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
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2015] CSOH 93 |
| Date | 28 October 2015 |
| Published date | 28 October 2015 |
| Court | Court of Session |
| Docket Number | P1306/13 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 93
P1306/13
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:
Petitioner: Leighton; Drummond Miller LLP
Respondent: Springham; Scottish Government Legal Directorate
28 October 2015
[1] The joint petitioners are Charles O’Neill, age 52, and William Lauchlan, age 39. Mr O’Neill and Mr Lauchlan are predatory paedophiles, a gay couple (so it is averred in the petition), convicted of crimes of extreme depravity, imprisoned for life with minimum terms of 30 years and 26 years respectively, locked up in different prisons, HMP Glenochil and HMP Edinburgh. Their complaint is that their “right to respect for family life” in terms of the European Convention on Human Rights [ECHR], article 8, has been violated and is being violated and that they are the victims of discrimination, all because the Scottish Prison Service [“the prison service”] refuses to arrange inter-prison visits for them. The petitioners want compensation. The first hearing took place on 20 and 21 November 2014. Mr Leighton, advocate, appeared for the petitioners and Ms Springham, advocate, for the Scottish Ministers, who have responsibility for the prison service. I took the case under advisement.
[2] At the end of February 2015 I ordered the case to be brought out to hear submissions on a variety of matters not dealt with in November 2014, principally the criminal justice history of the petitioners in the period since 1993 and some case law not canvassed in argument at the first hearing. The case law includes the decision of the Court of Appeal in Bright v Secretary of State for Justice [2014] EWCA Civ 1628―a case about the management of prisoners in same‑sex relationships in England & Wales―which was handed down on 22 December 2014. Because of the non-availability of counsel and my absence on circuit, the hearing did not take place until 12 May 2015.
[3] At the hearing on 12 May 2015 Mr Leighton proposed to amend the petition to add averments about the petitioners’ “family life” since 1993. For her part, Ms Springham told me that the prison service now accepts that the petitioners have been in a same‑sex relationship since before they were taken into custody in 2008; and that since 21 November 2014 one inter‑prison visit has already been facilitated for the petitioners by the prison service. Notwithstanding this departure by the prison service from its previous position, the issues raised in the petition remain live, live that is as regards the past attitude of the prison service to the petitioners’ requests for visits and as regards the inter-prison visiting regime.
[4] As regards the substantive complaints which are specific to the petitioners I have decided―decided, I have to emphasise, on the information made available to me―that the prison service has not acted unlawfully towards the petitioners: in particular, the prison service has not failed to respect the petitioners’ family life in terms of article 8 ECHR; and the prison service has not discriminated against the petitioners. Accordingly, the petitioners are not entitled to damages or human rights “just satisfaction”. I shall therefore refuse the joint petition. Albeit that no substantive injustice has resulted to the petitioners, I do accept that the prison rule about inter-prison visits, rule 63(8), though not in itself unlawful, is part of an unlawful regime because, in the absence of explanatory context, the rule alone does not satisfy the requirements of legality or lawfulness; and―a related point―that the reasons given by the prison service for refusing the petitioners’ requests for inter‑prison visits to date have tended towards inadequacy. I reject the respondents’ submission that the petition is time barred in terms of the Scotland Act 1998 section 100(3B).
[5] This opinion deals with the petitioners’ entitlement to inter-prison visits in terms of article 8 ECHR, the discrimination issues and the issue of time bar. A supplementary opinion deals with the lawfulness of prison rule 63(8), etcetera.
Time bar
[6] I shall determine the respondents’ time bar plea before moving to the merits. The petition was presented on 27 December 2013. If the twelve‑month human rights time bar applies, complaints about prison service conduct before 27 December 2012 cannot be entertained [Human Rights Act 1998 section 7(5); Scotland Act 1998 by section 100(3B); Dunn v Parole Board [2009] 1 WLR 728]. Ms Springham contends that the petitioners’ complaints about the prison service’s handling of petitioners’ visit requests before 27 December 2012 are time barred. I reject that contention, essentially for the reasons given by Mr Leighton; and I hold that in any event it would be equitable to extend the time bar. This is on the supposition that, if not time-barred, the complaints would have merit. The hypothetical failures to respect the petitioners’ article 8 ECHR and article 14 ECHR rights constitute a single, continuing act or omission; the issue about the lawfulness of prison rule 63(8) has been a constant, and is a continuing issue which is not time-barred; the petitioners’ claims under the Equality Act 2010 and their common-law complaints about the prison service’s decision-making are not caught by the specifically human rights time bar.
The situation in summary
[7] The factual and legal situation in summary is as follows. The petitioners are currently serving life imprisonment for murder with minimum terms as stated above. They are also serving concurrent sentences for a number of sex offences. The murder victim was the mother of a male child RM. The petitioners were sexually abusing the boy―anal rape in modern parlance―and had been for years. When the mother threatened to report the sexual abuse of her son to the authorities, the petitioners killed her and dumped her body in the Firth of Clyde. The body has not been found.
[8] The petitioners were convicted of the murder and other offences in 2010 and were sentenced on 10 June 2010. They had already been in custody on remand since 25 March 2008. (The unusual length of the proceedings is possibly attributable to the number of right-to-a-fair-trial objections.) The petitioners have been requesting inter-prison visits since at least 2010 on, they say, “family life” grounds in terms of article 8 ECHR. Until very recently the prison service has declined to grant the petitioners’ requests.
[9] The petitioners accept that it is for them to demonstrate that they have a family life which attracts the protection and support of article 8 ECHR [note of argument for the petitioners, 2]. The primary position taken by the respondents is, I think, at least until recently, that the petitioners have not demonstrated that they are in a family relationship or, in any event, that the petitioners have, or at least had, good reason to remain unclear about the matter [note of argument for the respondents, paragraphs 37-39]. For me the main issue is whether the petitioners’ life together is or was of a quality, and has been shown to be of a quality that does engage the protection and support of article 8 ECHR. If not, any delay or refusal on the part of the prison service to organise inter-prison visits for Mr O’Neill and Mr Lauchlan has not violated, and does not violate their family life rights in terms of article 8 ECHR.
What the case is not about
[10] Before giving my reasons I should make clear what this case is not about. It goes without saying―but let me say it―that all “family life” between the murdered woman and her son was terminated. The reported psychological trauma to RM raises the question whether he has any hope of enjoying a family life of his own. Some might think that condign retribution would terminate the petitioners’ own family ties such as they may be. But, no. Counsel agree that in terms of the European Convention on Human Rights it is no proper part of punishment to deprive imprisoned offenders of their human rights except insofar as such deprivation is necessarily incidental to incarceration [Hirst v United Kingdom (No 2) (2006) 42 EHRR 41 at §§ 69-71]; and in terms of article 8 ECHR the petitioners like everyone else have “a right to respect for their private and family life” [McCotter v United Kingdom (18632/91) (1993) 15 EHRR CD 98; Messina v Italy No 2 (25498/94) 28 September 2000; R (P & Q) v Secretary of State for the Home Department [2001] 1 WLR 2002 at paras. 67-78]. For the avoidance of doubt, same-sex relationships are generally recognised for ECHR “family life” purposes [Schalk and Kopf v Austria (2011) 53 EHRR 20 at §§ 90-95]; and to treat people differently on the basis of their sexual orientation is also contrary to domestic law in terms of the Equality Act 2010. Further I am told, by counsel on both sides, that the question of public confidence in the justice system has no part to play in decisions about inter-prison visits for the petitioners unless specific questions of resources, safety and security are involved, which, apparently, they are not in this case, on the assumption that occasional visits only are in contemplation [Dickson v United Kingdom (44362/04) (2008) 46 EHRR 41]. So, as the law stands, there is no justification for denying the petitioners inter-prison visits as part of their punishment, or because they claim to be a same-sex couple or because public opinion would be affronted.
[11] Another thing this case is not about is “conjugal visits”: conjugal visits are not permitted in United Kingdom prisons; while the European Court of Human Rights approves the evolution of European prisons policy towards conjugal visits it has not interpreted article 8 ECHR as requiring conjugal visits [Dickson v United Kingdom (44362/04) (2008) 46 EHRR 41; Varnas v Lithua...
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- 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)
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Charles O’neill And William Lauchlan For Judicial Review
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