‘Limbs in the Loch’ killer wins Article 8 claim

24 July 2015 by

Beggs v Scottish Ministers [2015] CSOH 98, 21st July 2015 – read judgment

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.

The Arguments

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.

by Thomas Raine

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: