[2016] CSOH 80




In the petition




Judicial Review


Petitioner:  Campbell QC, Leighton;  Drummond Miller LLP

Respondent:  Byrne;  Scottish Government Legal Directorate

14 June 2016

[1]        On 21 July 2015 I found that the Scottish Prison Service (SPS) had breached the petitioner’s rights under article 8 of the European Convention on Human Rights (ECHR) by failing to deliver to him, unopened, mail which they should have regarded as privileged.  I have now heard counsel on the remedy appropriate in light of that finding.

[2]        The opening of mail happened between January 2013 and January 2015 while the petitioner was in prison in Scotland.  He remains in prison, serving a long sentence.  The respondent admitted opening mail but argued that the petitioner’s rights under article 8 had not been engaged.  I found to the contrary.  My opinion of 21 July 2015 sets out in full the factual position.

[3]        In the interval between my opinion being given and this hearing, the petitioner sought to amend by adding averments that a further instance of opening privileged mail had occurred.  He did not seek further proof, but wished the averments to be taken into account in the hearing on remedy.  The respondent successfully argued that the amendment should not be allowed on the basis that it came too late and that it was prejudicial to the respondent.  It was an attempt to introduce prejudicial material which had not been proved.  At this hearing, counsel for the petitioner produced a letter from the petitioner’s agents to the respondent dated 11 May 2016 in which the agents alleged that a further incident had happened and that the petitioner had made a complaint of that incident.  Counsel for the respondent argued that I should pay no heed to the letter on the basis that it was a further attempt to introduce material about matters said to have happened after those on which I had made a decision.  The pursuer was not offering to prove its allegations but was simply seeking to introduce material prejudicial to the respondent.

[4]        I decided that I should pay no attention to the allegation contained within the letter from the petitioner’s agents.  Counsel for the respondent argued that I should proceed on the basis that nothing untoward had happened to the petitioner’s mail since January 2015.  I am not prepared to make that finding as I am aware that the parties are in dispute about whether anything has happened.  Rather I proceed on the basis that the remedy I am asked to give is in respect of the findings of breach of the article 8 rights of the petitioner which I have already made.

[5]        Counsel for the petitioner argued that there were three possible outcomes as follows:

1.         That the findings of breach were in themselves just satisfaction.

2.         That a declarator of breach should be made.

3.         That damages should be awarded.

Counsel argued that while it would be conventional to pronounce a declarator prior to awarding damages, it was not essential so to do.  In the original petition the petitioner sought damages in the sum of £5,000.  Counsel accepted that the amount of damages, if any award was made, was a matter of impression and that it was not a sum that could be precisely calculated.  If other cases said to be similar could be found then some guidance might be taken from them, but each case turned on its own facts.

[6]        For the respondent, counsel argued that neither should declarator be pronounced nor damages awarded.  The findings made in my first judgment were, in his submission, just satisfaction.

[7]        It was a matter of agreement that the starting point is the Human Rights Act 1998, section 8 which is in the following terms:

Judicial remedies


8(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.


(2)        But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.


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


(a)        any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court) and

(b)        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 –


(a)        whether to award damages, or

(b)        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.


(5)        ...


(6)        In this section –


‘court’ includes a tribunal;

‘damages’ means damages for an unlawful act of a public authority;  and

‘unlawful’ means unlawful under section 6(1).”


Section 8 reflects article 41 of the Convention which is in the following terms:

“Just satisfaction:  If the court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the high contracting party concerned allows only partial reparation to be made, the court shall, if necessary, afford just satisfaction to the injured party.”


[8]        That section was interpreted by the House of Lords in the case of R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673 to the effect that the focus in the Convention is on securing observance by member states of minimum standards in the protection of human rights specified in the Convention.  Damages may be awarded by a court which has the power to award damages in civil proceedings if that court is satisfied, taking account of all the circumstances, that an award of damages is necessary to afford just satisfaction to the person in whose favour it is made.  Such a court requires to consider whether an award of damages is just and appropriate, and as is stated in the speech of Lord Bingham of Cornhill, while a domestic court may not award damages unless it is satisfied that it is necessary to do so, it is hard to see how such a court would consider necessary to do so but then find it was not just and appropriate to do so.  The principles set out in article 41 of the Convention must be taken into account by the court if it does award damages.  Therefore the court must look to the jurisprudence of the ECHR for guidance on the award of damages.  Both counsel accepted that the paramount concern when a breach of human rights is found is to bring that to an end rather than to provide damages. 

[9]        The case of Greenfield concerns a breach of article 6 of the Convention and while I understood counsel for the respondent to accept the general points set out above, he argued that I should rely on cases involving breaches of article 8 rather than those involving article 6.  Counsel were agreed that Lord Bingham of Cornhill at paragraph 19 set out clearly the nature of the 1998 Act.  His Lordship noted that it is not a tort statute.  A finding of a violation will be an important part of a remedy even if it is not found to constitute just satisfaction.  Awards of damages are not needed to encourage high standards of compliance by member states, as such member states are already bound in international law to perform their duties under the Convention.  Lord Bingham noted however that there may be a need in some cases to encourage compliance by individual officials or classes of official.  The intention of incorporating the ECHR into domestic law was to enable citizens to obtain a remedy in a domestic court rather than having to go to Strasbourg, which would entail delay and expense.  The remedy obtained in a domestic court would be the same, not a better remedy.  Section 8(4) of the Act makes clear that the court is to look to principles applied by the European Court of Human Rights (ECtHR) under article 41 in deciding not only whether there should be damages but what amount should be awarded.  Such awards are described as “equitable” meaning they are not precisely calculated  but are judged by the court to be fair in the individual case.

[10]      Counsel for the petitioner then considered the cases reported as R (Sturnham) v Parole Board (Nos. 1 and 2) [2013] 2 AC 254 in which cases concerning a Mr Faulkner and a Mr Sturnham were considered.  These cases concerned the intricacies of sentencing in England and Wales in relation to the requirement for the Parole Board to consider the individual cases of prisoners.  The article of ECHR said to be breached was article 5.  Counsel for the petitioner referred to paragraphs 66 to 68, in the speech of Lord Reed, where his Lordship found that serious mental suffering may be caused to a prisoner as a result of delay in considering his case;  a delay of three months or more was likely to merit an award.  The outcome of the cases was that the damages awarded to Mr Faulkner were reduced from £10,000 to £6,500 and the award of damages of £300 to Mr Sturnham was upheld. 

[11]      Counsel for the petitioner made reference to a list of principles set out by Lord Reed at paragraph 13 of his speech and in particular numbers 3, 4, 7, 8, 13, 14 and 15.  He argued from that that the courts should be guided by any clear and consistent practice of the ECtHR (paragraph 3);  the quantum of awards under section 8 should be broadly reflective of the level of awards made by ECtHR in comparable cases brought by applicants from the UK or from other countries with a similar cost of living (paragraph 4);  the appropriate amount will be a matter of judgment depending on the facts of the individual case and taking into account such guidance as is available from ECtHR cases or by domestic courts applying section 8 of the Human Rights Act 1998 (paragraph 7);  any pecuniary losses should be compensated in full (paragraph 8);  where feelings of frustration and anxiety can be presumed or shown to have been suffered the finding of a violation will not ordinarily constitute sufficient just satisfaction and an award of damages should also be made (paragraph 13);  such damages should be on a modest scale (paragraph 14);  and no award should be made if the frustration and anxiety are insufficiently severe to warrant such an award.  In connection with delay, that being the subject matter of the case, three months or more of delay would be likely to warrant an award (paragraph 15).

[12]      While the case of Sturnham above concerned article 5, counsel for the petitioner argued that a prisoner whose article 8 rights had been violated have the same broad concerns.

[13]      Counsel went on to argue that declarator should be pronounced.  He made reference to Civil Remedies, by Professor D M Walker but readily conceded that Professor Walker and the court in the case of McNaughton v McNaughtons Trustees 1953 SC 387 referred to by him were referring to private law disputes and did not have in mind the public law question before me.  Counsel argued however that at a fundamental level a question of the rule of law was raised.  The executive branch of government was being held to account for its activities in connection with the ECHR rights of a citizen.  The petitioner had had to go to court three times to vindicate his rights.  In such a situation, counsel argued that a finding of violation was not just satisfaction.  This was an occasion in which the court required to actively encourage compliance, because it was found that the respondent had carried out an investigation and had apologised but because three cases had been raised, it was obvious that the respondent had not been successful in compliance.  From the petitioner’s point of view, confidential correspondence was an important matter and the seriousness of the situation should be marked by the court pronouncing a decree of declarator.

[14]      Counsel also argued that damages should be awarded on the basis that the breach was sufficiently severe to warrant damages, for the same reasons.  He made reference to three decisions to illustrate a range of disposals.  The first is Campbell v UK (1993) 15 EHRR 137, a case from 1992.  In that case, Mr Campbell’s correspondence while in prison was opened and the court found that there was a violation of his article 8 rights.  It found that that finding was just satisfaction.  In the case of Bykov v Russia, application number 4378/02 10 March 2009, the court found that there was interference with article 8 rights where a police operation, described as a “sting”, was not accompanied by adequate procedural safeguards.  Thus its use was arbitrary and inconsistent with the requirement of lawfulness.  The court also found that the applicant had been detained prior to the sting taking place and in respect of both violations made an award of €1,000.  In the case of Association “21 December 1989” v Romania (2015) 60 EHRR 25 a breach of article 8 was found when surveillance was used without proper authorisation.  The intelligence gathered by means of that surveillance was held for 16 years.  Award of €6,000 was made.

[15]      Counsel argued that these cases were relevant to consider the principles applied by the ECtHR.  He cautioned against any grading of article 8 violations those of article 5.  He pointed out that there is nothing in the Convention to indicate that an article 5 contravention is more serious than an article 8 contravention.  While he accepted that the question of liberty might be uppermost in a prisoner’s mind, he argued that a prisoner serving a long sentence would find question of his private correspondence to be very important.

[16]      Counsel for the respondent argued that damages are not often awarded by ECtHR: the character and conduct of the parties may be relevant, and maladministration will result in a contravention of article 8 rights only where it has given rise to serious consequences: Anufrijeva v Southwark LBC [2004] QB 1124.  In the cases of Silver v UK (1991) 13 EHRR 582 and Campbell v UK correspondence was stopped but the court found that the annoyance and inconvenience caused was not enough to warrant an award of damages.  In the present case, the court had made a finding that the petitioner’s article 8 rights had been breached, in a publicly available judgment.  The petitioner had not proved that any such breach continued.  Apologies had been made. The breach consisted in opening mail in front of the petitioner and handing the contents to him.  The finding of a breach was just satisfaction.

[17]      The granting of a declarator is in the discretion of the court, and counsel argued it would serve no purpose to do so.  The court should not pronounce futile orders:  Brown v Hamilton District Council 1983 SC (HL) 1, Mahmood [2005] CSOH 52;  Veronique Boum [2006] CSOH 111.  There was no necessity to award damages.  The petitioner did not aver that he had suffered significant anxiety.  Counsel relied on Anufrijeva for the proposition that there must have been serious maladministration before article 8 is engaged, but that did not mean that damages must be awarded.  The ECtHR in Silver considered the intensity of the annoyance and sense of frustration felt by the prisoners.  It found that as the number of letters was small and the respondents made changes as a result of the applications, it was not necessary to award financial compensation.  Further in the case of Kopp v Switzerland (1999) 27 EHRR 91 no award of damages was made in respect of unlawful surveillance.


[18]      I find that just satisfaction is constituted by my finding of breaches of the petitioner’s article 8 rights.  I considered carefully whether the fact that the petitioner raised three actions, showing that the system was not reformed after the first or second action, necessitated an award of damages.  I have decided that it did not.  The breaches did not involve any reading of confidential mail.  Apologies were made following complaints made by the petitioner and investigated by the respondent.  The system for recognition of such mail was altered as a result of the petitioner’s complaints and actions.  The petitioner was annoyed.  I do not find that he suffered distress of the severity discussed in the case of Greenfield.

[19]      Counsel submitted that expenses should follow success.  The petitioner succeeded in the first hearing and I award him expenses of that hearing.  The respondent succeeded in the second hearing, and I award expenses to the respondent against the petitioner as a legally aided person, modified to nil.