This blog is the first one for 2017, and picks up from the previous blogs in 2016. This blog considers what might need to be thought about when deciding how to approach the potential issues in a case.

This blog is the first one for 2017, and picks up from the previous blogs in 2016.  This blog considers what might need to be thought about when deciding how to approach the potential issues in a case.

 

 

Part 9: Focussing the case

 

There are several questions that require to be considered in any judicial review.  What is the problem, and what is the issue that you want the court to decide?  What is the remedy that you are seeking?  How realistic is that remedy?  What was the basis for the respondent’s actions, and what are the grounds of challenge?  What material supports the respondent’s actions, what material does not, what material was before the respondent at the relevant time, what other material might be helpful and where is that material?

 

Any person who might have an interest which is directly affected by the outcome of the challenge ought to be named as an additional Respondent.  If that interest is more consequentially affected rather than directly affected they ought to be named as an interested party and the petition should be served on them on that basis.  The case might raise a “devolution issue”, which means that it ought to be intimated to the Lord Advocate or the Advocate General for Scotland.  In a human rights case founding on a breach of the European Convention on Human Rights the Respondent must be a public authority.

 

There are frequently situations where the respondent has a discretion as to how to act, but there are policies in place which act to control the exercise of that discretion to achieve consistency with policy goals, consistency with other legal obligations, consistency of outcomes, and general fairness in decision making.  In some cases, it might be seen that the outcome is plainly perverse or unreasonable.  When trying to challenge an outcome, it might appear very difficult to question the apparent reasonableness of that outcome but it might be easier to challenge the outcome in the context of how the relevant policy ought to be applied.  Similarly, there may be a procedure which ought to be followed, but this has not been done and so opens the outcome to review.  In those situations, it can be more useful to consider whether focussing on the process is more appropriate than a direct challenge to the reasonableness of any individual act or decision.

 

By way of hypothetical example, consider a potential challenge to a decision to keep a prisoner segregated from other members of the prison population.  Prison Rules provide that a Prison Governor may order in writing that a prisoner must be removed from association with other prisoners, either generally or to prevent participation in a prescribed activity or activities.  Such an order may only be made where the Governor is satisfied that removal from association is appropriate for (a) maintaining good order or discipline, (b) protecting the interests of any prisoner, or (c) ensuring the safety of other persons.  Where any initial order is made, it cannot last for more than 72 hours from the time it is made unless an extension has been authorised by the Scottish Ministers in writing.  The period of segregation can be extended for up to one month where this is necessary for one of the specified purposes (a), (b), or (c), and therafter further extended any number of times for up to a month at a time where this is necessary for one of the specified purposes.  This is not a formal disciplinary power and therefor ought not to be imposed as a punishment.  It is involved with the “nitty gritty” of the working and management of the prison service.  Because of this there have been few challenges as to how the relevant Rule is applied as the courts are extremely reluctant to become involved in issues involving the internal management of the prison regime and will grant considerable discretion to the prison service and its staff as to how best to use such management powers.  Some guidance on how the Scottish Rules ought to be used can be gained by comparing it with the equivalent Prison Rules which apply to prisons in England.  Although the detailed procedures are different, the circumstances in which segregation can be authorised are substantially similar, and therefore guidance from England is relevant as it is apparent that the Scottish rules are intended to follow the same principles and approach as in England.  Issues that are likely to arise in relation to the segregation of a prisoner concern the reasons for the initial decision to segregate and what material supports that decision, the material to support any subsequent decisions to continue to authorise segregation, the existence of material which contradicts or does not support the initial or continued segregation, the procedures followed when making such a decision, and the timescales within which decisions are made.

 

A rare example of how such a challenge might be raised is Shahid v Scottish Ministers, 2015 SLT 707, where there had been repeated retrospective authorisations of continued segregation of a prisoner.  A further issue which arose in that case was whether decisions to apply for renewal of authority were truly the exercise of an independent judgement on the part of local prison management.  The case highlights the importance of each decision maker properly exercising their discretion and not applying for or authorising segregation as a matter of routine (see Lord Reed at paragraph 68).  In that case the Supreme Court decided that the proper procedures had not been followed which resulted in breaches of Article 8 of the European Convention on Human Rights and made a declaratory order to that effect, but that it was not appropriate to make an award of damages under the Human Rights Act 1998.  That decision was based on several factors, including the absence of any severe or permanent injury to health, the almost inevitable fact that segregation was required and would have been granted if the correct procedures had been followed, and the ability of the petitioner to receive visits and make telephone calls.  The case is an example of a situation where it could be said that the outcome of the actions by the respondent were justifiable, but that the procedures followed were unlawful.