Factual and Procedural Background
Plaintiff is a prisoner detained in Company B. Company A, through its executive agency, is responsible for Plaintiff's detention and for the handling of incoming prisoner mail at Company B. Plaintiff challenged Company A's handling of his incoming correspondence between March and July 2025, alleging that prison authorities opened and read his mail without reasonable cause and delayed delivery of his correspondence. The petition relied on affidavits and productions. At the substantive hearing the parties adopted their Note of Argument and narrowed the issues in dispute. Relevant incidents included: (a) two items of general correspondence seized on 2 April 2025 which tested positive for ketamine and were retained for police investigation; (b) two items seized on 12 March 2025, one being a letter from The Hospital's "Legal Policy" department containing test results which was treated as general (non-confidential) correspondence and photocopied after testing negative; (c) legal/privileged correspondence received on 19 March 2025 and 22 July 2025 which arrived with a small tear or unsealed in transit; and (d) allegations that on seven occasions mail to Plaintiff was issued late (mostly delays of one or two days, one alleged seven-day delay). Plaintiff sought a range of declarators and interdicts, orders about retention/destruction and training, and expenses. Judge Hood heard and determined the petition.
Legal Issues Presented
- Whether Company A's testing, seizure and retention of correspondence (including items that tested positive for illicit substances) and its practices in relation to informing Plaintiff engaged and lawfully proportionately interfered with Plaintiff's Article 8 rights.
- Whether the letter from The Hospital's Legal Policy department should have been categorised and treated as "medical correspondence" (and thus confidential) under the applicable prison rules and directions.
- Whether Company A failed to follow its guidance and policies in relation to the handling of confidential correspondence from solicitors (specifically the items of 19 March 2025 and 22 July 2025).
- Whether delays in delivery of Plaintiff's correspondence breached applicable policy and rendered Company A's conduct unlawful.
Arguments of the Parties
Plaintiff's Arguments
- Company A acted unlawfully by opening/reading/seizing correspondence without reasonable cause and failing to provide details of testing (nature of substance and level of contamination) and details of the sender or contents.
- The Hospital's letter should have been treated as medical (confidential) correspondence and therefore handled unopened.
- Company A failed to follow its SOPs in relation to damaged mail (19 March 2025) and in relation to the unsealed solicitor correspondence (22 July 2025).
- Delays in issuing correspondence on seven occasions breached policy and warranted declarators/interdicts and other remedies proposed.
- Proposed less-intrusive alternatives: provide testing results; supply photocopies (including by use of transparent production bags); allow Plaintiff to read contaminated correspondence in the hall without handling it; at minimum identify the sender to Plaintiff.
Respondent's Arguments (Company A)
- The mail regime pursued a legitimate objective (preventing introduction of prohibited items and protecting health/safety) and was applied in accordance with policy, guidance and SOPs and statutory rules.
- Items testing positive must be treated as potential police productions; handling should be minimised, items placed in non‑transparent production bags and passed to police; providing detailed testing data or copies would compromise evidence, pose safety risks or be impractical.
- Practical and security objections made the Plaintiff's less-intrusive options unworkable (risk of contaminating photocopiers, incomplete capture of multi-page documents through bags, safety risks of taking contaminated mail into halls, inability to identify sender without opening and reading correspondence in circumstances strictly controlled by rules).
- The Hospital's letter did not meet the rules' definition of "medical correspondence" (not sent by a registered medical practitioner and Plaintiff not certified as a 'relevant prisoner'); categorisation was within the range of reasonable operational policy choices.
- Alleged delays were minor, sporadic, and explicable by operational reasons or human error; policies acknowledge occasional delay and there was no systemic failure.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Bank Mellat v HM Treasury (No 2) [2013] UKSC 38; [2014] AC 700 |
Formulation of proportionality inquiry (whether a less intrusive measure could achieve the objective). |
Court applied the Bank Mellat proportionality formulation to assess whether Company A's measures interfering with Article 8 were justified and whether less intrusive alternatives were available. |
| Beggs v Scottish Ministers [2018] CSOH 3; 2018 SLT 199 |
Deference to operational/policy decisions about classification of privileged/confidential correspondence; and principle that courts should be slow to interfere. |
Court relied on Beggs to accept deference to Company A's policy decisions on which senders are treated as privileged/confidential and to refuse to interfere absent obvious irrationality; also cited for refusing declarator for past acts with no continuing consequence. |
| Beggs v The Scottish Ministers [2018] CSOH 110 |
Endorsement of restraint in interfering with operational categorisation of correspondence. |
Court noted Lord Ericht's endorsement of Lord Tyre and applied the same reluctance to disturb Company A's categorisation of the Hospital letter. |
| Szuluk v the United Kingdom (2010) 50 EHRR 10 |
Standards relating to confidentiality of legal correspondence and factors relevant to treating health-related mail as confidential. |
Court considered Szuluk's factors (life-threatening illness, named medical professional, treatment relevance) and found they did not apply to Plaintiff's circumstances; Szuluk did not require a broader rule in the present facts. |
| Z v Finland (1998) 25 EHRR 371 |
General recognition of importance of confidentiality of health data. |
Court considered Z v Finland but found its general discussion not decisive in the specific circumstances of the Hospital letter. |
| Matwiejczuk v Poland ((App no. 37461/97), 2 December 2003 at [99]) |
Standards for delivery of legal correspondence in an unopened manner. |
Court accepted that a system existed to deliver legal correspondence so as to indicate it had not been opened or read, consistent with Matwiejczuk. |
| Beggs v Scottish Ministers [2015] CSOH 98; 2015 SLT 487 |
Standards on delay in mail delivery to prisoners; recognition that perfect performance is not required and occasional operational delay is permissible. |
Court relied on this authority (and its quotation of X v Germany) to conclude that short, occasional delays did not amount to unlawful failure of the mail system. |
| X v Federal Republic of Germany |
Authority cited in relation to permissible standards for prisoner mail delay. |
Court referenced the principle (via Beggs [2015]) that prisoners cannot demand a perfect mail delivery system; applied to find delays not indicative of systemic failure. |
Court's Reasoning and Analysis
Judge Hood proceeded issue by issue, applying the statutory framework (Prisons (Scotland) Act 1989 rules, the 2011 Rules, and the Scottish Prison Rules (Correspondence) Direction 2021) together with Article 8 ECHR.
On the two items seized on 2 April 2025, the court accepted that Article 8 was engaged but applied the Bank Mellat proportionality test. The court found the objective of preventing illicit substances entering Company B was important and the measures were rationally connected to that objective. The central question was whether less intrusive measures could have been used. The court examined the Plaintiff's proposals (detailed testing information; photocopies via transparent production bags; permitting the Plaintiff to read contaminated mail in the hall; identifying the sender) and accepted Company A's operational evidence that each proposed alternative posed either evidential, safety, equipment or security risks or practical impossibilities (e.g., potential chemical reaction with photocopiers, incomplete photocopying through bags, handling risks in halls, necessity for officers to open/read to identify senders contrary to the controlled framework). Consequently the interference with Article 8 was proportionate and lawful; Plaintiff's remedies on this point were refused.
Regarding the Hospital letter of 12 March 2025, the court noted the rules' definition of "medical correspondence" and that the letter was not from a registered medical practitioner nor addressed to a 'relevant prisoner'. The court considered Szuluk and Z v Finland but found the factual criteria relied on in Szuluk (life-threatening illness, named treating practitioner, treatment implications) absent here. The court treated classification as an operational policy decision within a range of reasonable choices and concluded Company A's categorisation did not fall outside the range of decisions reasonably open to it; no Article 8 breach or irrationality was found.
On the solicitor correspondence (19 March and 22 July 2025), the court found that the system for delivery compliant with Matwiejczuk existed and that the slight tear on 19 March plausibly occurred in ascertaining the addressee and did not amount to a failure to follow SOPs. The unsealed envelope of 22 July remained unexplained but there was no suggestion of reading or copying; the Internal Complaints Committee treated it as an isolated anomaly. Even if a procedural lapse occurred, it was a past act with no continuing consequence and not a basis for the declarator sought.
On alleged delays, Judge Hood analysed the paperwork and acknowledged that policy anticipated occasional delay. Two alleged delays were not vouched by records; two were explained by operational incidents; remaining instances were short and, given the high volume of mail received by Plaintiff, represented occasional human error rather than systemic failure. Beggs [2015] was cited for the proposition that a prisoner is not entitled to a perfect mail system. The court concluded Company A did not act unlawfully in relation to delays.
Holding and Implications
PETITION REFUSED
Holding: Judge Hood repelled Plaintiff's first to seventh pleas-in-law and refused the petition in its entirety. All claims for the declarators and interdicts sought were dismissed.
Implications: The direct effect is that Plaintiff's requested remedies (declarators that Company A acted unlawfully or incompatibly with Article 8; interdicts preventing destruction of correspondence; orders to amend training/guidance; return of seized items) were not granted. The court found Company A's regime and its application in the incidents identified to be within the lawful and proportionate exercise of its powers. The decision did not establish a novel legal principle; expenses were reserved.