Brian Donnelly (ap) Fe For Judicial Review Of Decisions Bythe Respondents Relating Ot The Removal Of The Petitioner From Association With Other Prison
| Jurisdiction | Scotland |
| Judge | Lord Armstrong,Lord Jones |
| Neutral Citation | [2013] CSOH 106 |
| Court | Court of Session |
| Date | 28 June 2013,02 July 2013 |
| Published date | 28 June 2013,02 July 2013 |
| Docket Number | P1089/12 |
| Year | 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 106 | |
| P1089/12 | OPINION OF LORD JONES in Petition of BRIAN DONNELLY (AP) FE Petitioner; for Judicial Review of decisions by the respondents relating to the removal of the petitioner from association with other prisoners ________________ |
Petitioner:; ; K. D. Stewart QC; Drummond Miller LLP
Respondent: Ross; Scottish Government Legal Department
28 June 2013
Introduction
[1] The petitioner is currently a prisoner at Her Majesty's Prison, Barlinnie, Glasgow, having been convicted of murder, after trial, on 16 February 2001. He was sentenced to life imprisonment, backdated to 11 May 1998. The punishment part of the sentence was 14 years, which expired on 10 May 2012. His application for judicial review concerns matters which occurred while the petitioner was at Her Majesty's Prison, Shotts. He was serving his sentence there at Kerr House, under a regime known as "national top-end conditions". He was graded at low supervision level, and he was able to work at places outside the prison. The first respondent is the governor of Shotts prison. The second respondents are the Scottish Ministers. The case came before me for a first hearing on 9 January 2013.
The petitioner's averments of fact
[2] According to his averments, on or about 8 July 2011, the petitioner was on a work placement outside the prison. He had been on that placement since 6 June 2011, and he was working alongside other prisoners, without any supervision from prison staff. The petitioner's work involved painting and maintenance. Prisoners who were working on such placements were transported to and from their place of work by bus, and they left the prison wearing civilian clothes. On arrival at the placement, they changed into working clothes which were provided for them, and, at the end of the day's work, they changed back into their civilian clothes.
[3] On returning to the prison on 8 July, the prisoners were made to wait outside and were taken into the prison individually. When the petitioner was taken inside the prison, he was told to stand. A sniffer dog team, consisting of a dog and its handler, were present. Such a team is known as the "Tactical Dog Operation Unit". The dogs are trained to recognise certain substances, such as controlled drugs, and to indicate their presence by such means as adopting a recognised posture, which the handler is able to interpret. On this occasion, the dog approached the petitioner and sniffed at two of the pockets of his jacket. The petitioner avers that the dog did not give an unequivocal indication of the presence of controlled drugs on the petitioner's person or in his clothes. Immediately after the dog had sniffed the second of the petitioner's pockets, one of the prison staff present said "right that's him" and brought the search to an end. The petitioner was thereafter placed in the segregation unit at the prison. His clothing was searched and he was subjected to a strip search. No controlled drug was discovered in the course of these searches. The petitioner was later told that the sniffer dog team had been used because the first respondent had received specific intelligence to the effect that the petitioner was attempting to introduce controlled drugs into the prison. All of the foregoing averments, with the exception of the averment that the sniffer dog did not give an unequivocal indication of the presence of controlled drugs on the petitioner's person or in his clothes, are admitted by the respondents.
[4] Between 8 July and 5 October 2011, a number of decisions affecting the petitioner were taken by one or other of the respondents. It is convenient, at this stage, to set out the legal framework in which these decisions were made. Rule 94 of the Prison and Young Offenders Institutions (Scotland) Rules 2006 provides, among other things, as follows:
"94.- Removal from association
(1) Where it appears to the Governor desirable for the purpose of-
(a) maintaining good order or discipline;
(b) protecting the interests of any prisoner; or
(c) ensuring the safety of other persons,
the Governor may order in writing that a prisoner shall be removed from association with other prisoners, either generally or during any period the prisoner is engaged or taking part in a prescribed activity.
...
(4) The Governor when making an order under paragraph (1), shall-
(a) specify in the order whether the removal from association is-
(i) in general; or
(ii) in relation to a prescribed activity
...
(5) A prisoner who has been removed from association generally or during any period that the prisoner is engaged in or taking part in a prescribed activity by virtue of an order made by the Governor in terms of paragraph (1) shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority on the application of the Governor, prior to the expiry of the said period of 72 hours.
(6) An authority granted by the Scottish Ministers under paragraph (5) shall have effect for a period of one month commencing from the expiry of the period of 72 hours mentioned in paragraph (5) but the Scottish Ministers may, on any subsequent application of the Governor, renew the authority for further periods of one month commencing from the expiry of the previous authority."
[5] By written order, granted at 18: 00 hours on 8 July 2011, the first respondent removed the petitioner from general association with other prisoners. (Number 6/1 of process) The stated purpose of the order was to maintain good order and discipline. The order provided the following reason as to why it was made:
"On return from his placement today Mr Donnelly was searched by the S.P.S. Dog Unit in Reception who returned a positive indication. A body search was undertaken with nothing being found. This leads local management to suspect the illicit articles may be concealed in a bodily orifice.
The decision was made to relocate him to the Segregation Unit under a local rule to allow further investigation into this matter."
Consequent upon the making of the order, the petitioner was held in a cell at the segregation unit of the prison.
[6] On 11 July 2011, the petitioner was given written notice that the first respondent was considering making an application to the second respondents to extend the removal from association authority for a period of up to a month. It was stated in the notice that the purpose of the application would be of maintaining good order or discipline. It was also stated there that the reason for the application would be as follows:
"Mr Donnelly was relocated to the Segregation Unit on return from external placement on Friday, 8th July 2011 after a positive indication by the SPS Dog Unit in HMP Shotts reception.
The introduction of the SPS Dog Unit was a direct result of intelligence received by local management which indicated that Mr Donnelly was attempting to introduce drugs into the establishment from his external placement. Although no illicit articles were found local management believe Mr Donnelly may have had the articles concealed in a bodily orifice and that the positive indication by the Dog Unit serves to validate the authenticity of the intelligence received.
As such permission is sought to hold Mr Donnelly under rule 94 conditions in order to maintain good order and discipline and to afford the opportunity to fully investigate this matter. The possibility of articles being introduced to the National Top End through external placements is one which the management view very seriously."
[9] The notice advised the petitioner that he had the opportunity to make written representations on the matter, which would be taken into account before a final decision was taken on whether to apply to the second respondents. The petitioner made written representations in response, on the same day. He drew to the attention of the first respondent his view, among other things, that a fellow prisoner in Kerr House had sought by various means to have him removed from placement. An application under the provisions of rule 94(5) was made by the first respondent to the second respondents on 11 July 2011, and was granted on the same day. According to its terms, the authority was to expire on 11 August 2011 at 18:00 hours. It is an admitted fact that, by notice timed at 11.30 am on 17 July 2011, "the second respondents terminated the authority granted by them under rule 94 (5) for the removal of the petitioner from association with other prisoners." (Statement 8 of the petition; number 6/5 of process) The petitioner avers that no explanation was provided by the respondents to the petitioner for the termination of the authority before its expiry.
[10] According to the petitioner's averments, between the making of the order for removal from association and the termination of authority by the second respondents, no investigation was conducted by the first respondent into whether the petitioner had been attempting to introduce controlled drugs into the prison on 8 July. In particular, he avers, no attempt was made to confirm whether the purported indication by the sniffer dog suggesting that the petitioner had controlled drugs about his person was accurate. No authority was sought for an invasive search of his bodily cavities, and none was carried out. The petitioner was not held in segregation in conditions in which examination could be made of his stools. Had the first respondent wished to determine whether the petitioner had concealed illicit articles within his person by these means, it would have been possible to have held him temporarily in conditions where the toilet facilities did not flush directly into the common sewer, but into an intermediate tank or other receptacle, from which packages contained within bodily waste could be recovered. In answer to those averments, the respondents aver that...
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