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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Potter v. The Scottish Ministers [2007] ScotCS CSIH_67 (21 August 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSIH_67.html Cite as: [2007] ScotCS CSIH_67, [2007] CSIH 67 |
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord PresidentLord Nimmo SmithSir David Edward, Q.C. |
[2007] CSIH 67P2183/06 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
Alt: Moynihan, Q.C., Crawford; Office of the Solicitor to the Scottish
Executive (Respondents and Reclaimers)
The petitioner
The statutory
provisions
[2] The Prisons (
"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 (
"(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
"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."
"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 (
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
"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
[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."
The Lord Ordinary's
treatment
[13] Before turning
to the pertinent primary and secondary legislation the Lord Ordinary referred
to the common law context against which the construction of such legislation
required, he said, to be addressed. He
noted that it was accepted by counsel then appearing for the Scottish Ministers
that the right to respect for private and family life, and for home and
correspondence, was a civil right at common law regardless of the
Convention. Whatever name one chose to
give it, it was, the Lord Ordinary said, one of the rights which the common law
had long recognised as inherent in the rule of law in a free and democratic
society; it
would not readily be presumed that Parliament intended to remove such rights
unless the particular piece of legislation quite clearly reflected that
purpose. He referred to and cited from a
number of familiar English and Scottish authorities, namely in the order
discussed by him, Raymond v Honey [1983] 1 AC 1, R v Secretary of State for the Home Department, ex parte Leech [1994] QB 198, R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, 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, R v Lord Chancellor, ex parte Witham [1998] QB 575 and Leech v Secretary of State for Scotland 1991 SLT
910 and 1992 SC 89.
"The [telephone] 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."
The narrative of the contention continued:
"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."
"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."
[17] The Lord
Ordinary then proceeded to discuss certain remarks made by Lord Phillips of
Worth Matravers (then Master of the Rolls) in delivering the judgment of the
Court of Appeal in R (Nilsen) v Governor of Full Sutton Prison [2005] 1 WLR 1028 and at paragraph [27] continued:
"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."
"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."
The submissions of
parties
[19] Mr. Moynihan
for the Scottish Ministers, in inviting the court to recall the Lord Ordinary's
interlocutor, observed that no complaint was made by the petitioner about the
pre-recorded message other than about its first sentence; there was no challenge to the
lawfulness of there being control over access to the telephone, of the logging
or monitoring of calls or of some pre-recorded message preceding calls. The Lord Ordinary had erred in holding that
he could decide the case without reliance on disputed facts. In particular, he had erred by accepting the
petitioner's gloss on the agreed proposition that telephone numbers had been
pre-approved, namely, that 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".
As the Scottish Ministers averred, given the facility for a prisoner to
provide a list of up to twenty numbers and for five of these to be changed in
any week, it was not practical to seek in advance the agreement to being included
in the list of those whose telephone numbers were listed. He had also erred in his approach to the "chilling
effect" of the inclusion of the first sentence of the message, failing to
recognise that this was not admitted by the petitioner. The thrust of the policy was to protect any third
party from receiving an unwelcome oral communication from a prisoner. The Lord Ordinary had approached the question
of vires from a "monocular"
viewpoint, namely, with the interests of the prisoner alone in mind and
ignoring the legitimate interests under Article 8 of those affected or
potentially affected by his actings. A
purpose of the pre-recorded message was to alert the recipient of the call to
the fact that the call was being monitored.
What was said during such a call might be reported and used with a view
to prosecution (
[20] Miss O'Brien
for the petitioner invited the court to adhere to the Lord Ordinary's
interlocutor. While under Article 8 a
balancing exercise might arise, that was not inevitably so. The first step was whether the measure
complained of was "in accordance with the law".
The Lord Ordinary had been correct to address that question first and,
having done so, to answer it as he had.
The severability of these two aspects of paragraph 2 was plain from
European jurisprudence. Reference was
made to Narinen v
Discussion
[21] The question
whether a measure is "in accordance with the law" requires in the first place
interpretation of the domestic law by the national courts (Eriksson v
[22] The measure,
the legality of which is in issue in this petition, is the Prisons and Young
Offenders Institutions (Communication by Telephone) (Scotland) (No. 2)
Direction 1999 which, by paragraph 6(8), empowered the Governor to arrange for
all telephone calls from PIN number phones to be preceded by a recorded
telephone message. The Governor of the
prison where the petitioner is held has exercised that power. The recorded message opens with a statement
that the call is coming from a Scottish prison.
The Direction was purportedly made under powers conferred on the
Scottish Ministers by section 39 of the Prisons (
[23] It follows
that, in the present case, there exists a hierarchy of legal texts (statute,
Rules and Directions) which, according to their terms, expressly authorise an
arrangement whereby a recorded message including that opening statement
precedes the connection of the caller with the recipient. Accordingly, the primary question on this
aspect of the present case is whether the Direction, purportedly made under
powers conferred by the statute and Rules, is properly within the powers so
conferred. If that question is answered
in the affirmative, subsidiary legal questions may arise under
[24] Although
section 39 was enacted in 1989, section 3 of the Human Rights Act 1998 enjoins
the court, in so far as it is possible to do so, to read, and give effect to,
section 39 in a way which is compatible with Convention rights. The wide scope of that interpretative
injunction was recognised in Ghaidan v
Gadin-Mendoza [2004] UKHL 30, [2004] 2 AC 557. Where a Convention right is
engaged, a relevant statutory power may require to be read more broadly or more
narrowly or in some other way than a literal interpretation of it would suggest. Where more than one Convention right is
engaged and where these rights are not in harmony, one with another, the
interpretative exercise will be particularly difficult - as an attempt will
require to be made to reconcile the competing interests. A compromise may require to be come to. As, however, the exercise is one of
interpretation of law and as the law cannot be different depending upon which
interest is being pursued in a particular action, we reject the proposition
advanced by Miss O'Brien that section 39 falls to be construed exclusively from
the perspective of the petitioner, the claimant in this process. Any relevant and material competing
interests, having a basis in a Convention right, must also, in our view, be
taken into account.
"Given that at the heart of this case
lies the question whether a necessary implication wide enough to validate rule
33(3) [of the Prison Rules 1964] can be established, it is important to
consider whether an objective need for a rule such as rule 33(3) in the
interests of the regulation of prisons can be demonstrated".
The approach of considering "objective need" for the rule in
question appears to be expressly approved by Lord Bingham of Cornhill in R (Daly) v Secretary of State for the Home Department at paragraph 10 (pages
539-40). It follows that consideration
of the question of vires under
domestic law will involve, in appropriate cases, consideration of the
"objective need" for the measure in question.
To put the matter another way, consideration of vires under domestic law may involve consideration of matters
similar to those that will normally arise, under
"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."
Later in the same paragraph he says:
"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 ... "
It is not clear whether, by reference in the first passage
quoted to "other types of unlawful behaviour", the Lord Ordinary has in mind
behaviour which would involve infringement of the Convention rights of the
recipients of a call from a prisoner. He
nowhere expressly says so. The point may
not have been put to him distinctly in argument. But the legitimate interests of such
recipients must, in our view, be taken into account in construing the scope of
the power conferred by section 39 and in so determining the lawfulness of the
measure impugned.
"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."
It is not, however, altogether clear
whether at this point the Lord Ordinary, despite his reference to section 39,
is addressing the issue of the construction of that power or is straying into
the separate issue of whether the addition of the statement complained of in
the pre-recorded message is proportionate.
But, on the assumption that the first alternative is the case, it
appears that the "safeguards" referred to must include the Lord Ordinary's
gloss on the statement that the numbers had been pre-approved which, as noted
above, is disputed. Otherwise, it is
difficult to see that the Lord Ordinary could have regarded the safeguards as "entirely
adequate to deal with any concern that the prisoner might seek to make unwanted
calls to his victims or to vulnerable witnesses".
Disposal
Addendum
[31] We would add
this. The discussion before us proceeded
on the premise that Article 8 was "engaged".
While it is clear that telephone conversations are covered by the
notions of "private life" and "correspondence" in that Article (Klass v Germany (1978) 2 EHRR 214; Halford v United
Kingdom (1997) 24 EHRR 523), we are not to be taken as holding that all
aspects of the use of telephones (including the use of pre-recorded messages)
are necessarily so covered. That issue
will require to be determined in due course.
