Beggs v Scottish Ministers  CSOH 98, 21st July 2015 –
The Court of Session’s first instance chamber – the Outer House – has held that the way in which the Scottish Prison Service (SPS) handled a prisoner’s correspondence breached Article 8 of the European Convention on Human Rights.
The petitioner, William Beggs, was a prisoner at HMP Glenochil until March 2013 and thereafter at HMP Edinburgh. In 2001 he was sentenced to life imprisonment for the 1999 murder of 18 year-old Barry Wallace, whose dismembered body parts Beggs disposed of in Loch Lomond.Since at least 2003, Beggs had made complaints about the way in which his mail had been handled by the prison authorities. The complaints made in this case related to incidents which took place between January 2013 and January 2015. Beggs complained about delays in receiving mail from the prison authorities and about prison staff opening privileged correspondence from the UK and Scottish Information Commissioners. The Scottish Prison Rules (Correspondence) Direction 2012 identified correspondence from the Information Commissioners as privileged under section 59 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011. Those Rules stated that prison officers could not open privileged correspondence unless there was cause to believe that the mail contained a prohibited article, the reason for that belief had been explained to the prisoner, and the prisoner was present (rule 59 (3)). The contents of privileged mail could not be read by an officer except where there was a reasonable belief that the contents may endanger security in the prison or relate to criminal activity (rule 59 (4) and (5)). The SPS accepted that there had been delays in delivering some mail to Beggs and that some privileged correspondence had been incorrectly opened by prison staff.
Beggs argued that the way in which the SPS had handled his mail breached Article 8. Article 8 (1) included a right to the protection of correspondence, any interference with which must be proportionate. Though the prison authorities were entitled to implement some controls of prisoners’ correspondence to prevent disorder or crime, special considerations applied to lawyer-client correspondence and, by extension, communications with the bodies listed in the 2012 Direction. It was for the prison authorities to devise a suitable system and implement it efficiently. As privileged correspondence had been wrongly opened by prison staff the system put in place by the SPS was not effective. This was a breach of Article 8 as there were insufficient safeguards against disproportionate interferences with the right to respect for correspondence. Delays in receiving some mail also breached Article 8. It was foreseeable that some privileged correspondence would relate to imminent court or other proceedings making it necessary for the correspondence to be delivered without undue delay.
The respondents argued that there were no systemic failures which amounted to a breach of Article 8. There were only three complaints about delay one of which was caused by an incident within the prison which had diverted the relevant staff. Following official complaints the prison authorities had apologised for the other two delays. In relation to the opening of privileged correspondence, four items of mail over a two-year period were opened because the envelope did not adequately identify the mail as privileged. This was simply inadvertence and not a failure of the system. Even if these events should have been avoided, mail was always opened in front of Beggs and was not read by prison staff. The events were not sufficiently serious to engage Article 8.
The Court’s Decision
The judge found that Beggs’ complaint about delays in receiving mail had not been made out. A prisoner could not expect a perfect mail delivery system. The SPS accepted that they had to provide a system of delivering mail on the day it arrived at the prison but there were operational requirements which occasionally caused delay. All systems were vulnerable to occasional human error.
However, the opening of privileged correspondence did breach Article 8. The authorities had been aware of Begg’s concerns for about 12 years and, whilst policies had been introduced to conform to the Prison Rules and the 2012 Direction, the SPS had failed to implement those policies. Prison officers were told that correspondence from the Information Commissioners was not to be opened because it was privileged but were not told what this correspondence would look like. The Information Commissioner had sent out correspondence with his address on the front of the envelope but it was not until 2015 that the authorities included the address in their directions to staff. Prison staff had therefore opened privileged correspondence as they were unable to identify it as being from the Information Commissioner. The judges held that if a policy decision is made to treat certain correspondence as privileged then “it is necessary to implement that decision by telling those who handle the mail how to recognise it.” The failure of the SPS to do so was a failure to implement its own policy.
The prison authorities had also failed to make staff aware of the potential use of double envelopes and provide a system of marking the internal envelope as privileged. On one occasion a prison officer had thought that a handwritten envelope marked ‘privilege’ was suspicious, which was not surprising as he had not been told that some double envelopes might be so marked. The SPS had since put in place a system whereby mail would be marked as privileged with a stamp when it was taken from the outer envelope but this could have been introduced sooner.
The judge emphasised that it was not for a court to decide the detail of how a prison was run. That is a matter for the SPS and in light of its ability and experience its decisions were entitled to a degree of deference. However, the judge concluded that the failures of implementation in relation to Beggs’ privileged correspondence showed that the system in place at the time was “insufficient in its actual working to enable the petitioner’s right to respect for his correspondence to be upheld.” The judge decided to hear arguments about a suitable remedy at a later date.
The crucial issue in this case was the way in which policies relating to privileged prisoner correspondence were implemented. There was no challenge to the prison rules or TO the 2012 Direction, nor was there any suggestion from the court that they were problematic from an Article 8 perspective. However, the SPS had not taken sufficient steps to ensure that the rules and the Direction were complied with in practice. A violation of Article 8 can therefore arise when the authorities fail to ensure that an otherwise sound policy is actually implemented on the ground.