The pursuer, a prisoner, complained that he had been subject to repeated searches which he claimed were illegal. He sought damages and an injunction.
Held: The action which the pursuer had raised was an ordinary action in the sheriff court was an action against the Crown, that section 21 of the 1947 Act applied and that the crave for interdict was incompetent. The 1947 Act deprived Scottish litigants of their previous right to obtain interdict and interim interdict against the Crown. Orders to that effect could not be pronounced in either the sheriff court or the Court of Session. An House of Lords decision on an action against a state was not necessarily binding in Scotland. There were formidable difficulties in the way of a submission that the decision in M v The Home Office could be followed in Scotland, on the view that application to the supervisory jurisdiction of the Court of Session in an application for judicial review under Rule of Court 260B of the Rules of the Court of Session 1965 did not constitute civil proceedings within the meaning of section 21.
Lord Justice Clerk Ross
Times 02-Feb-1994, 1994 SC 234
Crown Proceedings Act 1947 21
Citing:
Appeal from – McDonald v Secretary of State for Scotland ScSf 1994
The pursuer was a serving prisoner. He said he had been repeatedly searched without lawful authority, warrant or justifiable cause. He raised an action of reparation in the sheriff court in which he sought damages from the Secretary of State for . .
Cited – M v Home Office and Another; In re M HL 27-Jul-1993
A Zairian sought asylum, but his application, and an application for judicial review were rejected. He was notified that he was to be returned to Zaire, but then issued new proceedings for judicial review. The judge said that his removal should be . .
Cited by:
Cited – Davidson v Scottish Ministers HL 15-Jul-2004
The claimant had sought damages for the conditions in which he had been held in prison in Scotland. He later discovered that one of the judges had acted as Lord Advocate representing as to the ability of the new Scottish Parliamentary system to . .
Appealed to – McDonald v Secretary of State for Scotland ScSf 1994
The pursuer was a serving prisoner. He said he had been repeatedly searched without lawful authority, warrant or justifiable cause. He raised an action of reparation in the sheriff court in which he sought damages from the Secretary of State for . .
Cited – Petition of Andrew Scott and Scott Davidson for Judicial Review of A Decision To Continue Their Detention In Inhumane Prison Conditions SCS 26-Oct-2001
Each applicant sought an interim order against the Scottish Minister with respect to their treatment in prison. It had been found that the conditions in Barlinnie Prison were inhumane. The Crown responded that the court had no jurisdiction to make . .
Cited – Reclaiming Motion In Petition of Scott Davidson for Judicial Review of A Decision To Continue To Detain the Prisoner In Inhuman and Degrading Prison C SCS 18-Dec-2001
A prisoner sought an order for his removal from a prison found to have a regime which breached his human rights. The Crown replied that an order could not be made under s21 of the 1947 Act.
Held: The prisoner had followed through his rights to . .
Cited – Davidson v Scottish Ministers HL 15-Dec-2005
The complainant a prisoner sought an order that he should not be kept in conditions found to be inhumane. He had been detained in Barlinnie priosn. The Crown replied that a mandatory order was not available against the Scottish Ministers.
Updated: 26 October 2021; Ref: scu.83524