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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 56
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P2183/06
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OPINION OF LORD
GLENNIE
in the cause
STEWART POTTER
Petitioner;
for
Judicial Review of
acts and decisions of the Scottish Prison Service
Respondents:
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: O'Neill, QC; Balfour & Manson
Respondents: Duncan; Solicitor of the Scottish Prison
Service
20 March 2007
Introduction
[1] The
petitioner is a prisoner in HM Prison 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:
(i)
the prisoner can only make calls to a person whose
number is on a list of pre-approved numbers ("PAN");
(ii)
that list is limited to a maximum of 20 numbers;
(iii)
the numbers on the pre-arranged list have been
submitted to and approved by the Governor;
(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;
(v)
the calls may at any time be recorded and/or monitored
by prison service staff; and
(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 under section 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, i.e. a right enshrined in the European Convention on Human
Rights and Fundamental Freedoms 1950;
and, in terms of vires, under
section 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 Article 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 Alison Halford v United Kingdom [1997] 25 EHRR 523) that the protection afforded by Article
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, Article 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 Article 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 Article 8 grounds. In light of the concession by the respondents
that Article 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 Article 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 two 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 difference in this field is
not so much in creating rights which did not previously exist but more in
fettering the power of both the legislature and the executive to interfere with
such a right, by insisting that any such interference must be not only in
accordance with the law but also necessary and proportionate, using those words
as a shorthand for the wording in Article 8(2) of the Convention.
[11] The question whether the admitted interference with the
petitioner's rights was "in accordance with the law", to use the language of
the Convention, is almost identical to the question which has habitually been
asked at common law, namely whether the legislature has given the executive the
power to interfere with the petitioner's civil rights in the manner complained
of.
[12] In some societies it might be regarded as obvious that a person
convicted of a criminal offence and sentenced to a period of imprisonment
should, for the duration of his imprisonment, be deprived of his civil
rights. Such a notion has no place in
our society. Nor is it reflected in the
common law. In Raymond v Honey [1983] 1 AC 1, 10, Lord Wilberforce described it as a "basic principle" that
"under
English law, a convicted prisoner, in spite of his imprisonment, retains all
civil rights which are not taken away expressly or by necessary implication".
Lord
Bridge said the same thing (p.14),
although in his formulation he omitted the word "necessary". In R v Secretary of State for the Home Department,
ex parte Leech [1994] QB 198, 209, Steyn LJ described Lord Wilberforce's
proposition as "an axiom of our law".
Lord Steyn, as he had by then come, emphasised the point in R v
Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115,
120, when he said this:
"A sentence of
imprisonment is intended to restrict the rights and freedoms of a
prisoner. Thus, the prisoner's liberty, personal autonomy, as well as his freedom of movement and
association are limited. On the
other hand, it is well established that that 'a convicted prisoner, in spite of
his imprisonment, retains all civil rights which are not taken away expressly
or by necessary implication' [citing Lord Wilberforce in Raymond v Honey]. Rightly, Judge LJ observed in the Court of
Appeal in the present case that 'the starting point is to assume that a civil
right is preserved unless it has been expressly removed or its loss is an
inevitable consequence of lawful detention in custody' [1999] QB 349, 367".
I would respectfully agree. If that were not the position, a person
sentenced to a period of imprisonment could, with impunity, be subjected
arbitrary discipline and to all manner of abuse. As Mr O'Neill, QC, on behalf of the
petitioner, pithily observed: prison is
the punishment, it is not for punishment. If the prisoner is to be deprived of civil
rights other than those inherent in the fact of his being deprived of his liberty, that requires to be done by, or with the clear
authority of, Parliament.
[13] The requirement that a prisoner's civil rights can be removed
only by the clearly expressed intention of the legislature finds expression in
a number of domestic authorities. In
addition to those which I have already cited, they include R v Secretary of State for
the Home Department ex parte Pierson [1998] AC 539, R (Daly) v Secretary of
State for the Home Department [2001] 2 AC 532. They reflect the principles applied in other
situations where it is argued that the legislature has given the power to act
in a manner inconsistent with a basic right:
see e.g. R v Lord Chancellor, ex parte Witham [1998] QB 575, 581. The reason for this
requirement is perhaps best explained by Lord Hoffman in Simms (at p.131):
"Parliamentary sovereignty
means that Parliament can, if it chooses, legislate contrary to fundamental
principles of human rights. The Human
Rights Act 1998 will not detract from this power. The constraints upon its exercise by
Parliament are ultimately political, not legal.
But the principle of legality means that Parliament must squarely
confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by
general or ambiguous words. This is
because there is too great a risk that the full implications of their
unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or
necessary implication to the contrary, the courts therefore presume that even
the most general words were intended to be subject to the basic rights of the
individual."
I was also referred to the decision
of Lord Caplan and of the Inner House in Leech v Secretary of State for Scotland, reported respectively at 1991 SLT
910 (916L-917G) and 1992 SC 89. The
reasoning is to similar effect, though the precise outcome was the subject of
adverse comment by the Court of Appeal in the English Leech case.
[14] Mr O'Neill urged me to hold that fundamental rights could
only be taken away by express words or by necessary implication. I understood this to be advanced as a
principle of construction rather than as a question of competency. He contrasted "necessary" with "plain" or
"clear". I am not persuaded that this is
a real issue rather than one of semantics.
The point brought over forcibly by the judgments is that Parliament
should not be taken to have legislated to take away such rights unless that was
clearly shown, by the legislation, to have been its intention. In other words, the legislative intention
must be so clear that it cannot reasonably be thought that it may have "passed
unnoticed in the democratic process". It
is an unnecessary complication to ask whether that clarity arises by way of
express words or by reason of "obvious", "plain", "clear" or "necessary"
implication, still less to draw any conclusion from such a distinction. What is important is that Parliament's
intention to remove or interfere with such rights must be clearly
expressed. In Pierson, at p.575, Lord Browne-Wilkinson, having expressed
some doubt about the proposition that "basic rights" could be overridden even
by necessary implication, as opposed to express provision, took the following
proposition to be established:
"A power conferred by
Parliament in general terms is not to be taken to authorise the doing of acts
by the donee of the power which adversely affect the legal rights of the
citizen or the basic principles on which the law of the United Kingdom is based
unless the statute conferring the power makes it clear that such was the
intention of Parliament."
I am
content to adopt this test, which seems to me to be consistent with the
approach identified by Lord Hoffman in Simms.
The Strasbourg jurisprudence
[15] The case law from the
European Court of Human Rights points in the same direction. But it adds the requirement that the relevant
law should be both accessible and foreseeable.
I was referred to the following cases:
Eriksson v Sweden (ECtHR, 22 June 1989) at
para.65; Narinen v Finland (Application
No. 45027/98, 1 June 2004) at paras.35-39;
Doerga v
The Netherlands (ECtHR, 27 April 2004) at
paras.43-54; Ciapas v Lithuania (ECtHR, 16 November 2006) at para.25; Golder v United Kingdom (1975) 1 EHRR 524 at
para.44; Sunday Times v United Kingdom
(1979) 2 EHRR 245 at para.49; Silver v United Kingdom (1983) 5 EHRR 347 at paras.85-89; Malone v United Kingdom (1984) 7 EHRR 14 at
paras.68-69 ; and Kruslin v France (1990) 12 EHRR 547 at paras.31-32. I take the following
passage from Narinen
at para.34 as representative of the tenor of the judgments:
"The question
arises in the present case as to whether the measure was 'in accordance with
the law'. This expression requires
firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the
law in question, requiring that it be accessible
to the person concerned, who must moreover be able to foresee its consequences for him ..."
Mr Duncan founded upon the
expression "should have some basis in domestic law" and suggested that this was
a somewhat less stringent requirement than the common law requirement that the
legislative provision entitling interference with the right should be
clear. I am not persuaded that that was
the intention of the Strasbourg Court
in its judgments. If it were, it would
make no sense to insist on the requirement of foreseeability. In my opinion that expression simply means
that the interference must be justified under domestic law.
[16] Mr Duncan also pointed to the fact that in certain of
those judgments, notably in the Sunday
Times case and in Silver, the requirement for the domestic law to
be accessible was qualified by the word "adequately"; and the requirement of
foreseeability was interpreted as meaning that the law should be "sufficiently"
precise. He submitted that the requirements
of accessibility and foreseeability were both qualified. Whether the domestic law was adequately
accessible or sufficiently precise would depend on the nature of the particular
interference complained of, how important the right, how serious the interference
with it and the context in which the right is infringed. Just as a particularly serious interference
would require anxious scrutiny to ensure that the domestic law was both
accessible and foreseeable, so a less serious infringement would need less
scrutiny. I am prepared to accept that
the more serious the infringement, the more carefully the court will scrutinise
the legal basis for that infringement, if only because the question whether the
legislature could really have intended to permit such an infringement becomes
more stark. But I do not think one can
ever get to a position where the court requires less than clarity in the
legislative intent to permit the interference.
The same may be true of questions of accessibility and foreseeability,
though for my part I have some difficulty in seeing the distinction between
"foreseeability", as that expression is used in the Strasbourg jurisprudence,
and the domestic common law requirement that the legislation must be clear if
it is to have the effect of interfering with, or permitting interference with,
a basic right. However, I am not
persuaded that considerations of accessibility and foreseeability (in so far as
it does have some different meaning) arise in this case, and I propose to say
no more about them.
The
primary and secondary legislation
[17] It is appropriate at this
stage to consider the primary and secondary legislation upon which the
respondents rely. S.39 of the Prisons (Scotland)
Act 1989 ("the Act") confers a power to make rules "for the management of
prisons and other institutions", to quote the heading to the section. This section provides, so far as relevant, as
follows:
"39(1)
The Secretary of State may make rules for the regulation and management of
prisons, ... and for the classification, treatment, employment, discipline and
control of persons required to be detained therein."
Detailed Rules made thereunder are
contained in The Prison and Young Offenders Institutions (Scotland)
Rules 1994 ("the Rules"). Part 7 of the Rules deals with communication. Rule 54, which falls within Part 7, provides
as follows:
"54(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
should also be mentioned. It contains
provisions ancillary to the power of the Secretary of State to give a direction
under any of the Rules. It allows the
Secretary of State to make provision in the direction for the direction to
apply differently in respect of different cases or classes of cases. It also allows him to make further directions
which are incidental or ancillary to the main purpose of the direction.
[18] The decision to introduce the system for
the pre-recorded message on outgoing telephone calls was made by the Scottish
Prison Service and/or the Governor of the prison pursuant to a power given by a
direction purportedly made under Rule 54(2).
This is entitled The Prison and Young Offenders Institutions
(Communication) (Scotland)
(No.2) Direction 1999. It provides the
detailed directions with regard to the system for outgoing telephone calls
described in para.[3] of
this Opinion. Para.6(8)
of the Direction deals with the pre-recorded message and provides 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."
The
preamble to the Direction suggests that it was made by the Scottish Ministers.
There is an element of doubt about this, however, because it is signed by Mr
Hutchison, the Director of Strategy and Corporate Affairs, Scottish Prison
Service. Whilst reserving the right to
argue to the contrary if this case were to go any further, Mr O'Neill was
prepared to accept, for the purpose of the hearing before me, that the
Direction is to be treated as a Direction by the Scottish Ministers purportedly
made under Rule 54.
[19] Although Mr Duncan jibbed at the
description of the policy as a "blanket" policy, there is no doubt in my mind
that that is precisely what it is.
Mr Duncan did not challenge the fact that, as enunciated, the
policy in HM Prison Glenochil, and indeed in all
prisons in Scotland,
applied to all telephone calls from all prisoners. His point was that the operation of the
policy is tempered by discretion. The
pre-recorded message is part of the PIN system.
On occasions, where time has not allowed the list of pre-arranged
numbers to be amended, prisoners have been allowed, on compassionate grounds,
to make telephone calls outwith that system, and the pre-recorded message has
not been inserted in such calls.
Further, calls to solicitors and to the Scottish Prison Complaints
Commission ("SPCC") are outwith the PAN system.
To my mind, those exceptions do not prevent the policy being a blanket
policy, applicable to all prisoners in almost all situations. They simply show that, even under such a
blanket policy, exceptions may occasionally be made.
Discussion
[20] It was this blanket nature of the policy
which provided the focus of Mr O'Neill's argument. There might, he submitted, be a case for
targeted use of such a message, for example when the pre-approved number was a
shared telephone which might be picked up by any number of people. But there was no conceivable justification
for a blanket approach. The numbers had
been pre-approved. That meant that they
had already been checked to ensure that the prisoner could not make telephone
calls to victims or others who did not want to take calls from him. Further, the calls were, or could be,
recorded, so that any threats or harassment could be ascertained or
investigated and steps taken to prevent repetition. There might be exceptional cases in which a
pre-recorded message was justified, but they would be few and far between. A pre-recorded message on all calls could not
be regarded as relevant to the "regulation or management of prisons", nor to
the legitimate "discipline and control of persons required to be detained
therein", within the terms of s.39 of the Act.
In those circumstances the Act did not permit the introduction of the
blanket policy of attaching the pre-recorded message to outgoing calls. If, as appeared to be the case, the
introduction of that system was permitted in terms of the Direction, then the
Direction was ultra vires; or, if the Direction, being outwith the scope
of the powers conferred by the Act, was within the scope of the Rules, then the
Rules were ultra vires. That approach was consistent with the way the
House of Lords had approached the issue before it in Raymond v Honey.
[21] The English authorities to which I have been referred are concerned with powers
conferred by s.47 of the Prison Act 1952.
This is in materially the same terms as s.39 of the Prison (Scotland)
Act 1989. The section "is a section
concerned with the regulation and management of prisons": Raymond v Honey at p.13
per Lord Wilberforce. Lord
Bridge (at p.15) identified the
section as giving the power to make rules for the "discipline and control" of
prisoners. Both held the section was
"quite insufficient" or "manifestly insufficient" to authorise hindrance or
interference with the right of access to the courts. In Daly,
a blanket policy excluding prisoners from being present when legally privileged
correspondence was examined was held to be ultra
vires the power in the Act. In Leech, which was concerned with the
prison Governor's power to examine and stop letters written by a prisoner to a
solicitor, the Court of Appeal held that s.47 of the English Act conferred, by
necessary implication, a power to make rules to prevent the use of
correspondence to plan escapes or disturbances, to detect and prevent offences
being committed against the criminal law or against prison discipline, or in
the interests of national security (see p.213F-H); but that power did not extend to allowing the
reading of all correspondence between the prisoner and his solicitor; and
therefore Rules purportedly made pursuant to the rule making power in the Act
which permitted this as a matter of routine were too wide. In Simms
the issue was whether what amounted to a blanket exclusion of all professional
visits by journalists was justified on the grounds that to allow any interviews
would undermine control and discipline within the prison. It was held that the general wording of s.47
meant that the power to make rules was subject to fundamental civil liberties,
and the relevant Standing Order should not be construed as conferring the right
to impose an indiscriminate ban on all interviews with journalists such as
would infringe the right to seek access to justice. These cases were concerned with issues
relating to access to justice. That
ranks high in the pantheon of civil rights.
But the right to respect for family life and correspondence also ranks
high. In Watkins v Secretary of State
for the Home Department [2006] AC 395, 411, a case in which the prisoner
sought exemplary damages where the prison officers opened his correspondence
with his legal advisors in breach of Prison Rules, Lord Rodger of Earlsferry explained the background to the dispute in a way
which recognised that communications to family and friends were not in a
different category:
"My Lords, although
convicted of crimes and deprived of their liberty, prisoners have the right to
send and receive letters and to make and receive telephone calls. Many of the communications to relatives and
friends are social or deal with purely personal matters, but prisoners may also
wish to contact the courts or their legal advisers in relation to legal
problems, real or perceived. Whatever
the nature of the communications, there is a risk that some prisoners may abuse
the system to breach the security of their prison. The prison authorities can therefore take
measures to counteract that risk by opening, reading and, if necessary,
censoring or blocking correspondence.
The Secretary of State's authority for taking these measures is to be
found in the Prison Rules made under section 47(1) of the Prison Act 1952."
[22] From the terms of s.39 of the Act, from the Rules and from
these authorities, I take the following propositions. First, the rule making powers conferred by
s.39 are limited to the making of rules which have as their object the
regulation and management of prisons etc, and (so far as relevant here) the
discipline and control of prisoners.
Second, the power to make rules for the discipline and control of
prisoners permits the making of such rules not only for the purpose of prison
regulation and management but also to prevent the commission of crimes, the
obstruction of justice, the harassment of victims and other types of unlawful
behaviour. Third, such rules may impinge
upon communications with persons outwith the prison,
but only where that is necessary for the purposes which I have described. Fourth, except where they are necessarily
in conflict, the rule making power must be read consistently with fundamental
civil rights, on the basis that had Parliament intended to confer on the
Secretary of State, or now the Scottish Ministers, a general power to remove or
interfere with such rights, it would have said so clearly in the legislation
and not used general words. Fifth, so
far as it is possible to do so, the Rules should be read as not going beyond
what is authorised by s.39, and therefore as intra vires. In the present
case, Rule 54(2) is capable of being read as permitting the Secretary of State
or the Scottish Ministers to make directions of the type therein set out, but
only so far as consistent with the above, and I would so read it and, on that
basis, hold it to be intra vires. Sixth, in so far as the Direction or the
policy adopted in relation to prisons is inconsistent with s.39, or with Rule
54(2) properly so understood, it is ultra
vires.
[23] In the course of his submissions, Mr Duncan referred me
to the decision of the Court of Appeal in R
(Nilsen) v
Governor of Full Sutton Prison [2005] 1 WLR 1028. This is a case which has caused me some
concern, not because of the result, which was the prohibition of correspondence
which had as its aim the publication of a manuscript glorying in the prisoner's
crimes, but because of certain passages in the judgment which appear to give a
wider interpretation to the ambit of s.47 of the Prison Act 1952, and which
were therefore relied on to give a similarly wide ambit to s.39 of the Act with
which I am concerned. In rejecting the
argument for the prisoner that the section was concerned with the administration
of prisons and not with what went on outside prisons, Lord Phillips of Worth
Matravers, giving the judgment of the court, cited the following passage from
the judgment of Lord Steyn in Simms (at p.127):
"The value of
free speech in a particular case must be measured in specifics. Not all types
of speech have an equal value. For
example, no prisoner would ever be permitted to have interviews with a
journalist to publish pornographic material or to give vent to so-called hate
speech. Given the purpose of a sentence
of imprisonment, a prisoner can also not claim to join in a debate on the
economy or on political issues by way of interviews with journalists. In these respects the prisoner's right to
free speech is outweighed by deprivation of liberty by the sentence of a court,
and the need for discipline and control in prisons. But the free speech at
stake in the present cases is qualitatively of a very different order. The prisoners are in prison because they are
presumed to have been properly convicted.
They wish to challenge the safety of their convictions. In principle it is not easy to conceive of a
more important function which free speech might fulfil."
Lord Phillips went on to say that these decisions of
the House of Lords did not support the proposition that the ambit of the Prison
Act 1952 is restricted to what takes place within a prison. Thus far I take no issue.
[24] Lord Phillips continued, at para.19:
"Section 47 of the Act
speaks not only of regulation and management of prisons but control of
prisoners. If the passage that we have
just quoted from the speech of Lord Steyn is correct,
one legitimate aspect of a sentence of imprisonment is that it renders subject
to control the exercise of the prisoner's freedom to express himself
to those who are outside the prison."
That is
true, in my opinion, only up to a point.
I do not read the passage from Lord Steyn
as saying that the right of a prisoner to free expression may be restricted
otherwise than by reason of the need for discipline and control in prisons or,
more generally, the regulation and management of prisons, which will inevitably
curtail the ability of a prisoner to give interviews and meet journalists and
others. Had he meant that the prisoner's
right to free expression was liable to be taken away or curtailed regardless of
whether that was necessary for such purposes, he would surely not have
introduced his Opinion with the firm insistence, quoting from Lord Wilberforce
in Raymond v Honey, that "it is well established that that 'a convicted
prisoner, in spite of his imprisonment, retains all civil rights which are not
taken away expressly or by necessary implication'".
[25] At para.22, Lord Phillips says this:
"Criminals
who are deprived of their liberty by a sentence of imprisonment are deprived of
enjoyment of their possessions and of communication with the outside world,
save in so far as the prison authorities permit this. Prison rules must necessarily make provision
for the use prisoners may make of their possessions and for what may be sent
from the outside world in to prisoners and what prisoners may send out. Miss Foster does not challenge this. The issue is the matters to which the
Secretary of State can properly have regard when
making rules in relation to these matters."
I have no difficulty with that
passage. But he continued (at para.23):
"In R (Mellor) v Secretary of State for the Home Department [2002] QB 13 Lord Phillips of Worth Matravers MR, with whose judgment the other two members
of the court agreed, analysed the speeches in Simms at some
length. He concluded, at para 52, that they recognised that
a degree of restriction of the right of freedom of expression was a justifiable
element in imprisonment, not merely in order to accommodate the orderly running
of a prison, but as part of the penal objective of deprivation of liberty."
At paras.25 and 26 he came to the following conclusion:
"25. Penal
legislation is not required to spell out those aspects of a prison regime that
properly constitute an incident of the punishment of deprivation of
liberty. The powers conferred on the
Secretary of State under the Prison Act 1952 include, at least, the power to
have regard, when regulating what a prisoner can and
cannot do, to the natural incidents of penal imprisonment.
26. It is not so easy to define the test of
what are the natural incidents of penal imprisonment, and these are certainly
susceptible to change as a result of changes in attitude to punishment. In Mellor [2002] QB 13, para 65 Lord Phillips of Worth Matravers MR expressed
the view:
'Penal sanctions
are imposed, in part, to exact retribution for wrongdoing. If there were no system of penal sanctions,
members of the public would be likely to take the law into their own hands. In
my judgment it is legitimate to have regard to public perception when
considering the characteristic of a penal system.'
We endorse that
statement. In considering what
restrictions can properly be placed on prisoners as natural incidents of
imprisonment regard can be had to the expectations of right thinking members of
the democracy whose laws have deprived the prisoners of their liberty."
[26] Lord Phillips' remarks in these passages may be interpreted as
supporting the view that a sentence of imprisonment not only deprives the individual
of his liberty and of such rights as are inevitably lost or curtailed in
consequence of his detention, but also subjects him to the removal or
curtailment of such further civil rights as the Secretary of State may in his
discretion decide, having regard to the expectations of society that prison
should place additional restrictions on prisoners by way of punishment. If that is the approach which he is adopting,
I would not apply it to Scotland unless forced to do so by authority binding on
me: first, because it appears to fly in the face of the principles enunciated
time and again by the House of Lords in the passages cited in para.[12] above;
second, because if it is thought appropriate, whether because of public
opinion or otherwise, to impose additional punishment upon convicted prisoners
in addition to their loss of liberty and the restriction of civil rights
necessarily consequent thereon, this is a matter for Parliament; and, third,
because once one moves away from the notion that deprivation of civil rights is
justified by reference to the need for regulation and management of the prison,
it is difficult to see what test would be put in its place to prevent the
discretion being exercised in a wholly arbitrary manner.
[27] The only challenge to the policy in these proceedings is to the
pre-recorded message. There is no
challenge presently to the system of having 20 pre-approved numbers (PAN), nor
to the logging of calls by virtue of the PIN numbers, nor
to the recording or monitoring of calls.
Given the safeguards provided by the PAN and PIN systems and the
recording and monitoring of calls, I can see no justification in terms of s.39
of the Act for the addition, at least as part of a blanket policy, of a
pre-recorded message telling the recipients of telephone calls that the call is
from a prison. Those safeguards would
appear to be entirely adequate to deal with any concern that the prisoner might
seek to make unwanted calls to his victims or to vulnerable witnesses. If, despite these safeguards, there is
perceived to be a risk in a particular case, some form of message, pre-recorded
or otherwise, could be attached on a case by case basis. A blanket policy such as this does not appear
to be a restriction made necessary by the need for regulation or management of
the prison nor for the discipline and control of prisoners. Indeed, since the message is designed to give
information only to the recipient of the call, I cannot see how it could be
justified even on the widest interpretation of the words of s.39 - it does not
discipline or control the prisoner so much as provide information to someone
outside the prison. There is, in my
opinion, no power clearly given by the Act, whether expressly or by necessary
or obvious implication, to interfere with the prisoner's civil rights in this
way.
[28] The justification put forward by the respondents is set out in
their Answer to Statement 16 of the Petition.
They say this:
"Rule 54(2)(c) provides that a Direction may be made in relation to
the conditions applicable to the use of a telephone. That provision carries the clear implication
that any Direction promulgated in connection with telephone use may restrict or
impinge upon use of the telephone.
Plainly, given the terms of 54(2)(b) any
restriction under 54(2)(c) will not relate to restrictions in time and duration
of use. Further, the terms of Rule 54(2)(d) carry the plain implication that any Direction may be
made in connection with logging, monitoring and recording of telephone
calls. As the purpose of the
pre-recorded message and the relevant part of the Direction is intended at
least in part to serve as a warning that the power to log, monitor and record
calls is indeed being exercised, the Direction flows from that provision. Given the terms of 54(2)(c)
and (d) the Direction is incidental to and consequent on the Rules. The pre-recorded message does not intrude
into the substance of [the] prisoner's telephone calls."
This
passage presents three distinct arguments.
[29] The first is that the policy is
permissible on a proper construction of the Rules. I do not accept this. If the Rules are assumed to be intra vires, they cannot give the prison
authorities greater power than that authorised by s.39. They cannot give the prison authorities power
to interfere with the prisoner's right to respect for family life and
correspondence otherwise than for the purposes identified in that section. I note that the respondents' argument
addresses itself only to Rule 54(2).
They do not present an argument that the policy falls within s.39 if the
ambit of that section is as I have construed it (see para.[22] above). If, on
a proper construction, Rule 54(2)(c) only had any content if it were taken to
authorise interference with the prisoner's civil right otherwise than for the
purposes identified in the Act, that Rule, or at least that part of it, would
be ultra vires. But since I do not take that view of Rule
54(2)(c), that question does not arise.
[30] Skipping for the moment over the second
argument, the third argument is that the substance of the
telephone calls are not affected by the pre-recorded message. That may be so, but I do not think that it is
relevant. The complaint is about the
off-putting effect of the pre-recorded message when the recipient of the
telephone call picks up the telephone.
Since it is accepted that Article 8 is engaged, I do not think that this
argument goes anywhere.
[31] I was at first troubled by the second
argument, which is that the Direction is intended at least in part to serve as
a warning that the call might be logged, monitored and/or recorded. But on reflection, I consider that
Mr O'Neill was correct in submitting that there was nothing to stop such a
warning being given, if necessary by pre-recorded message, without reference to
the fact that the call comes from a prison.
The respondents made no averments that this would be ineffective and
Mr Duncan advanced no argument to that effect.
[32] In the circumstances I consider that the
respondents have not made good their contention that the policy is authorised
by s.39 of the Act or by necessary implication therefrom. Given the limited nature of the justification
put forward by the respondents, I do not think that there is anything to be
gained by appointing the case to a second hearing at which all the evidence and
arguments on the entire case would be deployed.
Disposal
[33] I shall therefore sustain the petitioner's
second plea-in-law and grant declarator in terms of the prayer in Statement
4(a) of the Petition, to the effect that para.6(8) of The Prison and Young
Offenders Institutions (Communication) (Scotland) (No.2) Direction 1999, and
the Governor's introduction of a new telephone system in reliance thereon,
providing for all outgoing prisoner calls to be preceded by a recorded message
advising recipients that the call is from a prison, are unlawful by virtue of
Article 6(1) of the Human Rights Act 1998 and ultra vires under reference to s.57(2) of the Scotland Act 1998
Additional observations
[34] I should add two comments. The first is to make it clear that my
decision is simply that the blanket policy of ensuring that all outgoing calls
are preceded by this particular recorded message identifying the call as having
come from a prison was not made with the authority of Parliament. For that reason it fails the "in accordance
with law" test in Article 8(2) of the Convention; but it would in any event
have been ultra vires on common law
principles. Had I come to a different
view, I would then have had to move on to consider the essentially Human Rights
questions of whether the admitted interference with the right, albeit in
accordance with domestic law, was necessary and proportional. The same exercise will, of course, be
necessary if the legislature decides to give clear authority for the insertion
of a pre-recorded message of this sort.
Much of the force of the criticism might fall away were the respondents
to move away from the present blanket policy to one where the pre-recorded
message was used only when shown to be necessary for one of the purposes
embraced within s.39 of the Act.
[35] The second comment is by way of
observation. The policy has twice been
challenged before the Scottish Prison Complaints Commission, in 1999 and
2005. On both occasions the criticisms
of that part of the policy dealing with the pre-recorded message have been
upheld. At the time of the first such
complaint, the system was only in operation at Kilmarnock
prison. The formal recommendation of the
Commissioner was that there was no lawful authority for that practice. The Direction was introduced after that
complaint, no doubt to meet this concern, but it was accepted before me that
the Direction did not have legal effect.
The respondents continued to "roll out" the system across all the
prisons in Scotland. The Commissioner's formal recommendation in
January 2005 arising from the second complaint stated that it was highly
questionable whether the policy could be justified by Rule 54(2)(c). As I understand
it, the respondents have declined to accept that decision.
