Potter v Scottish Prison Service

JurisdictionScotland
CourtCourt of Session (Outer House)
Judgment Date20 Mar 2007
Neutral Citation

: [2007] CSOH 56

Court and Reference: Outer House, Court of Session, P2183/06

Judge

: Lord Glennie

Potter
and
Scottish Prison Service
Appearances

: O'Neill QC (instructed by Balfour & Manson) for P; Duncan (instructed by the Solicitor of the Scottish Prison Service) for the Respondents

Issue

: Whether a pre-recorded message on all outgoing calls by prisoners to indicate that the call was from prison breached Art 8 ECHR

Facts

: Under s. 39 Prisons (Scotland) Act 1989, rules may be made for the "management" of prisons and other institutions, and for "classification, treatment, employment, discipline and control" of detainees. The rules made, the Prison and Young Offenders Institutions (Scotland) Rules 1994, include r54, which allows prisoners to use telephones subject to directions made as to conditions on use. The relevant direction is the Prison and Young Offenders Institutions (Communication) (Scotland) (No 2) Direction 1999, para 6(8) of which allows the governor of each institution to arrange for calls to be preceded by a recorded message to the effect that the call is from a prison. In practice, this was done in all prisons. In addition, prisoners can only make calls to up to 20 numbers which have to be submitted to and approved by the governor, all calls were logged and can be monitored and recorded.

P, a serving prisoner, challenged the policy of imposing the pre-recorded message on outgoing calls made by all prisoners: he argued that, given the other precautions in place, the blanket use of the pre-recorded message breached Art 8 ECHR and so was unlawful unders. 6 Human Rights Act 1998 and outside the legislative competence of the Scottish Executive by reason of s. 57(2) Scotland Act 1998.

Judgment

:

Introduction

[1] The petitioner is a prisoner in HMP Glenochil. He is serving consecutive sentences of 9 years' and 12 years' imprisonment, imposed after separate convictions for assault and robbery.

[2] By this petition for judicial review, the petitioner challenges the lawfulness of the policy of the Scottish Prison Service and/or of the Governor of the prison that a pre-recorded message should be attached to all outgoing telephone calls made by a prisoner, informing the person receiving the call that the call is coming from a prison.

[3] The attachment of that pre-recorded message to all outgoing calls is part of a package of measures concerning the making of telephone calls from prisons put in place by the prison authorities. These are to the following effect:

  1. (i) the prisoner can only make calls to a person whose number is on a list of pre-approved numbers ("PAN");

  2. (ii) that list is limited to a maximum of 20 numbers;

  3. (iii) the numbers on the pre-arranged list have been submitted to and approved by the Governor;

  4. (iv) the calls made are logged, allowing the prisoner making the call to be identified (by virtue of his PIN number), as well as the number called and the time and duration of the call;

  5. (v) the calls may at any time be recorded and/or monitored by prison service staff; and

  6. (vi) the calls are preceded by an automated message to any person answering the number called to the effect that the call originates from a Scottish prison, that it may be recorded and/or monitored and that if the individual does not wish to accept the call he or she should simply hang up.

This summary is taken from para 4.1 of Mr O'Neill's helpful Note of Argument for the petitioner; and it was accepted as accurate by Mr Duncan, who acted on behalf of the respondent. There is presently no challenge to other parts of this package of measures, but Mr O'Neill did not exclude the possibility that there might be a challenge in the future.

[4] The challenge to the lawfulness of this policy is brought unders. 6 of the Human Rights Act 1998, which provides that it is unlawful for public authorities to act or fail to act in a way which is incompatible with a Convention right, ie a right enshrined in theEuropean Convention on Human Rights and Fundamental Freedoms 1950; and, in terms of vires, under s. 57(2) of the Scotland Act 1998, which provides that a member of the Scottish Executive has no power to make any subordinate legislation or do any other act so far as that legislation or act is incompatible with a Convention right.

[5] The Convention right relied upon is that set out in Art 8 of the Convention, which provides as follows:

"(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 world-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."

It is well established (see, for example, Klass and others v Germany (1979-80) 2 EHRR 214 and Halford v UK (1997) 25 EHRR 523) that the protection afforded by Art 8(1) extends to telephone calls. Mr Duncan accepted that this was so. This is not only because communication by telephone may be regarded in the same vein as written correspondence, but also because communication by any means, including by telephone, is an essential feature of private and family life.

[6] It was common ground before me that, by virtue of the policy by which a pre-recorded message tells everyone answering the telephone that the call emanates from a prison, Art 8 of the convention is "engaged". In other words, it is accepted on behalf of the respondent that the inclusion of that pre-recorded message constitutes interference by a public authority with the exercise of a right protected by Art 8. Of course, telephones have not always been available to prisoners; and it might once have been thought that the provision of access to a telephone was a privilege, rather than merely the base point for an argument that interference with the free use of the telephone might amount to a breach of the prisoner's rights. But times have moved on. If no provision at all were now made for prisoners to communicate with the outside world by telephone, that lack of provision might itself now give rise to a challenge on Art 8 grounds. In light of the concession by the respondents that Art 8 is engaged, I do not need to consider that question. It is accepted that the message constitutes interference with the prisoner's right to respect for family life and correspondence. Examples of why this is so are given in the Petition. If the petitioner telephones the children's school, the message will be heard by whoever picks up the telephone who might not otherwise know that the children's father is in prison. When he telephones home, the message constantly tells his family, and particularly his children (from whom the fact of his imprisonment might otherwise be kept), of the fact that he is in prison. If he telephones a friend, the telephone may be picked up by someone else in the house, who is unaware of the fact that the friend or relative knows someone who is in prison. The awkwardness and embarrassment caused by such occurrences is likely to act as a deterrent to communication with family and friends.

The issue before the court

[7] The question raised in the petition is whether that interference is justified in terms of Art 8(2), that is to say whether the interference is in accordance with the law; and, if so, whether it is necessary in a democratic society for one or more of the objectives therein set out.

[8] The argument on this first hearing of the petition, however, focused exclusively on the first part of that question, namely whether the interference was in accordance with the law. After hearing argument, I took the view that it was sensible to use the 2 days available for the first hearing to determine this issue. If this issue is decided in favour of the petitioner, then, (subject to any reclaiming motion) that is an end of the matter. If, on the other hand, it is decided in favour of the respondents, it will then be necessary to fix a further hearing to deal with the remaining issues. Mr Duncan opposed my determining this issue separately and rightly drew my attention to the danger that, after hearing argument, I might reach the conclusion that it was impossible to answer the first part of the question without hearing the arguments and evidence on the rest. Having now heard argument, I am satisfied that I can answer it without hearing such evidence and arguments.

[9] Before turning to consider whether there is a statutory basis for the interference, it is necessary to mention the common law and Strasbourg context in which the issues of construction have to be approached.

The common law context

[10] Although the challenge to the lawfulness of the policy has been brought and argued under reference to the Convention, the right upon which the petitioner relies was not created by the Convention. Mr Duncan accepted, in my opinion correctly, that the right to respect for private and family life, and for home and correspondence, is a civil right at common law regardless of the convention. By whatever name we choose to call it - whether we refer to it as a "basic right", a "fundamental right" or a "constitutional right", or by some other term - it is one of the rights which the common law has long recognised as inherent in the rule of law in a free and democratic society. Whilst the notion of parliamentary sovereignty which currently holds sway means that Parliament can legislate to remove such rights, it will not readily be presumed that it intends to do so unless the particular piece of legislation quite clearly reflects that purpose. This is made clear in the cases to which I shall refer. Where the statutory incorporation of the Convention, in the Human Rights Act 1998 and in the Scotland Act 1998, has made a...

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