercise of judgment in circumstances where misjudgment and a consequent failure to grant the order could result in loss of control in an environment where the maintenance of control and discipline is of the highest importance for obvious reasons. Such misjudgment could also, clearly, result in serious, possibly life threatening, injury to prisoners or staff and/or damage to property.

[106] Further, as in the case of the statutory provisions that were considered by Lord Macfadyen in SHBA v The Scottish Ministers, Rule 80 sets out no objective criteria by reference to which the decision makers must exercise their judgment. In those circumstances, Lord Macfadyen commented, at paragraph 48:

"It was accepted on the first respondents' behalf, in my view correctly, that the fact that the decision of the ministers under s.10(4)(b) was a matter of value judgment did not wholly exclude judicial review. It does not even, in my view, necessarily exclude challenge to the validity of the decision on the ground that it was unreasonable. What it does do, in my view, is make it in practical terms somewhat more difficult than it would be in relation to a decision of a different nature to make out a case of unreasonableness. The test to be satisfied if a case of reasonableness (sic) is to be made out nevertheless remains the same. As the cases cited by senior counsel for the petitioners illustrate, that test has been expressed in various form of words. What can perhaps be regarded as the classic formulation is to be found in Wednesbury, per Lord Greene MR at p 234. A decision will be rendered invalid on the ground that it is unreasonable if the decision maker, although properly directing himself in law, and addressing all relevant material, but only the relevant material, has: 'nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it'.

A similar form of words was adopted by Lord President Emslie in Wordie Property at p. 348. Other formulations can be found in the cases (see, for example, Clyde and Edwards, Judicial Review, at para 21.05), and those formulations include the trenchant language used by Lord Diplock in Bromley London Borough Council at p 821 and in CCSU at p 410, but it seems to me that the purpose of using that language was simply to emphasise that a judge exercising the judicial review jurisdiction has no power to hold a decision invalid merely because he disagrees with it. There is in my view some force in the warning expressed by Clyde and Edwards (loc cit) that:

'Descriptive phrases may readily bear an element of expressive intensity which adds unnecessary colour to what ought to be a single concept, although the precise application of the concept may vary in accordance with the particular circumstances of the particular cases'.

The fundamental point, it seems to me, is that a decision cannot be held to be invalid on the ground of unreasonableness (or irrationality) unless it can be affirmed that no reasonable decision maker addressing the issue could have come to the same conclusion".

[107] I see no reason for doing other than agreeing with Lord Macfadyen's views in their entirety. I also note that a similar approach was adopted in the Northern Irish cases to which reference was made. The onus of averring a relevant case of unreasonableness lies on the petitioners. It does so, in this case, in circumstances where the decision makers had to exercise value judgments, where their good faith is not questioned and where there is quite extensive documentary material containing factual information which they were bound to consider and which, in my view, entitled them to take the view that it was desirable, for the maintenance of good order and discipline in the prison, to segregate the three petitioners referred to under this heading.

[108] I have considered whether the petitioners' general averments, made in association with the averment that the decisions were unreasonable, that they were, separately ultra vires and unlawful (Cairns: statement 13 p.36, first sentence, and Henderson: statement 12, p.41, first sentence), have any subsisting relevance in the absence of a relevant case of unreasonableness but have come to the view that they do not. The petitioners do have a relevant case of unlawfulness in three of the petitions, as is conceded by the respondents and as is discussed infra but it is addressed separately in the pleadings. There is, in my view, however, no relevant purpose for the averments to which I have referred if the case of unreasonableness goes. I would add, for the avoidance of doubt, that I do not consider that the bald averments of irrationality and/or fettering of discretion that appear in the petitions in the statements which address the question of adequacy of reasons as being a relevant basis for asserting that any alleged inadequacy of reasons is indicative of Wednesbury unreasonableness. They do not, in short, address or meet the requisite test.

[109] I am, accordingly, satisfied that the respondents' submissions were well founded which means that I shall exclude the following from probation:

In the petition of William Cairns:

- that part of statement 3(a) not already excluded under the heading of proportionality

- in statement 13, at p.36, that part of the first sentence not already so excluded

- in statement 13, at p 37, 7 lines from the foot of the page, the sentence beginning : "Esto..."

- in the first plea in law, that part not already so excluded

In the petition of David Henderson :

- that part of statement 3 (a) not already excluded under the heading of proportionality

- in statement 12, at p. 41, that part of the first sentence not already so excluded

- statement 13

- in the first plea in law, that part not already so excluded

In the petition of Samuel Ralston :

- in statement 3(a), from : "and in relation..." to the end

- in statement 9, from : "On 14 October ...." at p. 23E, to the end.

Adequacy of Reasons:
[110] An issue arises between the parties as to whether the Rule 80(1) orders complied with the requirements of Rule 80(4)(c) and (e) and whether, in the event that any of them did not, that means that the orders cannot be regarded as lawful for the purposes of Article 8 of the Convention. Those subparagraphs provide:

"(4) if the Governor makes an order under paragraph (1), he shall -

............................

(a) specify in the order the reasons why he is making it ;

............................

(b) explain to the prisoner the reasons why the order is made and provide him with a copy of the written order."

In each set of pleadings, as amended during the course of the hearing, the petitioners seek declarator in the following terms:

" 3 -............

declarator that the said orders under Rule 80(1) .......were unlawful by virtue of non- compliance with Rule 80(4)(c), for failure to specify adequate and comprehensible reasons for the making thereof ;"

and each crave for declarator is supported by a plea in law to the effect that the Rule 80(1) orders referred to were unlawful by virtue of that non-compliance. There are general averments that the reasons given in the orders require to leave the reader in no real and substantial doubt as what the reasons for the decision were and what were the material considerations that were taken into account in making it. It is also averred by the petitioners that, in the specific circumstances of these cases, the reasons given required to cover specific matters including an explanation of why segregation under Rule 80 was determined upon rather than disciplinary procedures under Rule 95 and an explanation of why, upon transfer to another prison, the receiving governor decided to segregate, in a manner that showed that he did not simply regard the fact of segregation in the despatching prison as a good enough reason for a Rule 80 order. The averments also indicate that the reasons given should have explained why removal from association was to be complete rather than in respect of a specified activity only. The respondents' averments in answer state that the petitioners were aware of the reasons why the Rule 80 orders referred to were made and there is also reference, in some of the pleadings, to the petitioners having had the opportunity to discuss their situation with staff including when at case conferences. One of the documents lodged in support of the motion for interim suspension which was made on behalf of Mr Ralston, at an earlier hearing (see: 6/17 of process, and Ralston v The Scottish Ministers 2004 SLT 1263) indicates that such conferences are, at present, held very soon after the start of a period of segregation.

[111] The petitioners' position was, ultimately, that the declarators sought under this heading should be granted at this stage and the pleas in law sustained, in their entirety. The respondents' position was that there were no relevant averments in support of this part of the case in the petitions of Cairns, Henderson or Ralston as regarded his period of segregation in October 2004 and that proof before answer should be allowed in respect of this matter as raised in the petitions of Somerville and Blanco, and in Ralston other than relating to the segregation beginning in October 2004.

The Respondents' submissions (Adequacy of Reasons):
[112] The respondents' counsel submitted that it was evident that adequate reasons had been given in the three cases to which I have already referred. The availability of the complaints procedure provided for under the rules was referred to. It was submitted that, in those cases, the reasons given amply met the requirements of Rule 80(4)(c). Under reference to four Northern Irish cases (R v Governor of HMP Long Lartin Ex parte Ross unrepd Court of Appeal 27.5.94, Re: Conlon's Application for Judicial Review, Re: Henry's Application for Judicial Review, and Re: James Kemp's Application for Judicial Review [2004] NIQB 46), it was submitted that what would, in an individual case, amount to adequate reasons would depend on its own facts and circumstances and it was enough if a gist of the reasons was given. It was clear that sufficient explanation was given in these three cases.

[113] Anticipating the petitioners' arguments, with regard to all five petitions it was, it was said, wrong to suggest that a procedural failure of the sort founded on would have the effect that the segregations were not in accordance with law for the purposes of Article 8 of the Convention. What was required was to consider whether the legislator intended that non compliance with the procedure in question would result in there being no lawful basis for what was done: Wang v Commissioners of Inland Revenue (PC) [1994] 1 WLR 1286. The Convention referred back to domestic law to determine whether or not an order was lawful: Erkalo v United Kingdom (1999) EHRR 509, a case in which it was observed that an order for the detention of a prisoner remained lawful even although the public prosecutor had failed to comply with a time limit prescribed under the relevant Dutch legislation when applying for the order. It was, further, important to recognise that the Rule 80 orders were ex facie valid unless and until set aside and that nullity would not necessarily be the effect of a failure to comply with set procedures: R v Governor of Brockhill Prison Ex parte Evans [2001] 2 AC 19, London and Clydeside Estates v Aberdeen District Council 1980 SC (HL) 1, R v Secretary of State for the Home Department Ex parte Jeyeanthan [2000] 1WLR 354, Attorney General's Reference No. 3 of 1999 [2001] 2 AC 91.
[114] On behalf of the respondents it was accepted that it was intended that Rule 80(4)(c) be complied with but that was not, it was said, the important question for the present case. What was important was to consider the question of whether it was intended that a failure to comply would mean that there was no lawful justification for the grant of an order under Rule 80(1). In the circumstances, it should not be concluded that the order was unlawful on the grounds of non-compliance because this was not a case in which deprivation of liberty was at issue, the petitioners' liberty having already been lost (R v Deputy Governor of Parkhurst Prison Ex parte Hague [1992] 1 AC 58) and, further, that Rule 80 was in the part of the rules which conferred powers on prison governors to enable them to fulfil their Rule 78 responsibilities of supervision and control of prisons and prisoners in circumstances where they have responsibility for safety and welfare of prisoners and staff. Against that background, it could not, it was submitted, have been intended that a failure to comply with the procedural requirements of Rule 80 would deprive an order under Rule 80(1) of lawful character. Counsel relied, in support of that submission, on the case of A v Head Teacher and Governors of Lord Grey School [2004] 4 AER 628, where it was held that a head teacher's failure to advise parents, in accordance with a procedure laid down by statute, of their rights to make representations regarding the exclusion of their child from school, whilst unlawful, was not such as to vitiate the exclusion itself.

[115] In all the circumstances, it could not, it was said, be determined at this stage that the Rule 80(1) orders in the cases of Blanco, Somerville and Ralston (other than the period beginning in October 2004 which was covered by the above submissions), were unlawful for the purposes of Article 8 of the Convention. That was an issue that could only be determined after proof.

The Petitioners' submissions (Adequacy of Reasons):
[116] On behalf of the petitioners it was submitted that whilst it was accepted that some of the Rule 80(1) orders maintained a higher standard than others, all were deficient in their specification of reasons in at least one respect. It was accepted that it was not necessary to disclose intelligence material but even allowing for that the reasons were still not adequate. Wherever there was a statutory obligation to give reasons, they required to be adequate and comprehensible, plain and intelligible so as not to leave the informed reader in any doubt as to what the reasons were and why the decision had been taken. The requirement in the rules was, it was said, not just for the purpose of informing the prisoner but so as to make it clear to him and to the court the basis on which his decision was reached and that the result reached was in conformity with the statutory provisions: Safeway Stores PLC v National Appeal Panel 1996 SC 37.

[117] It was not, it was said, an answer to say that the petitioners were otherwise aware of the reasons for their segregation. That did not relieve the governor of his duty: R v London Borough of Lambeth Ex parte Walters [1993] 26 HLR 170. There was no scope, in the circumstances, for the giving of evidence as to the reasons given being adequate: Clyde and Edwards at para 18.54, R v Westminster City Council Ex parte Ermakov [1996] 2 AER 302, R v Northamptonshire County Council Ex parte W [1998] ELR 291. The petitioners were entitled and required to know what the reasons were for their segregation.

Discussion (Adequacy of reasons):
[118] Junior counsel for the petitioners recognised, in the course of the debate, that there was a problem in that their pleadings appeared to focus on the requirements of Rule 80(4)(e) and a failure to communicate reasons to the petitioners, whereas what they sought to argue in support of their motion that the declarators referred to should be granted at this stage was that the specification of reasons set out in the Rule 80(1) orders relied on was inadequate, a Rule 80(4)(c) matter. That recognition led to the amendment of their pleadings so as to delete, where they appeared, the references to Rule 80(4)(e) and to substitute references to Rule 80(4)(c) but it was difficult to ascertain from the approach adopted by them thereafter whether the essential complaint was that of a failure to specify sufficient reasons in the orders or a failure to communicate full reasons to the petitioners. Junior counsel sought to dismiss the problem as being one of a mere infelicity of language but it seemed to me to be indicative of some confusion on their part as to what exactly was the complaint that was being advanced on the petitioners' behalf.

[119] It is clear that the provisions of Rule 80(4)(c) and (e) deal with different matters. The former is concerned with what is to be recorded in the written order and the latter is concerned with communication with the prisoner. The use of the word 'explain' in Rule 80(4)(e) is indicative of it being envisaged that there will be an oral explanation given to him and I see no reason why that explanation should not expand on what is contained in the written order, if it seems appropriate or necessary to do so, bearing in mind the prisoner's interest in knowing why it is that he is being segregated. The respondents' position is, broadly put, that the petitioners were well aware as to why it was that they were being segregated. It may be that that is a good answer to a case that they failed to comply with the requirements of Rule 80(4)(e) but that is not a case which they now have to meet, on the pleadings as amended. The only case of failure to comply with Rule 80(4) is that advanced under reference to subparagraph (c) which means that the stress that counsel for the petitioners laid on the need for the reasons stated in the order to achieve effective communication to the petitioners was not in point.

[120] It is evident from the documents referred to that the nature and extent of the recording of reasons varies and that that seems, to an extent, to depend upon which prison is involved. The question that arises is that of whether it can be said, without proof, that the orders, or any of them, are in conformity with Rule 80(4)(c) and therefore lawful or do not conform and whether, in that event, they are unlawful.

[121] Turning firstly to the Rule 80(1) orders in the cases of Cairns and Henderson and in the case of Ralston as regards his segregation in October 2004, the relevant documents are nos. 7/6, 7/13 and 6/13 of process. In the case of each order, reasons and explanations are set out in the order. For example, in the case of Cairns, the Rule 80(1) order granted on 9 October 2002 (no. 7/6 of process) states:

"On the 6^th of October Mr Cairns had to be restrained by a three person team after trying to assault a member of staff. He has since that time been soliciting support from other prisoners in an attempt to undermine the good order and discipline in C Hall. Further intelligence suggests that he is also attempting to target individual staff members and is generally threatening harm. In light of our need to quickly stabilise the situation in C Hall and to support the good order and discipline throughout the establishment permission is sought to hold this prisoner in the segregation unit under Rule 80 conditions so that we may further corroborate our intelligence."

[122] The reasons and explanations given in the other orders contain details in a similar manner and are to similar effect. These are full, intelligible and quite detailed explanations in circumstances where all that the rule requires is that "reasons" are specified. They can leave the reader in no doubt as to why segregation was determined upon. In these circumstances, I am readily satisfied that Rule 80(4)(c) has been complied with in each of these cases and will uphold the respondents' submission to that effect. That means that I will exclude the following from probation:

In the petition of William Cairns:

- statement 3(b)

- statement 14

- plea in law 2.

In the petition of David Henderson:

- statement 3(b)

- statement 14

- plea in law 2.

In the petition of Samuel Ralston :

- in statement 3 (b), the words: "and 12 October 2004" and from: "and in relation...." to the end .

- statement 9 insofar as not already excluded .

- in plea in law 2, the words: "and that of the Governor of HM Prison Edinburgh of 12 October 2004".

[123] That leaves the question of whether the petitioners are correct in their contention that the statements of reasons in all the other Rule 80(1) orders are so inadequate as to amount to a failure to comply with Rule 80(4)(c) and whether, if that is so, the orders fall to be regarded as unlawful. I do not accept that they are correct. Certainly the reasons given in the order are, in some cases, sparse. For example, in the case of the order granted in Mr Somerville's case on 15 May 2002, the reasons given state:

"Transfer in from Barlinnie Segregation Unit. For the Good Order of the Prison."

Further detail is, however, recorded in other documents. To take again, for instance, the case of Mr Somerville's segregation on 15 May 2002, a letter written the following day, in which a request for extension of the initial 72 hour period is made, is in the following terms:

"Mr Somerville was being held until (sic) Rule 80 conditions in the Barlinnie Segregation Unit. This was because of concerted indiscipline in Shotts Prison on 3 April 2002 due to a power failure. Barlinnie requested we take Mr Somerville for a period of one month, to help alleviate overcrowding in their Segregation Unit.

We will be returning Mr Somerville to Barlinnie in one month's time and we will be working with Mr Somerville in the hope of incorporating him into the mainstream of HMP Aberdeen.

This order is requested to allow us to assess Mr Somerville over a period. Given his unpredictable behaviour since January 2002 in other prisons. This has included threats to staff for which he was already subject to Rule 80 conditions and for the good order of HMP Aberdeen."

[124] Rule 80(4)(c) is concerned with record keeping and, unlike Rule 80(4)(e), does not appear to be concerned with the interests of the segregated prisoner. Given the terms of Rule 80(1), there are three basic reasons which can be relied on as justification for segregating a prisoner, namely maintaining good order or discipline, protecting the interests of any prisoner, and ensuring the safety of other persons. I do not, at this stage, rule out the possibility that what is intended by Rule 80(4)(c) is to ensure that the category of reason into which the individual case falls be specified in the order, for recording purposes but it is to be left to the discretion of the individual governor as to how much more he decides to record in the order itself. Failing to inform the prisoner of anything other than which of the three categories applies in his case may not, of course, meet the requirements of Rule 80(4)(e) which is concerned with prisoners' interests, but that is a separate matter, separately provided for in the rules. Rule 80(4)(c) seems to me to concern record keeping, not prisoners' interests.

[125] Even if the petitioners are correct in their submission that Rule 80(4)(c) requires that detailed reasons be set out in the order, I accept the respondents' submission that that does not necessarily mean that the order itself was a nullity or that it was not capable of providing a lawful basis for what was done. Much will, it seems to me, depend on the facts and circumstances of the individual case and it is clear that notwithstanding that the lawfulness of the order arises in a Convention context, the relevant determination is one for the domestic court: Erkalo v United Kingdom. An example of the sort of approach that might be taken is given in the case of Wang v Commissioner of Inland Revenue. That was a case before the Privy Council where the tax authorities had, it was said, failed to comply with a statutory time limit and the taxpayer sought to resist an assessment that was subsequently issued. The judgment of their Lordships was delivered by Lord Slynn of Hadley who, at p. 1296, said:

"... when a question like the present one arises - an alleged failure to comply with a time provision - it is simpler and better to avoid these two words 'mandatory' and 'directory' and to ask two questions. The first is whether the legislature intended the person making the determination to comply with the time provision, whether a fixed time or a reasonable time. Secondly, if so, did the legislature intend that a failure to comply with such a time provision would deprive the decision maker of jurisdiction and render any decision which he purported to make null and void."

and their Lordships determined that in the context of the relevant legislation a failure to act within the given time limit would not have deprived the commissioner of jurisdiction to issue an assessment, observing as they did so that there would be no real prejudice to the taxpayer. A similar approach was strongly advocated in R v Secretary of State for the Home Department Ex parte Jeyeanthan & anr, cases in which the Secretary of State for the Home Department had, when applying for leave to appeal against the decisions of special adjudicators in two asylum cases, failed to use the correct form. At p. 358-9 Lord Woolf MR, as he then was, said:

"The conventional approach where there has been non-compliance with a procedural requirement laid down by a statute or regulation is to consider whether the requirement which was not complied with should be categorised as directory or mandatory. If it is categorised as directory it is usually assumed it can be safely ignored. If it is categorised as mandatory then it is usually assumed the defect cannot be remedied and has the effect of rendering subsequent events dependent on the requirement a nullity or void or as being made without jurisdiction and of no effect. The position is more complex than this and this approach distracts attention from the important question of what the legislator should be judged to have intended should be the consequence of the non-compliance. This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. .......................

A requirement to use a form is more likely to be treated as a mandatory requirement where the form contains a notice designed to ensure that a member of the public is informed of his or her rights, such as a notice of a right to appeal. ................

Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped that provisions intended to have this effect will be few and far between. In the majority of cases, whether the requirement is categorised as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises. In such a situation that tribunal's task will be to seek to do what just in all the circumstances: see Brayhead (Ascot) Ltd v Berkshire County Council [1964] 2 QB 303 applied by the House of Lords in London and Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182."

[126] It is, I agree, also relevant to note that there is a line of authority which demonstrates that the failure to comply with a procedural requirement will not always be regarded as rendering null and void the original act under consideration. It all depends on the particular facts and circumstances of the case: see R v Governor of Brockhill Prison Ex parte Evans, London and Clydeside Estates Ltd v Aberdeen District Council, R v Secretary of State for the Home Department Ex parte Jeyeanthan & anr, Attorney General's Reference no. 3 of 1999, and A v Head Teacher and Governors of Lord Grey School.

[127] What I deduce from the above two lines of authority is that it is necessary, before determining whether the regulations intended that failure to comply with the procedural requirements of Rule 80(4) would mean that a Rule 80(1) order granted in the face of such non-compliance was a nullity or whether nullity required to be the inevitable consequence of such non-compliance, to have a full understanding of the context and the relevant facts and circumstances. That can only be achieved, in my view, by hearing evidence on the matter.

[128] The petitioners submitted that it was not appropriate to hear evidence but it seems to me that these petitions are cases in which there is proper scope for evidence to be given as to why it is, on the facts and circumstances of and in the context of these cases, that the respondents assert that the reasons stated in the order are adequate. I appreciate that a note of caution regarding any proposal that supplementary evidence be led to explain a public authority's written reasons was sounded in the two cases relied on by the petitioners. The first, R v Westminster City Council Ex parte Ermakov, was an extreme case. The council's homelessness officer swore an affidavit stating that the true reasons for refusing a housing application were quite different from those that had been set out in his decision letter and sought, in the affidavit to explain the decision in a way that, unlike the reasons in the letter, complied with the relevant statutory provisions. It is not surprising that, in those circumstances, the Court of Appeal did not sanction reliance on the supplementary evidence. Lord Justice Hutchison said, at paragraph 2 of his conclusions:

"The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in Ex p Graham be very cautious about doing so. ...........the function of such evidence should be elucidation not fundamental alteration, confirmation not contradiction."

[129] The second was R v Northamptonshire County Council Ex parte W, which was a case concerning the nature and extent of the duty of an appeal committee under the Education Act 1996 to give written reasons, in circumstances where the authority sought to supplement the written reasons of the committee with an affidavit from one of their number, which gave a fuller explanation for their decision to exclude a child from school, and the propriety of admitting such evidence was discussed. Having considered authorities including R v Westminster County Council Ex parte Erkamov, Laws J said, at p. 299:

"There are some classes of case in which the adequacy of the reasons is itself made a condition of the legality of the decision. In such instances, later evidence giving a proper explanation of the reasons by definition cannot cure the legal defect which would arise if the original reasons were inadequate. But this is not such a case............It seems to me with respect that the passage from Hutchison LJ's judgment which I have cited, and also Latham J's reasoning, give a resounding and salutary warning against a particular danger that may arise where originally faulty reasons are sought to be cured by later evidence. It consists in the risk that the later material, albeit put forward in perfect good faith, in truth offers an ex post facto justification for the decision which in substance travels beyond, and may differ from, the actual reasons entertained by the decision maker at the time............I accept ....that even where the court is confident that the later evidence represents the actual reasons given at the time, it will not automatically receive the later material. Whether it will do so will be a matter for the court's discretion case by case."

and in the circumstances of that case, the supplementary evidence was received. What is, however, clear from these cases is that the court in each case considered that the admission of evidence to supplement and explain a public authority's written reasons in the context of judicial review applications, was competent. Whilst the questions that arise in the present cases can be distinguished because they concern, under this heading, not the issue of whether the respondents' reasons were in fact good enough but that of whether their compliance with procedure was good enough, I do not see that that distinction makes the allowance of evidence on the matter incompetent or inappropriate. If the petitioners seek to persist in this argument, it is premature to consider it prior to any hearing on evidence. I am not, accordingly, persuaded that I should grant the petitioners' motion for declarators in terms of statement 3(b) to be pronounced at this stage.

Relevancy and specification of averments relating to articles 6, 7 and 8 of the Convention:
[130] The respondents made submissions that certain parts of the petitioners' pleadings which rely on Articles 6,7 and 8 of the Convention were irrelevant and should be excluded from probation. Having heard those submissions, the petitioners accepted that the criticisms of their averments relating to Article 7 were well founded. I shall, accordingly, exclude the following averments from probation:

In the petition of Andrew Somerville:

- statement 3(i)

- in statement 11, at p.38C -D, in the sentence beginning: "Separatim....", the words: "both" and: "and as recognised within Article 7 of the European Convention on Human Rights."

In the petition of William Cairns:

- statement 3(f)

- in statement 11, at p. 34-5 the same wording as excluded from statement 11 in the petition of Andrew Somerville.

In the petition of Ricardo Blanco:

- in statement 9, 7 lines from the end thereof, the same wording as excluded from statement 11 in the petition of Andrew Somerville

In the petition of Samuel Ralston:

- statement 3(i)

- in statement 12, at p.34C, the same wording as excluded from statement 11 in the petition of Andrew Somerville.

In the petition of David Henderson:

- statement 3(i)

- in statement 11, at p.39E - 40, the same wording as excluded from statement 11 in the petition of Andrew Somerville.

[131] As regards Article 6 of the Convention, it was common ground between the parties that it was not engaged if the petitioners' segregations did not result from criminal charges. Only then would the procedural safeguards provided for by Article 6 come into play, the particular safeguards in which the petitioners were interested being those involving the right to representation and being given the opportunity to challenge any allegations made. The issue between them was as to whether, properly analysed, what the petitioners had been facing were criminal charges or not. The respondents recognised that the answer to that question did not lie simply in observing that the petitioners had not, as a matter of domestic law, been charged with having committed criminal offences. It was, it was accepted, necessary to look at the Strasbourg approach. However, doing so demonstrated, it was said, that these cases did not fall to be categorised as ones where criminal charges had arisen. The petitioners' contentions were to the contrary. These cases ought to be so categorised because the triggers to the imposition of Rule 80 orders were breaches of discipline in respect of which the individual prisoners concerned should, it was said, be afforded the right of representation or challenge, at least when renewals and extensions were applied for under Rule 80(5) and (6). They accepted, it seemed, that they could not rely on Article 6 in respect of the original orders made under Rule 80(1).

The Respondents' submissions (Article 6)
[132] Counsel for the respondents drew attention to the fact that there were no charges against the petitioners and no imposition of penalty. Whilst certain conduct may have preceded and played a part in the decisions taken to segregate the petitioners, it was only in a loose sense that conduct could be said to have led to the Rule 80 orders. The decisions made came directly from the view being taken that it was desirable for the good order of the prisons involved, that the petitioners be segregated. In one case, Henderson, there was also an occasion when his continued segregation was agreed upon, with him, for his own protection.

[133] The flaw in the petitioners' approach was, it was submitted, that it proceeded on the basis that their conduct could have led to disciplinary charges but that was, it was said, irrelevant. The fact that the conduct in question could have justified a disciplinary charge being brought did not turn the segregations determined upon into criminal matters. It was observed that there was no obligation on a governor whether under the rules or otherwise to follow the disciplinary route rather than the Rule 80 route, one which was described by the respondents as being the 'administrative' route to dealing with the problem.

[134] Reference was made to a number of authorities, all of which showed, it was said, that the circumstances of the present cases were not such as to lead to the instances of segregation being a matter of the furtherance of criminal charges: Engel & Others v The Netherlands (No.1) 1 EHRR 647, Campbell & Fell v United Kingdom 7 EHRR 165, Ezeh & Connors v United Kingdom (2004) 39 EHRR 1, R (Al-Hasan) v Secretary of State for the Home Department [2002] 1 WLR 545, Re: Cordon's Application [2004] NIQB 44. Examination of the three criteria adopted in Engel as applied in the prison context in Campbell and Fell made that clear. In these circumstances, Article 6 was not engaged.

The Petitioners' submissions (Article 6)
[135] Counsel for the petitioners agreed that it was appropriate to apply the three stage test set out in Engel but submitted that these cases had to be approached on the basis that the governor had made a decision as to what had happened involving the petitioners. Generally, there was an allegation of misconduct that had led to the periods of segregation. Whilst it was accepted that it was reasonable to take immediate action to segregate where there was an apprehension of imminent trouble, it was not suggested that Article 6 protections applied in the case of Rule 80(1) orders, where such considerations arose. Also, whilst it was accepted that segregation could be imposed for a prisoner's own protection, there was only one such case involved here, that in respect of one of the periods of segregation of the petitioner Henderson. Otherwise, all the segregations arose on account of conduct which could be properly regarded as criminal. Further, the segregations imposed amounted to lengthy periods spent in punishment conditions, without the limitations on punishment that existed under rule 100.

Discussion (Article 6):
[136] Article 6 is concerned to afford protections to persons who are charged with having committed criminal offences and are facing trial. In addition to the general fair trial guarantees that are set out in paragraph 1, certain specific minimum rights are stated in paragraph 3 of the article:

"3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."

[137] It is, accordingly, generally recognised that where it is alleged that a person has committed a particular act and that there is to be a determination of whether he or she did so, the outcome of which could result in the imposition of a significant penalty, these protections should be afforded. The discussion in Engel proceeded on the basis that the applicants there had faced allegations of having committed particular offences and had had various penalties passed on them in respect of findings that they had committed those offences. The question that arose was whether, since the penalties arose within the context of military disciplinary law in the Netherlands, the proceedings fell outwith the category of criminal proceedings covered by Article 6. The European Court of Human Rights expressly recognised the right of individual states to maintain a distinction between disciplinary and criminal matters. However, clearly conscious of the risk that by the simple expedient of adopting the label 'disciplinary', a state might thereby avoid the court's supervision in a matter which would otherwise warrant it, it set out a set of criteria which should be applied to determine whether a charge falls to be characterised as a criminal or disciplinary. Those criteria are discussed, at paragraph 82, as follows:

"In this connection, it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States.

The very nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces the State may in principle employ against him disciplinary law rather than criminal law. In this respect, the court expresses its agreement with the Government.

However, supervision by the court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the 'criminal' sphere deprivations of liberty liable to be imposed as a punishment except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so."

[138] Those criteria were applied by the Strasbourg court in the prison context in the case of Campbell and Fell. The court there recognised, at paragraph 69, that:

"... in the prison context there are practical reasons and reasons of policy for establishing a special disciplinary regime, for example security considerations and the interests of public order, the need to deal with misconduct by inmates as expeditiously as possible, the availability of tailor made sanctions which may not be at the disposal of the ordinary courts and the desire of the prison authorities to retain ultimate responsibility for discipline within their establishments."

The court went on, however, to make it clear that that did not mean that proceedings in respect of misconduct by prisoners were to be regarded as automatically exempt from the requirements of Article 6:

"However, the guarantee of a fair hearing, which is the aim of Article 6, is one of the fundamental principles of any democratic society, within the meaning of the Convention. As the GOLDER judgment shows, justice cannot stop at the prison gate and there is, in appropriate cases, no warrant for depriving inmates of the safeguards of Article 6."

[139] The court then went on to examine the nature of the offences in question, noting that that which one of the applicants was alleged to have committed was specified in the relevant rules as being "especially grave" and that the practical effect of the penalty imposed (forfeiture of remission) was to cause the prisoners' detention to extend for a substantially longer period than would otherwise have been the case. The categorisation of the offence and the severity of the penalty was considered to be such as to lead to the conclusion that the applicant had, in effect, been conviction of criminal charges and was, therefore, entitled to the protection of Article 6.

[140] It does not, however, seem to have been the intention of the Strasbourg court to indicate that in every case where a prison governor takes action in respect of misconduct within the prison setting, his actions and the consequences thereof will fall to be regarded as the determination of a criminal charge. Rather, the position would appear to be that the court regards it as possible for that conclusion to be reached but that whether it is will all depend on the facts and circumstances of each case which require to be examined in the context of any special considerations that apply such as those which arise when considering a prison regime. I note also that although the forfeiture of remission appears to have weighed heavily with the court in Campbell and Fell, the Court of Appeal, in R(Al-Hasan), whilst expressly applying Engel, found themselves able to characterise as disciplinary rather than criminal the circumstances concerning the imposition of an order which postponed prisoners' release on licence for failing to comply with the requirements of a lawful search, commenting upon the flexibility of the approach envisaged by the Court of Human Rights. It seems likely that the Court of Appeal would have had difficulty in defending their conclusion in that case, if it had been decided after Ezeh and Connors, given that in that case the Court of Human Rights, after referral to the Grand Chamber, determined that the imposition of additional days by a prison governor after a finding of culpability amounted to a fresh deprivation of liberty and so gave rise to a presumption that the charges involved were criminal. The concern in Ezeh and Connors was to correct a prior analysis of the forfeiture of remission as not involving significant penalty but, for present purposes, I observe that it did not amend the Engel criteria or detract from the essentially flexible approach there set out. Hence, no doubt, the approach of Weatherup J in Corden's Application, a case which concerned the imposition of segregation to enable the retrieval and detection of drugs following a positive indication having been given by a 'drugs dog' after a prisoners' return from temporary release. At paragraph 16, he said:

"In Ezeh and Connors the EctHR noted that the parties did not suggest that the penalties other than additional days were of relevance as regards the applicability of Article 6. If the decision to remove the applicant from association for the detection and retrieval of drugs amounted to a 'charge', and I have found that it did not, I am satisfied that it is not a criminal matter in domestic law; it remains a matter undertaken for the detection and removal of drugs rather than an offence of possession; the degree and severity of the penalty did not involve loss of liberty but loss arising from restriction of association. Applying the three Engels criteria referred to above I am satisfied that the decision to remove the applicant from association did not constitute a 'criminal charge' for the purposes of Article 6."

It is also of note for the purposes of the present case that the discussion in Ezeh and Connors at paragraph 88 appears to be to the effect that the court would not have regarded the matter before them as a criminal one engaging Article 6 had the prison governor confined himself to the use of forfeiture of privileges, exclusion from associated work and cellular confinement in furtherance of the preservation of order and control in the prison. The problem lay in the use of additional days as a sanction and took the case over the threshold that lay between disciplinary and criminal categories.

[141] Turning to the circumstances of these petitions, all the periods of segregation are said, both in the pleadings and in the orders themselves, contained in the productions to which I have already referred, to have been imposed because it was considered desirable for the purpose of maintaining good order and discipline in each of the prisons involved. The desire and intention of the governor and, in the case of the extensions and renewals under Rule 80(5) and (6), the respondents, was not, accordingly, to determine whether or not any of the petitioners had committed any particular act, still less to punish them for having committed it. Had that been the purpose that was sought to be achieved, the disciplinary procedures provided for separately in the rules would have had to be utilised and it is not, as I have already observed under the Wednesbury heading, suggested that the governors or the respondents deliberately elected to proceed under Rule 80 so as to avoid the requirements of the disciplinary proceedings provided for under Rule 95, where the concern would be to determine what, if anything, had been done by the individual prisoner charged and what, if any, penalty should be imposed in the event of a finding against him. Nor is it suggested that Rule 80 was used in bad faith as a covert means of imposing punishment. The averments to the effect that the Rule 95 procedures could have been utilised are, in my view, irrelevant in cases where, as here, the concern of the governors and respondents was to protect the good order and discipline of the prisons, not to identify precisely what each petitioner had done and determine a penalty to be imposed therefor.

[142] I observe that the use of Rule 80 does not, on the contrary, result in any determination being made as to whether or not a prisoner has committed any act of misconduct nor is it concerned with the imposition of penalty on a prisoner. The concern rather is with the maintenance of good order and discipline in the prison. That may arise in a wide range of circumstances and the rule provides for action to be able to taken so as to secure such order and discipline, expeditiously. These circumstances are bound to include those where the available evidence is not such as would provide sufficient evidence for the establishment of a criminal charge but can properly be relied on, in good faith, as justification for Rule 80 action being taken, bearing in mind the obligations that a governor and the respondents have to maintain good order, discipline and security within Scottish prisons. The evidence may be hearsay. It may have its source in intelligence that requires, for safety reasons, to be protected. It may be uncorroborated. It may, importantly, be information regarding what is likely to happen within the prison as opposed to what any particular prisoner has, as yet, done. If it arises, then the governor and the respondents require to exercise a judgment, considering the nature and quality of the evidence and weighing the disadvantage to the individual prisoner of segregation against the risks to persons and property within the prison that will arise if no action is taken. The outcomes which may ensue if the extent of the risk is misjudged can, as is well known, be devastating. These are not, accordingly, judgments that can be weighed in fine scales as has clearly recognised by the Court of Human Rights in the authorities to which I have referred. The Court, accordingly, seems content to allow for the possibility, in certain circumstances, of a criminal categorisation not being applied to disciplinary action taken against a particular prisoner in respect of a specific charge alleged against him. Even stronger must be the scope for circumstances which, as in the present cases, do not involve any disciplinary charges being levelled against any prisoner, being determined as falling outwith that category. That must, further, particularly be so where, as here, no additional penalty has been imposed. The petitioners relied heavily on the fact that whilst segregated, a prisoner is cut off from associations which, in normal course, he would normally be afforded. That, clearly, is so. It is, however, against a background of lawful deprivation of liberty having previously been imposed in the context of a regime which, as the respondents pointed out, only affords limited rights of association Rules 69(4) and 75(2)(a)). Further, it is in the context of a regime which confers on the respondents the power, via Rules 80(5), (6) and (8)(a), to bring the segregation to an end at any point that they consider that segregation is no longer required for a Rule 80(1) reason. Flexibility of a type which would not be a characteristic of a criminal penalty is thereby retained.

[143] In all the foregoing circumstances, I am satisfied that the respondents are correct in their submission that the granting of orders under Rules 80(5) and (6) in these cases do not constitute the determination of criminal charges and that Article 6 is not, accordingly, engaged.

[144] I shall, accordingly, exclude the following averments from probation:

In the petition of Andrew Somerville:

- in statement 3(c), the words: "of Article 6 et separatim"

- in statement 14, at p. 53C-D, from: "Separatim" to "these safeguards."

In the petition of William Cairns:

- in statement 3(c), the words: "Article 6 et separatim"

- in statement 15 at p. 46, from "Separatim under national law ...." to: "... should have afforded the petitioner these safeguards."

- in plea in law 3, the words: "et separatim Article 6"

In the petition of Ricardo Blanco:

- in statement 3(d), the words: "Article 6 et separatim"

- in statement 12, at p. 43-4, from "Separatim under national law" at p.43C-D to: "... these safeguards." at p. 44A

In the petition of Samuel Ralston:

- in statement 3(c), the words: "with Article 6 et separatim"

- in statement 16, at p. 53D-E, from: "Separatim" to " ... civil right."

- in statement 16, at p. 54B, the sentence: "To have had acted compatibly with Article 6 the respondents should have afforded the petitioner these safeguards."

- in statement 19, at p.64D-E, the words: "Article 6 and"

In the petition of David Henderson:

- in statement 1, at p. 3D: ", 6"

- in statement 3(c), at p. 9C, the words: "6 et separatim"

- in statement 15, at p. 53D to 54B, from: "Separatim under national law ..." to: "... these safeguards."

- in plea in law 3, from: "et separatim ..." to "averred,".

[145] Counsel for the petitioners sought to retain part of the averments within the passages that refer to Article 6, on the basis that they could be read as relating to the unchallenged cases at common law and under Article 8. I do not, however, consider that it is appropriate to do so since the passages clearly read as self contained chapters of averment relating to Article 6.

Article 8
[146] Counsel for the respondents, whilst indicating that they made no concession that Article 8 had been engaged, accepted that proof before answer should be allowed in respect of the majority of the petitioners' averments in support of a case that their rights under Article 8 of the Convention had been breached. They submitted, however, that in two respects the pleadings were irrelevant. The first concerned averments that appeared in all the petitions regarding the respondents' decision to close what are referred to as "special or small units" that were operated at several prisons for the management of long term difficult prisoners during the period 1973 and 2001. The averments are to the effect that the units were shown to have a positive effect on such prisoners and that, having been closed down, the Scottish prison system now has no provision for the proper management, control and support of such prisoners other than to place them on Rule 80 segregation.

[147] The submission for the respondents was simple. It was said that even if Article 8 was engaged, that did not justify or require the court to enter into an investigation of the conditions under which prisoners had been held for the last thirty years or so. The question for the court would be that of whether the impact on the individual petitioners was in accordance with law and proportionate to a legitimate aim. To answer that, the court would require to look at the situation of these particular petitioners and no assistance would be obtained by considering the matter of small or special units.

[148] Secondly, counsel for the respondents submitted that a section of the averments that appears in each petition regarding the general effects of segregation should not be remitted to probation because they were expressed entirely in the abstract without there being any reference to the actual effect of segregation, if any, on these petitioners.

Discussion (Article 8)
[149] Counsel for the petitioners did not seek to defend the statements in the petitions which refer to the closure of special or small units. I have no difficulty in upholding the respondents' submission. The averments are quite clearly wholly irrelevant to the issues raised. They do not relate to any of the declarators sought nor are they reflected in any of the pleas in law. Judicial review is not a procedure for engaging in public enquiry into executive policy which is what the averments regarding closure of these units appear to seek to do. It is regrettable that time has been taken and expense incurred in including them in the petitions. I will, in the circumstances, exclude the following from probation:

In the petition of Andrew Somerville:

- statement 11

In the petition of William Cairns:

- statement 11

In the petition of Ricardo Blanco:

- statement 9

In the petition of Samuel Ralston:

- statement 12

In the petition of David Henderson:

- statement 11

The general averments regarding the effects of segregation that were attacked by the respondents begin with the following:

"Segregation involve four aspects which are potentially harmful to psychological wellbeing, namely sensory deprivation, physical constraint, social isolation and coercive control ..."

Further averments then follow which detail what could be involved in each of those four aspects. There are, however, no averments that any of the petitioners actually suffered any such harm. Junior counsel for the petitioners recognised that that was so and frankly admitted that they did not have material upon which any such averment could be made. They anticipated seeking to amend, once they had finished perusing certain documents. They sought, in these circumstances, to retain the averments in the meantime and have a By Order Hearing fixed at which they would indicate whether or not they had the material to sustain and make relevant the challenged averments. It was said that if they found that they did not have material in respect of each individual petitioner to make these averments relevant then they would be deleted. In short, they seemed to recognise that, at present, the averments are irrelevant but sought the indulgence of the court to allow them to retain them in the pleadings in the meanwhile, since they might be able to make them relevant at a future date.

[150] I cannot accept that the petitioners' approach is a sound one. The averments are irrelevant and therefore they ought not to be remitted to probation. If the petitioners find that they have material which would enable them to make relevant averments to the effect that the petitioners or any of them have suffered harm of the sort identified then they will, no doubt, tender a Minute of Amendment. That is not, however, a good reason for retaining averments which are clearly irrelevant in the meantime.

I will, accordingly, exclude the following from probation:

In the petition of Andrew Somerville:

- in statement 12, at p.41D, from: "Segregation involves four aspects....." to, at p. 42D: ".....sake of brevity."

In the petition of William Cairns:

- in statement 13, from: "Segregation involves four aspects..." in the third last line of p.37, to: "...sake of brevity." at p.38.

In the petition of Ricardo Blanco:

- in statement 10, from: "Segregation involves four aspects..." at p.34B to: "...sake of brevity." at p.35B.

In the petition of Samuel Ralston:

- in statement 13 , from : "Segregation involves four aspects ..." at p. 39C to : ".... sake of brevity." at p.40C

In the petition of David Henderson:

- in statement 17, from: "Segregation involves four aspects ..." at p. 60D-E , to: "... debilitating effects." at p.61D.

Incorporation of Reports

[151] Counsel for the respondents drew attention to the fact that in a number of places in the pleadings, there are averments which purport to incorporate the terms of certain expert reports that had not been lodged. The experts concerned were Professor Michael Corcoran, Professor Andrew Coyle and Professor David Canter. The respondents had, it was said, been given drafts of the reports by Professors Corcoran and Coyle but advised that they were only to be treated as drafts and would be amended once the clinical psychologist instructed on behalf of the petitioners has reported.

[152] In these circumstances, the averments purporting to incorporate the reports into the pleadings should, it was submitted, be deleted, because there was a failure to comply with Rule of Court 27.1. The effect of incorporating documents into pleadings was that they became part of the pleadings and could be used as a basis for leading evidence. The respondents were being deprived of fair notice of the case that they had to meet by the failure to lodge the reports. If, at a future date, the petitioners had reports which they considered should be incorporated into the pleadings, they could seek to amend in the usual way.

[153] The petitioners did not seek to defend the averments incorporating reports that were subjected to challenge.

[154] I am satisfied that the respondents' submission on this matter should be upheld. These petitions were raised many months ago now and there has been a complete failure to comply with Rule of Court 27.1. Further, it was plain that final reports do not yet exist. That being so, the petitioners cannot yet know what those reports will, ultimately, contain. I do not see how, in these circumstances, the averments purporting to incorporate the reports into the pleadings can amount to fair notice of a relevant case. If they cannot do so, then their retention in the pleadings cannot be justified. I will, accordingly, exclude all references to the reports of the three professors which purport to incorporate their reports into the pleadings. These

appear at the following points:

In the case of Professor Corcoran: in the petition of Andrew Somerville at p.34, in the petition of William Cairns at p. 32, in the petition of Ricardo Blanco at p. 23, and in the petition of Samuel Ralston at p. 32.

In the case of Professor Coyle: in the petition of Andrew Somerville at p. 38, in the petition of William Cairns at p. 34, in the petition of Ricardo Blanco at p. 29, in the petition of Samuel Ralston at p. 34, and in the petition of David Henderson at p. 39.

In the case of Professor Cantor: in the petition of Andrew Somerville at p.42, in the petition of William Cairns at p. 38, in the petition of Ricardo Blanco at p.33, and in the petition of Samuel Ralston at p.40.

Insofar as the petitioners' averments have not been excluded from probation, I shall allow a proof.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Somerville & Ors v. The Scottish Ministers [2005] ScotCS CSOH_24 (08 February 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_24.html Cite as: [2005] CSOH 24, [2005] ScotCS CSOH_24