Petition Of Charles O'neill And William Lauchlan For Judicial Review Of The Prisons And Young Offenders Institutions Rules 2011, Rule 63(8), Etcetera And Answers For The Scottish Ministers (supplementary Opinion)
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2015] CSOH 144 |
| Year | 2015 |
| Published date | 28 October 2015 |
| Date | 28 October 2015 |
| Court | Court of Session |
| Docket Number | P1306/13 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 144
P1306/13
SUPPLEMENTARY OPINION OF LORD STEWART
In the Petition
CHARLES O’NEILL and WILLIAM LAUCHLAN
Petitioners;
for
Judicial Review of the Prisons and Young Offenders Institutions Rules 2011, rule 63(8), etcetera
and Answers for
THE SCOTTISH MINISTERS
Respondents:
Petitioners: Leighton; Drummond Miller LLP
Respondents: Springham; Scottish Government Legal Directorate
28 October 2015
[1] The joint petitioners are male co-offenders imprisoned in different prisons. They claim that, as same-sex partners, they are entitled to inter-prison visits in terms of article 8 ECHR [right to respect for family life]; and they claim that the Scottish Prison Service [“the prison service”] has wrongfully refused to allow them to have inter-prison visits. I have sustained the pleas of the Scottish Ministers, who have responsibility for the prison service and are the respondents to the petition; and I have rejected the petitioners’ claim principally for the reason that the existence they had together pre-incarceration, focused as it was on finding boys and vulnerable youths whom they could groom and sexually abuse, does not engage, or has not been shown to engage the “family life” component of article 8 ECHR on which they rely. For the detailed reasons reference should be made to the main opinion, also issued today, CSOH [2015] 93. This supplementary opinion addresses the petitioners’ claim that the rule made by the Scottish Ministers about inter-prison visits is ultra vires, etcetera.
[2] The rule in question is rule 63(8) of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 SSI 2011/311 (as amended). The current rule came into force on 1 November 2011. The previous rule was in similar terms. The key point is that there is an “entitlement” to have a visit from a prisoner in another prison but only in “exceptional circumstances”. What constitutes “exceptional circumstances” is not explained.
[3] The potential for uncertainty, confusion even, in an exceptional but unexplained entitlement was illustrated by Ms Springham, advocate, counsel for the respondents. At the hearing on 12 May 2015, Ms Springham told me that the petitioners had been allowed one inter-prison visit: but she was unable to tell me what the exceptional circumstances were, whether the circumstances were constituted solely by the fact that the petitioners are now accepted as being in a same-sex relationship, or whether there was something else or something more. Ms Springham could not tell me in what circumstances the petitioners might be entitled to another visit or when, if ever, there would be such a visit. If counsel does not know these things, it is understandable that prison staff might have difficulty in processing inter-prison visit requests.
[4] The essential difference between the parties is that Mr Leighton, advocate, for the petitioners submits that an “exceptional circumstances” entitlement is of itself and in itself unlawful because it is incompatible with Convention human rights et separatim lacks legal certainty [Dickson v United Kingdom (44362/04) (2008) 46 EHRR 41], whereas Ms Springham contends that an “exceptional circumstances” proviso lawfully allows local managers to exercise discretion in complex and infinitely varied situations [Bright v Secretary of State for Justice [2014] EWCA Civ 1628]. Both parties are right to some extent: the rule is not per se unlawful but without explanatory context for the rule the inter-prison visits regime lacks legal certainty. This is my opinion. There is a related issue about the quality of prison service decision-making: in the absence of a clear framework for inter-prison visits it would not be surprising if the decisions tended to be inadequate. In my view the prison service has a duty to provide guidance so that prisoners―and, just as importantly, staff―can know how rule 63(8) operates.
Human rights, visiting and family contact in Scottish prisons
[5] The full text of article 8 ECHR is:
“8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.
8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
In situations where article 8.1 ECHR is engaged, there are questions about whether the “interference” in the shape of the rule about visits is “in accordance with law” and a proportionate way of furthering one of more of the legitimate aims listed in article 8.2 ECHR.
[6] The prison visiting rules are undeniably “in accordance with law” to the extent that they have a statutory basis. The relevant primary legislation consists of the Prisons (Scotland) Act 1989 and the Criminal Justice and Public Order Act 1994. These statutes give the power to regulate the management of prisons by secondary legislation which is currently exercised in the Prisons and Young Offenders Institutions (Scotland) Rules 2011 SSI 2011/311 (as amended). The visiting rules in SSI 2011/311 provide among other things:
“Visits by persons of a prisoner’s choice
This sectionnoteType=Executive Note has no associated
63.— (1) This rule applies to visits to a prisoner (other than an untried prisoner or a civil prisoner) by any person with whom the prisoner wishes to communicate.
(2) Subject to paragraph (3) and rules 77 and 78, the Governor must allow a prisoner, at such times as the Governor considers reasonable, either—
- not less than 30 minutes in any period of 7 consecutive days; or
(b) not less than 2 hours in any period of 28 consecutive days,
for the purposes of receiving visits in terms of this rule.
[...]
(5) Where a prisoner receives a visit in terms of this rule the visit must take place—
(a) within the sight of an officer; and
(b) within the hearing of an officer unless the Governor has otherwise authorised.
[...]
(8) A prisoner is entitled to receive a visit from a person who is—
- a prisoner detained at, or on temporary release from, another prison; or
- a prisoner on temporary release from the same prison,
only in exceptional circumstances and where the Governor of the prison, or the Governors of the prisons involved give consent and, in the event that any Governor refuses consent, the prisoners concerned must be informed of the reasons for the refusal.”
There is possible ambiguity in the reference to “the Governor of the prison, or the Governors of the prisons involved…”: but the words make sense on the understanding that where one of the prisoners is on temporary release only one governor, the governor of the host establishment, is involved in giving or refusing consent.
[7] Immediate context is provided by rule 11(6) (information to be provided on reception regarding maintaining contact with family and friends), rule 42 (notification of relatives and friends), rule 43 (family welfare), rule 100 (special escorted home leave), rule 101 (escorted day absence for compassionate reasons) and rule 136 (forms of temporary release).
[8] The context is wider than the rules. “Near relatives” are defined for the purpose of rule 101 (escorted day absence for compassionate reasons) by the Scottish Prison Rules (Escorted Day Absence) Directions 2011. The definition includes “(a) a spouse or civil partner...” and “(h) any person with whom the prisoner cohabited (whether of the same sex or not) prior to the prisoner’s imprisonment.” (The definition does not extend to cousins, which the petitioners also claim to be in some unknown degree.) The same definition of “near relative” is applied in the current protocol for “Inter-prison telephone calls between near relatives” which governs calls between “near relatives who are both in prison custody” [SPS Action Note 20A/08, 29 July 2008]. Further context is provided by the prison service website, “Families” section, which headlines “maintaining positive relationships” and “encouraging family contact.” One of the challenges for inter-prison “traditional family” visiting arises from the fact that different categories―young offenders, female prisoners and male prisoners―have to be held in separate accommodation. The inter-prison visits regime includes local protocols which are discussed below.
[9] In terms of the 2011 Rules, rule 77, the governor has power, where necessary in the interests of security, good order or the prevention of crime, to prohibit or terminate visits by particular individuals. In terms of rule 78 the governor may order visits to take place in closed facilities which prevent physical contact and the transfer of items between visitors and prisoners. The Scottish Prison Rules (Restriction on Visits) Direction 2011 made under the 1989 Act and the 2011 Rules give supplementary directions as to the management of visits. By direction 5, visits may be monitored with audio and visual recording equipment.
[10] Under reference to rules 63(2) and (5), what the petitioners are looking for is a face-to-face meeting within the sight and hearing of a prison officer which may last for no more than 30 minutes. Local protocols generally provide that inter-prison visits may take place, where authorised, twice a year. The contention for the petitioners must be―and this is how I read the pre-litigation correspondence from the petitioners’ solicitors―that such visits are necessary to satisfy a “family life” purpose that cannot be met by unlimited correspondence and fortnightly telephone calls. (This issue, namely whether family ties can reasonably be sustained by correspondence, is also encountered in article 8 ECHR immigration cases.) For the avoidance of doubt video-conferencing facilities are generally...
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