Petition Of Stewart Potter (ap) V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord President,Lord Nimmo Smith,Sir David Edward |
| Judgment Date | 20 March 2007 |
| Neutral Citation | [2007] CSIH 67 |
| Published date | 21 August 2007 |
| Court | Court of Session |
| Docket Number | P2183/06 |
| Date | 21 August 2007 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Nimmo Smith Sir David Edward, Q.C. | [2007] CSIH 67 P2183/06 OPINION OF THE COURT delivered by THE LORD PRESIDENT in RECLAIMING MOTION in PETITION of STEWART POTTER (Assisted Person) Petitioner and Respondent; against THE SCOTTISH MINISTERS Reclaimers and Respondents: _______ |
Act: O'Brien, Q.C., Delibegovic-Broome; Balfour & Manson LLP. (for Taylor & Kelly, Solicitors, Coatbridge) (Petitioner and Respondent)
Alt: Moynihan, Q.C., Crawford; Office of the Solicitor to the Scottish Executive (Respondents and Reclaimers)
21 August 2007
The petitioner
[1] The petitioner (the respondent in this reclaiming motion) was sentenced in November 2001 to imprisonment for 9 years in respect of a conviction for assault and robbery and in March 2002 to a consecutive term of 12 years' imprisonment in respect of a separate conviction for assault and robbery. He is presently serving these terms in a Scottish prison.
The statutory provisions
[2] The Prisons (Scotland) Act 1989 (as amended) provided by section 39(1):
"The Secretary of State may make rules for the regulation and management of prisons ... and for the ... discipline and control of persons required to be detained therein ... "
In purported exercise of the powers conferred by that section the Secretary of State made the Prisons and Young Offenders Institutions (Scotland) Rules 1994. Rule 54 of these Rules provides:
"(1) A prisoner may have the use of a telephone subject to the provisions of paragraph (2).
(2) A prisoner's entitlement to the use of a telephone shall be subject to the provisions of any direction which the Secretary of State may make in relation to -
(a) the groups or categories of prisoners who may have the use of a
telephone;
(b) the times of day and circumstances in which a telephone may be
available for use;
(c) the conditions applicable to the use of such a telephone; and
(d) the logging, monitoring and recording by any means by an officer of
telephone calls made by a prisoner.
... "
Rule 142 of these Rules provides:
"Where any provision of these Rules provides that the Secretary of State may give a direction, unless the contrary intention appears, the Secretary of State may make provision in the direction -
...
(c) which is incidental or supplementary to the purpose in respect of which
the direction may be given."
Since the coming into force of the Scotland Act 1998 references in these provisions to the Secretary of State are to be read as references to the Scottish Ministers.
[3] On 10 August 1999 the Scottish Ministers purported to make a direction under Rule 54(2) of the 1994 Rules entitled the Prisons and Young Offenders Institutions (Communication by Telephone)(Scotland) (No. 2) Direction 1999 ("the Direction"). In terms of paragraph 1(1) the Direction came into force on 11 August 1999. Paragraph 1(3) defined certain expressions in the Direction, including "PIN number phone" as meaning
"a telephone for the use of prisoners which is operated by the insertion of a prisoner's individual PIN number and an approved telephone number which is connected to an authorised outside network which has a remote isolator switch and access point for logging and monitoring equipment".
Paragraph 6 of the Direction provided:
"(1) The following provisions of this paragraph shall apply to the use of a PIN number phone by a prisoner.
(2) The use by a prisoner of a PIN number phone shall be subject to the further conditions specified in paragraph 7 of this Direction.
(3) A prisoner shall be permitted to make telephone calls to a maximum of 20 telephone numbers approved by the Governor.
(4) The Governor shall not approve as a telephone number a number to which a prisoner would or could be prohibited from making telephone calls by virtue of paragraph 5(4) in the case of a card phone and, accordingly, in considering whether to approve telephone numbers the Governor shall have the same powers as he would have under paragraph 5(4) in the case of a card phone.
(5) A prisoner may apply to the Governor for approval of a change of one or more of his approved telephone numbers and the Governor shall consider any such application as expeditiously as possibly.
(6) A prisoner shall not tamper with or damage any PIN number phone.
(7) Where a prisoner uses a PIN number phone, he shall be deemed to have given his prior consent -
(a) to the logging, monitoring and recording of any call made as
mentioned in paragraph 7 of this Direction; and
(b) in terms of the Interception of Communications Act 1985, to any
interception of any call within the meaning of that Act.
(8) The Governor may if he considers it appropriate arrange for all telephone calls from PIN number phones to be preceded by a recorded telephone message which advises the recipient of the telephone call that the call is coming from the prison and that the recipient should stay on the line to accept the call, or hang up to reject the call."
[4] Paragraph 7 made detailed provision for the logging, monitoring and recording of calls made from telephones.
[5] Paragraph 5(4) provided:
"A prisoner shall be prohibited from making telephone calls -
(a) to telephone numbers beginning with the figure '1';
(b) to the number 999;
(c) to telephone numbers beginning with the code '0800';
(d) to such other telephone numbers as the Governor from time to time
considers appropriate;
(e) to persons who have indicated to the Governor in writing that they do
not wish to receive telephone calls from that prisoner;
(f) to persons to whom a prisoner may not write letters in terms of the
Direction under Rule 52 of the Rules; or
(g) which in the opinion of the Governor -
(i) are mischievous, malicious or threatening; or
(ii) constitute or form part of any criminal activity or attempted
criminal activity."
[6] By paragraph 3(1) of the Direction it was provided:
"Subject to the following provisions of this Direction, where the Scottish Ministers provide telephones for the use of prisoners -
...
(d) in the case of PIN number phones, the Governor shall display beside
each PIN number phone a notice to prisoners in the terms set out in Schedule 2 to this Direction and, in a case where the Governor has imposed the condition mentioned in paragraph 6(8) of this Direction, the notice shall include an additional paragraph in the following terms:
'All telephone calls from this PIN number will be preceded by a recorded message which advises the recipient of the call that the call is coming from [insert name of prison] and that the recipient should stay on the line to accept the call or hang up to reject the call.'"
[7] Schedule 2 to the Direction provided:
"NOTICE TO PRISONERS
USE OF PIN NUMBER PHONES
Conditions of use of PIN number phones
The use of PIN number phones in this establishment is subject to the conditions specified in the Direction of the Scottish Ministers under Rule 54(2) of the Prisons and Young Offenders Institutions (Scotland) Rules
1994.
Telephone calls using this PIN number phone will be logged automatically (i.e. the telephone number dialled, the date, time and duration of the call and the total cost will be recorded). Calls may also be monitored (i.e. listened to or tape recorded). You should not therefore use the PIN number phone to discuss matters which you would wish to remain confidential.
If you use any PIN number phone in this establishment you shall be deemed to have given your prior consent -
(e)[sic] to the logging, monitoring and tape recording by any means of any
calls made; and
(f) in terms of the Interception of Communications Act 1985, to any
interception of such calls within the meaning of that Act."
The factual background
[8] In August 1999 the Governor of the prison in which the petitioner is incarcerated took steps in reliance on the Direction to introduce a new telephone system at the prison providing for a pre-recorded message to be attached to all prisoners' outgoing calls. That message has, since February 2005, been in the following terms:
"This call originates from a Scottish prison. It will be logged and may be recorded and/or monitored. If you do not wish to accept this call please hang up."
The remedy sought
[9] In this petition for judicial review the petitioner seeks declarator
"that the Direction, et separatim the Governor's introduction of a new telephone system in reliance on the Direction, providing for all outgoing prisoner calls to be preceded by a recorded message advising recipients that the call is from the Prison are contrary to Article 8 of the Convention and unlawful by virtue of section 6(1) of the [Human Rights Act, 1998] and ultra vires under reference to section 57(2) of the [Scotland Act, 1998] ... "
Proceedings before the Lord Ordinary
[10] The Lord Ordinary, on the basis of the arguments presented to him, sustained at a first hearing the petitioner's plea to the relevancy of the Answers lodged by the Scottish Ministers and granted declarator as sought. Against that disposal the Scottish Ministers have reclaimed.
[11] Article 8 of the Convention provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as 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."
[12] Before the Lord Ordinary it was accepted on behalf of the Scottish Ministers that the inclusion of a pre-recorded message constituted interference by a public authority with the exercise of a prisoner's right protected by Article 8. That concession was repeated before us. Accordingly, the issue before the Lord Ordinary...
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