Stuart Potter (ap) V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Matthews |
| Neutral Citation | [2010] CSOH 85 |
| Date | 06 July 2010 |
| Docket Number | P2183/06 |
| Court | Court of Session |
| Published date | 06 July 2010 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 85 | |
| P2183/06 | OPINION OF LORD MATTHEWS in the Petition of STEWART POTTER (A.P.) Petitioner; against THE SCOTTISH MINISTERS Respondents: ________________ |
Petitioner: Burns QC, Collins; Balfour + Manson LLP (For Taylor & Kelly, solicitors, Coatbridge)
Respondent: Moynihan QC, Duncan; Office of the Solicitor to the Scottish Executive
6 July 2010
The Petitioner
[1] The petitioner 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 Convention and the Statutory Provisions
[2] Article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 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 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."
Section 3 of the Human Rights Act 1998 is in the following terms:
"3. Interpretation of Legislation
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section -
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility."
Section 6(1) of that Act provides as follows:
"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
Section 57(2) of the Scotland Act 1998 provides as follows:
"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law."
The Prisons (Scotland) Act 1989 (as amended) provides at 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.
(3) Where an officer informs a prisoner that he may not have the use of a telephone by virtue of the provisions of any direction as mentioned in paragraph (2), he shall also inform the prisoner of the reasons for that decision."
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 -
(a) in relation to all cases in respect of which the direction may be given, or in relation to all those cases subject to specified exceptions, or in relation to any specified case or classes of case;
(b) as respects the cases in relation to which it is given, that the direction applies either unconditionally, or subject to any specified condition; or
(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. In terms of paragraph 1(1) that Direction came into force on 11 August 1999. It was in force when this petition was raised.
[4] The 1994 Rules were revoked and superseded from March 2006 by the Prisons and Young Offenders Institutions (Scotland) Rules 2006. Rule 62 thereof is in the same terms as Rule 54 of the 1994 Rules, except that the Scottish Ministers are referred to in terms rather than the Secretary of State.
[5] Rule 165 of the 2006 Rules is in the same terms as Rule 142 of the 1994 Rules subject to that same amendment.
[6] On 2 April 2008 the Scottish Ministers purported to make a Direction under Rules 62 and 165 of the 2006 Rules. It was entitled the Prisons and Young Offenders Institutions (Communication by Telephone)(Scotland) Direction 2008. In terms of paragraph 1(1) that Direction came into force on 4 April 2008 and, by paragraph 9, the 1999 Direction was revoked.
[7] The relevant provisions of the 1999 Direction are set out in the Opinion of the Court delivered by the Lord President in an earlier reclaiming motion in these proceedings. (Potter v The Scottish Ministers [2007] CSIH 67 P2183/06; 2007 SLT 1019). Further reference will be made to that Opinion in due course.
[8] It may be appropriate to note at this stage that paragraph 6(8) of the 1999 Direction ran as follows:
"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."
A PIN number phone is a telephone for the use of prisoners which is operated by the insertion of a prisoner's individual PIN or personal identification number.
[9] Paragraph 1(3) of the 2006 Direction defines certain expressions.
[10] "Logging" means the automatic storage of the information specified in paragraph (7)(2) of the Direction and "logged" is to be read accordingly.
[11] "Monitoring" means listening to a call made from a prisoner telephone (either when the call is made or subsequently listening to a recording of it) and "monitored" is to be read accordingly.
[12] "Personal number" means the telephone number of a friend, relative or associate of a prisoner.
[13] "Prisoner telephone" means a telephone specifically allocated by the prison for use by a prisoner.
[14] "Prohibited call" means a call which is prohibited by virtue of paragraph 5(4) of the Direction.
[15] "Recording" means the storage of the content of telephone conversations on the system and includes the storage of information on a portable recording medium and "recorded" is to be read accordingly.
[16] "Telephone credit" means an electronic credit which is sold to a prisoner to enable the use of a prisoner telephone.
[17] The Direction applies to every prison and young offenders institution.
[18] Paragraphs 2 to 6 of the Direction provide as follows:
"Use of a prisoner telephone
2. Subject to the following provisions of this Direction, every prisoner may have the use of a prisoner telephone.
Availability of telephones for use by prisoners
3. - (1) Where a prisoner telephone is provided for the use of prisoners -
(a) it must be made available each day during such periods as are specified in any further direction the Scottish Ministers may make under the Rules in that respect in relation to the prison; and
(b) within those periods, a prisoner is permitted to use that telephone only for so long as is appropriate having regard to the requirements of other prisoners to use it and also the constraints imposed by the general prison regime.
(2) The Governor must display beside each prisoner telephone a notice to prisoners in the terms set out in the Schedule to this Direction.
(3) Any removal of, or damage to, the notice by a prisoner may give rise to disciplinary action under part 11 of the Rules.
(4) Where subparagraph (5) applies, the Governor may, at the request of a prisoner, authorise the use of:
(a) a prisoner telephone at any time outwith the relevant periods specified in any direction as mentioned in subparagraph (1)(a); or
(b) any other telephone.
(5) This subparagraph applies where the Governor is satisfied that -
(a) the prisoner requires urgently to telephone a legal adviser; or
(b) there are compassionate grounds.
Circumstances where the use of a prisoner telephone may be withdrawn
4. - (1) The Governor may withdraw a prisoner's entitlement to use a prisoner telephone where -
(a) in the case of an untried prisoner, the Governor receives a written request from the procurator fiscal that the prisoner be excluded from using a prisoner telephone; or
(b) the Governor is of the opinion that the prisoner has breached any of the conditions specified in paragraphs 5 or 6 or has reasonable grounds to suspect that the prisoner has breached or is likely to breach any such conditions.
(2) The Governor may withdraw from all prisoners, or any group or category of prisoners, the entitlement to use a prisoner...
To continue reading
Request your trial