The House of Lords has given the Court of Session a significant rap across the judicial knuckles over its treatment of two civil servants in a case brought by William Beggs against the Scottish Ministers.
Briefly, the case concerned a complaint made by William Beggs, a convicted murderer imprisoned in Scotland, that his correspondence with the Scottish Prison Complaints Commissioner was being opened by the prison despite an undertaking made in court by the Scottish Ministers that prison authorities would not open any mail addressed to Mr Beggs from the Scottish Prison Complaints Commissioner.
When determining Mr Beggs' case, the Court ordered Mr Tony Cameron, Chief Executive of the Scottish Prison Service (as a representative of the Scottish Ministers), and Mr Ian Gunn (Governor of HM Prison Peterhead where Beggs was imprisoned) to be present at the delivery of their opinion. While Counsel was provided with a copy of the opinion in advance they were required to keep the contents confidential. It was only later that Mr Cameron and Mr Gunn were given the opportunity to see the opinion.
Mr Cameron and Mr Gunn were therefore present, as ordered, when the Court pronounced the Scottish Ministers in contempt of court for breaching the terms of their undertaking regarding reading of mail.
The Scottish Minsters appealed several aspects of the Court of Session judgement, in particular the competency of the court to find the Ministers in contempt of court and the propriety of requiring the attendance of Mr Gunn and Mr Cameron. By the time the appeal was heard by the House of Lords, the appeal had shrunk to only concern the propriety of the compulsory attendance of the two civil servants. A bench of five Law Lords heard the appeal.
In the leading judgment of the House of Lords, Lord Rodger of Earlsferry found that the Court of Session was entitled to decide that an appropriate official should attend to hear the judgment of the court in place of a Minister. However, there were concerns over the manner in which this was done by the Court under review. In particular, it was noted that Mr Cameron had taken no active part in the hearing up to that point, nor had anyone been present at the hearing to represent his interests. Furthermore, the Court of Session judges should have raised the question of his attendance in the first instance with counsel for the Ministers and should have explained the reason for requiring Mr Cameron's attendance. Since the Court of Session did not do this, Lord Roger concluded that the judges were not entitled to require Mr Cameron's attendance in the way in which they did.
In Mr Gunn's case, Lord Rodger found that the Court of Session judges had singled him out, not as a representative of the Scottish Ministers but on the basis of his personal failure to take reasonable steps to comply with the terms of the original undertaking. So Mr Gunn was required to attend on the basis of his own failures rather than as a representative of the Ministers. Lord Rodger viewed this as an attempt to impose a form of sanction on Mr Gunn, which was not justifiable since Mr Gunn had not had the opportunity to defend himself and make submissions before the pronouncement of the order.
Lord Rodger therefore concluded that the Court was not entitled to order the attendance of Mr Gunn and Mr Cameron in the manner in which it did. He was unanimously supported in this decision by the other four Law Lords. In an interesting comment from Lord Hope of Craighead it was suggested that civil servants might rightfully be punished for contempt where they knowingly act or omit to act to give effect to an order or undertaking made by the Scottish Ministers. In so doing, Lord Hope was borrowing from the corporate analogy where a culpable director in the same position can be held liable where he knowingly breaches an undertaking by his company. However, Lord Hope clarified that the error in Mr Gunn's case lay in the fact that he was subjected to an order for which there was no lawful authority given his non-participation in the proceedings up to that point.