Somerville (AP) (Original Appellant and Cross-respondent) v. Scottish Ministers (Original Respondents and Cross-appellants) (Scotland) Blanco (AP) (Original Appellant and Cross-respondent) v. Scottish Ministers (Original Respondents and Cross-appellants) (Scotland) Henderson (AP) (Original Appellant and Cross-respondent) v. Scottish Ministers (Original Respondents and Cross-appellants) (Scotland) Ralston (AP) (Original Appellant and Cross-respondent) v. Scottish Ministers (Original Respondents and Cross-appellants) (Scotland) (Consolidated Appeals)

Appellate Committee

Lord Hope of Craighead

Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Mance

Counsel

Appellants: Respondents:

Aidan O’Neill QC Gerry Moynihan QC

Ailsa Carmichael James Wolffe

Simon Collins Douglas B Ross

Balfour & Manson (Instructed by Taylor & Kelly)

(Instructed by Solicitor to the Scottish Exe cutive)

Intervener

Advocate General for Scotland Lord Davidson of Glen Cova QC
Philip Sales QC Mark Lindsay

(Instructed by Solicitor’s Office)

Hearing dates:

3, 4, 5, 9 and 10 July 2007

ON
WEDNESDAY 24 OCTOBER 2007

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Somerville (AP) (Original Appellant and Cross-respondent) v.

Scottish Ministers (Original Respondents and Cross-appellants)

(Scotland)

Blanco (AP) (Original Appellant and Cross-respondent) v. Scottish Ministers (Original Respondents and Cross-appellants) (Scotland)

Henderson (AP) (Original Appellant and Cross-respondent) v.

Scottish Ministers (Original Respondents and Cross-appellants)

(Scotland)

Ralston (AP) (Original Appellant and Cross-respondent) v. Scottish Ministers (Original Respondents and Cross-appellants) (Scotland)

(Consolidated Appeals)
[2007] UKHL 44

LORD HOPE OF CRAIGHEAD

My Lords,

1. The petitioners in these four applications for judicial review were all serving sentences of imprisonment. Two of them, Ralston and Somerville, are still in custody. Common to all the applications is a complaint about the lawfulness of their removal from association (referred to colloquially as “segregation”) under rule 80 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994 (“the 1994 Rules”). The proceedings are still at the interlocutory stage. No final orders have yet been made. Instead a number of issues of law have been identified which it was thought helpful to have determined before any evidence was led. Some of them were resolved by the First Division of the Court of Session (the Lord President (Hamilton), Lord Macfadyen and Lord Nimmo Smith) after hearing argument on reclaiming motions in each case from decisions on them by the Lord Ordinary (Lady Smith): [2006] CSIH 52; 2007 SC 140. But five issues remain, for the determination of which the Inner House gave leave to the parties to appeal from its decision to your Lordships.

2. These issues, as identified by the Statement of Facts and Issues,

are as follows:

1. Whether a claim for damages based on breach of a Convention right by a member of the Scottish Executive is subject to the provisions of section 7(5) of the Human Rights Act 1998.
2. Whether the act of a governor of a prison in making an order under rule 80(1) of the Prisons and Young Offenders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Somerville v Scottish Ministers

Details

AGLC: Somerville v Scottish Ministers [2007] UKHL 44
Case: [2007] UKHL 44
Decision Date: 24 October 2007

CaseChat Overview and Summary

The case involved consolidated appeals by four prisoners seeking judicial review of decisions to segregate them. The central legal issues were: (1) whether claims for damages for breaches of Convention rights by Scottish Ministers were subject to the time bar in the Human Rights Act 1998; (2) whether a prison governor's segregation order was an act of Scottish Ministers; (3) when time began to run under the Human Rights Act; (4) whether proportionality was a ground of judicial review; and (5) whether the judge should inspect redacted documents subject to public interest immunity. The House of Lords held, among other things, that claims for damages for breaches of Convention rights by Scottish Ministers were not subject to the Human Rights Act's time bar, that a prison governor's segregation order was not an act of Scottish Ministers, and that the judge should inspect redacted documents. The appeals were allowed in part. The House recalled interlocutors excluding certain averments from probation and ordering that redacted documents be produced for inspection by the judge.

Orders